A Historiography of The People Themselves and Popular Constitutionalism

The People Themselves intervenes in a growing contemporary debate about the role of the Supreme Court in our constitutional system that began to emerge after the end of the Warren Court and reached a crescendo with Bush v. Gore. For the second time since Lochner v. New York was decided, some liberals have begun once again to switch sides on the virtues of judicial review. Many recent liberal books and articles inevitably bring to mind the flood of Progressive attacks on the democratic legitimacy of judicial review written between 1905 and 1937. Yet the book can be approached independently of its clear effort to advance one version of the current anti-judicial review agenda. The book has two overall goals. The first is to establish that a legitimate practice of popular constitutionalism—of the people outdoors exercising a separate and independent voice in constitutional debate—was well in place by the time of the American Revolution. The second goal is to demonstrate that the arguments for judicial supremacy—expressly articulated in Cooper v. Aaron and acted upon in Bush v. Gore—have been drowned out until recently by a departmental theory of judicial review. The claim that judicial supremacy is a very recent development in constitutional history is not new, but Kramer\u27s elaboration of the various paths to judicial supremacy and the real life significance of the competing theories of judicial review left behind, is important and original