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Who has the last word when it comes to the meaning of the
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Constitution? Who ultimately decides whether a state can
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regulate or outlaw abortion? Or whether Congress can legislate to
protect the elderly or the disabled? Who decides the winner in a
mission
contested presidential election? On these and countless other
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matters of fundamental interest to society, the answer in recent
contests years has been the Supreme Court. And most Americans seem
writers’ guidelines willing, even happy, to leave it at that. Indeed, if recent surveys
internships are to be believed, most think this is how our Founding Fathers
advertising meant it to be. What lawyers call "judicial supremacy"—the idea
SERVICES that judges decide finally and for everyone what the Constitution
bookstore locator means—has found wide public acceptance. Other actors get to
literary links have their say, of course. The president, Congress, the states, and
subscribe ordinary citizens can all express opinions about the meaning of
the Constitution. But the Justices decide whether those opinions
are right or wrong, and the Justices' judgments are supposed to
Search bostonreview.net settle matters for everyone, subject only to the practically
Search the Web impossible process of formal amendment.
It was not always thus. On the contrary, broad acceptance of

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judicial supremacy is of surprisingly recent vintage, a
development that really only began in the 1960s and did not
come 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 often
told today) that the main reason to worry about who becomes
president is that the winner will control judicial appointments.
Giving an unelected judiciary that kind of importance and
deference "makes the Judiciary Department paramount in fact,"
James Madison mused in 1788, "which was never intended and
can never be proper." The Constitution of the founding
generation was a popular one: the people's charter, made by the
people. And it was, in Madison's words, "the people
Solar Energy themselves"—working through and responding to their agents in
government—who "can alone declare [the Constitution's] true
Charity meaning and enforce its observance." The idea of turning this
http://bostonreview.net/BR29.1/kramer.html Page 1 of 19
responsibility over to judges was simply unthinkable.
Helping Relieve I
Poverty Though
The Provision of Americans of the founding era made this clear in what they did
Solar Energy. as well as what they said. The Revolution itself was provoked by
disputes over the meaning of the British constitution. Natural law
Join Us!
did not play an important part in the American cause until
independence was formally declared, and even then its role was
merely to explain why a consistent course of unconstitutional
conduct by Britain justified Americans in renouncing their
allegiance to the Crown. All the underlying complaints in the
Declaration 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 submitted
to a court. Instead, Americans protested and petitioned and
mobbed and relied on a panoply of popular devices to challenge
Public Service Ads by unconstitutional government action. The most famous instance
Google was the Boston Tea Party, held to prevent England from
establishing its power to tax the colonies for revenue. Rather
than submit their claim that the Tea Tax was unconstitutional to
a court, Americans made this determination themselves and
acted to frustrate the law by refusing to allow any tea to be
landed.
Nor did Americans suddenly abandon this sort of popular

constitutionalism upon achieving independence. Countless
examples can be cited from the nation's early years. In 1793
federal authorities prosecuted Gideon Henfield for serving
aboard a French privateer. The court instructed jurors that
Henfield's constitutional defense—that he could not be
prosecuted because his actions were not proscribed by an existing
statute of the United States—was frivolous. But the jury ignored
these instructions and acquitted Henfield, producing what Chief
Justice John Marshall called "extravagant marks of joy and
exultation" from a public that praised the jurors for upholding
the Constitution despite the efforts of corrupt government
officials. Asserting that the power to determine the
constitutionality of legislative acts "lies solely with the judiciary,"
wrote a correspondent for the Albany Register several years
later, during the controversy over the Alien and Sedition Acts, "is
removing the cornerstone on which our federal compact rests; it
is taking from the people the ultimate sovereignty."
This idea of popular constitutionalism is sufficiently foreign to

modern sensibilities to warrant at least brief explanation.
Constitutional law, as originally understood, was different from
ordinary law. It was law created directly by the people to regulate
and restrain the government, as opposed to ordinary law, which
is enacted by the government to regulate and restrain the people.

"A Constitution," wrote Judge William Nelson of Virginia in the
1790s, "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 thus
in the position of ordinary citizens with respect to it: required to
do 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 and
correction 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 and
participation, popular resistance was informal and extralegal—
consisting of everything from polite petitions for a repeal to
outright obstruction of the law in the form of jury nullification
and violent mob action. The creation of a national republic led to
efforts to domesticate these sorts of activities. Whereas 18th-
century constitutionalism had imagined a wholly independent
people checking the government from without, republicanism
made it possible to think of the people acting in and through the
government, with the different branches responding differently
to popular pressure depending on their structure and their
relationship to the polity.
The resulting theory, which emerged clearly only in the 1790s, is

known today as "departmentalism." Best articulated by Madison
and 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 the
Constitution 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 negotiation
and accommodation. If this proved impossible, Kentucky Senator
John Breckinridge explained, "[a] pertinacious adherence of both
departments to their opinions, would soon bring the question to
issue . . . whose construction of the law-making power should
prevail"—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 the

famous fifty-first essay, will recognize in this reasoning an
extension of Madison's general theory of separation of powers.
Madison failed to emphasize courts in 1788 because judicial
review was not yet a significant element in his thinking. The
departmental theory folded courts into Madison's broader
scheme, but without changing its basic commitment to

democratic deliberation and popular authority.
Madison's answer to the problems of republican politics had

never been to limit democratic decision making by undemocratic
means. Nor had it been to remove the people from the process of
governing. His solution was to complicate politics: to slow it
down with internal checks so that what ultimately prevailed was
not the immediate reactions of an unreflective populace but
rather a reasoned popular opinion that had been refined through
a process of extended public debate. Either house of Congress, or
the executive with its veto, could prevent proposed legislation
from taking effect. But their block was really a means to test the
legislation's merits and support by forcing advocates to respond
to objections and appeal for greater public support. The checking
and balancing of the different departments of government thus
served 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 executive
might still be held in abeyance on constitutional grounds by a
court. But the judiciary's decision would not, could not, finally
resolve the measure's constitutionality. It was, rather, a reference
point for further deliberation, with the people themselves
deciding the matter by how they responded to competing appeals
from members of the different branches through petitions,
protests, and popular reactions to legislation and executive action
or inaction.
Departmentalism was not the only theory of judicial review to

emerge in the 1790s. The modern idea of judicial supremacy also
appeared in these years, put forward by conservative Federalists
worried about the direction of politics in the young republic. The
Federalists who spearheaded the drive for a new Constitution in
the late 1780s thought that creating a strong national
government would end the political turmoil that had plagued the
new nation in its first decade. They believed the size and scale of
the new national government would put men like themselves in
control, and they expected amicably to govern a quiescent
population content to follow their wise leadership. But terrible
strains emerged as Americans divided over contentious issues of
finance and foreign affairs. The French Revolution proved
especially divisive, as Americans took to the streets to
demonstrate their support for France or England and to urge the
administration to deal harshly with one or the other of these
European powers. People mounted petition campaigns and called
conventions; they paraded, planted liberty poles, and burned
effigies; they held feasts and delivered public toasts. Alexander
Hamilton was stoned at one protest meeting for suggesting that

the constitutionality of the Jay Treaty with England was a matter
for the president and Senate, rather than the people themselves,
to decide.
Yet clashes over Hamilton's bank or the French Revolution were

themselves merely expressions of a more fundamental
disagreement about the proper role of ordinary citizens in day-
to-day governance. Under the leadership of Jefferson and
Madison, Republicans embraced an expansive ideal of popular
authority, championing the people's right to control their
representatives at all times and on all issues. Hamiltonian
Federalists, in contrast, became progressively more conservative
and anti-populist, defending a philosophy that acknowledged the
political power of ordinary citizens on election day but called
upon them between elections to defer passively to "constituted
authorities." This was, in a sense, a logical extension of the
Federalist ideology of the 1780s, but the anti-democratic strands
in Federalist thinking became much more pronounced in the
1790s—a product of unexpectedly fierce political opposition at
home and of fear that the violence wracking French society could
be exported to America.
Confronted with the apparent failure of their constitutional

strategy 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 that
had 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 was
then a novel claim that the federal courts had been specially
designed to protect constitutional values from factional
majorities. By decade's end, as political strife reached a crisis
point and Federalists tried to smother their opponents under the
Sedition Act (which made it a crime merely to criticize the
government), some judges began espousing the new legal
constitutionalism from the bench, refusing to permit juries to
exercise their traditional authority over questions such as the
constitutionality of this controversial legislation.
The election of 1800 was, among other things, a referendum on

constitutional authority, with the role of the Supreme Court and
the question of judicial supremacy among its central issues.
Republicans loudly proclaimed the right of the people and the
states to decide whether the acts and actions of the national
government were constitutional; Federalists responded that such
decisions 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 the

1802 midterm elections, seemed conclusively to resolve this
contest 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, evidences

this rejection. The issue before the Court was loaded with
political significance: could the (Federalist) Supreme Court order
the (Republican) Jefferson administration to deliver
commissions to justices of the peace appointed by John Adams in
the waning hours of his presidency? Recognizing that an
affirmative answer would almost certainly be ignored, the justices
ducked the question by holding that the statute giving them the
power 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 from
Republican judges like Spencer Roane and St. George Tucker.
The difference, which is scarcely visible to us today, was glaring
at the time. Jefferson and the Republicans did not ignore
Marshall'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 be
made of the power. Rather, Republicans agreed with the theory
Marshall articulated, which in context reflected an abandonment
of the idea of judicial supremacy. The way the modern Court cites
Marbury as authority for its supremacy could hardly be more
ironic—or more mistaken.
II
Though discredited among the general public, the idea of judicial

supremacy never disappeared entirely. Federalists and former
Federalists 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 for
interpreting the Constitution. The very diffuseness and
decentralization of popular constitutionalism left room for these
advocates of judicial supremacy to continue to nurse their claim.
By the early 1840s, popular constitutionalism and judicial
supremacy were sharing space in American political culture, co-
existing in an uncertain and sometimes tense relationship.
Struggle was not constant. It consisted of periodic blowups

occurring 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 or

a leader managed to capture the general public's attention—
whenever, in other words, circumstances impelled Americans to
crystallize their latent beliefs and choose sides—they consistently
chose popular constitutionalism over the view that the
Constitution was subject to authoritative control by the judiciary.
The major controversies are matters of common historical

knowledge: the clash over slavery in the territories in the years
before the Civil War; the controversy over congressional
management of Reconstruction; the battle between the
Progressives and the courts over social welfare legislation; and, of
course, the New Deal crisis. When an overconfident Supreme
Court concluded in 1857 that Congress had no power to exclude
slavery from federal territories, it handed down perhaps the
single most reviled decision in the canon of American
constitutional law. Abraham Lincoln's reassertion of the
departmental theory in response to Dred Scott is famous, but
Lincoln was hardly the only one to make this argument.
Editorialists and politicians throughout the North and West
savaged the Court for its "impertinence" in presuming to "act as
the interpreter of the Constitution for the other branches of the
government."
It took nearly a generation for the wounds inflicted on the

Court's reputation by Dred Scott to heal. The Reconstruction
Congress threatened the Court with "annihilation" and forced it
to 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. When
the Court reasserted itself again at the turn of the century, it
faced vigorous opposition from Progressives demanding "such
restrictions of the courts as shall leave to the people the ultimate
authority to determine fundamental questions of social welfare
and public policy." The American people must be made "the
masters and not the servants of even the highest court in the
land," demanded Theodore Roosevelt in 1912.
Progressives were less successful than their predecessors in

curbing the Court, but the battle continued. Support for "the
people" as the interpreter of last resort remained strong among
liberal lawyers and intellectuals. For a variety of reasons, matters
did not come to a head until 1936, when the Supreme Court
struck down central elements of Franklin D. Roosevelt's New
Deal on the ground that Congress had exceeded what the justices
thought should be the scope of federal power. The role of the
Court became a contested political issue for the general public as
New Dealers reasserted the people's right to decide when and
how the Constitution allows the federal government to address

dire social and economic problems. Like his cousin and
predecessor in the White House, FDR made his case by appealing
directly to the legacy of popular constitutionalism. "The
Constitution of the United States," he insisted, is "a layman's
document, not a lawyer's contract." Although Roosevelt's most
overt 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 the
second New Deal in 1937, rendering further pressure
unnecessary. Through a combination of changing votes and
changing members, the Court repudiated key elements of its
Progressive-era jurisprudence, and a new accommodation
emerged, 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 individual
rights (policed by judges)—lasted for nearly six decades, from the
late 1930s to the mid-1990s. The Warren and Burger Courts,
which sat between 1954 and 1986, were definitely "activist," in
the sense that they used the power of judicial review to strike
down a great deal of legislation, but their activism remained for
the most part within the terms worked out after 1937. While
making their presence felt on questions of individual rights,
these Courts respected the space carved out for popular
constitutionalism 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, perhaps

unwittingly, set in motion a process of unraveling this
constitutional settlement. For within the limited sphere marked
out for courts in the New Deal, they effected tremendous change.
When New Dealers advocated a two-tiered system of judicial
review, they probably envisioned the courts' role protecting
individual rights as a small thing—a reasonable expectation given
prior experience. But beginning with the 1954 decision in Brown
v. Board of Education, the Supreme Court showed what an
ambitious judiciary was capable of accomplishing even within
this previously limited domain. Constitutional settlement or not,
bold decisions on such matters as race, sex, abortion, school
prayer, 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 getting

the 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 signed
an 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 indispensable
feature of our constitutional system."
Marbury, of course, had said no such thing. Nor, despite the

Court's persistent efforts, had judicial supremacy ever been
accepted as constitutional doctrine. The justices in Cooper were
not reporting a fact so much as trying to manufacture one, and
notwithstanding the Eisenhower administration's reluctant
decision 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. State
legislatures sometimes enacted laws they knew the Court would
strike down, and compliance with the justices' most contentious
rulings—such as those involving abortion or school prayer— was
willfully slack in many places. But sometime in the 1960s, these
incidents of noncompliance began evolving into forms of protest
rather 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 constitutional

matters were being directed at rather than against the Court, and
acceptance of judicial supremacy seemed to become the norm.
Rather than deny the justices' supremacy, opponents looked to
change 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 the
nominations of Robert Bork and Clarence Thomas.
Explaining this rather extraordinary development is not easy.

One factor, certainly, has been the general skepticism about
popular government that came to characterize Western
intellectual thought after World War II. The seeming eagerness
with which mass publics in Europe had embraced fascism and
communism eroded intellectual faith in what the political
scientist Robert Dahl derisively referred to in the 1950s as
"populist democracy." The new thinking, associated most closely
with Dahl and with Joseph Schumpeter, denigrated democratic

politics as an engine for developing substantive values and
portrayed it instead as a self-interested competition among
interest groups. (Although Dahl himself was never enthusiastic
about the Supreme Court, his early reduction of democratic
politics to interest-group bargaining was used by proponents of a
more assertive Court, who saw it as the place where bargaining
might give way to reasoning and interests to principles.) Viewing
electoral politics in this unflattering light made it easier to
defend the judicial process as a comparatively better setting in
which to preserve constitutional commitments and carry on the
moral 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—a
liberal activist Court that, for the first time in American history,
gave progressives a reason to see the judiciary as a friend rather
than a foe. This had never been a problem for conservatives.
Going all the way back to the Federalist era, conservatives had
always 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. Their
protests were directed at the substantive interpretations of the
liberal justices, whom they saw falsely using the Constitution as
cover to deal with matters that constitutional law did not in fact
address. Few conservatives rejected judicial review, and almost
all supported the idea of judicial supremacy over the Constitution
as they understood and interpreted it—continuing to insist, for
example, 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 Warren

Court. For while they believed deeply in the substantive goodness
of the Court's decisions, their teachers and heroes had led the
fight against the Progressive-era Court, and many of them had
devoted their professional lives to the idea that courts acted
inappropriately when they interfered with the popular will.
Judicial innovations like Brown, Miranda, and Roe were a
wrenching test of the traditional liberal commitment to judicial
restraint.
As Warren Court activism crested in the mid-1960s, a new

generation of liberal scholars discarded their opposition to the
courts and turned the liberal tradition on its head by embracing
a 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 proper
domain and even more about the appropriate techniques for
judges to use in interpreting the text. But liberals and
conservatives alike took for granted that it was judges who
should do the interpreting and that the judges' interpretations
should be final and binding. The idea of popular
constitutionalism faded from view, and judicial supremacy came
to monopolize constitutional theory and discourse.
What is more, the principle was no longer confined to the limited

domain of individual rights—at least not according to the Court.
As articulated by the justices, the Court's supremacy in
constitutional interpretation was unqualified, equally applicable
to every question of constitutional law. Yet the Court's actual
behavior did not match this ambitious claim, for (as noted
earlier) the Warren and Burger Courts continued to respect the
New 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 scope

of judicial supremacy and its practice. An immense body of
scholarship soon emerged to explain the post–New Deal
structure of judicial review, but tension remained at a deep
intellectual level. Those who found its political consequences
troubling latched on to the seeming disconnect between a
Constitution that was supposedly subject to judicial oversight
and the practice of leaving questions respecting the
Constitution's limits to be settled by political institutions. In
recent 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 form
of 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 Clarence
Thomas—were on the Supreme Court.
The consequence has been a substantial change in Supreme

Court practice, as the Rehnquist Court has carried the theory of
judicial power developed by its predecessors to its logical
conclusion. Reaffirming judicial supremacy in the domain of
individual rights, the present Court has gone beyond the Warren
and Burger Courts by discarding or constricting the doctrines
that 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 rests
explicitly, moreover, on a claim that judges and judges alone are
finally responsible for interpreting the Constitution. "No doubt
the political branches have a role," the Chief Justice said
recently, "but ever since Marbury this Court has remained the
ultimate expositor of the constitutional text."
IV
When confronted by similarly aggressive Courts in the past,

Americans have always reasserted their right, and their
responsibility, as republican citizens to say finally what the
Constitution means. Are we still prepared to insist on our
prerogative to control the meaning of our Constitution?
To listen to contemporary political debate, one has to think the

answer must be no. Why else has the appointment process come
to matter so much? Liberals and conservatives fight so hard
because both sides believe that, once in office, the justices will
and, more importantly, should have the power to decide matters
once and for all. The triumph of judicial authority is still more
apparent in the all-but-complete disappearance of public
challenges to the justices' supremacy over constitutional law.
Apart from a handful of grumpy academics, pretty much
everyone nowadays is willing to accept the Court's word as final—
and to do so, it seems, regardless of the issue, regardless of what
the justices say, and regardless of the Court's political
complexion. To spot today's prevailing consciousness, one need
look no farther than Senator Patrick Leahy, ostensible leader of
the Court's Democratic opposition in Congress. While often
questioning the justices' decisions, Senator Leahy takes great
pains to purge his speeches of any hint that he means to
challenge the Court's authority as final arbiter of constitutional
law. "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 the
Supreme Court as . . . the ultimate interpretation of our
Constitution, whether I agree or disagree."
"Of course"? Whatever else one might think about such

sentiments, they reflect a profound change in attitudes from what
has historically been the case. Sometime in the past generation or
so, constitutional history was recast—turned on its head, really—
as a story of judicial triumphalism. The Supreme Court's
monopoly on constitutional interpretation is now depicted as
inevitable, as something that was meant to be and that saved us
from ourselves. The historical voice of judicial authority is
privileged, while opposition to the Court's self-aggrandizing
tendencies is ignored, muted, or discredited.
Bush v. Gore is a telling illustration of just how much things have

changed. One need not take sides on the merits of the case to see
that public acquiescence to the Court's decision cannot be
explained as a matter of widespread indifference, much less
political 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, when
Samuel Tilden won the popular vote but disputed Electoral
College votes gave the election to Rutherford B. Hayes. Faced
with the possibility of massive resistance, the controversy was
ultimately resolved by an ad-hoc political commission consisting
of representatives from all three branches. Significantly, at the
time of this earlier election no one—on or off the Court—ever
dreamed of trying to resolve it in litigation, due in no small part
to the fact that the half of the country that supported the loser
would not have stood passively by and allowed the justices to
dictate the outcome.
The reaction to Bush v. Gore is suggestive, moreover, of a larger

point. Perhaps a majority of the country supports what the
Rehnquist Court is doing. That still would not explain why all
those who disagree, and disagree strongly, nevertheless feel
constrained to passively accept the Court's rulings while waiting
for 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" to
affirm that decisions of the Supreme Court settle constitutional
law no matter how wrong he or anyone else thinks they are.
What would explain facts like these? The expansion of judicial

authority in the closing decades of the past century was not
dictated by logic or evidence or history or law. It was, as Richard
Parker noted in his book Here the People Rule, simply a change
in 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 what
ordinary citizens might permit or encourage political actors to
do. 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 than
principled, impulsive and close-minded rather than deliberate or
logical. Ordinary people are like children, really. And being like
children, ordinary people are insecure and easily manipulated.
The result is that ordinary politics, or perhaps we should say the
politics that ordinary people make, is not just foolish but
positively dangerous.
It comes as no surprise that people who hold these sorts of beliefs

about ordinary people would gravitate toward something like
judicial supremacy. Seeing democratic politics as scary and
threatening, they find it obvious that someone must be found to
restrain its mercurial impulses, someone less susceptible to the
demagoguery and short-sightedness that afflict the hoi polloi.
This is High Federalism redux. And like the High Federalists of
the 1790s, modern commentators have come to see the

Constitution in exclusively countermajoritarian terms, a
protection against the tyranny of the majority—as if this were
self-evident, as if a constitution could be nothing else.
Other commentators have similarly noted the profoundly anti-

democratic attitudes that underlie modern support for judicial
supremacy: attitudes grounded less in empirical fact or logical
argument than in intuition and supposition. Mark Tushnet
points to a "deep-rooted fear of voting" among modern
intellectuals and suggests they "are more enthusiastic about
judicial review than recent experience justifies, because they are
afraid of what the people will do." Jack Balkin describes a
dominant "progressivist sensibility" constituted by "elitism,
paternalism, authoritarianism, naivete, excessive and misplaced
respect 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, confusion
of factual and moral expertise, and meritocratic hurbris." Roberto
Unger 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. But
they would not deny or repudiate the essential argument: that
constitutional law is motivated by a conviction that popular
politics is by nature dangerous and arbitrary; that "tyranny of the
majority" is a pervasive threat; that a democratic constitutional
order is therefore precarious and highly vulnerable; and that
strong external checks on politics are necessary lest things fall
apart.
We see this sort of skepticism about people and democracy in

persistent misreadings of the founding that selectively focus on
statements expressing fears of popular majorities, that do not
even see the more important, more pervasive theme celebrating
the rise of popular rule. We see it, too, in the rise of the "cult of
the Court" and in the complacency accompanying even the most
aggressive judicial interference in politics.
A profound mistrust of popular government and representative

assemblies is, in fact, one of the few convictions (perhaps the
only conviction) that the Right and the Left today share. The
Right prefers the invisible hand of a market—decentralized,
unselfconscious, uncoordinated—to a body in which deliberate
choices about how to govern are made. From the Left, in the
meantime, we get "deliberative democracy," a theory that defines
popular 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, which
at least some practitioners find attractive because it helps them
to "prove" how ordinary people cannot be expected to act
rationally 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 that
most contemporary commentators share a sensibility that takes
for granted various unflattering stereotypes of ordinary people
and their susceptibility to committing acts of injustice.
These deep-seated misgivings about ordinary citizens explain

why modern intellectuals worry so about the risks associated with
popular government and why these risks loom so large in their
eyes. Their qualms consistently lead them to resolve disputes
about 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 that
explains why so many of them find the question of judicial
supremacy to be easy and obvious.
For those with a different sensibility, the opposite conclusion

seems just as easy and just as obvious. Absent some reason to
believe that other members of society are not approaching
questions with the same good faith we attribute to ourselves—
and the fact that they reach conclusions we disapprove of is not
itself 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 itching
for monarchy, its opponents are not dreaming of some pie-in-
the-sky model of Athenian direct democracy. They recognize the
need for representation and do not object to institutional
arrangements designed to slow politics down (e.g., a separation
of powers). Still, there is a qualitative difference between political
restraints like bicameralism or a veto and a system of judicial
supremacy. 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 within
ordinary politics and those that purport to operate outside and
upon it.
This is, of course, a very old conflict. In an essay written in the

form of a dialogue between "Republican" and "Anti-republican"
and published in 1792, James Madison asked "Who Are the Best
Keepers of the People's Liberties?" Republican answered that
"the people themselves" were the safest repository—to which

Madison had Anti-republican reply: "The people are stupid,
suspicious, licentious" and "cannot safely trust themselves."
"Wonderful as it may seem," Anti-republican continued, "the
more you make government independent and hostile towards the
people, the better security you provide for their rights and
interests."
Look ahead six decades to Martin Van Buren's 1857 Inquiry into
the Origins and Course of Political Parties in the United States
and one finds the same arguments being made. Following
Madison, Van Buren said that American politics had always been
defined by a struggle between two great principles, which Van
Buren labeled "democracy" and "aristocracy" and which he
described in terms of their appeal to those who have "a proper
respect for the people" and those who have "an inexhaustible
distrust . . . 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 nor
off-base in identifying the persistence of these two views and in
emphasizing their centrality in shaping politics.
Simply put, the supporters of judicial supremacy are today's

aristocrats. One can say this without being disparaging, meaning
only to connect modern apologists for judicial authority with that
strand in American thought that has always been concerned first
and foremost with "the excess of democracy." Today's aristocrats
are presumably no more interested in establishing a hereditary
order than were Alexander Hamilton, Gouverneur Morris, or
Joseph Story. But like these intellectual forbears, they approach
the problem of democratic governance from a position of deep
ambivalence: committed to the idea of popular rule, yet
pessimistic and fearful about what it might produce and anxious
to hedge their bets by instituting extra safeguards.
Today's democrats, in the meantime, are no less concerned about

individual rights than were their intellectual forbears: Jefferson,
Madison, and Van Buren. But like these predecessors, those with
a democratic sensibility have greater faith in the capacity of their
fellow citizens to govern responsibly. They see risks but are not
convinced that the risks justify circumscribing popular control by
overtly undemocratic means. In earlier periods, aristocrats and
democrats found themselves on opposite sides of such issues as
executive 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, the

forces of aristocracy seem to have prevailed. There were in the
past always those for whom fear of democracy was paramount,
but theirs was a minority viewpoint. Most Americans resisted

handing control of the Constitution over to what Van Buren
condemned as "the selfish and contracted view of a judicial
oligarchy." It seems, however, that two generations of relentless
skepticism by intellectuals and opinion-makers on both the Left
and the Right have taken their toll, and the public today seems to
have 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. The
Constitution does not make it for us. Neither does history or
tradition or law. We may choose as a matter of what Sanford
Levinson has called "constitutional faith" to surrender control to
the Court, to make it our Platonic guardian of constitutional
values. Or we may choose to keep this responsibility, even while
leaving the Court as our agent to make decisions. Either way, we
decide.
The point, finally, is this: To control the Supreme Court, we must

first lay claim to the Constitution ourselves. That means publicly
repudiating justices who say that they, not we, possess the
ultimate authority to interpret the Constitution. It means publicly
reprimanding politicians who insist that "as Americans" we
should submissively yield to whatever the Supreme Court
decides. It means refusing to be deflected by arguments that
constitutional 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 to
emphasize technical requirements of precedent and formal
argument that necessarily complicated matters. But this
complexity was created by the Court for the Court and is itself a
product of judicializing constitutional law. In reclaiming the
Constitution we reclaim the Constitution's legacy as, in Franklin
D. Roosevelt's words, "a layman's instrument of government" and
not "a lawyer's contract." Above all, it means insisting that the
Supreme 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 what
the 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. The
Constitution leaves room for countless political responses to an
overreaching 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 or
revise 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 most
admired presidents, such as Jefferson, Jackson, Lincoln, and
Franklin D. Roosevelt.
That merely mentioning such possibilities sends chills down the

spines of lawyers and legal scholars today is just one more sign of
how much things have changed. And, of course, political
responses like these should not be invoked lightly. But as history
demonstrates, a great irony of making clear that we can and
should punish an overreaching Court is that it will then almost
never be necessary to do so. For, as Madison and other
proponents of the departmental theory saw as early as the 1790s,
a risk averse and potentially vulnerable Court can be expected to
adjust its behavior to signs of popular unrest expressed though
the other branches.
Making this shift would not entail major changes in the day-to-
day business of deciding cases. There would still be briefs and
oral arguments and precedents and opinions, and the job of being
a Supreme Court justice would look pretty much the same as
before. What presumably would change is the justices' attitudes
and self-conceptions as they went about their routines. In effect—
though the analogy is more suggestive than literal—Supreme
Court justices would come to see themselves in relation to the
public somewhat as lower-court judges now see themselves in
relation to the Supreme Court: responsible for interpreting the
Constitution according to their best judgment, but with an
awareness that there is a higher authority out there with power
to overturn their decisions—an actual authority, too, not some
abstract "people" who spoke once, two hundred years ago, and
then disappeared. The practical likelihood of being overturned by
this authority may be small, but the sense of responsibility thus
engendered, together with a natural desire to avoid controversy
and protect the institution of the Court, would inevitably change
the dynamics of decision-making. It is this, in fact, that explains
how 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 too
little mind to the public's view of things. 
Larry Kramer is the associate dean for research and academics

and 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
May.
Originally published in the February/March 2004 issue of Boston Review.
Copyright Boston Review, 1993–2006. All rights reserved. Please do not reproduce without permission.
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Larry Kramer: We the People 1/20/10 7:12 PM

It was not always thus. On the contrary, broad acceptance of

responsibility over to judges was simply unthinkable.

Nor did Americans suddenly abandon this sort of popular

This idea of popular constitutionalism is sufficiently foreign to

is enacted by the government to regulate and restrain the people.

The resulting theory, which emerged clearly only in the 1790s, is

Readers familiar with the Federalist papers, and especially the

scheme, but without changing its basic commitment to

Madison's answer to the problems of republican politics had

The departmental theory added judicial review to this process. A

Departmentalism was not the only theory of judicial review to

Hamilton was stoned at one protest meeting for suggesting that

Yet clashes over Hamilton's bank or the French Revolution were

Confronted with the apparent failure of their constitutional

The election of 1800 was, among other things, a referendum on

Judiciary Act of 1801 and another Republican triumph in the

The opinion in Marbury v. Madison, decided in 1803, evidences

Though discredited among the general public, the idea of judicial

Struggle was not constant. It consisted of periodic blowups

citizens remained largely unconcerned. Yet whenever an issue or

The major controversies are matters of common historical

It took nearly a generation for the wounds inflicted on the

Progressives were less successful than their predecessors in

how the Constitution allows the federal government to address

The New Deal settlement—which drew a line between

Yet the justices of the Warren and Burger Courts, perhaps

Challenges to these decisions may have played a role in getting

forcefully reassert its supremacy. This happened most famously

Marbury, of course, had said no such thing. Nor, despite the

By the 1980s most protests that touched on constitutional

Explaining this rather extraordinary development is not easy.

with Dahl and with Joseph Schumpeter, denigrated democratic

Closer to home in promoting acceptance of judicial supremacy

Liberals had a more difficult time responding to the Warren

As Warren Court activism crested in the mid-1960s, a new

liberals found themselves in agreement on the principle of

What is more, the principle was no longer confined to the limited

The result was a glaring disjunction between the theoretical scope

The consequence has been a substantial change in Supreme

When confronted by similarly aggressive Courts in the past,

To listen to contemporary political debate, one has to think the

"Of course"? Whatever else one might think about such

Bush v. Gore is a telling illustration of just how much things have

authority to decide the matter explains the silence that followed.

The reaction to Bush v. Gore is suggestive, moreover, of a larger

What would explain facts like these? The expansion of judicial

It comes as no surprise that people who hold these sorts of beliefs

the 1790s, modern commentators have come to see the

Other commentators have similarly noted the profoundly anti-

Those who seem themselves as targets of such critiques may

We see this sort of skepticism about people and democracy in

A profound mistrust of popular government and representative

satisfied: prerequisites that it just so happens can be met only by

The point is not that modern scholars want to abolish democracy

These deep-seated misgivings about ordinary citizens explain

For those with a different sensibility, the opposite conclusion

Once again, one must be careful not to overdraw the argument.

This is, of course, a very old conflict. In an essay written in the

"the people themselves" were the safest repository—to which

Simply put, the supporters of judicial supremacy are today's

Today's democrats, in the meantime, are no less concerned about