Popular Constitutionalism, Departmentalism, and Judicial Supremacy

Abstract

It is a pleasure and a privilege to comment on Larry Kramer's 2002 Jorde Lecture. Beautifully crafted, deeply erudite, sharply original, and resonant with passionate conviction, the Lecture addresses a topic of growing significance to contemporary constitutional thought. Together with the book from which it is drawn, the Lecture will no doubt prove a major contribution to our understanding of American constitutional history. Time spent reflecting on Kramer's project is time well spent. Kramer argues for "popular constitutionalism," by which he means a system in which the people assume "active and ongoing control over the interpretation and enforcement of constitutional law." Kramer identifies the enemy of popular constitutionalism as "judicial supremacy," by which he means "the notion that judges have the last word when it comes to constitutional interpretation and that their decisions determine the meaning of the Constitution for everyone." Kramer argues for a world in which courts "see themselves in relation to the public somewhat as lower court judges now see themselves in relation to the Court: responsible for interpreting the Constitution according to their best judgment, but with an awareness that there is a higher authority out there with power to overturn their decisions-an actual authority, too, not some abstract 'people' who spoke once, two hundred years ago, and then disappeared." Kramer insists that we face a "choice between popular constitutionalism and judicial supremacy." He argues that popular constitutionalism has predominated throughout most of our history, but that since the 1980s judicial supremacy seems to have "become the norm," embraced by both the left and the right because of the "profoundly antidemocratic attitudes" that underlie each. Kramer regards contemporary "supporters of judicial supremacy" as "today's aristocrats," who embody a kind of "High Federalism redux" that dismisses "democratic politics as scary and threatening" and that holds "deep-seated misgivings about ordinary citizens." These are powerful indictments. They express an urgent belief that the meaning of the American Constitution should be bound to the beliefs of the American people. Kramer is concerned that Americans-on the Court and across the nation-have lost sight of the important role that popular conviction plays in constitutional interpretation. A juricentric Constitution leads to judicial overreaching and citizen passivity, which together threaten important features of our constitutional culture. We agree with Kramer that constitutional law must in the end find its legitimacy in the constitutional culture of nonjudicial actors. But because we nonetheless see a more significant role for the institution of judicial review in realizing constitutional values than does Kramer, we shall use the occasion of this Reply to explore and clarify some divergences and convergences in our views.