I'm not sure which is more troubling: Larry Kramer's inability, or this entire slate of reviewers' inability thus far -- to understand basic constitutionalism so effusively explained by Madison and Jefferson.

As far as it goes, "The People Themselves" is one of the most trenchant studies by a living author, regarding the intersection of politics and the U.S. Constitution (priomordial law) in America. The problem is, it doesn't go very far at all; as does every reviewer here thus far, the author pleads (petitio principii) on false premises.

In the first place, an earlier reviewer here comments that professor Kramer's book "support(s) Madison's concession that the 'states only political recourse [over the federal courts] is through elections and impeachment'," and that Kramer hints of other (political) possibilities at controlling our out of control federal judiciary.

Yes: and the operative word is POLITICAL. What everyone here seems to be missing -- but Madison and Jefferson -- and even Hamilton, for all love (see Federalist 28) -- did not, is that We The People have LEGAL as well as political recourse when our federal creature slips its leash.

The petitio principii that I alluded to earlier, the particular malady of political parasites like Newt Gingrich and constitutional law gurus like Stanford Law dean Larry Kramer -- is that while Madison (who should certainly know better than anyone else) asserts the almost unlimited perogatives of the soverieng People and sovereign States, and while his "Principles of '98" were echoed as on carbon paper by Jefferson, suggesting VERTICAL checks and balances by the creators over the federal creature -- Kramer, Gingrich, and every reviewer here (thus far) just misses the whole idea of (true) federalism and (true) judicial review in the HIGHEST courts for review of violations byt the federal creature, of the US Constitution.

Those courts are the Courts of the sovereign States. THAT is the judicial review that will meet the tests laid down by Madison and Jefferson; that will, for the first time in history, satisfy the desiderata of both the Federalists (so-called) and the Anti-Federalists (so-called).

We believe that by God's grace and no little amount of due diligence in law, history, and tactical planning, we have finally found the tactical key to Madison and Jefferson's liberty machine. It is a three-wing offensive designed for The People Themselves to exercise daily, from now on, from home and on OUR terms -- including breaking up Congress, brining the member home into the Court of his sovereign State, and trying him/her (severally) for torts and criminal violations of the US Constitution and his/her State statutes...under the Supremacy Clause!

Game, set, match...New deck, new deal. Judicial review in the HIGHEST courts under our system of law...the Courts of the sovereign States, the parties to the Constitution.

As I explain in my upcoming book "This Bloodless Liberty", the 'judicial' watershed portended by John Marshall's dictum in Marbury -- and attained by Dred Scott -- was a MILITARY coup, not judicial at all. The War to Enslave the States achieved the mercantilists' grail: bringing ALL of 'The People Themselves' under one central State by splitting this formerly liberty-driven, Christian population into approximately equal opposing ideological camps. While the internecine war could be maintained, ALL checkbooks could be quietly skimmed. A brilliant plan; and after the North-South acrimony cooled, the donkey-elephant WWF match was enlisted to take its place.

With no VERTICAL check on Congress' RICO organisation, and with Article III providing that federal courts are the creatures of our creature Congress...no amount of professorial gymnastics by the constitutional law guild will break Leviathan's hold on the citizens. We are 'insurgents' now, all of us since 1865 -- until we see the game, and stop it.

Which, God willing, The People Themselves intend to begin doing this Thanksgiving week.

[...]

At the outset, I should say that anyone who is interested in constitutional development and/or theory ought to read this book. It is well-written, creative, and thought-provoking. On the other hand, I cannot help but feel that the author wrote two books, one of which was long (the historical part) and one of which was very short (the normative part). I'm still not clear on how Kramer envisions judicial review w/out judicial supremacy in practice and I also think that he may underestimate the risks of undermining judicial supremacy, which, for better or for worse, Americans have gotten used to. I just wish that he had better defended some of the normative claims that he made in the last chapter, which I found to be the most interesting part of the book, and really engaged the owrries that Tribe and Dworkin (and many others) have raised about more popular forms of constitutionalism. I would be surprised if Kramer would be pleased by Newt Gingrich's favorable review of his book; it shows that popular constitutionalism may have conservative political implications that someone like Kramer would be hesitant to embrace. Indeed, many left-leaning law professors are attracted to various forms of popular constitutionalism in the first place, precisely because they're so unhappy w/ a federal judiciary that is dominated by conservative jurists. At any rate, I highly recommend this book, and I would encourage the reader to make up his or her own mind about its merits.

This is a very fine work of scholarship. The research is staggering in its comprehensiveness, and it is a definite contribution to the literature on the federal courts at a time when there is much attention being devoted to judicial power. The basic thesis of the book is that throughout American constitutional history, what the author terms "popular constitutionalism" has played a "pivotal role" in interpreting the Constitution. The author believes that "judicial supremacy" has caused a disfunction in the political system and needs to be offset by more attention to the expressions of popular direction in making interpretations. In order to argue his thesis, the author has produced a very valuable history of judicial review.

At the outset, the author carefully defines his terms, including "customary constitution," "fundamental law," "natural law" and "common law." Next the author moves on to a discussion of judicial review in England to try and demonstrate that no solid precedent for this practice had developed prior to the drafting of the Constitution. An excellent example of popular sovereignty is the fact that juries during this period often made findings of law as well as fact. The author devotes considerable attention to the purported pre-constitutional precedents for judicial review, finding them either to be overstated or misinterpreted. The historical record does disclose limited acceptance of the practice, but only in cases where the judiciary was protecting its own prerogatives. The author argues that the issue really did not come up very much at this point. Similarly, a solid discussion is devoted to the Constitutional convention and the ratification debates where, once again, the issue came up only sporadically.

The post-ratification period also is examined in several chapters. Once again, the author concludes that there was no clear consensus on the practice of judicial review. The emegence of political parties inhibited popular interpretation, since it placed a layer between the people and the government. However, Jacksonian opposition to the practice persisted. It is only after the Civil War, with the increasing professionalization of the bar and the enhanced conservatism of courts that the practice became recognized (after all, it was not until the Dred Scott decision in the 1850's that the Court again exercised the power it had staked out in Marbury v. Madison). The "Old Court's" abuse of the power was checkmated by the New Deal Settlement stemming from FDR's court-packing attempt. That is, the power would be exercised to review laws impacting individual right, but not Congressional powers such as commerce and general welfare. This compromise lasted until the Rehnquist Court.

There is a lot to consider in this volume. The author's arguments are well thought out and he is straightforward when discussing historical periods when the sentiment in favor of judicial review was pronounced. None of the arguments for judicial review (e.g.,avoiding the tyranny of the majority) persuades the author that the practice should continue without restraint. The only problem I found in the argument was not with the historical evidence (although I don't necessarily share the author's reading of the historical record) but in his conclusion. How would "popular constitutionalism" operate within our current system? That is, how would the people's will be communicated to the courts and Congress, so they could interpret the Constitution and statutes accordingly? Some discussion on this point strikes me as a necessity. For those without some background in the topic, the book may be a bit heavy going due to its comprehensiveness. But for illuminating an important historical approach to the judicial review issue, it is hard to surpass.

This is a very fine work of scholarship. The research is staggering in its comprehensiveness, and it is a definite contribution to the literature on the federal courts at a time when there is much attention being devoted to judicial power. The basic thesis of the book is that throughout American constitutional history, what the author terms "popular constitutionalism" has played a "pivotal role" in interpreting the Constitution. The author believes that "judicial supremacy" has caused a disfunction in the political system and needs to be offset by more attention to the expressions of popular direction in making interpretations. In order to argue his thesis, the author has produced a very valuable history of judicial review.

At the outset, the author carefully defines his terms, including "customary constitution," "fundamental law," "natural law" and "common law." Next the author moves on to a discussion of judicial review in England to try and demonstrate that no solid precedent for this practice had developed prior to the drafting of the Constitution. An excellent example of popular sovereignty is the fact that juries during this period often made findings of law as well as fact. The author devotes considerable attention to the purported pre-constitutional precedents for judicial review, finding them either to be overstated or misinterpreted. The historical record does disclose limited acceptance of the practice, but only in cases where the judiciary was protecting its own prerogatives. The author argues that the issue really did not come up very much at this point. Similarly, a solid discussion is devoted to the Constitutional convention and the ratification debates where, once again, the issue came up only sporadically.

The post-ratification period also is examined in several chapters. Once again, the author concludes that there was no clear consensus on the practice of judicial review. The emegence of political parties inhibited popular interpretation, since it placed a layer between the people and the government. However, Jacksonian opposition to the practice persisted. It is only after the Civil War, with the increasing professionalization of the bar and the enhanced conservatism of courts that the practice became recognized (after all, it was not until the Dred Scott decision in the 1850's that the Court again exercised the power it had staked out in Marbury v. Madison). The "Old Court's" abuse of the power was checkmated by the New Deal Settlement stemming from FDR's court-packing attempt. That is, the power would be exercised to review laws impacting individual right, but not Congressional powers such as commerce and general welfare. This compromise lasted until the Rehnquist Court.

There is a lot to consider in this volume. The author's arguments are well thought out and he is straightforward when discussing historical periods when the sentiment in favor of judicial review was pronounced. None of the arguments for judicial review (e.g.,avoiding the tyranny of the majority) persuades the author that the practice should continue without restraint. The only problem I found in the argument was not with the historical evidence (although I don't necessarily share the author's reading of the historical record) but in his conclusion. How would "popular constitutionalism" operate within our current system? That is, how would the people's will be communicated to the courts and Congress, so they could interpret the Constitution and statutes accordingly? Some discussion on this point strikes me as a necessity. For those without some background in the topic, the book may be a bit heavy going due to its comprehensiveness. But for illuminating an important historical approach to the judicial review issue, it is hard to surpass.