Kramer’s The People Themselves: Popular Constitutionalism and Judicial Review

By Michael Serota

Larry Kramer’s The People Themselves: Popular Constitutionalism and Judicial

Review (“The People”) provides a provocative account of the historical development of
judicial review filtered through the lens of “Popular Constitutionalism,” or popular
sovereignty. In so doing, The People makes the case for eliminating the Supreme Court’s
final interpretive authority over the Constitution by adding a fourth and final tier of
review by the American public. Kramer argues that this correction is vital because it
would allow the public to reclaim its diminishing role in the constitutional process.

As a general matter, Kramer’s call for a more constitutionally engaged public is

well taken, since in today’s society, many private citizens lack even the most basic
knowledge of or concern about most of the Court’s opinions. Accordingly, much of The
People is written with an inspirational rhetorical style that shines through in some of the
book’s strongest moments. For example, as Kramer describes what he believes to be the
ongoing battle over judicial review between the aristocracy and the people, he writes:

The question Americans must ask themselves is whether they are

comfortable handing their Constitution over to the forces of the
artistocracy: whether they share this lack of faith in themselves and their
fellow citizens, or whether they are prepared to assume once again the full
responsibilities of self-government. And make no mistake: the choice is
ours to make, necessarily and unavoidably.1

To be sure, the spirit of Kramer’s work is relatively uncontroversial. It is difficult

to disagree with the goal of finding a way to motivate Americans to become more
concerned with and attentive to the Court’s day-to-day business. The letter of Kramer’s
version of popular constitutionalism, however, calls for nothing less than a majoritarian
revolution, a grim reality for which The People never sufficiently accounts.

Kramer suggests that the Court “is ultimately supposed to yield to our judgments
about what the Constitution means.”2 However, Kramer never informs his readers as to
how we are supposed to enforce “our” newly acquired power. It would be inevitable for
groups of people to have conflicting views about any given constitutional question, so
before the country were to institute Kramer’s vision, it would be vital to understand how
to decide which group’s views truly reflect the will of “the people.” But instead, the
details of Kramer’s plan are mostly kept from the reader.

Indeed, Kramer’s broad strokes of abstraction make it difficult to discern exactly

what he hopes to accomplish through popular constitutionalism. The following is the
work’s most specific articulation:

























































1
LARRY D. KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW 247
(2004).
2
Id. at 248.

Electronic copy available at: https://ssrn.com/abstract=1617341

 The assumption that final interpretive authority must rest with some
branch of the government belongs to the culture of ordinary law, not to the
culture of popular constitutionalism. In a world of popular
constitutionalism, government officials are regulated, not the regulators,
and final interpretive authority rests with the people themselves.3

At first, the idea of the public as “regulators” and the government as “regulated”
sounds empowering. That we might restrict government practices according to our will
in the same way that the Equal Employment Opportunity Commission enforces the will
of Congress by prohibiting discriminatory employment practices is initially appealing.
But upon reflection, Kramer’s popular constitutionalism begs the following question: if
“the people” are given this power, then what then might stop a majority of them from
eliminating minorities’ civil rights, if their view of the Constitution demanded it?
Obviously, Kramer does not advocate for these types of results, but he leaves few clues
for readers trying to ascertain how popular constitutionalism can be squared with the
Constitution’s anti-majoritarian aspects.

Relatedly, Kramer envisions a judicial system in which:

Supreme Court Justices would come to 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 . . . .4

Thus, in Kramer’s new world, the Court would be forced to operate under the
people’s microscope, and justices would live with the omnipresent possibility of being
overturned by the public. As a result, Supreme Court justices would need to ascertain the
will of the people and rule by it when making controversial decisions, or else risk
irrelevance. However, the method by which justices would discover the people’s will is
unknown. Since the public has no defined body of constitutional jurisprudence for the
Court to reference, perhaps Kramer wishes for the Court to consult public opinion polls?
Accordingly, he seems to envision a world in which past landmark decisions that lacked
initial public support, but later gained acceptance, could not have occurred.

But of course, this world I describe is only based on conjecture; The People never
provides enough details to allow readers to fully discover the world for which Kramer is
advocating. But after considering the potential consequences of what few specifics The
People does provide, I am not sold. In fact, the erosion of constitutional protections for
unpopular, marginalized groups would only be the beginning of Kramer’s popular
constitutionalism. It would also be likely to produce many other potentially catastrophic
results, such as weakening constitutional limits on the actions of elected and unelected
officials, increasing discordant constitutional interpretations across the branches of the

























































3
Id. at 107.
4
Id. at 253.

Electronic copy available at: https://ssrn.com/abstract=1617341

federal government and the states, and relegating constitutional interpretation by the
judiciary to advisory status within the federal system.5

Indeed, The People advocates for a new majoritarian branch that would, as
Kramer puts it, threaten to “let[] the animal out its cage” or even worse, “tear down its
cage” if the Supreme Court were to do something the people disliked.6 Kramer argues
that the result of this cage-tearing would be a mere realignment of the Supreme Court’s
“attitude and self-conception.”7 But Kramer significantly underestimates the implications
of transferring the interpretation and enforcement of constitutional law to majoritarian
rule. To wit, popular constitutionalism’s new rule of law is no rule of law at all. Further
contemplation of the specific implications of The People can only lead to a greater
appreciation of our current system, however imperfect it may be.

Accepting at face value The People’s general themes facilitates a provocative and
enjoyable read. The People’s main contribution exists in its ability to question the general
view that many in American society hold: that the current approach to judicial
supremacy is in fact the only approach. Kramer’s willingness to venture outside the
mainstream, and to marshal a variety of historical sources to construct an unconventional
narrative, is admirable. Whether it is desirable, however, is a different question
entirely—one that he never provides enough details to answer.


























































5
Erwin Chemerinsky, In Defense of Judicial Review: A Reply to Professor Kramer, 92 CALIF. L. REV.
1013, 1015 (2004).
6
Kramer, supra note 2, at 250.
7
Id. at 253.

Electronic copy available at: https://ssrn.com/abstract=1617341