Rob Hunter

Popular Constitutionalism

The Supreme Court has made its grab for power. The question is: will we let them get away with it?

One of the core themes of my dissertation is popular control of the evolution of constitutional meaning. The Constitution’s meaning changes all the time, through developments in docrtine and constitutional law, through inter-branch conflict (Congress and the President fighting over constitutional powers and authority), and through the efforts of social movements and mass participation in politics. (For various reasons, one way that is not especially favored is through the amendment process specified in Article V). Of these three ways of affecting the meaning of the Constitution and constitutional law, the first is the kind that is going to receive most attention in courses on constitutional law, and it’s the kind that most frequently comes to mind for academic observers of U.S. politics. And not without reason – many of the most controversial and high–profile developments in national discourse about the Constitution have been spurred by Supreme Court decisions. Roe v. Wade, Casey v. Planned Parenthood; Bowers v. Hardwick, Lawrence v. Texas; Bush v. Gore; Citizens United; and so on. It’s certainly the case that the Court has been the motor driving several instances of constitutional change in the twentieth century (even if that constitutional change doesn’t always conduce to social change).

Arguably, what we have right now is a constitutional regime of what is known as “judicial supremacy,” in which the Court is held to be the highest – and most authoritative – expositor of constitutional meaning. I think that we are mistaken in paying so much attention to the Court; we ought to be paying closer attention to changes “on the ground” in our political institutions, our political practices and values, and our political culture. It is at that level that a lot of important constitutional change takes place, which is why it’s a shame that it’s so under-theorized relative to the Supreme Court. In fact I think a normative constitutional theory needs to begin at this level. I thus have at least one foot in the camp of constitutional theorists that have been called “popular constitutionalists.”

Popular constitutionalists argue that interpretive authority over constitutional meaning – the authority to say what the Constitution permits, requires, and forbids – rests fundamentally with the people, and not with courts. In the coming posts I will clarify and develop this position, but here are some useful links to what others have said about popular constitutionalism:

Larry Kramer’s The People Themselves is an excellent historically-grounded introduction to popular constitutional politics.

During the high water mark of the “Tea Party,” the New York Times ran a story about academic observers and theorists of popular constitutionalism.

Corey Brettschneider has a useful review of Kramer’s The People Themselves, as well as other important recent works of constitutional theory, available as a Scribd document.

Barry Friedman’s “Mediated Popular Constitutionalism” serves as a quick introduction to his opus, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution.

You can watch a video of Jack Balkin describing various conceptions of popular constitutionalism on YouTube.

Finally, some critics of popular constitutionalism: Robert Post and Reva Siegel have a response to Kramer’s objections to judicial review that does double duty as a survey of the three big schools of theories of how we should institutionalize constitutional interpretation: popular constitutionalism, “departmentalism,” and judicial supremacy; Keith Whittington argues that judicial supremacy is actually the product of decisions and policies adopted by political institutions, rather than an assertive Court; and Larry Alexander and Lawrence Solum have a curmudgeonly response to Kramer’s book in the Harvard Law Review. Some of Kramer’s responses can be found here.