The People Themselves Popular Constitutionalism and Judicial Review [Paperback]

In this groundbreaking interpretation of America's founding and of its entire system of judicial review, Larry Kramer reveals that the colonists fought for and created a very different system--and held a very different understanding of citizenship--than Americans believe to be the norm today. Popular sovereignty was not just some historical abstraction, and the notion of the people was more than a flip rhetorical device invoked on the campaign trail. Questions of constitutional meaning provoked vigorous public debate and the actions of government officials were greeted with celebratory feasts and bonfires, or riotous resistance. Americans treated the Constitution as part of the lived reality of their daily existence. Their self-sovereignty in law as much as politics was active not abstract.


Introduction - Popular Constitutionalism
1. In Substance, and in Principle, the Same as It Was Heretofore: The Customary Constitution
2. A Rule Obligatory Upon Every Department: The Origins of Judicial Review
3. The Power under the Constitution Will Always Be in the People: The Making of the Constitution
4. Courts, as Well as Other Departments, Are Bound by That Instrument: Accepting Judicial Review
5. What Every True Republican Ought to Depend On: Rejecting Judicial Supremacy
6. Notwithstanding This Abstract View: The Changing Context of Constitutional Law
7. To Preserve the Constitution, as a Perpetual Bond of Union: The Lessons of Experience
8. A Layman's Document, Not a Lawyer's Contract: The Continuing Struggle for Popular Constitutionalism
9. As An American: Popular Constitutionalism, Circa 2004
Epilogue - Judicial Review Without Judicial Supremacy

A serious, provocative meditation on what kind of legitimacy the Supreme Court ought to have in a constitutional democracy. Kramer forces us to take seriously the possibility that Supreme Court Justices are no better than we are at deciding matters of fundamental moral and pl