The People Themselves: Popular Constitutionalism and Judicial Review , by Larry D. Kramer
(Oxford University Press, 363 pages, $29.95)
Reviewed by William J. Watkins, Jr.
JUDICIAL SUPREMACY IS THE gospel of modern American constitutional law. It is the doctrine that the Supreme Court has the last word on most of the country’s important issues from electing a president to campaign finance reform to treatment of the Guantanamo detainees.
In recent years there have been few critics of judicial supremacy. When someone of influence has questioned the doctrine, they have been excoriated in the media and academic press. For example, when then-Attorney General Edwin Meese questioned the doctrine 1986, the academy all but called for his political exile. Faced with criticism from both the left and right, Meese furiously backpedaled to moderate his position.
Now Larry Kramer, the dean of the Stanford Law School, has entered the fray with his book The People Themselves. Kramer’s work is a comprehensive attack on the doctrine of judicial supremacy that warrants close scrutiny. Kramer’s basic premise is that in the 20th century we have attempted to segregate the world of politics and that of law. In the former the people rule, but in the latter the trained elite of judges and lawyers rule. Because we think of the Constitution as belonging to the domain of law, the people have no say in fundamental questions that are posed in “constitutional” terms. This, Kramer argues, is heresy and contrary to our revolutionary tradition.
Kramer recognizes that popular sovereignty was the greatest gift of the American Revolution. Ultimate power was no longer situated in an artificial body such as Parliament. Instead, it resided in the people. Early on, however, certain national leaders begin to treat popular sovereignty as a mere fiction. It is this disrespect for the power of the people that led to many of the political clashes in the first decade of the American Republic.
IN EXAMINING THE BEGINNINGS of judicial supremacy, Kramer explores the battles between the Jeffersonians and Federalists in the 1790s. During the political conflicts of that decade, the Federalists became fearful of the people’s efforts to influence the government — especially calls for support of revolutionary France in its fight with Great Britain. Federalists believed that after the people had spoken at the ballot box, the people were to obey and support the government. When the people held meetings to condemn the pro-British policies of the Adams administration, the Federalists viewed this as an usurpation of power.
To quell these usurpations, the Federalists passed the Sedition Act in 1798, which made criticism of the national government a crime. Contrary to the Anglo-American legal tradition, the Federalist judges presiding over Sedition Act prosecutions forbade the accused from arguing about, and juries from considering, the constitutionality of the sedition law. The judges held that only a proper judicial tribunal could make such a decision.
Similarly, when Jefferson and Madison invoked nullification and interposition in their Kentucky and Virginia Resolutions of 1798, the responses of several states claimed that only the Supreme Court could declare an act of Congress unconstitutional. These Northern states accused Kentucky and Virginia of interfering with the Court’s constitutional authority.
These were extraordinary claims of judicial power and were against the grain of American history. As Kramer shows, “popular constitutionalism” had been the norm of American constitutional discourse. During the American Revolution and the years thereafter, the people acted as expositors of constitutions. The people petitioned officials, engaged in mob activity, nullified laws while empaneled as jurors, and called conventions to consider weighty matters. The Boston Tea Party is a prime example of popular constitutionalism. Rather than permitting collection of the tea tax and establishment of a precedent for parliamentary power, the people boarded merchants vessels and destroyed the cargo.
Fearing the democratic-minded elements of the people, the Federalists turned their backs on this tradition of popular constitutionalism. And though the Jeffersonians routed the Federalists in the elections of 1800, the national judiciary remained a Federalist stronghold. In three terms of office Presidents Washington and Adams had appointed only loyal Federalists to the bench. Because federal judges serve during “good behavior,” these appointments were essentially for the lives of the judges. Consequently, these Federalists used their perch in the “least dangerous branch” to keep alive and spread the idea of judicial supremacy.
AT THIS POINT, ONE might expect a discussion of how John Marshall in Marbury v. Madison declared the Court to be the final arbiter of the Constitution. Kramer, however, shows that this standard interpretation of Marbury is erroneous. At most, Marbury stands for the proposition that the Court may make reference the Constitution when deciding a case. In 1803, this was not a given. We must remember that in the British system only Parliament could make constitutional interpretations. Parliament was the ultimate sovereign and, to paraphrase Blackstone, could make or unmake any law as it saw fit. The Marbury Court simply recognized that because the people are the ultimate sovereigns in America, all three coordinate branches may refer to the people’s fundamental law when carrying out their assigned constitutional duties. Had Marshall declared the Supreme Court to be the final arbiter, President Jefferson would likely have had him sent to the federal gaol.
In essence, Marshall’s Marbury opinion simply articulated the doctrine of “departmentalism” favored by the Jeffersonian Republicans. Departmentalist theory is perhaps best examined in the context of President Jefferson’s approach to the Sedition Act. Upon entering office, Jefferson ordered the cessation of all federal sedition prosecutions and he pardoned those who had been convicted. In 1804, Jefferson received a letter from Abigail Adams criticizing his handling of the Sedition Act controversy. Mrs. Adams argued that because the judges had upheld the Sedition Act, President Jefferson had overstepped his constitutional bounds when terminating prosecutions and pardoning offenders.
In a polite response, Jefferson reminded Mrs. Adams that “nothing in the constitution has given [the judges] the right to decide for the executive, more than the Executive to decide for them.” Both branches, continued Jefferson, “are equally independent in the sphere assigned to them.” Jefferson recognized that the judges, “believing the law constitutional, had a right to pass a sentence of fine and imprisonment, because that power was placed in their hands by the constitution.” However, this did not bind him when performing his duties as chief executive. Because he believed the Sedition Act was unconstitutional, he “was bound to remit the execution of it.”
Jefferson, like Madison in his Report to the Virginia House of Delegates on the Sedition Act, denied that the judiciary was the final arbiter of the Constitution. To give any one “co-equal” branch such a power would make it “despotic.” Of course, a final arbiter is needed if the branches cannot reach an accommodation on certain issues. And for Jefferson this ultimate power resided in the people of the several states — the ultimate sovereigns in the American system. By using the ballot box or meeting in convention, the people would settle all disputed constitutional questions.
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.