Popular constitutionalism: But how would the people rule?

Fifteen years ago, Larry Kramer’s book The People Themselves: Popular Constitutionalism and Judicial Review (Oxford University Press) challenged the conventional understanding of judicial review and introduced popular constitutionalism to a modern audience. To Kramer, the modern application of judicial review is, in reality, “judicial supremacy,” which he defines as “an ideological tenet whose whole purpose is to persuade ordinary citizens that, whatever they may think about the Justices’ constitutional rulings, it is not their place to gainsay the Court.” (233). This deference Kramer argues, should be rejected. In its place, he advocates for popular constitutionalism, where “the people”—not the Supreme Court—have final say about what the Constitution means.

The book’s provocative thesis spurred numerous reviews, essays and symposiums. Discussions ranged from the historical origins of “judicial supremacy” to how popular constitutionalism could work in our modern day. Popular and academic reaction to The People Themselves was no doubt due in part to the book’s compelling historical narrative, which winds through past speeches, letters and anecdotes to support the historical argument that, in America, “[f]inal interpretive authority rested with the people themselves.” (8). Indeed, a significant portion of the book takes place in the Founding era and persuasively demonstrates that the contemporary view of judicial review was not on many of the Founders’ minds during the Republic’s early years.

Beyond the book’s fascinating historical story, many readers then (and today) were certainly intrigued by the practical implications of popular constitutionalism. The book was written only a few years after the Bush v. Gore decision, and the subsequent fifteen years have done little to assuage some of the public’s political frustrations with the Court. Recent decisions concerning Obamacare and campaign finance, for instance, have irritated the right and left. Congress has only added fuel to the fire. The Senate refused to consider President Obama’s nomination of Judge Merrick Garland’s to the highest court, in hopes a new president would offer up a more conservative nominee. The chamber abolished the filibuster —first for lower court nominees by Senate Democrats and second for Supreme Court justices by Senate Republicans— which means nomination votes are often nakedly partisan. Justice Brett Kavanaugh’s confirmation exhibited the worst of Washington politics, and recently some have endorsed impeaching politically unfavorable justices or adding seats to the Court in order to gain an ideological advantage on the bench.

These political tit-for-tats make popular constitutionalism an attractive alternative. With popular constitutionalism, the people ultimately control the interpretation of constitutional law. Of course, the “people” may exercise this power in different ways. In the colonial era, mobs were one method of popular constitutionalism, and soon became “critical elements of colonial opposition to imperial policy.” (27). As the nation developed, though, popular constitutionalism was seen as better exercised through “working through and responding” to the people’s political representatives. (7). Either way, the idea of fully turning over the interpretation of the Constitution to judges, Kramer argues, “was simply unthinkable.” (7).

What are the benefits of popular constitutionalism? With judicial review drastically curtailed, perhaps there would be less pressure for politicians to play games with judicial confirmations, fewer incentives to make political statements in court pleadings and complaints, and, above all, less reliance (or hope) on the judiciary to shape the policies or practices the political branches are increasingly unable—or unwilling—to do themselves. It follows that if the Court no longer had the final say over what the Constitution means, then perhaps judges could go back to judging and politicians could go back to politicking, and potentially the often-blurred lines between the two institutions would become clearer.

Irrespective of these potential benefits, popular constitutionalism may not be manageable in our modern federal framework. As Kramer wrote for one symposium two years after the book’s release, “[d]irect democracy can exist in a meaningful fashion only in tiny communities. Popular constitutionalism on any larger scale must take place through some set of mediating institutions.” Today, these mediating institutions would most often be Congress and the executive branch, but at other times may include local governments and political organizations.

A few notable problems immediately come to mind. The first is that, unlike legal decision making, public policy decision making is largely outcome focused. (Any suggestion that the judiciary, as a whole, shares the same nakedly partisan ambitions as politicians or party leaders is a deeply cynical and unpersuasive view of the federal courts.) As a result, since institutional ambitions differ between the judiciary and political branches, it is inevitable that legal consistency—a benefit of modern judicial review—would soon go by the wayside.

Others concerns loom. Which institutions best speak for the people? Local grassroots organizations or federal representatives? Similarly, which institutions are most worthy of denying the court’s authority? Divisive governors? Unchecked police departments? Intolerant municipalities? Another potentially more damaging consequence of popular constitutionalism in the modern age is that the presidency is the institution most likely to benefit. Congress’ continuing deference to the executive branch gives the president a disproportionate advantage in defying the court and acting unilaterally. Near the end of The People Themselves, Kramer argues that “supporters of judicial supremacy are today’s aristocrats.” (247). Yet modern day popular constitutionalism brings the potential to add a mini-monarch to the mix.

Importantly, even without popular constitutionalism, the people are not hopeless to change the court or its ideology. The people themselves can vote for presidents who pledge to nominate certain justices and for senators who campaign on confirming them. Their elected representatives enjoy all sorts of influence. As summarized in the book’s epilogue, Congress has the power to strip parts of the court’s jurisdiction, shrink its budget, add new obligations, or—more radically—change its composition or choose to impeach. Some of these plans are unpopular and likely unwise, but the tools are nonetheless available. When it comes to curbing the potential threat of judicial supremacy, the political branches always carry an institutional ace in the hole.

The People Themselves is an enthralling challenge to our comfortable assumptions about judicial power and legitimacy. Kramer’s historical story is compelling and his thesis is powerful. In the end, though, the potential merits of popular constitutionalism may not justify the turmoil it would instigate. Yet, fifteen years later, Kramer’s work remains just as relevant and should serve as a frequent reminder that institutions—including the courts—rely on public confidence and legitimacy, which is lost far more quickly than it is gained.