Kramer - We the People

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We the People

Who has the last word on the Constitution?

Larry Kramer

Who has the last word when it comes to the meaning of theConstitution? Who ultimately decides whether a state canregulate or outlaw abortion? Or whether Congress can legislate toprotect the elderly or the disabled? Who decides the winner in acontested presidential election? On these and countless othermatters of fundamental interest to society, the answer in recent

years has been the Supreme Court. And most Americans seem willing, even happy, to leave it at that. Indeed, if recent surveysare to be believed, most think this is how our Founding Fathersmeant it to be. What lawyers call "judicial supremacy"—the ideathat judges decide finally and for everyone what the Constitutionmeans—has found wide public acceptance. Other actors get tohave their say, of course. The president, Congress, the states, andordinary citizens can all express opinions about the meaning of the Constitution. But the Justices decide whether those opinionsare right or wrong, and the Justices' judgments are supposed tosettle matters for everyone, subject only to the practically

impossible process of formal amendment.

It was not always thus. On the contrary, broad acceptance of judicial supremacy is of surprisingly recent vintage, adevelopment that really only began in the 1960s and did notcome to fruition until the 1980s. Certainly the men and women of our founding generation would not have accepted—did not accept—being told that a lawyerly elite had charge of the Constitution,and they would have been incredulous if told (as we are oftentold today) that the main reason to worry about who becomespresident is that the winner will control judicial appointments.

Giving an unelected judiciary that kind of importance anddeference "makes the Judiciary Department paramount in fact,"James Madison mused in 1788, "which was never intended andcan never be proper." The Constitution of the foundinggeneration was a popular one: the people's charter, made by thepeople. And it was, in Madison's words, "the peoplethemselves"—working through and responding to their agents ingovernment—who "can alone declare [the Constitution's] truemeaning and enforce its observance." The idea of turning this

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responsibility over to judges was simply unthinkable.

I

Americans of the founding era made this clear in what they didas well as what they said. The Revolution itself was provoked by disputes over the meaning of the British constitution. Natural law did not play an important part in the American cause until

independence was formally declared, and even then its role wasmerely to explain why a consistent course of unconstitutionalconduct by Britain justified Americans in renouncing theirallegiance to the Crown. All the underlying complaints in theDeclaration charged British officials with violating the customary constitution. Yet no one, at any time, on either side of the Atlantic, ever suggested that these disputes should be submittedto a court. Instead, Americans protested and petitioned andmobbed and relied on a panoply of popular devices to challengeunconstitutional government action. The most famous instance was the Boston Tea Party, held to prevent England from

establishing its power to tax the colonies for revenue. Ratherthan submit their claim that the Tea Tax was unconstitutional toa court, Americans made this determination themselves andacted to frustrate the law by refusing to allow any tea to belanded.

Nor did Americans suddenly abandon this sort of popularconstitutionalism upon achieving independence. Countlessexamples can be cited from the nation's early years. In 1793federal authorities prosecuted Gideon Henfield for servingaboard a French privateer. The court instructed jurors that

Henfield's constitutional defense—that he could not beprosecuted because his actions were not proscribed by an existingstatute of the United States—was frivolous. But the jury ignoredthese instructions and acquitted Henfield, producing what Chief Justice John Marshall called "extravagant marks of joy andexultation" from a public that praised the jurors for upholdingthe Constitution despite the efforts of corrupt governmentofficials. Asserting that the power to determine theconstitutionality of legislative acts "lies solely with the judiciary," wrote a correspondent for the Albany Register several yearslater, during the controversy over the Alien and Sedition Acts, "is

removing the cornerstone on which our federal compact rests; itis taking from the people the ultimate sovereignty."

This idea of popular constitutionalism is sufficiently foreign tomodern sensibilities to warrant at least brief explanation.Constitutional law, as originally understood, was different fromordinary law. It was law created directly by the people to regulateand restrain the government, as opposed to ordinary law, which

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is enacted by the government to regulate and restrain the people."A Constitution," wrote Judge William Nelson of Virginia in the1790s, "is to the governors, or rather to the departments of government , what a law is to individuals." The object of constitutional law was to regulate public officials, who were thusin the position of ordinary citizens with respect to it: required todo their best to ascertain its meaning while going about the daily

business of governing, but without ultimate authority. Instead,their actions and decisions were subject to direct supervision andcorrection by the superior authority of the people.

Just how "the people" exercised this authority changed over time.In the 18th century, when politics was mostly local and law enforcement depended on active community support andparticipation, popular resistance was informal and extralegal—consisting of everything from polite petitions for a repeal tooutright obstruction of the law in the form of jury nullificationand violent mob action. The creation of a national republic led toefforts to domesticate these sorts of activities. Whereas 18th-century constitutionalism had imagined a wholly independentpeople checking the government from without, republicanismmade it possible to think of the people acting in and through thegovernment, with the different branches responding differently to popular pressure depending on their structure and theirrelationship to the polity.

The resulting theory, which emerged clearly only in the 1790s, isknown today as "departmentalism." Best articulated by Madisonand Jefferson, the idea was ultimately straightforward. Each branch of government—the legislature, the executive, and the

judiciary—would be entitled to offer and act on its views of theConstitution when necessary in the course of ordinary business.In most instances, the branches were expected to agree, and when disagreements arose they could be resolved by negotiationand accommodation. If this proved impossible, Kentucky SenatorJohn Breckinridge explained, "[a] pertinacious adherence of bothdepartments to their opinions, would soon bring the question toissue . . . whose construction of the law-making power shouldprevail"—by which Breckinridge meant that adherence by different branches to conflicting views would force the only body with final authority in such matters to decide—that is, the people

themselves.

Readers familiar with the Federalist papers, and especially thefamous fifty-first essay, will recognize in this reasoning anextension of Madison's general theory of separation of powers.Madison failed to emphasize courts in 1788 because judicialreview was not yet a significant element in his thinking. Thedepartmental theory folded courts into Madison's broader





scheme, but without changing its basic commitment todemocratic deliberation and popular authority.

Madison's answer to the problems of republican politics hadnever been to limit democratic decision making by undemocraticmeans. Nor had it been to remove the people from the process of governing. His solution was to complicate politics: to slow itdown with internal checks so that what ultimately prevailed wasnot the immediate reactions of an unreflective populace butrather a reasoned popular opinion that had been refined througha process of extended public debate. Either house of Congress, orthe executive with its veto, could prevent proposed legislationfrom taking effect. But their block was really a means to test thelegislation's merits and support by forcing advocates to respondto objections and appeal for greater public support. The checkingand balancing of the different departments of government thusserved as a device to prolong and inform the discussion of controversial proposals.

The departmental theory added judicial review to this process. A measure that passed Congress and was signed by the executivemight still be held in abeyance on constitutional grounds by acourt. But the judiciary's decision would not, could not, finally resolve the measure's constitutionality. It was, rather, a referencepoint for further deliberation, with the people themselvesdeciding the matter by how they responded to competing appealsfrom members of the different branches through petitions,protests, and popular reactions to legislation and executive actionor inaction.

Departmentalism was not the only theory of judicial review toemerge in the 1790s. The modern idea of judicial supremacy alsoappeared in these years, put forward by conservative Federalists worried about the direction of politics in the young republic. TheFederalists who spearheaded the drive for a new Constitution inthe late 1780s thought that creating a strong nationalgovernment would end the political turmoil that had plagued thenew nation in its first decade. They believed the size and scale of the new national government would put men like themselves incontrol, and they expected amicably to govern a quiescentpopulation content to follow their wise leadership. But terrible

strains emerged as Americans divided over contentious issues of finance and foreign affairs. The French Revolution provedespecially divisive, as Americans took to the streets todemonstrate their support for France or England and to urge theadministration to deal harshly with one or the other of theseEuropean powers. People mounted petition campaigns and calledconventions; they paraded, planted liberty poles, and burnedeffigies; they held feasts and delivered public toasts. Alexander





Hamilton was stoned at one protest meeting for suggesting thatthe constitutionality of the Jay Treaty with England was a matterfor the president and Senate, rather than the people themselves,to decide.

Yet clashes over Hamilton's bank or the French Revolution werethemselves merely expressions of a more fundamentaldisagreement about the proper role of ordinary citizens in day-to-day governance. Under the leadership of Jefferson andMadison, Republicans embraced an expansive ideal of popularauthority, championing the people's right to control theirrepresentatives at all times and on all issues. HamiltonianFederalists, in contrast, became progressively more conservativeand anti-populist, defending a philosophy that acknowledged thepolitical power of ordinary citizens on election day but calledupon them between elections to defer passively to "constitutedauthorities." This was, in a sense, a logical extension of theFederalist ideology of the 1780s, but the anti-democratic strandsin Federalist thinking became much more pronounced in the1790s—a product of unexpectedly fierce political opposition athome and of fear that the violence wracking French society could be exported to America.

Confronted with the apparent failure of their constitutionalstrategy of 1787, the bewildered Federalists groped about for new ways to control the increasingly unruly and demanding public.Not surprisingly, some noticed connections to the judiciary thathad not previously been emphasized. By mid-decade these so-called High Federalists were for the first time beginning to talk about judicial supremacy—resting their argument that judges

should be assigned final say over constitutional law on what wasthen a novel claim that the federal courts had been specially designed to protect constitutional values from factionalmajorities. By decade's end, as political strife reached a crisispoint and Federalists tried to smother their opponents under theSedition Act (which made it a crime merely to criticize thegovernment), some judges began espousing the new legalconstitutionalism from the bench, refusing to permit juries toexercise their traditional authority over questions such as theconstitutionality of this controversial legislation.

The election of 1800 was, among other things, a referendum onconstitutional authority, with the role of the Supreme Court andthe question of judicial supremacy among its central issues.Republicans loudly proclaimed the right of the people and thestates to decide whether the acts and actions of the nationalgovernment were constitutional; Federalists responded that suchdecisions could be made only by judges. The Republicans'landslide victory, followed soon thereafter by the repeal of the





Judiciary Act of 1801 and another Republican triumph in the1802 midterm elections, seemed conclusively to resolve thiscontest against the Federalists. Legal constitutionalism and judicial supremacy were overwhelmingly rejected in favor of popular constitutionalism in its reworked departmental guise.

The opinion in Marbury v. Madison, decided in 1803, evidencesthis rejection. The issue before the Court was loaded withpolitical significance: could the (Federalist) Supreme Court orderthe (Republican) Jefferson administration to delivercommissions to justices of the peace appointed by John Adams inthe waning hours of his presidency? Recognizing that anaffirmative answer would almost certainly be ignored, the justicesducked the question by holding that the statute giving them thepower to decide the matter was unconstitutional. In so doing,however, Chief Justice Marshall carefully and self-consciously steered away from using any of the Federalists' arguments about judicial supremacy while cribbing departmental arguments fromRepublican judges like Spencer Roane and St. George Tucker.The difference, which is scarcely visible to us today, was glaringat the time. Jefferson and the Republicans did not ignoreMarshall's assertion of judicial review because Marshall cleverly acted to scale back the Court's authority. They were perfectly capable of anticipating and appreciating that other uses could bemade of the power. Rather, Republicans agreed with the theory Marshall articulated, which in context reflected an abandonmentof the idea of judicial supremacy. The way the modern Court cites Marbury as authority for its supremacy could hardly be moreironic—or more mistaken.

II

Though discredited among the general public, the idea of judicialsupremacy never disappeared entirely. Federalists and formerFederalists did not all change their minds simply because they lost the election of 1800 and suffered the repeal of the Judiciary Act of 1801. Some did, perhaps, but more than a few die-hards—such as John Marshall and Daniel Webster—clung to the view that the judiciary must be principally and finally responsible forinterpreting the Constitution. The very diffuseness anddecentralization of popular constitutionalism left room for these

advocates of judicial supremacy to continue to nurse their claim.By the early 1840s, popular constitutionalism and judicialsupremacy were sharing space in American political culture, co-existing in an uncertain and sometimes tense relationship.

Struggle was not constant. It consisted of periodic blowupsoccurring after years or sometimes decades during which active backers of the two principles jostled for position while ordinary





citizens remained largely unconcerned. Yet whenever an issue ora leader managed to capture the general public's attention— whenever, in other words, circumstances impelled Americans tocrystallize their latent beliefs and choose sides—they consistently chose popular constitutionalism over the view that theConstitution was subject to authoritative control by the judiciary.

The major controversies are matters of common historicalknowledge: the clash over slavery in the territories in the years before the Civil War; the controversy over congressionalmanagement of Reconstruction; the battle between theProgressives and the courts over social welfare legislation; and, of course, the New Deal crisis. When an overconfident SupremeCourt concluded in 1857 that Congress had no power to excludeslavery from federal territories, it handed down perhaps thesingle most reviled decision in the canon of Americanconstitutional law. Abraham Lincoln's reassertion of thedepartmental theory in response to Dred Scott is famous, butLincoln was hardly the only one to make this argument.Editorialists and politicians throughout the North and Westsavaged the Court for its "impertinence" in presuming to "act asthe interpreter of the Constitution for the other branches of thegovernment."

It took nearly a generation for the wounds inflicted on theCourt's reputation by Dred Scott to heal. The ReconstructionCongress threatened the Court with "annihilation" and forced itto back down both by stripping its jurisdiction to hear cases in which the Court seemed likely to limit congressional power and by packing its membership by increasing or decreasing the

Court's size depending on who was in the White House. Whenthe Court reasserted itself again at the turn of the century, itfaced vigorous opposition from Progressives demanding "suchrestrictions of the courts as shall leave to the people the ultimateauthority to determine fundamental questions of social welfareand public policy." The American people must be made "themasters and not the servants of even the highest court in theland," demanded Theodore Roosevelt in 1912.

Progressives were less successful than their predecessors incurbing the Court, but the battle continued. Support for "the

people" as the interpreter of last resort remained strong amongliberal lawyers and intellectuals. For a variety of reasons, mattersdid not come to a head until 1936, when the Supreme Courtstruck down central elements of Franklin D. Roosevelt's New Deal on the ground that Congress had exceeded what the justicesthought should be the scope of federal power. The role of theCourt became a contested political issue for the general public asNew Dealers reasserted the people's right to decide when and





how the Constitution allows the federal government to addressdire social and economic problems. Like his cousin andpredecessor in the White House, FDR made his case by appealingdirectly to the legacy of popular constitutionalism. "TheConstitution of the United States," he insisted, is "a layman'sdocument, not a lawyer's contract." Although Roosevelt's mostovert attack on the Court—his Court-packing plan—failed to

attract widespread support, its ultimate success was indicated when the justices suddenly reversed courses and upheld thesecond New Deal in 1937, rendering further pressureunnecessary. Through a combination of changing votes andchanging members, the Court repudiated key elements of itsProgressive-era jurisprudence, and a new accommodationemerged, defining more-lasting boundaries for a chastened judicial supremacy and a resurgent popular constitutionalism.

III

The New Deal settlement—which drew a line between

constitutional questions governing the scope of federal power(left to the political process) and certain categories of individualrights (policed by judges)—lasted for nearly six decades, from thelate 1930s to the mid-1990s. The Warren and Burger Courts, which sat between 1954 and 1986, were definitely "activist," inthe sense that they used the power of judicial review to strikedown a great deal of legislation, but their activism remained forthe most part within the terms worked out after 1937. Whilemaking their presence felt on questions of individual rights,these Courts respected the space carved out for popularconstitutionalism at the time of the New Deal and left questions

respecting the scope of national power to the political process.

Yet the justices of the Warren and Burger Courts, perhapsunwittingly, set in motion a process of unraveling thisconstitutional settlement. For within the limited sphere markedout for courts in the New Deal, they effected tremendous change. When New Dealers advocated a two-tiered system of judicialreview, they probably envisioned the courts' role protectingindividual rights as a small thing—a reasonable expectation givenprior experience. But beginning with the 1954 decision in Brownv. Board of Education, the Supreme Court showed what an

ambitious judiciary was capable of accomplishing even withinthis previously limited domain. Constitutional settlement or not, bold decisions on such matters as race, sex, abortion, schoolprayer, the rights of criminal defendants, and the death penalty were not going to pass unnoticed.

Challenges to these decisions may have played a role in gettingthe Court to pull back in some areas, but they also induced it to





forcefully reassert its supremacy. This happened most famously in 1958, when Arkansas and other Southern states sought to defy the Court's school desegregation ruling. All nine justices signedan extraordinary opinion in Cooper v. Aaron insisting that states were bound to obey the Court's decisions while arguing that Marbury had "declared the basic principle that the federal judiciary is supreme in the exposition of the law of the

Constitution" and that this idea "has ever since been respected by this Court and the Country as a permanent and indispensablefeature of our constitutional system."

Marbury, of course, had said no such thing. Nor, despite theCourt's persistent efforts, had judicial supremacy ever beenaccepted as constitutional doctrine. The justices in Cooper werenot reporting a fact so much as trying to manufacture one, andnotwithstanding the Eisenhower administration's reluctantdecision to send troops to Little Rock to enforce the Court's judgment, the declaration of judicial interpretive supremacy evoked considerable skepticism at the time.

But here is the striking thing: after Cooper v. Aaron, the idea of judicial supremacy seemed gradually to find public acceptance.The Court's decisions were still often controversial. Statelegislatures sometimes enacted laws they knew the Court wouldstrike down, and compliance with the justices' most contentiousrulings—such as those involving abortion or school prayer— was willfully slack in many places. But sometime in the 1960s, theseincidents of noncompliance began evolving into forms of protestrather than claims of interpretive superiority. Outright denials of the Supreme Court's authority to define constitutional law

seemed largely to disappear.

By the 1980s most protests that touched on constitutionalmatters were being directed at rather than against the Court, andacceptance of judicial supremacy seemed to become the norm.Rather than deny the justices' supremacy, opponents looked tochange the law by changing the Court's membership through new appointments. The stakes in the appointment process soared,leading to ugly battles such as those surrounding thenominations of Robert Bork and Clarence Thomas.

Explaining this rather extraordinary development is not easy.One factor, certainly, has been the general skepticism aboutpopular government that came to characterize Westernintellectual thought after World War II. The seeming eagerness with which mass publics in Europe had embraced fascism andcommunism eroded intellectual faith in what the politicalscientist Robert Dahl derisively referred to in the 1950s as"populist democracy." The new thinking, associated most closely





with Dahl and with Joseph Schumpeter, denigrated democraticpolitics as an engine for developing substantive values andportrayed it instead as a self-interested competition amonginterest groups. (Although Dahl himself was never enthusiasticabout the Supreme Court, his early reduction of democraticpolitics to interest-group bargaining was used by proponents of amore assertive Court, who saw it as the place where bargaining

might give way to reasoning and interests to principles.) Viewingelectoral politics in this unflattering light made it easier todefend the judicial process as a comparatively better setting in which to preserve constitutional commitments and carry on themoral deliberation that everyone agreed was a crucial aspect of democratic government. Thus was born the curious notion of the judiciary as a "forum of principle."

Closer to home in promoting acceptance of judicial supremacy was the still more curious fact of the Warren Court itself—aliberal activist Court that, for the first time in American history,gave progressives a reason to see the judiciary as a friend ratherthan a foe. This had never been a problem for conservatives.Going all the way back to the Federalist era, conservatives hadalways embraced an ideal of broad judicial authority, including judicial supremacy, and they continued to do so after Chief Justice Warren took over. For them, the problem with the Warren Court was simply that its decisions were wrong. Theirprotests were directed at the substantive interpretations of theliberal justices, whom they saw falsely using the Constitution ascover to deal with matters that constitutional law did not in factaddress. Few conservatives rejected judicial review, and almostall supported the idea of judicial supremacy over the Constitutionas they understood and interpreted it—continuing to insist, forexample, that the New Deal Court had been wrong to abandon judicial enforcement of limits on federal power.

Liberals had a more difficult time responding to the WarrenCourt. For while they believed deeply in the substantive goodnessof the Court's decisions, their teachers and heroes had led thefight against the Progressive-era Court, and many of them haddevoted their professional lives to the idea that courts actedinappropriately when they interfered with the popular will.Judicial innovations like Brown, Miranda, and Roe were a

wrenching test of the traditional liberal commitment to judicialrestraint.

As Warren Court activism crested in the mid-1960s, a new generation of liberal scholars discarded their opposition to thecourts and turned the liberal tradition on its head by embracinga philosophy of broad judicial authority. The upshot was—again,for the first time in American history—that conservatives and





liberals found themselves in agreement on the principle of judicial supremacy. They continued to disagree about its properdomain and even more about the appropriate techniques for judges to use in interpreting the text. But liberals andconservatives alike took for granted that it was judges whoshould do the interpreting and that the judges' interpretationsshould be final and binding. The idea of popular

constitutionalism faded from view, and judicial supremacy cameto monopolize constitutional theory and discourse.

What is more, the principle was no longer confined to the limiteddomain of individual rights—at least not according to the Court. As articulated by the justices, the Court's supremacy inconstitutional interpretation was unqualified, equally applicableto every question of constitutional law. Yet the Court's actual behavior did not match this ambitious claim, for (as notedearlier) the Warren and Burger Courts continued to respect theNew Deal settlement by leaving the political branches generally free to define the scope of their own constitutional authority.

The result was a glaring disjunction between the theoretical scopeof judicial supremacy and its practice. An immense body of scholarship soon emerged to explain the post–New Dealstructure of judicial review, but tension remained at a deepintellectual level. Those who found its political consequencestroubling latched on to the seeming disconnect between aConstitution that was supposedly subject to judicial oversightand the practice of leaving questions respecting theConstitution's limits to be settled by political institutions. Inrecent years, this group has consisted chiefly of conservatives

unhappy with what they viewed as an unwarranted expansion of federal authority. They increasingly sought a solution in the formof more aggressive judicial enforcement of limits on Congress. By the late 1980s, five of them—William Rehnquist, Sandra Day O'Connor, Antonin Scalia, Anthony Kennedy, and ClarenceThomas—were on the Supreme Court.

The consequence has been a substantial change in SupremeCourt practice, as the Rehnquist Court has carried the theory of judicial power developed by its predecessors to its logicalconclusion. Reaffirming judicial supremacy in the domain of

individual rights, the present Court has gone beyond the Warrenand Burger Courts by discarding or constricting the doctrinesthat served after 1937 to limit the Court's authority in other areas—striking down federal legislation at a pace far greater than any other Court in American history. The new jurisprudence restsexplicitly, moreover, on a claim that judges and judges alone arefinally responsible for interpreting the Constitution. "No doubtthe political branches have a role," the Chief Justice said





recently, "but ever since Marbury this Court has remained theultimate expositor of the constitutional text."

IV

When confronted by similarly aggressive Courts in the past, Americans have always reasserted their right, and theirresponsibility, as republican citizens to say finally what the

Constitution means. Are we still prepared to insist on ourprerogative to control the meaning of our Constitution?

To listen to contemporary political debate, one has to think theanswer must be no. Why else has the appointment process cometo matter so much? Liberals and conservatives fight so hard because both sides believe that, once in office, the justices willand, more importantly, should have the power to decide mattersonce and for all. The triumph of judicial authority is still moreapparent in the all-but-complete disappearance of publicchallenges to the justices' supremacy over constitutional law.

Apart from a handful of grumpy academics, pretty mucheveryone nowadays is willing to accept the Court's word as final—and to do so, it seems, regardless of the issue, regardless of whatthe justices say, and regardless of the Court's politicalcomplexion. To spot today's prevailing consciousness, one needlook no farther than Senator Patrick Leahy, ostensible leader of the Court's Democratic opposition in Congress. While oftenquestioning the justices' decisions, Senator Leahy takes greatpains to purge his speeches of any hint that he means tochallenge the Court's authority as final arbiter of constitutionallaw. "As a member of the bar of the Court, as a U.S. Senator, as

an American," he says, "I, of course, respect the decisions of theSupreme Court as . . . the ultimate interpretation of ourConstitution, whether I agree or disagree."

"Of course"? Whatever else one might think about suchsentiments, they reflect a profound change in attitudes from whathas historically been the case. Sometime in the past generation orso, constitutional history was recast—turned on its head, really—as a story of judicial triumphalism. The Supreme Court'smonopoly on constitutional interpretation is now depicted asinevitable, as something that was meant to be and that saved us

from ourselves. The historical voice of judicial authority isprivileged, while opposition to the Court's self-aggrandizingtendencies is ignored, muted, or discredited.

Bush v. Gore is a telling illustration of just how much things havechanged. One need not take sides on the merits of the case to seethat public acquiescence to the Court's decision cannot beexplained as a matter of widespread indifference, much lesspolitical consensus. Only acceptance of the Court's claim of





authority to decide the matter explains the silence that followed.Compare the similar deadlock that occurred in 1876, whenSamuel Tilden won the popular vote but disputed ElectoralCollege votes gave the election to Rutherford B. Hayes. Faced with the possibility of massive resistance, the controversy wasultimately resolved by an ad-hoc political commission consistingof representatives from all three branches. Significantly, at the

time of this earlier election no one—on or off the Court—everdreamed of trying to resolve it in litigation, due in no small partto the fact that the half of the country that supported the loser would not have stood passively by and allowed the justices todictate the outcome.

The reaction to Bush v. Gore is suggestive, moreover, of a largerpoint. Perhaps a majority of the country supports what theRehnquist Court is doing. That still would not explain why allthose who disagree, and disagree strongly, nevertheless feelconstrained to passively accept the Court's rulings while waitingfor justices to die or retire in the hope that they will be replaced by others with more sympathetic views. Nor would it explain why someone like Patrick Leahy thinks it his duty "as an American" toaffirm that decisions of the Supreme Court settle constitutionallaw no matter how wrong he or anyone else thinks they are.

What would explain facts like these? The expansion of judicialauthority in the closing decades of the past century was notdictated by logic or evidence or history or law. It was, as RichardParker noted in his book Here the People Rule, simply a changein sensibility. The dominant sensibility among lawyers, judges,scholars, and even politicians became (to use Parker's term)

"Anti-Populist," which is to say, dominated by fears of whatordinary citizens might permit or encourage political actors todo. The modern anti-populist sensibility presumes that ordinary people are foolish and irresponsible when it comes to politics:self-interested rather than public-spirited, arbitrary rather thanprincipled, impulsive and close-minded rather than deliberate orlogical. Ordinary people are like children, really. And being likechildren, ordinary people are insecure and easily manipulated.The result is that ordinary politics, or perhaps we should say thepolitics that ordinary people make, is not just foolish butpositively dangerous.

It comes as no surprise that people who hold these sorts of beliefsabout ordinary people would gravitate toward something like judicial supremacy. Seeing democratic politics as scary andthreatening, they find it obvious that someone must be found torestrain its mercurial impulses, someone less susceptible to thedemagoguery and short-sightedness that afflict the hoi polloi.This is High Federalism redux. And like the High Federalists of

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the 1790s, modern commentators have come to see theConstitution in exclusively countermajoritarian terms, aprotection against the tyranny of the majority—as if this wereself-evident, as if a constitution could be nothing else.

Other commentators have similarly noted the profoundly anti-democratic attitudes that underlie modern support for judicialsupremacy: attitudes grounded less in empirical fact or logicalargument than in intuition and supposition. Mark Tushnetpoints to a "deep-rooted fear of voting" among modernintellectuals and suggests they "are more enthusiastic about judicial review than recent experience justifies, because they areafraid of what the people will do." Jack Balkin describes adominant "progressivist sensibility" constituted by "elitism,paternalism, authoritarianism, naivete, excessive and misplacedrespect for the ‘best and brightest,' isolation from the concerns of ordinary people, an inflated sense of superiority over ordinary people, disdain for popular values, fear of popular rule, confusionof factual and moral expertise, and meritocratic hurbris." RobertoUnger identifies "discomfort with democracy" as one of the "dirty little secrets of contemporary jurisprudence."

Those who seem themselves as targets of such critiques may bridle at the pejorative overtones, choosing to present what they think about ordinary politics using kinder, gentler terms. Butthey would not deny or repudiate the essential argument: thatconstitutional law is motivated by a conviction that popularpolitics is by nature dangerous and arbitrary; that "tyranny of themajority" is a pervasive threat; that a democratic constitutionalorder is therefore precarious and highly vulnerable; and that

strong external checks on politics are necessary lest things fallapart.

We see this sort of skepticism about people and democracy inpersistent misreadings of the founding that selectively focus onstatements expressing fears of popular majorities, that do noteven see the more important, more pervasive theme celebratingthe rise of popular rule. We see it, too, in the rise of the "cult of the Court" and in the complacency accompanying even the mostaggressive judicial interference in politics.

A profound mistrust of popular government and representativeassemblies is, in fact, one of the few convictions (perhaps theonly conviction) that the Right and the Left today share. TheRight prefers the invisible hand of a market—decentralized,unselfconscious, uncoordinated—to a body in which deliberatechoices about how to govern are made. From the Left, in themeantime, we get "deliberative democracy," a theory that definespopular rule as legitimate only if stringent prerequisites are





satisfied: prerequisites that it just so happens can be met only by small bodies far removed from direct popular control. And now we have the emerging discipline of behavioral economics, whichat least some practitioners find attractive because it helps themto "prove" how ordinary people cannot be expected to actrationally and need to defer more to experts and specialists.

The point is not that modern scholars want to abolish democracy or are secretly hankering for some other form of government.Nor is it that they hate ordinary people. But Parker is right thatmost contemporary commentators share a sensibility that takesfor granted various unflattering stereotypes of ordinary peopleand their susceptibility to committing acts of injustice.

These deep-seated misgivings about ordinary citizens explain why modern intellectuals worry so about the risks associated withpopular government and why these risks loom so large in theireyes. Their qualms consistently lead them to resolve disputesabout the proper structure of democratic institutions in ways that

favor minimizing or complicating popular participation. This is just being "realistic," they say, and it is this sensibility thatexplains why so many of them find the question of judicialsupremacy to be easy and obvious.

For those with a different sensibility, the opposite conclusionseems just as easy and just as obvious. Absent some reason to believe that other members of society are not approachingquestions with the same good faith we attribute to ourselves—and the fact that they reach conclusions we disapprove of is notitself such a reason—we have no basis to presuppose that "we"

are right while "they" need discipline and control.

Once again, one must be careful not to overdraw the argument.Just as supporters of judicial supremacy are not secretly itchingfor monarchy, its opponents are not dreaming of some pie-in-the-sky model of Athenian direct democracy. They recognize theneed for representation and do not object to institutionalarrangements designed to slow politics down (e.g., a separationof powers). Still, there is a qualitative difference between politicalrestraints like bicameralism or a veto and a system of judicialsupremacy. It is the difference between checks that are directly

responsive to political energy and those that are only indirectly responsive, between checks that explicitly operate from withinordinary politics and those that purport to operate outside andupon it.

This is, of course, a very old conflict. In an essay written in theform of a dialogue between "Republican" and "Anti-republican"and published in 1792, James Madison asked "Who Are the BestKeepers of the People's Liberties?" Republican answered that





"the people themselves" were the safest repository—to whichMadison had Anti-republican reply: "The people are stupid,suspicious, licentious" and "cannot safely trust themselves.""Wonderful as it may seem," Anti-republican continued, "themore you make government independent and hostile towards thepeople, the better security you provide for their rights andinterests."

Look ahead six decades to Martin Van Buren's 1857 Inquiry intothe Origins and Course of Political Parties in the United Statesand one finds the same arguments being made. FollowingMadison, Van Buren said that American politics had always beendefined by a struggle between two great principles, which VanBuren labeled "democracy" and "aristocracy" and which hedescribed in terms of their appeal to those who have "a properrespect for the people" and those who have "an inexhaustibledistrust . . . of the capacities and dispositions of the great body of their fellow-citizens." Van Buren shared Madison's hostility toward the aristocratic impulse, but he was neither wrong noroff-base in identifying the persistence of these two views and inemphasizing their centrality in shaping politics.

Simply put, the supporters of judicial supremacy are today'saristocrats. One can say this without being disparaging, meaningonly to connect modern apologists for judicial authority with thatstrand in American thought that has always been concerned firstand foremost with "the excess of democracy." Today's aristocratsare presumably no more interested in establishing a hereditary order than were Alexander Hamilton, Gouverneur Morris, orJoseph Story. But like these intellectual forbears, they approach

the problem of democratic governance from a position of deepambivalence: committed to the idea of popular rule, yetpessimistic and fearful about what it might produce and anxiousto hedge their bets by instituting extra safeguards.

Today's democrats, in the meantime, are no less concerned aboutindividual rights than were their intellectual forbears: Jefferson,Madison, and Van Buren. But like these predecessors, those witha democratic sensibility have greater faith in the capacity of theirfellow citizens to govern responsibly. They see risks but are notconvinced that the risks justify circumscribing popular control by

overtly undemocratic means. In earlier periods, aristocrats anddemocrats found themselves on opposite sides of such issues asexecutive power or federalism. Today the point of conflict is judicial supremacy, as it was for much of the 20th century.

What is different is that, unlike in any period in our past, theforces of aristocracy seem to have prevailed. There were in thepast always those for whom fear of democracy was paramount,





but theirs was a minority viewpoint. Most Americans resistedhanding control of the Constitution over to what Van Burencondemned as "the selfish and contracted view of a judicialoligarchy." It seems, however, that two generations of relentlessskepticism by intellectuals and opinion-makers on both the Leftand the Right have taken their toll, and the public today seems tohave accepted their pessimistic assessment of the capacity of the

people when it comes to questions of constitutional meaning. What Americans must ask themselves is whether they are truly comfortable with this state of affairs: 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: this is our choice. TheConstitution does not make it for us. Neither does history ortradition or law. We may choose as a matter of what SanfordLevinson has called "constitutional faith" to surrender control tothe Court, to make it our Platonic guardian of constitutional values. Or we may choose to keep this responsibility, even whileleaving the Court as our agent to make decisions. Either way, wedecide.

The point, finally, is this: To control the Supreme Court, we mustfirst lay claim to the Constitution ourselves. That means publicly repudiating justices who say that they, not we, possess theultimate authority to interpret the Constitution. It means publicly reprimanding politicians who insist that "as Americans" weshould submissively yield to whatever the Supreme Courtdecides. It means refusing to be deflected by arguments thatconstitutional law is too complex or difficult for ordinary citizens.

Constitutional law is indeed complex, because legitimating judicial authority has offered the legal system an excuse toemphasize technical requirements of precedent and formalargument that necessarily complicated matters. But thiscomplexity was created by the Court for the Court and is itself aproduct of judicializing constitutional law. In reclaiming theConstitution we reclaim the Constitution's legacy as, in FranklinD. Roosevelt's words, "a layman's instrument of government" andnot "a lawyer's contract." Above all, it means insisting that theSupreme Court is our servant and not our master: a servant whose seriousness and knowledge deserves much deference but

who is ultimately supposed to yield to our judgments about whatthe Constitution means and not the reverse.

We cannot do this unless we are willing to invoke the sorts of tools used by earlier generations to keep the justices in line. TheConstitution leaves room for countless political responses to anoverreaching Court: justices can be impeached, the Court's budget can be slashed, the president can ignore its mandates,





Congress can strip it of jurisdiction or shrink its size or pack it with new members or give it burdensome new responsibilities orrevise its procedures. The means are available, and they have been used to great effect when necessary—used, we should note,not by disreputable or failed leaders, but by some of our mostadmired presidents, such as Jefferson, Jackson, Lincoln, andFranklin D. Roosevelt.

That merely mentioning such possibilities sends chills down thespines of lawyers and legal scholars today is just one more sign of how much things have changed. And, of course, politicalresponses like these should not be invoked lightly. But as history demonstrates, a great irony of making clear that we can andshould punish an overreaching Court is that it will then almostnever be necessary to do so. For, as Madison and otherproponents of the departmental theory saw as early as the 1790s,a risk averse and potentially vulnerable Court can be expected toadjust its behavior to signs of popular unrest expressed thoughthe other branches.

Making this shift would not entail major changes in the day-to-day business of deciding cases. There would still be briefs andoral arguments and precedents and opinions, and the job of beinga Supreme Court justice would look pretty much the same as before. What presumably would change is the justices' attitudesand self-conceptions as they went about their routines. In effect—though the analogy is more suggestive than literal—SupremeCourt justices would come to see themselves in relation to thepublic somewhat as lower-court judges now see themselves inrelation to the Supreme Court: responsible for interpreting the

Constitution according to their best judgment, but with anawareness that there is a higher authority out there with powerto overturn their decisions—an actual authority, too, not someabstract "people" who spoke once, two hundred years ago, andthen disappeared. The practical likelihood of being overturned by this authority may be small, but the sense of responsibility thusengendered, together with a natural desire to avoid controversy and protect the institution of the Court, would inevitably changethe dynamics of decision-making. It is this, in fact, that explainshow the Supreme Court historically husbanded its authority even without judicial supremacy, as well as why crises occurred only

when an overconfident Court claiming to be supreme paid toolittle mind to the public's view of things.

Larry Kramer is the associate dean for research and academicsand the Russell D. Niles Professor of Law at New York University School of Law. His article is drawn from his forthcoming book The People Themselves: Popular Constitutionalism and Judicial Review, which will be published by Oxford University Press in




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