Leiter Reports: A Philosophy Blog

News and views about philosophy, the academic profession, academic freedom, intellectual culture, and other topics. The world’s most popular philosophy blog, since 2003.

  1. Fool's avatar
  2. Santa Monica's avatar
  3. Charles Bakker's avatar
  4. Matty Silverstein's avatar
  5. Jason's avatar
  6. Nathan Meyvis's avatar
  7. Stefan Sciaraffa's avatar

    The McMaster Department of Philosophy has now put together the following notice commemorating Barry: Barry Allen: A Philosophical Life Barry…

The End of “Popular Constitutionalism”?

Brian Leiter

There aren’t that many book reviews that finish off an intellectual movement, but Scot Powe’s review of Larry Kramer’s The People Themselves:  Popular Constitutionalism and Judicial Review (Oxford University Press, 2004) in the current Texas Law Review 83 (February 2005):  855-896, does just that.  The criticisms are so devastating–both as to the astonishing historical omissions, and the argumentative non-sequiturs at the core of the book–as to make it puzzling how the theory got as far as it did.  Comments are open, for those who are familiar both with the Kramer book (or his earlier articles on the subject) and the Powe review.  Do I overstate the import of the criticisms?  Is the corpse of popular constitutionalism still breathing?  No anonymous postings, of course.

Leave a Reply

Your email address will not be published. Required fields are marked *

6 responses to “The End of “Popular Constitutionalism”?”

  1. Tony D'Amato

    Both Larry Kramer and Scott Rowe turn to history to prove a point. But they are each selective; history is more dense and zig-zaggy than they think. Rose's main criticism (as I see it) is that Kramer has not put forth an articulate thesis to substantiate the historical story he would like us to believe. But if I were arguing for Kramer, I would say that the thesis is implied for the very reason that Rowe criticizes, namely, that a clearer articulation of popular constitution-making would be more easily falsifiable. If Kramer conveys to us an impression, that is maybe the best that he or anyone else can do in attempting to capture the wisdom of the past.
    What the past teaches us, I think, is a lot closer to Rowe's view than Kramer's: that the Supreme Court has "gotten it right" more often than the people. (Aristotle would have said, "I told you so.") I would like to think that this result has something to do with the internal nature of "law." But maybe it's all politics and I have too much of a vested interest in hoping that law will "out." Surely in Bush v. Gore the nature, rule of, sanctity of, and coherence of "law" were all crushed by the majority's willingness to jettison their life-long adherence to legality in order to reach their desired political result.

    Reply
  2. Dan Cole

    I hope this isn't the end of popular constitutionalism. After all, it wasn't the Supreme Court that extended voting rights to women and African Americans, or required integration of the military (among many other acts of political constitutionalism). Also, thinking comparatively, the United Kingdom seems to have survived reasonably well without the institution of constitutional judicial review.

    Anyway, I think the distinction between popular and judicial constitutionalism is overblown. It is well chronicled what happens to Supreme Court decisions when the Court gets too far out ahead of public sentiment (see, e.g., the Cherokee Nations cases).

    Reply
  3. Josie Debevoise

    The historical criticisms Powe offers are telling, but the normative ones are not. Roughly, Powe wants to decry Kramer's instrunentalization of popular constitutionalism to progressive ends. But, Powe says, when you look at the range of popular constitutionalist actions in history, one's confidence in the progressive intentions of "we the people" wanes. But what then is Powe's alternative? He likes judicial supremacy because it protects rights in a time of terror (a time in which "the people" is happy to follow conservative leaders). But that ignores Kramer's perception that judicial empowerment doesn't get democratic politics that far, either. (Recent history also suggests it is not a terribly plausible safeguard for rights in an age of popular fear.) But this premise is the one that got the discontent with judicial politics amongst liberals and radicals alike going in the first place (Rosenberg, Waldron, Unger, TUshnet, etc. etc.). Powe may be right to point to the potentially demagogic consequences of "taking the constitution away from the courts." But to truly "bury" the popular constitutionalist movement, one needs to take seriously their discontent with judicial politics, and provide some alternative. Powe does not do that, so far as I can see, in his review. Until that happens, popular constitutionalism will exercise appeal.

    Reply
  4. Mark

    I think that this mention of Waldron misreads his criticism. Waldron's beef is not with the particular outcomes of judicial activism, but with the institution at all, based on rights-consideration.

    Reply
  5. Jeff Stewart

    There are many critiques of Court-based Constitutionalism, on non-historical grounds, all of which could be called "popular constitutionalism" and all of which completely sidestep Powe's attack. Some blast court-based constitutionalism on grounds of democratic legitimacy, others on epistemic grounds — doubting the possibility of an expert reading or application of the Constitution — others drawing on rights theory, some (eg. Tushnet, Waldron) on all three.
    Still breathing? Maybe Popular Constitutionalism's just laying low during the post-September 11th trampling of civil liberties, when it's a bit out of fashion. And maybe the descriptive version of it (it used to be ours) is unsubstantiated. But the normative version (it should be ours) may come back in some form, or so, at any rate, we can hope.

    Reply
  6. Aron

    Professor Leiter, I think the corpse you smell is that of Kramer's book, not of popular constitutionalism. Powe is correct to note that while Kramer does a good job with early American history, both his descriptive and his normative accounts of modern popular constitutionalism are deeply flawed. Not only are Kramer's theses wrong–that we have very little popular constitutionalism now, and that we should have an extraordinarily strong version of it–but they're not very clearly expressed, particularly the normative thesis. These flaws have been pointed out by every review of Kramer's book that I have seen, including by scholars sympathetic to popular constitutionalism such as Robert Post and Reva Siegel. I found Post's and Siegel's review more helpful than Powe's, because whereas Powe spends his entire review pointing out the rather obvious problems with Kramer's book, Post and Siegel note them concisely and then move on to present a much more sophisticated account of popular constitutionalism. Their article is Popular Constitutionalism, Departmentalism, and Judicial Supremacy, 92 CALIF. L. REV. 1027 (2004).

    Reply

Designed with WordPress