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Journal Article

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

01 Feb 2005-Texas Law Review (University of Texas, Austin, School of Law Publications, Inc.)-Vol. 83, Iss: 3, pp 855
TL;DR: 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 …
Citations
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Journal ArticleDOI
TL;DR: Wang et al. as mentioned in this paper argue that the Chinese Communist Party has adopted a unique understanding of law, which considers law as a reflection of the party's and the people's will and a form of self-discipline.
Abstract: This article argues that the Chinese Communist Party has adopted a unique understanding of law. Unlike the liberal view and the unwritten constitution view, which generally consider law as positive norms that exist independently of politics, the party understands law as a reflection of the party’s and the people’s will and a form of the party’s and the people’s self-discipline. In the party’s view, liberal rule of law theories are self-contradictory, illusive, and meaningless. This article argues that the party views the people as a political concept and itself as a political leading party, marking a fundamental difference from a competitive party in a parliamentary system. The legitimacy of the party’s dominant role and the party-state regime, therefore, depends on whether the party can continue to provide political momentum to lead the people and represent them in the future.

27 citations

Dissertation
26 Jul 2005
TL;DR: Hays as discussed by the authors explores the phenomena of parties using courts to diffuse intra-party tension by displacing highly divisive issues onto the national judiciary and reveals a pattern whereby the dominant wing of the party-in-power consistently secures its preferences through the courts to the detriment of minority wing preferences.
Abstract: Title of Dissertation: PARTY WITH THE COURT: POLITICAL PARTIES AND THE NATIONAL JUDICIARY IN THE CREATION, MAINTENANCE, AND TRANSFORMATION OF POLITICAL ORDERS Bradley D. Hays, Doctor of Philosophy, 2005 Dissertation directed by: Professor Mark A. Graber Department of Government and Politics In the United States, the national judiciary plays a vital role in the creation, maintenance, and transformation of political orders. Political parties, the institutions primarily responsible for the operation of a political order, tend to be large and heterogeneous. This heterogeneity creates disjunction within the party and threatens to undermine partisan unity. In order to hold power over an extended period of time, parties-in-power must diffuse their intra-party tension. This dissertation explores the phenomena of parties using courts to diffuse intra-party tension by displacing highly divisive issues onto the national judiciary. This exploration reveals a pattern whereby the dominant wing of the party-in-power consistently secures its preferences through the courts to the detriment of minority wing preferences. To elucidate this pattern, three different political orders are examined. First, the Republican political order is examined to reveal how the dominant, conservative wing of the Party used the courts to protect against invasive regulatory schemes favored by the progressive, minority wing of the Party. Second, an examination of the New Deal/Great Society Democratic political order reveals the role the courts played in enabling the liberal, dominant wing of the Party to circumvent conservative, minority wing obstruction of civil rights and how the courts helped liberal Democrats woo African American voters so as to transform and liberalize the Democratic Party. Third, the period of divided government is detailed to reveal how the dominant, economically conservative wing of the Republican Party uses the Supreme Court to manage issues highly salient to the socially conservative minority wing. Judicial administration of religion in education, homosexual rights, and abortion resulted in the Republican Party eschewing those issues from its legislative agenda and, simultaneously, resulted in center-left policy consistent with dominant wing preferences. By judicializing social issues, the Republican Party created greater Party unity than what would otherwise be possible, which enabled it to rise to power at the turn of the 21 Century. The party-court dynamic has implications for judicial power, party government, and constitutional theory and each are explored in the conclusion. PARTY WITH THE COURT: POLITICAL PARTIES AND THE NATIONAL JUDICIARY IN THE CREATION, MAINTENANCE, AND TRANSFORMATION OF POLITICAL ORDERS

15 citations

Book
05 Feb 2015
TL;DR: Cross et al. as mentioned in this paper studied the effects of constitutional promises of religious freedom and establishment clauses and found that constitutions provide national religious protection, especially when the legal system is more sophisticated.
Abstract: Many of us take for granted the idea that the right to religious freedom should be protected in a free, democratic polity. This book challenges whether the protection and privilege of religious belief and identity should be prioritized over any other right. By studying the effects of constitutional promises of religious freedom and establishment clauses, Frank B. Cross sets the stage for a set of empirical questions that examine the consequences of such protections. Although the case for broader protection is often made as a theoretical matter, constitutions generally protect freedom of religion. Allowing people full choice in religious beliefs or freedom of conscience is central to their autonomy. Freedom of religion is thus potentially a very valuable aspect of society, at least so long as it respects the freedom of individuals to be irreligious. This book tests these associations and finds that constitutions provide national religious protection, especially when the legal system is more sophisticated.

3 citations

Posted Content
TL;DR: Newspaper popular constitutionalism as discussed by the authors describes the process by which understandings of the Constitution are developed, and sometimes acted on, by non-judicial actors such as "the people" themselves.
Abstract: Popular constitutionalism describes the process by which understandings of the Constitution are developed, and sometimes acted on, by non-judicial actors such as "the people" themselves This paper examines a variant of popular constitutionalism that can be termed "newspaper popular constitutionalism:" the practice in early nineteenth century America of publishing commentaries and essays in politically-sponsored newspapers to advance partisan-based interpretations of the Constitution The paper presents the results of research into the numerous commentaries and essays on constitutional themes that appeared in Thomas Jefferson's presidential newspaper, the National Intelligencer, from 1801 to 1805

1 citations

Journal Article
TL;DR: The notion of living constitutionalism often rests on an implicit assumption that important constitutional values will "grow" in such a way as to make the Constitution more attractive over time as mentioned in this paper. But there are no guarantees: what can grow can also wither and die.
Abstract: The notion of a “living Constitution” often rests on an implicit assumption that important constitutional values will “grow” in such a way as to make the Constitution more attractive over time. But there are no guarantees: What can grow can also wither and die. This essay, presented as the 2018 Robert F. Boden Lecture at Marquette University Law School, marks the sesquicentennial of the Fourteenth Amendment’s ratification as a powerful charter of liberty and equality for black Americans. But for much of its early history, the Fourteenth Amendment’s meaning moved in reverse, overwhelmed by the end of Reconstruction, the gradual entrenchment of Jim Crow in the South, and the consolidation of racial discrimination in the North. All of the recognized modalities of living constitutionalism—evolving public mores, social movements, electoral outcomes and landmark legislation, and common law development—contributed to constitutional changes that left the Fourteenth Amendment meaning less in the late 19th and early 20th centuries than it did at its ratification. The Amendment’s early history is thus an instance of dying—not living— constitutionalism. It is far from clear, however, that alternative constitutional approaches—such as originalism—could have prevented this constitutional regression. This essay explores how the Fourteenth Amendment got so off track and whether the theory of living constitutionalism can be modified to help it hang on to the Constitution’s core commitments in the face of social change. Ultimately, the essay suggests that constitutional methodology may be less important than constitutional culture in this regard, and that the culture of living constitutionalism ought to emphasize caution over optimism about the inevitability of moral progress. The Fourteenth Amendment’s “lost years” offer precisely the sense of tragedy that might inspire that cultural shift.