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A Belated Note on "Popular Constitutionalism"

By Jack M. Balkin

This is a note on Larry Kramer's "popular constitutionalism" thesis that I posted today on the H-Law listserv. It's belated because I was first thinking of making it about...well, two years ago! Better late than never. For me, the debate over Kramer's book was frustrating because I thought everyone was missing at least one of his main points. To exaggerate a bit, everyone was so interested in his argument about contemporary judicial review that they missed the wonderful original research about the intellectual origins of constitutionalism in the eighteenth century. Also, the critiques of his book had too much of a "flavor of the month" dismissiveness about them.

I know from personal experience how difficult it can be to find early evidence of American thinking on constitutionalism and judicial review. Quick -- what's the best intellectual (as opposed to doctrinal) history of the origins of judicial review? (I mean prior to the 1770s when all the fun begins) In my experience at least, the biblio is a little thin, something Gordon Wood noticed in the 1980s. That's what makes Kramer's book so valuable in my view. It is one of the few intellectual histories available. But to understand Kramer's argument, you have to grasp his main point.

Many of the discussions of Kramer's book have been frustrating in that
they have not grasped that point. The point cannot be that there is a relationship between public opinion and constitutional meaning or that there is an inescapable "political" element in any republican or democratic constitution. These points are too familiar to require a new extended treatment that involves (among other things) a careful review of eighteenth-century evidence.

Kramer's most important point can be understood on two levels: conceptual and historical. The conceptual point is that republican or democratic constitutions must be self-enforcing. This has further implications. We may try to treat the constitution as ordinary law, but this project cannot be carried out (at least not fully) because the reality of self-enforcement guarantees that constitutions will not behave as ordinary laws do. The historical point, shown by Kramer's evidence, is that Americans had to struggle and come to grips with the reality of self-enforcement as they tried to determine exactly how the constitution could be regarded as supreme law. The more familiar idea of popular enforcement as an ultimate backstop or guarantor of the Constitution's status as ultimate law is what they came up with. This idea then gets diffracted by events, especially as the Constitution becomes institutionalized in the early decades of the new republic. Kramer's early history also allows us to see subsequent figures, such as Andrew Jackson and Abraham Lincoln, trying to keep faith with the original eighteenth-century idea of a constitution as a fundamental law.

If someone can point me to a discussion of Kramer's book in which these ideas are presented, I would be grateful. I develop the conceptual point in a paper available on SSRN.

Full post as published by Balkinization on March 10, 2008 (boomark / email).