Popular Constitutionalism
Now that it seems clear that Republicans will control the courts for the foreseeable future, canny liberals are beginning to wean themselves of the romantic idea that judges inevitably favor liberal values. And now these liberals have a rallying cry -- 'popular constitutionalism' -- which appears in the title of a book published this year by Larry Kramer, the new dean of Stanford Law School. In the early 90's, Kramer became interested in the idea that the public might do a better job of protecting its rights than the courts. He became convinced that the framers of the Constitution expected it to be interpreted not by unelected judges but by the people themselves -- through petitions, juries, voting and civil disobedience. Several years later, he was astonished to find the Supreme Court striking down laws one after the other and claiming to do so in the name of the founders' vision.
Kramer is not the only scholar who has rediscovered the virtues of popular constitutionalism: the movement has both liberal and conservative adherents. Rather than dividing left from right, his book has divided populists from antipopulists. The book was sharply criticized in The New York Times by Laurence Tribe of Harvard, an unapologetic antipopulist who implied that popular constitutionalism could lead to mob rule. Kramer notes that the same predictions, which he considers elitist and alarmist, have been made throughout American history. He argues in his book that progressive movements have typically been popular movements, with the anomalous exception of the Warren Court, which led progressives to embrace the naïve belief that they could achieve their goals through the courts rather than through politics. He considers the liberal embrace of judicial supremacy to be a 'shortsighted and dangerous strategy.'
Instead, Kramer says, liberals should resurrect political tools for controlling the courts that presidents from Jefferson to Lincoln embraced -- from Congressional filibusters of controversial nominees to efforts to strip the court of jurisdiction to hear controversial cases. Although these tools were used by conservatives to resist the civil rights movement, Kramer laments that they have been repudiated since the 60's by an unlikely alliance of antipopulists on both the left and right. 'From a historical perspective, it is a truly bizarre state of affairs,' he says.
JEFFREY ROSEN
THE 4TH ANNUAL: YEAR IN IDEAS