Symposium: The People Themselves: Popular Constitutionalism and Judicial Review

“Who ought to rule” is an age old question, pondered by the great thinkers since the days when Socrates padded about the public square in Athens.

These days, “Who ought to rule?” is little asked in this country, or when it is pondered, it is conceived in terms of partisan particulars: Biden. Trump. Team red. Team blue. Liberal justices. Conservative jurists. And the whole sphere of what is worthy of political debate and governmental action has swollen prodigiously to encompass nearly everything in existence: Shall we debate the propriety of human use of plastic straws today, or who may use which lavatory?

Certainly, America’s Founders thought and fought much over the question. James Madison’s Notes on the Debates in the Federal Convention (1786), to cite just one source, shows men learned in the wisdom and folly of earlier regimes, grappling with the issue of sovereignty and for what ends it should be wielded.

Ultimately, they united in declaring that the people should rule, and erected a tripartite system of governance that had the legislature as the well-spring for all government authority. The U.S. Constitution expressed the aspirations for self-governance and machinery for achieving them. But who would decide what the constitution meant? The answer was: the people, as it was they who could run for office and vote and decide what governing constitutionally meant in practice.

Today, the nexus between the people and the ruled has attenuated, despite technology making government ever more accessible. (The 18th century cobbler could not read bill drafts on or tweet at his legislators.) Politics and governance has become something done in the distance, and the bar for being a good citizen has been set low: could you please show up to vote for president?

Self rule is a state of mind, not just a matter of material conditions. And Congress cannot become great again if the public has not the interest nor energy to force it to become so.

Which is why this week is featuring a debate about a book published 15 years ago. Larry Kramer’s The People Themselves (Oxford University Press) stirred the pot when it was released. Among other things, it took aim at the then regnant and now almost beyond question notion of judicial supremacy. E.g., The courts —not Congress or the executive, and plainly not the voters— decide what the Constitution means. And the book should continue to provoke us—not least by reminding us that self government need not be a hoary notion found only in high school civics books and campaign speeches.

We hope you enjoy the coming days’ essays, and we invite readers to share their own thoughts on self government with us via email or on Twitter (tag us at @legbranch).


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