Larry Kramer\u27s depiction of pre-Revolutionary constitutionalism rests on two dichotomies that are valuable yet exclude middle positions. First, he distinguishes between fundamental law and ordinary law. Second, he argues that pre-Revolutionary judges could play one of two roles—since they were not supreme constitutional interpreters (the first of these roles), they must have possessed no special authority to determine constitutional meanings (the second, and remaining, possibility). Both of these dichotomies obscure middle positions that capture important aspects of the pre-Revolutionary constitutional tradition. My comments briefly identify these middle positions and suggest what is at stake in recovering them

Ross, Richard J.

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Pre-Revolutionary Popular Constitutionalism and Larry Kramer\u27s \u3cem\u3eThe People Themselves\u3c/em\u3e

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Chicago-Kent Law ReviewVolume 81Issue 3 A Symposium on The People Themselves:Popular Constitutionalism and Judicial ReviewArticle 7June 2006Pre-Revolutionary Popular Constitutionalism andLarry Kramer's The People ThemselvesRichard J. RossFollow this and additional works at: https://scholarship.kentlaw.iit.edu/cklawreviewPart of the Law CommonsThis Article is brought to you for free and open access by Scholarly Commons @ IIT Chicago-Kent College of Law. It has been accepted for inclusionin Chicago-Kent Law Review by an authorized editor of Scholarly Commons @ IIT Chicago-Kent College of Law. For more information, pleasecontact dginsberg@kentlaw.iit.edu.Recommended CitationRichard J. Ross, Pre-Revolutionary Popular Constitutionalism and Larry Kramer's The People Themselves, 81 Chi.-Kent L. Rev. 905(2006).Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol81/iss3/7PRE-REVOLUTIONARY POPULAR CONSTITUTIONALISM ANDLARRY KRAMER'S THE PEOPLE THEMSELVESRICHARD J. ROss*Because my expertise is in early American history, I will concentrateon Larry Kramer's portrait of pre-Revolutionary popular constitutionalism,which acts as a baseline against which to measure nineteenth-century de-velopments. Before examining pre-Revolutionary constitutionalism, how-ever, I want to note two features of Kramer's style of historical argumentthat make the book a particularly sophisticated treatment of its subject.1. STYLE OF ARGUMENTA. Kramer Employs Contrapuntal Rather Than Strictly ContextualAnalysisHistorians often explain one thing by reference to a second, whichforms the context or background for the first thing. A historian might treatjudicial review as a practice that evolved within the context of popularconstitutionalism. In this approach, judicial review would be the object tobe explained, and popular constitutionalism would be the background orcontext. But Kramer's approach is not just contextual in this way. It is con-trapuntal. I say "contrapuntal" because judicial review and popular consti-tutionalism each stand, at different points in the book, as objects to beexplained and as backgrounds or contexts for the other's evolution. Bothserve not only as contexts, but as challenges to the other. Each provokesintellectual and political changes to the other which, in the process, altersboth. The contrapuntal engagement of judicial review and popular constitu-tionalism is not only the subject of the book, but it is also an engine thatdrives change.B. Kramer Pursues a Social History of ConstitutionalismKramer does not just show changing constitutional and political posi-tions and the tensions between them. He continually asks what makes a* University of Illinois (Urbana-Champaign) College of Law and History Department.CHICA GO-KENT LAW REVIEWparticular position plausible and salient. What were the social, intellectual,and political preconditions for its emergence? The book is a social historyof constitutional ideas insofar as it inquires into the conditions for the re-ception and flourishing of a particular position. The book is ingenious inpointing to developments that served as background conditions facilitatingchanges in judicial review decades later. An example would be Kramer'sanalysis in Chapter 6 of how the growing assimilation of constitutional lawinto ordinary law laid the groundwork for those who would, years later,advocate judicial supremacy in constitutional interpretation.1II. PRE-REVOLUTIONARY CONSTITUTIONALISMKramer's portrait of pre-Revolutionary constitutionalism is built ontwo dichotomies that are valuable yet exclude middle positions.A. Distinction Between Fundamental Law and Ordinary LawKramer's reconstruction of pre-Revolutionary popular constitutional-ism claims that fundamental law, interpreted by the people, regulated thegovernment, while ordinary law made by the government regulated thepeople. Yet there was a middle position. Ordinary law regulated the peoplebut also was a part of the constitutional regulation of government. Eight-eenth-century colonists restrained their rulers by insisting that the govern-ment act according to established procedures, or impose preexisting rulesand sanctions. The minutiae of standing law and "due process," which werein the first instance created by government, became a restraint on govern-mental activity.There is another problem with Kramer's sharp distinction between thelaw regulating the people and the law regulating the government, a problemthat David Konig suggested to me in conversation. What does it mean for"the government" to enforce ordinary law in colonial America when unpaidamateurs conducted nearly all law enforcement? When a cobbler acting asa constable for a year executed or quietly ignored an order issued by a to-bacco planter acting as a justice of the peace for a year, did "the govern-ment" act or did "the people" act? In a colonial system where professionallegal interpreters and enforcers were so rare, and where the overlap of stateand society was so profound, can one maintain a distinction between ordi-nary law by which government regulates the people and fundamental lawby which people regulate the government?1. See LARRY D. KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM ANDJUDICIAL REVIEW 145-69 (2004).[Vol 81:905PRE-REVOLUTIONARY POPULAR CONSTITUTIONALISMB. Distinction Between Judges as Supreme ConstitutionalAuthorities and Judges as No More Authoritative Than OtherConstitutional InterpretersKramer argues that the middle eighteenth-century Anglo-Americaconstitutional tradition assumed that the constitution was a species of "law"yet judges had no "special role in determining its meaning."'2 This formula-tion admits of two possibilities: either (a) judges are supreme constitutionalinterpreters; or (b) judges had no "special role" in determining the constitu-tion's meaning. Kramer's quite proper rejection of judicial supremacy inthe pre-Revolutionary Anglo-American constitutional order does not meanthat option (b) is correct. There was a middle position. Consider the impor-tance in Anglo-American constitutionalism of great cases decided byjudges, such as, to pick a few, Calvin's Case,3 cases on taxation and pre-rogative before the English Civil War, Bushnell's Case on jury coercion, 4cases that determined the reach of English statutes and common law intothe American colonies, and so forth. These decisions had a "special role" inAnglo-American constitutionalism and became fixed points that other ac-tors felt compelled to address. Debates centered on the interpretation ofthese judicial landmarks because they could not be ignored or brushedaside. Judges who sat on high tribunals, though not supreme, were honoredand particularly important constitutional interpreters. They were not su-preme, but they had a special role that elevated them above Privy Council-ors, royal governors, members of Parliament, and colonial assemblymen,let alone justices of the peace, customs collectors, and other low-level con-stitutional interpreters.III. WHAT IS AT STAKE IN REVISING KRAMER'S PICTURE OF PRE-REVOLUTIONARY CONSTITUTIONALISMWhat is at stake in complicating Kramer's two sets of strong distinc-tions and in emphasizing middle positions-emphasizing, that is, the cen-trality of ordinary law in constitutional restraint of government and theauthoritativeness, though not utter supremacy, of judges?2. Id. at 24.3. (1608) 77 Eng. Rep. 377 (K.B.).4. (1670) 124 Eng. Rep. i006 (C.P.).2006]CHICA GO-KENT LA W REVIEWA. How Pre-Revolutionary Constitutionalism Functioned at GroundLevelKramer insightfully points out that significant popular input into pre-Revolutionary constitutional decision-making would, to modem eyes, sug-gest instability in the system. How, then, did it work for so long? He givestwo explanations, which are helpful, but incomplete.Kramer's first explanation: There were limited opportunities for con-stitutional conflict given the modest role of colonial government. But, per-vasive uncertainties in the colonies' domestic constitutions and the imperialconstitution meant that low-level conflicts (over such things as customservice rules, support for the clergy, juror selection, and so forth) kept spi-raling into grand constitutional controversies.Kramer's second explanation: The deference and dependency ofcommon people put a damper on constitutional disputes. But, many consti-tutional disputes involved different factions of the elites. Elite groups inconflict could not mobilize deference and dependency to restrain each otheras they could to quiet down the middling and lower sort.Here's where the "middle positions" overlooked in Kramer's di-chotomies come in handy. They suggest mechanisms for steadying the pre-Revolutionary constitutional order at ground level. The mass of quotidianordinary law and procedure developing in the colonies over the eighteenthcentury, which was part of the colonial constitutions, acted as a stabilizingforce. The special role of judges did likewise by restraining the centrifugaldangers of polities suffused with so many constitutional interpreters.There is a further reason to emphasize the importance in ground-levelconstitutionalism of ordinary law and the special role of judges: the "peopleat large" that do so much work in Kramer's pre-Revolutionary popularconstitutionalism do not seem all that well-suited to the task. This is notclear in the first chapter of the book, where Kramer artfully lays out hisvision of robust popular constitutionalism. 5 For me, doubts began to arisein Chapter 4.6 At this point, Kramer's nicely demonstrates how early na-tional judicial review could be accommodated to an emerging democraticpublic sphere and the valorization of public opinion, to the decline of def-erence in politics, and to a new self-confidence by the common people intheir political and constitutional judgments. Here we see the formation of apublic immersed in newspapers, debating societies, political parties, andpolitically-expressive celebrations. Yet if the capability of the people to act5. KRAMER, supra note 1, at 9-34.6. Id. at 93-127.[Vol 81:905PRE-REVOLUTIONARY POPULAR CONSTITUTIONALISMas constitutional monitors grew so dramatically in the early national period,how did the people discharge their responsibilities in the robust popularconstitutionalism that Kramer finds before the Revolution? The downwardestimation in the skill, education, and confidence of the mid-eighteenth-century populace that results when one considers the growing knowledgeand legal sophistication of the early national populace underscores howimportant were ordinary law and judicial authority in the practical function-ing of colonial constitutionalism.B. Periodization and What Needs to Be ExplainedThe second thing at stake in revising Kramer's portrait of pre-Revolutionary constitutionalism is that one then receives a different under-standing of periodization. Kramer importantly emphasizes that in the1830s, advocates of the departmental view of judicial review (like JamesMadison) began to concede to the judiciary priority (though still not su-premacy) in constitutional interpretation. Given Kramer's depiction ofeighteenth-century and early nineteenth-century history, this turn in the1830s appears as a departure from the vigorous attachment to popular con-stitutionalism held by almost all except the high Federalist fringe. But ifone sketches pre-Revolutionary constitutionalism in the ways I suggested,Madison's turn in the 1830s is not a novelty but an allusion in a differentcontext to pre-Revolutionary practices of honoring judicial interpretationsof constitutional issues as authoritative and important (if not supreme).Changing our accounts of pre-Revolutionary constitutionalism changes ourperception of critical questions: What is anomalous? What calls out forexplanation? In Kramer's formulation, the turn by Madison and othersaway from a dominant eighteenth-century and early nineteenth-centuryrobust theory of popular constitutionalism is an anomaly that needs expla-nation. In my view, the turn in the 1830s has important similarities withpre-Revolutionary Anglo-American constitutionalism. The modest judicialauthority over constitutional judgments in the period between the Revolu-tion and 1830 stands out as anomalous, as the thing needing explanation.CONCLUSIONI have concentrated on pre-Revolutionary constitutionalism becausethat is what I know something about. The danger is that I am like the manwho is asked to describe an elephant and speaks for fifteen minutes aboutthe animal's feet because the man happens to be a podiatrist and finds feetinteresting. Let me end by looking upwards from the feet to the elephant as20061910 CHICAGO-KENT LA WREVIEW [Vol 81:905a whole. The book as a whole is a major achievement. It problematizes thepost-Cooper v. Aaron constitutional order by exploring the historical rela-tionship of judicial review and popular constitutionalism in a contrapuntalfashion and through a social history of constitutionalism that continuallyasked what political and intellectual conditions made arguments plausibleand salient.

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Pre-Revolutionary Popular Constitutionalism and Larry Kramer\u27s \u3cem\u3eThe People Themselves\u3c/em\u3e

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