The People Themselves: Popular Constitutionalism and Judicial Review

Larry D. Kramer has constructed a masterful work here that belongs in every American's library. When it comes to subjects like judicial review, many author's, themselves often constitutional attorneys, have a tendency to go out of their way to try to write "over the head" of the political novice. Not the case with Kramer's work. He writes in a succinct fashion that will be appreciated by both judicial professionals and constitutional beginners alike.Much evidence is found here which doesn't really repudiate, and in many ways, supports that judicial review was in fact, the intent of the framer's and perhaps even a logical conclusion. Kramer doesn't really attempt to defy the judiciary claim of their right of review, but beyond that point, Kramer takes the gloves off and pounds away at what he categorizes as "judicial tyranny", the court usurping it's constitutional boundaries.Kramer details the 200 year evolution of the court's abuse of power, beginning before MARBURY when the idea of judicial review came into play, through what we find today with the judiciary legislating from the bench and completely dismissing state's rights. It is also most interesting how the author chronicles Madison's changing opinion of judicial review.This book, in many ways, mirrors and supports the earlier work by Martyn Babitz, THE ILLUSION OF FREEDOM, where both authors support Madison's concession that the "states only political recourse [over the federal courts] is through elections and impeachment". But Kramer hints of other possibilities at controlling our out of control judiciary in his epilogue when he writes;"The Constitution leaves room for countless political responses to an overly assertive Court: Justices can be impeached, the Court's budget can be slashed, the President can ignore its mandates, Congress can strip it of jurisdiction or shrink its size or pack it with new members or give it burdensome new responsibilities or revise its procedures."Interesting possibilities, to be sure. In conclusion, I believe Kramer concedes judicial review as bona fide, but constructs a solid foundation to dispute the notion of judicial supremacy. This is a very enjoyable book that I learned a great deal from. The book at times, does read a bit slow, but that has nothing to do with Kramer's writing style, it has to do with the fact that you are constantly finding new information and referring back to the bibliography, which will no doubt lead the reader to numerous other books to add to your reading list. I look forward to future books by this author.Monty RaineyJunto Society

At the outset, I should say that anyone who is interested in constitutional development and/or theory ought to read this book. It is well-written, creative, and thought-provoking. On the other hand, I cannot help but feel that the author wrote two books, one of which was long (the historical part) and one of which was very short (the normative part). I'm still not clear on how Kramer envisions judicial review w/out judicial supremacy in practice and I also think that he may underestimate the risks of undermining judicial supremacy, which, for better or for worse, Americans have gotten used to. I just wish that he had better defended some of the normative claims that he made in the last chapter, which I found to be the most interesting part of the book, and really engaged the owrries that Tribe and Dworkin (and many others) have raised about more popular forms of constitutionalism. I would be surprised if Kramer would be pleased by Newt Gingrich's favorable review of his book; it shows that popular constitutionalism may have conservative political implications that someone like Kramer would be hesitant to embrace. Indeed, many left-leaning law professors are attracted to various forms of popular constitutionalism in the first place, precisely because they're so unhappy w/ a federal judiciary that is dominated by conservative jurists. At any rate, I highly recommend this book, and I would encourage the reader to make up his or her own mind about its merits.

Through this epic history, Dean Kramer reminds us of the tradition (as old as our Republic) that We The People are the supreme authority to interpret--explain and shape--the Constitution of the United States.

Excelent

In "The People Themselves," Stanford Law School Dean Larry Kramer explains one of the great mysteries of modern America - why, for 40 years, have the freest people in the world been powerless to stop courts of appointed lawyers from eroding their freedoms?This phenomenon - a relentless drive by a liberal establishment toward a secular, multicultural, values-neutral and historically ignorant country at odds with the values of the vast majority of Americans - is powerfully captured in Samuel Huntington's recent work, "Who Are We?" But Huntington does not present a solution to the problem.Kramer's book explains what we can do about it. By chronicling the history of constitutional interpretation, Kramer makes clear that the Founding Fathers decisively rejected judicial supremacy.He explains how Jeffersonians learned to distrust English judges when they represented the King's tyranny, and later learned to distrust district judges when the Federalists passed the Alien and Sedition Acts and locked up Jeffersonian activists.When the Federalists lost the election of 1800, they more than doubled the number of Federal circuit judges, appointing 18 Federalists during the lame-duck Congress of 1801. In response, Jefferson simply eliminated the 18 judgeships that the Federalists had created.Kramer makes the case that Marbury v. Madison, which established the principle of judicial review, must be read within the context of this presidential-legislative assault on the judiciary. Jefferson often repudiated the notion of judicial supremacy, claiming it would create "an oligarchy." Kramer convincingly argues that Justice John Marshall was careful not to assert judicial supremacy in the 1803 decision so as to avoid a conflict with the president and the Congress he knew he could not win. But today, Kramer continues, law schools explicitly misread that event and use it to create lawyers who arrogate to themselves far more power than the Constitution provides.Kramer blames the recent rise of judicial supremacy theory on the Warren Court. He notes that the Warren Court judges actually signed an ad asserting judicial supremacy and profoundly misrepresented Marbury v. Madison.The book's strength is its combination of historic detail with Kramer's clear distinction between interpreting the meaning of the Constitution and interpreting the meaning of ordinary law. He makes clear that the Founding Fathers felt that it was the people who would decide the interpretation of the Constitution through their elected officials, not appointed lawyers through their decisions.Kramer notes that the Dred Scott decision, far from proving judicial supremacy, led to a Civil War in which the American people decisively repudiated the Court's position. He argues that FDR won the fight with the Supreme Court in 1937 because the judges shifted their opinions to avoid having the Court packed. And Kramer asserts it was the Warren Court which unilaterally ended this balance of power established in 1937 and sought to make the Supreme Court preeminent over the Legislative and Executive branches.Kramer's book provides ammunition for those tired of appointed lawyers on benches rewriting the Constitution.A president and Congress who represent the will of 91 percent of the people (the number who favor keeping "under God" in the Pledge of Allegiance) could eliminate those judges on the Ninth Circuit who were so out of touch with America that they ruled it unconstitutional.Furthermore, the Congress and the president can combine to block the courts from even considering cases on the Pledge, school prayer, marriage and other topics the American people overwhelmingly favor.Kramer has written a manual on how the American people can legitimately exercise their historic right to create what he calls popular constitutionalism.

Thanks!

Kramer offers us a new perspective on the meaning of our constitutional practice. Should courts have the last word in matters of constitutional interpretation? What is the role the people themselves in interpreting the constitution? These are questions worth answering, and Kramer's book sets out to do so.