View source for The People Themselves: Popular Constitutionalism and Judicial Review

{{Infobox book
| name			 = The People Themselves: Popular Constitutionalism and Judicial Review
| author         = Larry D. Kramer
| publisher      = Oxford University Press
| pub_date       = 2004
| pages          = 376
| isbn           = 0195306457
| image          = [[File:The People Themselves.jpg|200px|alt=cover]]
}}
Larry Kramer’s argument pared to its essence is that “the people” –not the courts or the legislature - are the source of Constitutional authority, and have been since 1776. Structurally organized into nine cleverly titled chapters, he first traces American popular constitutionalism’s British antecedents in “the customary constitution,” followed by a detailed explanation of the origins of judicial review, and how the concept – though perhaps not explicitly, nevertheless played a part in the framing and ratification of the Constitution. Kramer then turns to focus on the continued development of popular constitutionalism and its relationship to the vision of departmentalism, in which final authority should rest in the people and not in a single branch of government. In this same section, he closely analyzes Marbury v. Madison, Justice Marshall’s thinking on judicial review, and the case’s impact (or perhaps lack thereof) on its emergence as a “constitutional weapon” (127). 

Detailing the ensuing fight between Federalists and Democratic-Republicans over contrasting visions of judicial power, Kramer argues that there was an ongoing debate over the changing context of constitutional law, its absorption into ordinary law, and how the development of political parties altered the relationship between governors and those governed. In his last chapters, he lays out the consequences of these changes – how both judicial review and popular constitutionalism shared a space in the Jacksonian era that helped to mediate national issues via a lens of restraining judicial power. Later, the Dred Scott case in fact signaled a reaffirmation of the continued repudiation of judicial supremacy, even in the face of ongoing Whig and then Democrat conservative crusading.  Ultimately, however, there was a “marked change” in Court activism after 1865 (213), from Court decisions made grounded in “rational basis scrutiny” in which the Court ceded discretion to the legislative decisions, to ones very consciously grounded in judicial review that gradually diminished popular sovereignty, and enlarged the Court’s broad judicial authority (as evidenced by the Warren court). Justice Rehnquist went on to claim in recent times that “ever since Marbury the court has remained the ultimate expositor of the constitutional text” (226). Kramer, who spends the majority of his time clearly refuting Rehnqist’s claims in the preceding chapters, then advocates for  change – claiming that while judicial supremacy cannot be outright rejected, a return to departmentalism and a reenergized legitimation of popular authority would serve to sensibly temper the power of the court as it did in the eighteenth and early nineteenth century. 

Kramer’s argument though for the most part convincing, is not without some omissions. Though well versed in political, philosophical and legal history, his central argument that the “people themselves” contained the power to interpret constitutional authority lacks a deeper explanation of the methods and examples of popular resistance outside of the legal and political elite. A review of primary sources from ordinary citizens may have strengthened his argument that people were consistently engaged with the question of judicial review and constitutional interpretation. There also seems to be an ongoing discussion of the rise and transformation of the Second American Party system, but the argument for how political party development altered or enhanced popular constitutionalism is less clearly drawn than his other threads of inquiry. Finally, Kramer’s argument is written more like a lawyer and less like an historian – his argument for the Framers’ non-committal attitudes toward judicial review is based on his interpretation of the sources, which he seems to be using to make his point, rather than evaluating them on their own terms. Nevertheless, Kramer presents a well-reasoned and deeply researched and grounded argument for the origins of judicial review and judiciary power, and its minimal (until recently) role in Constitutional thought. 

[[Category:Early America/Colonial History]]
[[Category:Nineteenth Century United States]]
[[Category:Twentieth Century United States]]
[[Category:Wikify]]
[[Category:Book Summaries]]
[[Category:Larry D. Kramer]]