The People, in a way

FOR students of the Supreme Court, a crucial question is how to approach what the late Yale law professor Alexander Bickel called the "counter-majoritarian difficulty." Is the final authority to interpret the Constitution--of a democratic republic--really possessed by nine jurists who are not elected and who serve for life, subject to no meaningful threat of removal no matter what decisions they render? Constitutional-law scholarship is divided roughly in two on this question. Some (mostly, but not exclusively, political scientists and historians) claim that the Court actually quite rarely challenges prevailing political views, but instead "follows the election returns." Others (chiefly law professors) insist on the Court's importance as a restraint on democratic follies, happily embracing a vision of the justices as the proper arbiters of all constitutional questions. We might call the first camp "realists" and the second "idealists"; what they have in common is the denial, each in its own way, of the existence of the counter-majoritarian difficulty. For the realists there isn't really much counter-majoritarianism to worry about; for the idealists, counter-majoritarianism is desirable, so there isn't any difficulty about it.

The idealists see the whole purpose of the Court as the frustration of popular majorities in the name of (take your pick) "fundamental rights," the claims of "insular minorities," or some "higher law" located above the Constitution. The Court's power is not in question for these theorists--only its rectitude. The realists, who cultivate simultaneously a cheerful cynicism and a tenuous grip on reality, see the fervent Court-worship and furious Court-bashing of the idealists as so much guff; the truth for them is that the justices have their ears to the ground and attune themselves to the public mood with remarkable skill. Never mind that bit of unpleasantness in 1857 that hastened the onset of the Civil War, or the past three decades of furor caused by the abortion rulings.

Larry Kramer, who recently became dean of Stanford's law school, has no truck with either of these ways of thinking. In his new book, The People Themselves, he argues that the counter-majoritarian difficulty is very real, and that alone places Kramer in a small minority of today's legal professoriate. Kramer goes even further, holding that we are living under something other than the Constitution our forefathers made and bequeathed to us, and that "something other" is the regime of judicial supremacy. The widespread, virtually unquestioned belief today that the Supreme Court is (in its own words) "supreme in the exposition of the law of the Constitution" has sapped much of the life from our politics, at the same time raising the stakes of such matters as judicial appointments and constitutional amendments to an unhealthy degree. If "the people themselves" were to resume their proper place in our constitutional order--as the true authorities on the meaning of the fundamental law--our country would extricate itself from a great many of its present difficulties.

The reaction to Kramer has been fairly predictable. On behalf of the imperial judiciary, Laurence Tribe of Harvard came out swinging in the New York Times Book Review. Shocked at the treason of a fellow law professor, Tribe accused Kramer of praising "lawless conduct" when he urged the American people to reassert their authority over their robed servants. From the other side, writing with a world-weary, almost audible yawn for those who long ago reconciled themselves to "the political character of constitutional adjudication," Judge Richard Posner of the Seventh Circuit allowed in The New Republic that he doesn't have much use for judicial supremacy or for Kramer's "popular constitutionalism," but that in the final analysis all is well, since "'the people' do influence our courts" just about as much as they reasonably should.

Kramer's book deserves better than either of these responses. The People Themselves is an instructive tour through the early history of American constitutionalism, and even if that history does not get all the details right, many of its broad brushstrokes are correct. Americans of the revolutionary and founding generations believed that their commitment to constitutional government--to the rule of law and not of men--meant the same thing as their commitment to popular government, or the ultimate authority of the people over the meaning of the law. (This is no contradiction except to those who believe we have, or can have, superhuman judges while every other agent of the people is irredeemably suspect.) It was in no one's mind in 1787 to protect the people from themselves by handing over the authoritative interpretation of the Constitution to an unaccountable judicial oligarchy. When the practice of judicial review began to emerge, it coexisted with "popular constitutionalism" and was a far cry from judicial supremacy. Instead the prevailing belief was in "departmentalism," the view that the legislative, executive, and judicial branches each had a legitimate claim to interpret the Constitution on the people's behalf and that none was to be simply obeyed by the other two.

In Kramer's view judicial supremacy, as a rival to departmentalism, was the doctrine of American history's losing political elites--High Federalists defeated by the Jeffersonians, the slave power threatened by Lincoln's Republicans--and of an emerging legal elite that viewed law as a "science" and itself as intellectually and morally superior to ordinary folk who lacked legal training. Nonlawyers might have to be tolerated as voters and as jurors, but in constitutional matters they would have to tug their forelocks when addressing their betters.

For all his fruitful provocations, it must be said that Kramer's eagerness to win an argument leads him to overdevelop some points and to underdevelop others. He makes too much of an alleged colonial and revolutionary-era belief in a "customary constitution" that was routinely "enforced" directly by the people, when the history is quite ambivalent on this subject. On the other hand, he underplays or overlooks the opposition to judicial supremacy of John Marshall and his colleague Joseph Story--two giants of jurisprudence whom Kramer could have used to good effect. He also dates the victory of judicial supremacy too recently--with the Warren Court of the 1950s and '60s--when in fact it had vanquished departmentalism in both the law schools and the popular mind about a half-century earlier. The most serious challenge to the Court in the 20th century--FDR's court-packing scheme--was a good idea poorly executed and roundly condemned because it rested on principles long since successfully attacked and chased out of respectable company.

Most important, Kramer's enthusiasm for giving the Constitution a populist spin seems to prevent him from grasping the only coherent form of the departmentalism he claims to embrace. Kramer's departmentalism is that of Jefferson, in which every constitutional question is up for grabs by every branch of government, rather than that of Madison, Marshall, and Story, in which each branch has its peculiar province where its authority cannot be gainsaid by the others. But this was Jefferson in those all-too-frequent moments when he revealed how little he understood the Constitution. In his own better moments, Kramer recognizes that in a republic, others must act for the people because they cannot legislate, enforce, adjudicate, or decree anything whatsoever themselves. As one of Kramer's heroes, James Madison, said in the Federalist, in American republicanism there is a "total exclusion of the people in their collective capacity, from any share" in actually governing themselves. What then can "the people themselves" really do to enforce or interpret the Constitution? In all of Kramer's account there appear to be only three things: They can vote in elections, they can serve on juries, and they can act in mobs. The last is inimical to the idea of law in any but a revolutionary situation, and the second entails the dubious idea of inconsistent "nullifications" of laws by some juries and not by others. That leaves only the first--choosing agents to act for us.

Only at the very end of the book does Kramer seem to act on the recognition that this is what his thesis comes down to--that Congress, with or without presidential leadership, is the one great rival capable of challenging the Court's constitutional pretensions. (But "Congress Itself: Legislative Constitutionalism and Judicial Review" would not have been nearly so catchy a title.) And his prescriptions for action against the Court do not follow through with much gusto on the spirit of the book's early chapters. That is because he has let himself be guided by the populism he wants to see in American history, rather than by the separation of powers the framers built into the Constitution; as a consequence, he runs out of gas when it comes to practical advice that would actually have to rely on those separated powers. Had he followed the framers more closely in these matters, he might have written a book capable of making Laurence Tribe even shriller in denunciation and Richard Posner a little less certain in his certainties.