Are "The People" Missing in Action (and Should Anyone Care)?

TLDR: Kramer's The People Themselves as mentioned in this paper is a history of popular constitutionalism in America, focusing on the early years of the 20th century when the Court was the sole authoritative expositor of the United States Constitution.

Abstract: Are "the People" Missing in Action (and Should Anyone Care)? THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW By Larry D Kramer[dagger] New York: Oxford University Press, 2004 Pp xii, 363 $2995 For almost a half century, the Supreme Court has claimed that it is the final authority on the meaning and interpretation of the Constitution1 This notion is most forcefully asserted in the O'Connor-Kennedy-Souter opinion in Planned Parenthood v Casey, where the trio argued that when the Court decided a contentious constitutional issue, it was the duty of all Americans to put their differences aside and follow the Court's lead2 Subsequently, in Boerne,3 Dickerson,4 and Morrison,5 a majority of the Court signaled their adherence to the belief that the Court is the sole authoritative expositor of the Constitution This allegiance was subsequently validated when awestruck Democrats conceded that Bush v Gore6 (while disagreeable and wrong) was within the Court's province as "the ultimate interpretation of our Constitution" and had to be accepted7 If the ranking Democrat on the Senate Judiciary Committee believes this, it is no wonder that ordinary citizens do not "gainsay" the Court8 It wasn't always like this Thomas Jefferson never believed that the judiciary had the last word9 Andrew Jackson vetoed the rechartering of the Bank of the United States,10 showing his contempt for McCulloch v Maryland11 Abraham Lincoln and the Republicans rejected Dred Scott12 and refused to be bound by it (except in its exact holding that Scott was not free)13 Franklin D Roosevelt had prepared a message announcing that he would ignore the Court's decision in the Gold Clause Cases14 And if the Court had intervened uninvited into the deadlocked presidential election of 1876,15 the losers would not have been resigned to claiming "we've been robbed"16 Larry Kramer's The People Themselves demonstrates that "[t]his modern understanding reflects neither the original conception of constitutionalism nor its course over most of American history"17 Thus until the modern era, "[P]roblems of fundamental law-what we would call questions of constitutional interpretation-were thought of as problems that could be authoritatively settled only by 'the people' expressing themselves through"18 voting, petitioning, pamphletting, public meetings, as well as through intimidation of officials, and, if necessary, mob action19 This was a world of popular constitutionalism where the people exercised "active and ongoing control over the interpretation and enforcement of constitutional law"20 The Court was one, but only one, player in identifying the meaning of the Constitution Although Kramer is not an originalist,21 The People Themselves is a plea for the revival of the beliefs and actions of this earlier period While Kramer's history through the Jacksonian Era is sound, his conclusions about the past fifty years are deeply flawed First, he is oblivious to numerous modern movements that have vigorously opposed, in a variety of forms and fora, the Court's interpretation of the Constitution second, a look at these movements raises serious questions regarding how normatively attractive popular constitutionalism is in our era It may be, contrary to Kramer's position, both that we still have popular constitutionalism and that we would be better off without it I see four possibilities that may explain why I can see popular constitutionalism where Kramer does not First, Kramer's interpretation of what constitutes popular constitutionalism may be so elusive that only he can apply it Second, perhaps Kramer is indifferent to American constitutional development (outside the Court) after the Court-packing plan Third, maybe Kramer sees popular constitutionalism only when he approves of the goals of the protestors Finally, maybe deeds alone are insufficient for Kramer and without the requisite magic rhetoric they do not carry the appropriate meaning …