Popular constitutionalism: Antidote for rule by the judiciary

On November 19, 1863, Abraham Lincoln traveled to the town of Gettysburg, Pennsylvania to give witness to the cause for which the Americans who had fought and died in the Battle of Gettysburg had given their lives. His three-minute-long Gettysburg Address, comprising a mere 271 words, symbolized the nation’s commitment to preserving popular self-government against the efforts of those who would destroy it.

With the Union victory over the Confederate forces in the Civil War, that cause was secured. And while it has confronted challenges since then, none have posed a threat similar in scale to that which it faced 156 years ago. That is, at least until now. The present state of popular self-government in the United States suggests that the freedom of its citizens is far from secure.

Americans today do not fully appreciate the extent to which their ability to govern themselves is under siege. This is because the threat to self-government originates from inside the courtroom instead of on a battlefield. Today, Democrats and Republicans alike believe that judges on the federal bench should interpret the Constitution, decide their disagreements, and make controversial policy decisions instead of the American people. Moreover, Congress and the president defer regularly, and often eagerly, to the judiciary, especially the Supreme Court, as having the last word on what goes in American politics.

And therein lies the threat to American self-government.

If, as Lincoln asserted at Gettysburg, citizens are free only to the extent that they are entitled to participate in the act of governing themselves, then they are less free today than they have been at any other point since the end of the Civil War. This is evident in the fact that the locus of the government’s policymaking activities on many of the issues over which Americans disagree most intensely- abortion, immigration, healthcare, gun policy, campaign regulations- has shifted gradually, almost imperceptibly, from overtly political venues like Congress, where the people, and their elected representatives, participate actively in self-government, to purported apolitical places where judges rule instead. When that happens, the American people lose their ability to inform the decisions their government makes. They cannot hold judges (and the president who nominates them) accountable as easily as they can their elected representatives in Congress.

While people today commonly assume that the Supreme Court is the final authority over the Constitution, Larry D. Kramer demonstrates that this has not always been the case. In The People Themselves: Popular Constitutionalism and Judicial Review (Oxford University Press, 2004), Kramer, a former Stanford Law School dean and current president of the William and Flora Hewlett Foundation, documents in impressive detail the extent to which the federal government operates differently today than it did during the early years of the nation’s history. Kramer demonstrates how the courts gradually supplanted the people as having the last word over what the government can do. In doing so, he highlights how popular self-government in the United States has been replaced by a political system in which judges rule instead of the people.

Kramer grounds his argument in The People Themselves in a distinction between two types of law: ordinary and fundamental. The Constitution represents fundamental law because it governs the relationship between the people and their government. The people, who in their collective capacity possess sovereign authority over their government, use that authority to confer power on their government to make ordinary law. As fundamental law, the Constitution delineates the form of the federal government, determines the extent of power delegated to it by the people, and specifies the particular distribution of those powers to its parts, or branches. Under this arrangement, the people control the government by reserving to themselves the ultimate interpretative authority over what the Constitution means and to decide how it is enforced.

While the legislative, executive and judicial branches each interpret and enforce the Constitution within their specific spheres of action, or departments, on behalf of the people, their doing so does not threaten popular self-government because no one branch has the sole power to define its sphere of action, much less to determine what the Constitution means. As James Madison observed in Federalist 47, when “the whole power of one department is exercised by the same hands which possess the whole power of another department the fundamental principles of a free Constitution are subverted.” The separation of powers ensures that this does not happen and therefore, that the people rule in America. It does so by dividing the government’s power between the legislative, executive, and judicial branches and then bringing them into conflict with one another. In the process, the underlying issue over which the branches are in disagreement is elevated in the public consciousness. The escalation of conflict inside the government alerts the American people to the presence of the dispute, signals to them that something important is at stake, and invites them to weigh in on how they think the branches should resolve their disagreement. Regardless of how the dispute is resolved, the result is the same- the people affirm their authority to interpret the Constitution.

Kramer terms this dynamic popular constitutionalism and demonstrates that it was pervasive during the early years of the nation’s history. In The People Themselves, he identifies the tools and tactics used by the people to make a government governed by popular constitutionalism work. They included citizens’ right to vote, to associate, and to petition their government for a redress of grievances. When these rights proved insufficient for controlling the government, the people escalated the situation by engaging in “crowd action” – economic boycotts and mobbing – to communicate the seriousness of their views to the government. By such action, the people maintained an ongoing conversation with their government over how they expected it to operate. In short, they governed themselves.

Kramer’s careful analysis underscores the extent to which Americans today think differently about the Constitution. Instead of the people exercising final interpretive authority over what it means, the conventional view at present is that the Supreme Court calls the shots. The implication is that judges decide what the Constitution- America’s fundamental law- means even though they are themselves expected to be governed by that law. Viewing the Constitution in these terms perverts its doctrine of the separation of powers and, by extension, undermines the people’s ability to govern themselves.

Kramer attributes this shift to three related developments. First, he argues that the people lost sight of the distinction between ordinary and fundamental law as the practice of judicial review, never fully theorized, became routinized at the federal level. This placed judges on the same level as the people and created the expectation that they were responsible for interpreting the Constitution. In the process, the Constitution came to be seen by the people as no different from ordinary, government-made law. As that happened, the Constitution lost its unique status as a fundamental law.

At the same time as the Constitution was demoted to ordinary law, mass political parties created an alternative to popular political action when it came to affecting how the government exercised its power. The emergence of the Democratic and Whig parties in the 1820s and 1830s gave the people new ways to influence how their government used the powers they conferred upon it. Moving forward, winning elections became more critical to people than participating in popular political action. This shifted their focus from controlling the government from the outside in, via the Constitution, to try to influence the government from the inside out. In Kramer’s words, “politics moved indoors.”

Taken together, the expectation that judges interpreted the Constitution along with the prospect of influencing the government by winning elections spurred Americans to reevaluate how they thought about popular political action and the conflict it engendered. Amidst this shift, the emergence of issues that divided Americans along sectional lines and that seemed to many to be unresolvable via political action prompted the people to think differently about the Constitution and how it related to the cause of popular self-government. Kramer thus concludes, “what ultimately moved a greater number of Americans to embrace the idea that judges should have the preeminent word on constitutional meaning…was experience, which seemed to teach that popular constitutionalism in its traditional form might not work in a society as diverse and dynamic as the United States.”

Overall, Kramer makes a compelling case that these three developments, when taken together, altered how Americans thought about the federal judiciary and the role it played in American politics. His analysis also helps to illuminate the present precarious state of popular self-government in the United States. The activities Kramer associated with the practice of popular constitutionalism occurred within a civic space in which citizens (and their elected representatives) participated in the act of governing themselves. The Constitution secured that space and, by extension, preserved freedom, by infusing the government’s institutional structure with conflict through innovations like the separation of powers, bicameralism, and federalism. By structuring the government in this way, the Constitution ensured that no one other than the people, acting in their collective capacity, could rule America. In that way, conflict over contentious issues prevented the government from working on a concerted basis and allowed the people to exercise their authority over what the Constitution meant by participating in popular political action.

By illuminating how popular constitutionalism worked in practice, Kramer’s analysis helps readers to grasp the underlying reason why Americans currently think differently about how the Constitution should operate today. In short, popular constitutionalism appears to be too chaotic for their present sensibilities. It exacerbates the uncontrollable and unpredictable nature of political activity in a free society. This suggests that the uncertainty inherent in popular constitutionalism gradually led Americans to abandon freedom for a judicial rule in an unconscious effort to eliminate the unpleasant realities inherent in popular self-government. By making the judicial branch of government the supreme judge of the Constitution, Americans inadvertently destroyed the space needed for citizens to govern themselves.

This insight illuminates the present plight of popular self-government in the United States. Despite differing over what the government does, Democrats and Republicans appear to be in surprising agreement when it comes to how the government does it. Both parties see the judiciary as the final authority over what the Constitution means. That leads both parties to think of politics as an exercise in controlling the court by picking the judges who serve on the federal bench.

By focusing on the differences between the Democrats’ and Republicans’ policy agendas, we overlook the similarity in how both sides understand the Constitution to operate. And in doing so, we miss the fact that neither Democrats nor Republicans appear to be especially eager to govern themselves.

Defending popular self-government against its latest threat requires all Americans to take an active part in the decisions their government makes. There is no other way to ensure that “government of the people, by the people, for the people, shall not perish from the earth.”

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