Constitutional Education for The People Themselves

It was an intellectual pleasure for me to read Dean Larry Kramer's The People Themselves. Having taught and written in the area of constitutional law for over two decades, I very much appreciated the opportunity to revisit yet again the great (and not so great) decisions of the Supreme Court as well as the different Justices, political leaders, and commentators whose views of the respective roles of Congress, the President, and the Court regarding constitutional interpretation and meaning have brought us to where we are today. If Dean Kramer is correct in his historical description, there existed, at least until relatively recently, an ongoing political and legal battle between judicial supremacy (constitutional interpretation and meaning from the top down) and popular constitutionalism (constitutional interpretation and meaning from the bottom up).Specifically, Dean Kramer explores the question of how we arrived at the point where the United States Supreme Court, for the first time in our history and with relatively little public outcry (including from the Democratic Presidential candidate himself), directly chose the President of the United States. According to Dean Kramer, this convincingly demonstrates - although Cooper v. Aaron had previously delivered the same message explicitly - that from his perspective the war unfortunately appears to have been won by judicial supremacy. He accurately characterizes the Bush v. Gore decision as triumphalist, a description typically reserved for religions that claim to have exclusive access to salvation and Heaven. Despite the so-called settlement function of Supreme Court supremacy, I was, and still am, profoundly disturbed by Bush v. Gore and the majority's intellectual dishonesty in ignoring Article III's constraints, rejecting federalism, making up new equal protection doctrine for that specific case, and demonstrating a kind of contempt for the people's ultimate ability to sort things out through the political process. However, I do not go as far as Dean Kramer does in arguing normatively for a return to his kind of popular constitutionalism. Dean Kramer advocates a direct interpretive role for the people when the three branches have different and inconsistent constitutional positions, and thus he promotes a rejection of judicial supremacy. My position is more modest and builds less on Dean Kramer's criticism of judicial supremacy than on the self-government rationale of our constitutional structure and the First Amendment.Self-government demands that the American people, through Congress, the President, or independently, evaluate and criticize Supreme Court decisions not only on their merits, but also for the interpretive approaches they use. The people must regularly participate in constitutional conversations in order to be engaged as citizens who govern themselves. Such participation should not be limited to so-called "constitutional moments" such as the Founding, the Civil War era, and the New Deal. Further, in order for the people to participate meaningfully, the people must be educated constitutionally. Before elaborating on this position, I comment briefly on several of Dean Kramer's points.