The dean of the Stanford Law School rediscovers the beauty of “popular constitutionalism.”
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With this rich history, one must ask why are there no voices reminding us of the departmental legacy? Kramer offers this answer: “A profound mistrust of popular government and representative assemblies is, in fact, one of the few things (perhaps the only thing) that the right and the left share in common today.” And he is absolutely correct. The intellectual elite fear and distrust the common man just as the Adams Federalists did. According to these modern-day High Federalists, unelected judges are shielded from the “vices of democracy” and therefore can right the ship of state when the people and their elected representatives make bad decisions. Kramer recognizes that the intellectuals have abandoned the Republic of the Framers and instead have embraced the Republic of Plato where the elite Guardians rule. This, according to Kramer, “is High Federalism redux.”
KRAMER ENDS THE BOOK with a call for ordinary citizens to “lay claim to the Constitution ourselves.” He suggests that we must censure judges rather than submissively yielding to whatever the Supreme Court decides. As for more concrete actions, Kramer does note that judges can be impeached, the Court’s budget cut, and the Court’s jurisdiction curtailed. But, unfortunately, he spends little time developing these themes. For example, a more thorough discussion is warranted of Congress’s power to impeach and why this power has become but a scarecrow. Also, Kramer never addresses whether “mobbing” — or other such elements of 18th century political behavior — should be revived as part of popular constitutionalism.
Despite these foibles, The People Themselves is a valuable addition to constitutional scholarship. Kramer’s attack on judicial supremacy is both brilliant and bold. He reminds us that the Constitution belongs to the people and not to the judges. With this fine work, Kramer has done his share in reviving popular constitutionalism; we can only hope that the people will embrace his message and do theirs.
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