Jump to ContentJump to Main Navigation
A Distinct Judicial PowerThe Origins of an Independent Judiciary, 1606-1787$

Scott Douglas Gerber

Print publication date: 2011

Print ISBN-13: 9780199765874

Published to Oxford Scholarship Online: September 2011

DOI: 10.1093/acprof:oso/9780199765874.001.0001

Show Summary Details
Page of

PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2017. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use (for details see http://www.oxfordscholarship.com/page/privacy-policy). Subscriber: null; date: 26 February 2017

(p.345) Appendix Popular Constitutionalism

(p.345) Appendix Popular Constitutionalism

The Contemporary Assault on Judicial Review

Source:
A Distinct Judicial Power
Publisher:
Oxford University Press

Several of the nation’s most influential constitutional law scholars have been arguing for the better part of a decade that judicial review should be sharply limited or eliminated altogether. The list includes such prominent thinkers as Professor Mark V. Tushnet of Harvard Law School, Professor Cass R. Sunstein of Harvard and the University of Chicago Law School, and Dean Larry D. Kramer of Stanford Law School. In place of the doctrine made famous by Chief Justice John Marshall in Marbury v. Madison,1 these leading lights of the legal academy call for “popular constitutionalism”: constitutional law that is defined outside of the courts by the people themselves, “whether we act in the streets, in the voting booths, or in legislatures as representatives of others.”2

The purpose of this Appendix is to demonstrate that popular constitutionalism is wrong and should be rejected. It is difficult to overstate the importance of doing so, given how influential Tushnet, Sunstein, and Kramer are to current thinking about the Supreme Court’s place in American life. For example, both Sunstein and Kramer previewed as separate Forewords to the Harvard Law Review’s annual survey of the Court’s term what they would (p.346) later explore in their major books on popular constitutionalism.3 There is no more prestigious a platform for a constitutional law scholar than a Harvard Law Review Foreword.4

In addition, symposia have been dedicated to discussing the popular constitutionalism of Tushnet and Kramer,5 and book reviews published in the nation’s leading law journals have commented on each of the three major books.6 And while it is not uncommon for books by law professors at elite law schools to be greeted by the legal academy with almost as much hoopla as a new Steven Spielberg film is greeted by Hollywood, the popular constitutionalism tomes of Tushnet, Sunstein, and Kramer have transcended the ivy tower and permeated the larger world of ideas. Not only have their books been reviewed in history and political theory journals,7 but leading national magazines and newspapers such as The New Republic, The New York Review of Books, and The Wall Street Journal have devoted pages to them.8 If that were not enough, Kramer pled his case for popular constitutionalism to television viewers across the land in the final segment of the PBS documentary The Supreme Court,9 while Sunstein repackaged the argument he made in his academic treatise so that it would be accessible to a popular audience.10 Tushnet, a past president of the Association of American Law Schools, likewise continues to trumpet the virtues of popular constitutionalism.11

Despite all the attention that popular constitutionalism has received in recent years, no one has presented a systematic critique of the underlying idea. Of course, scholars have been opining about the Supreme Court’s role in the American constitutional order since at least 1893, when James Bradley Thayer published The Origin and Scope of the American Doctrine of (p.347) Constitutional Law.12 In his article, which has been described as “the most influential essay ever written on American constitutional law,”13 Thayer argued that legislators rather than judges should be the primary arbiters of the Constitution’s meaning and that judges should invalidate only those laws that are predicated on clearly erroneous interpretations of the Constitution.14

Thayer, a political liberal,15 was not writing in a vacuum. Rather, he was reacting to what he perceived as the emerging judicial activism on behalf of economic liberties that was to culminate in Lochner v. New York, the 1905 decision in which the Court ruled that a New York law regulating the hours of bakery workers violated the due process clause of the Fourteenth Amendment.16 As Law Professor Barry Friedman has demonstrated in a series of articles, constitutional law scholars have been “obsessed” with the Court’s role in the American regime ever since.17 And in typical Thayerite fashion, a particular scholar’s opinion on the subject has turned almost exclusively on whether the Court in question—the Warren Court, the Rehnquist Court, etc.—is comprised of a majority of justices who share the scholar’s political views.18 Popular constitutionalism is simply the latest reincarnation of partisan constitutional theorizing that dates from Thayer’s famous essay.

Tushnet’s Taking the Constitution Away from the Courts

Mark Tushnet’s Taking the Constitution Away from the Courts is the most extreme of the leading works on popular constitutionalism. The book’s title means what it says: the author calls for a constitutional amendment overruling Marbury v. Madison, the landmark 1803 decision by Chief Justice John Marshall that is widely credited with establishing the Court’s power of judicial review.19 In its place, Tushnet asks that we reorient ourselves towards “populist constitutional law,” in which the people and their elected representatives interpret, and enforce, the Constitution.20

(p.348) Tushnet divides Taking the Constitution Away from the Courts into eight chapters, together with a preface and a prologue. Chapter 1, “Against Judicial Supremacy,” is devoted to establishing his basic framework, with particular attention being afforded to differentiating between the “thin Constitution” (rights questions) and the “thick Constitution” (powers questions). Although the book is primarily about the “thick” question of judicial review, Tushnet spends most of his time addressing “thin” questions of individual rights, which suggests that his real objective—as explained below—is to protect Leftist rights precedents.

In Chapters 2 (“Doing Constitutional Law Outside the Courts”), 3 (“The Question of Capability”), and 4 (“The Constitutional Law of Religion Outside the Courts”), Tushnet describes how we can contemplate the Constitution without judicial decisions to guide us. In Chapters 5 (“The Incentive-Compatible Constitution”) and 6 (“Assessing Judicial Review”), he maintains that the abolishment of judicial review would not mean less protection for individual and minority rights. This is perhaps the most counterintuitive portion of the book—most of us were taught that the judiciary’s principal function is to protect rights—but Tushnet’s position is not without precedent in the scholarly literature.21

Chapter 7 (“Against Judicial Review”), likely the book’s most important chapter, suggests how the courts can be denied any role in constitutional interpretation whatsoever. In Chapter 8 (“Populist Constitutional Law”), Tushnet summarizes his argument—a law professor’s “argument” in the literal sense of the word—for populist constitutional law.

At the heart of Tushnet’s project is his belief that the Constitution is not so much a collection of written provisions as it is a set of aspirational principles expressed in the document’s preamble and in the Declaration of Independence that preceded it.22 Here, Tushnet sounds very much like Clarence Thomas, a Supreme Court justice whose confirmation he strongly opposed and whose service on the Court he seeks to delegitimize. Tushnet is on record as suggesting that the American people not regard cases decided by the Court by a 5-to-4 vote, with Justice Thomas in the majority, as binding law.23

Justice Thomas’s commitment to the principles of the Declaration of Independence was stated most dramatically in his concurring opinion in Adarand Constructors, Inc. v. Peña,24 the Rehnquist Court’s 1995 broadside against affirmative action. Justice Thomas wrote:

There can be no doubt that the paternalism that appears to lie at the heart of this [affirmative action] program is at war with the principle of inherent equality that underlies and infuses our Constitution. See Declaration of Independence (“We hold these truths to be self-evident, (p.349) that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness”).25

Tushnet certainly does not want to follow Justice Thomas that far. In fact, Tushnet’s writings are replete with support for affirmative action and other egalitarian policies. For example, in his most recent biography of Thurgood Marshall, Tushnet declares that Justice Marshall’s “opinions on equality and fair procedures stand as exemplars of Great Society jurisprudence.”26 However, Tushnet fails to explain how the colorblind principles articulated in the Declaration of Independence can be reconciled with the color-conscious policies promoted by Justice Marshall and the other members of the Warren and Burger Courts whom he so admires.27

Sunstein’s One Case at a Time

Like Tushnet, Cass Sunstein attempts to assimilate the language of judicial restraint into the politics of legal liberalism. His One Case at a Time is subtler than Tushnet’s Taking the Constitution Away from the Courts. Sunstein argues for what he calls “judicial minimalism,” a theory of judicial review that limits the Court to the specific questions posed by a particular case and discourages it from handing down broad rulings with sweeping social consequences.28 He insists that the broad questions—for example, the legality of abortion—should be left for the people to decide through the process of “deliberative democracy.”29

In brief-like fashion, Sunstein organizes his book into three sections: “Argument,” “Applications,” and “Antagonists.” The “Argument” section is itself divided into four chapters in which he describes, respectively (1) what his theory of judicial review entails (although he claims minimalism is not really a “theory” at all), (2) why his theory is “democracy promoting,” (3) how judicial minimalism can mitigate the burdens of judicial decisions and the costs of mistakes, and (4) what the “substance” is of the decision-making “process” he advocates.

Chapter 4 is the most troubling of the “Argument” section: Sunstein formulates “minimalism’s substance” in such broad terms (e.g., “the right to vote,” “the rule of law,” and “no (p.350) torture, murder, or physical abuse by the government”)30 as to render it both meaningless and infinitely malleable by judges, be they “minimalists” or “maximalists.” As explained below, the “Applications” section, where Sunstein applies his theory of judicial minimalism to several substantive areas of constitutional law, and the “Antagonists” section, where he defends it against prospective critics, make plain just how malleable his theory is.

Sunstein does not argue merely that the Court should be minimalistic; he also insists that a majority of the Rehnquist Court—the justices in power at the time that Sunstein’s book was published—were minimalists.31 He applauds these justices—John Paul Stevens, Sandra Day O’Connor, David Souter, Ruth Bader Ginsburg, and Stephen Breyer—for it.32 This should not be surprising because the justices Sunstein names are liberals on most social issues.33

Contrast Sunstein’s praise for these five justices with what he says about Justice Thomas. He labels Justice Thomas a judicial “maximalist”:34 a jurist who “often urges the Court to provide wider judgments and clearer guidance.”35 This does not sound so bad, does it? What is wrong with clear guidance? It sounds bad to Sunstein, though. In an interview published in Legal Times shortly after his book went to press,36 Sunstein singled out Justice Thomas for his “astonishing” concurring opinion in 44 Liquormart, Inc. v. Rhode Island,37 an opinion in which the justice maintained that commercial speech should be treated the same as noncommercial speech.38 Liberals, of course, disdain commercial speech. Burt Neuborne, a law professor and the former executive director of the American Civil Liberties Union, for one, complained after the Court’s decision in 44 Liquormart that the First Amendment right to free speech—for decades a favorite among liberals—is now “the favorite argument for corporations and advertisers.”39

Justice Thomas got it right, though, when he observed in his concurring opinion that the “Framers’ political philosophy equated liberty and property,” and that there was no “philosophical or historical basis for asserting that ‘commercial speech’ is of ‘lower value’ than ‘noncommercial speech.’”40 Put directly, the subordination of commercial speech to noncommercial speech in the hierarchy of judicial protection—like the subordination of (p.351) economic rights to “personal” rights in general—has been a political decision by Supreme Court justices who prefer speech about politics, art, and science to speech about commerce.41

Sunstein spends little time on commercial speech. Instead, he devotes chapters in his “Applications” section to the right to die, affirmative action, discrimination based on gender and sexual orientation, and the regulation of communications technologies such as the Internet. He argues that the nation is currently in “moral flux” on these issues and that the Court should, and correctly does, leave the “fundamental issues undecided” in these areas.42

Predictably, however, Sunstein objects when the democratic process—the process in which he suggests the “fundamental issues” should be defined—decides these issues in a conservative way. The issue of affirmative action provides the best example. Remember Proposition 209, the California referendum that outlawed preferential treatment based on race? Sunstein certainly does. But he declares that it does not encompass what he means by democracy. He writes:

Political processes in California on this issue did not appear deliberative…. In the context of affirmative action in particular, there is a danger that referendum outcomes will not be based on a careful assessment of facts and values, but instead on crude “we-they” thinking. This is a particular danger in the context of race.43

In short, Sunstein appears willing to put decisions about fundamental issues of constitutional law in the hands of the American people, unless the people reach decisions he dislikes. Indeed, in his “Antagonists” section, Sunstein criticizes Justice Scalia’s jurisprudence, which, like Sunstein’s, manifests a preference for leaving as many decisions as possible to the democratic process,44 for failing to promote democracy “rightly understood.”45

Kramer’s The People Themselves

Robert Bork could have written Larry Kramer’s book. As Bork did before him in The Tempting of America,46 Kramer offers a historical argument in The People Themselves for a limited (p.352) judicial role in constitutional interpretation. There is one notable difference between the two books: the conservative Bork was arguing against the liberal activism of the Warren and Burger Courts,47 whereas the liberal Kramer is arguing against the conservative activism of the Rehnquist (and now Roberts?48) Court.49 Kramer closed a 2001 Harvard Law Review Foreword about Bush v. Gore 50 that served as a “preliminary version of the history” in his book51 with a call to arms: “The Supreme Court has made its grab for power. The question is: will we let them get away with it?”52

What makes Kramer’s book so significant—Tushnet opines on the dust jacket that The People Themselves “is perhaps the most important work of constitutional theory and history in a generation”53—is that it attempts to provide the historical evidence for the policy arguments of Leftist scholars who wish to limit (Sunstein) or eliminate (Tushnet) the federal judiciary’s role in constitutional interpretation. Kramer opens by presenting three episodes from the early American republic that he claims reveal how our forefathers “understood their role in popular government in ways that we, who take so much for granted, do not.”54 The episodes are (1) popular celebrations from Maine to Georgia in 1793 over the jury acquittal of Gideon Henfield on charges that he violated the law of nations by serving as a French privateer; (2) a popular protest in New York City against the Jay Treaty in which Alexander Hamilton was shouted down and hit with a rock; and (3) public meetings in Virginia, Kentucky, and other Middle Atlantic states protesting the Alien and Sedition Act of 1798.55 As a novelist,56 I applaud Kramer’s attention-grabbing Introduction. As a student of the history of ideas, I find the story he is trying to tell unconvincing.

The heart of Kramer’s historical account is Chapter 1’s description of the “customary constitution,” the notion in English constitutional history that customs, statutes, common-law institutions like the jury, and certain edicts such as the Magna Charta all comprised the regime’s fundamental law.57 Kramer’s animating principle is that England’s fundamental law was primarily enforced by “the people themselves”—hence the title of his book—given how malleable an unwritten constitution was.58 For example, he describes how “clear, convulsive (p.353) expressions of popular will” were responsible for the Glorious Revolution of 1688 that ousted King James II and replaced him with William and Mary.59 Prior to the American Revolution, Kramer insists, Americans, as British colonial subjects, shared this orientation to customary—and in Kramer’s hands—popular constitutionalism.60

By far the most provocative part of Kramer’s discussion of popular constitutionalism in colonial America is his description of the forms it took: voting, petitioning, pamphleteering, jury service, and mobbing.61 Kramer’s characterization of mobbing is particularly startling, in large part because of how casually he approaches the practice. He writes:

And then there was the mob, or “crowd,” as historians have relabeled it to capture its rediscovered respectability…. Mobbing was an accepted, if not exactly admired, form of political action—common in England and on the Continent as well as in America. Crowd action represented a direct expression of popular sovereignty, justified as a last resort in the writings of Grotius, Pufendorf, and Locke, not to mention by long tradition…. Mob action followed implicit, customary rules about how much violence was appropriate and which targets were permissible, making it possible for contemporaries to distinguish constitutional mob action from a simple riot.62

I confess to being uncertain about whether colonial mobs had “rules”63—the Ultimate Fighting Championship is now said to have “rules” too64—but I have read enough Locke to know that when “the people themselves” were behaving in the manner Kramer describes, they were revolting against the constitution, not interpreting it. In fact, Lockean liberalism posits that the principal purpose of constitutional government is to protect the people from the sorts of behavior that Kramer endorses. When a constitution proves incapable of doing that, the people are instructed to replace it. The Declaration of Independence, a Lockean document if there ever was one,65 makes this point in unmistakable terms:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. —That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, —That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to (p.354) abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.66

Chapter 2 finds Kramer considering one of the most frequently debated questions among constitutional law scholars: the origins of judicial review.67 He acknowledges that some lawyers and judges in the years between the American Revolution and the framing and ratification of the U.S. Constitution identified clearly a judge’s power to declare void laws that were contrary to a state’s constitution. But he insists that this was a minority view—and that, even for lawyers such as James Iredell, who subscribed to this view, “interpretive authority remained with the people.”68

Kramer’s characterization of the origins of judicial review is implausible, and it also is inconsistent with the wave of state constitution making that preceded the federal Constitution. Kramer claims that “putting constitutions into writing was not seen as a profound innovation.”69 Nothing could be further from the truth.70 Indeed, as John Marshall appreciated in Marbury itself, the founders’ decision to reduce their organic laws to writing was arguably their most significant contribution to the history of ideas because it made interpreting organic laws easier, and it signaled that the judiciary was to be the government institution ultimately charged with the interpretive function.71 A number of state constitutions adopted after the Declaration of Independence contained stirring testaments to the judiciary’s emerging—emphasis on emerging, as Part II explored—role in the founders’ political architecture. The Maryland Declaration of Rights of 1776 exclaimed, for example, that “the independency and uprightness of Judges are essential to the impartial administration of justice, and a great (p.355) security to the rights and liberties of the people,”72 and the Massachusetts Declaration of Rights of 1780 proclaimed that “It is the right of every citizen to be tried by judges as free, impartial, and independent as the lot of humanity will admit.”73 And while the early state constitutions were revised many times, the frequency of the revisions provides more, not less, evidence of the founders’ commitment to institutional solutions to the question of how best to protect individual rights—the question that the Declaration of Independence announces as the central concern of the American regime.74 Nowhere was this more forcefully stated than in the preamble to the Massachusetts Constitution of 1780, written by John Adams:

The end of the institution, maintenance, and administration of government is to secure the existence of the body-politic, to protect it, and to furnish the individuals who compose it with the power of enjoying, in safety and tranquillity, their natural rights and the blessings of life; and whenever these great objects are not obtained the people have a right to alter the government, and to take measures necessary for their safety, prosperity, and happiness.75

Not surprisingly, Kramer’s infatuation with popular constitutionalism also colors his discussion of the framing and ratification of the U.S. Constitution, the subject that occupies Chapter 3 of his book. He insists that, in 1787, the notion of judicial review remained fuzzy at best, that the debates surrounding the framing and ratification of America’s second national constitution were ambiguous on the matter, and that the text of the Constitution was silent on it.76 Kramer once again fails to appreciate the significance of political architecture to the men who wrote the Constitution. Amazingly, he barely mentions in the chapter the theory of separation of powers, which the framers considered the edifice of the Constitution’s structure. The president has, among other checks, a veto over congressional bills77 and the power to nominate federal judges.78 Congress has, among other checks, the power to override presidential vetoes79 and to control the size and jurisdiction of the federal courts,80 as well as the power to impeach all federal officials.81 Without the power of judicial review, what check—what “constitutional control,”82 in the words of The Federalist—would the federal judiciary have on the president or Congress? The answer is: none. As a consequence, judicial review is an inevitable component of the Constitution’s commitment to checks and balances.

(p.356) The Judicial Brezhnev Doctrine

It does not take a rocket scientist—or a celebrated law professor, for that matter—to figure out what is going on here. Kramer,83 Tushnet, and Sunstein are afraid that the now-conservative federal judiciary is rolling back too many of their preferred liberal rulings. They are announcing, if you will, a kind of judicial Brezhnev Doctrine: “what we have, we keep.”84

Nothing if not honest, Tushnet is unambiguous on the matter. He writes in Chapter 7 (“Against Judicial Review”) of Taking the Constitution Away from the Courts:

Of course I have many views about what the Constitution means. So do you. And of course if I could guarantee that five justices held exactly the views I have, I would be wildly in favor of judicial review. So would you. The problem, of course, is that your views and mine might be rather different, and neither of us can guarantee that the judges will agree with us all the time.85

Tushnet repeats this theme elsewhere. For example, in a 1998 article for Dissent magazine (reprinted as Chapter 6 in Taking the Constitution Away from the Courts), he explains at length how judicial review may have been good for the Left during the heyday of the Warren and Burger Courts, but not under the Rehnquist (and now Roberts?) Court.86 Tushnet returns to the subject of affirmative action—the sacred cow of the Left—to illustrate his point. He writes: “On race discrimination law, it is enough to note that [Brown v. Board of Education 87] no longer is the central case dealing with race. Now the Court’s anti-affirmative action decisions are central.”88

Sunstein is careful not to criticize the federal judiciary’s conservative politics in One Case at a Time. However, he did so in a New York Times op-ed when the book first appeared in print. He wrote:

Conservative politicians often complain about the decisions of liberal Federal judges who, they say, do not respect the judgments of elected officials…. But judicial activism on the part (p.357) of conservative judges is a much more serious problem, as some Reagan and Bush appointees have proved far too willing to invalidate decisions made by Congress and the executive branch.89

To prove his point, Sunstein described a 1999 D.C. Circuit Court ruling90 that struck down a provision of the Clean Water Act and a series of Fourth Circuit decisions91 (the same circuit that called Miranda v. Arizona 92 into serious question93) on behalf of states’ rights.94 “All too often,” Sunstein insisted, “conservative judicial activists ignore other reasonable interpretations of the Constitution to entrench their own and do so at the expense of democratic self-rule.”95 If that were not enough, in 2005, Sunstein repackaged One Case at a Time as Radicals in Robes, an updated and unabashed polemic against the conservative federal judiciary.96

Leftist politics likewise drive Kramer’s efforts to minimize the federal judiciary’s role in the American constitutional order. For example, I mentioned above how Kramer’s anger at the Court’s decision in Bush v. Gore fueled his historical narrative. L.A. Powe, Jr., who is himself sympathetic to the notion of popular constitutionalism, is similarly unimpressed with Kramer’s history. Powe writes:

By jumping ninety years from Jackson to FDR, Kramer omits and ignores the most stunningly successful example of popular constitutionalism in American history. That, of course, is the white South’s combined use of terrorism and the ballot, first to overthrow the Reconstruction governments and then to nullify the Fourteenth and Fifteenth Amendments for generations. In one of the most egregious historical errors I have seen in law reviews, Kramer (without citations) places the blame for the end of Reconstruction at the feet of the Court. Seldom does a theory—in this case, people good, Court bad—beget such a wrong-headed factual conclusion. Omitting Reconstruction and the Trail of Tears, plus all of the (p.358) modern examples [chronicled in Powe’s review essay], offers evidence that Kramer sees popular constitutionalism only when he approves of the cause.97

The Michigan Anti-Affirmative Action Amendment

Kramer, Sunstein, and Tushnet are not the only popular constitutionalists whose unshakeable dedication to the Left’s political agenda casts doubt upon the strength of their commitment to popular constitutionalism. This was made abundantly clear following the November 2006 amendment to the Michigan Constitution banning state-sponsored affirmative action in Michigan.

The amendment, commonly known as “Prop 2,” provides that “The state shall not discriminate against, or grant preferential treatment to any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education or public contracting.”98 Given that Prop 2 appears to be a textbook example of popular constitutionalism, I was curious to learn how proponents of the theory felt about it. In a column I wrote for Findlaw.com, I discussed my attempts to do just that.99

The campaign for the passage of Prop 2 was spearheaded by Ward Connerly and Jennifer Gratz. Connerly is a wealthy African-American Republican who helped pass a similar amendment to the California Constitution a decade ago. Gratz was one of the plaintiffs in the 2003 decisions by the U.S. Supreme Court that held that the University of Michigan may, as a matter of federal constitutional law, consider the race of applicants as a factor in admissions decisions, provided that it is not used too mechanically and that all applicants are evaluated on an individualized basis.100

Gratz, a white applicant, won her lawsuit against the University of Michigan undergraduate college to which she had been denied admission.101 The Court concluded that it was unconstitutional for the college’s admissions process to award an applicant a set number of points solely because the applicant was not white.102 Barbara Grutter, another white applicant, lost her lawsuit against the University of Michigan Law School.103 The Court decided that race was only one factor among many in the law school’s admissions process and endorsed the approach articulated by Justice Lewis Powell in his famous separate opinion in (p.359) Regents of the University of California v. Bakke:104 Race may be so used in order to achieve “diversity” in higher education.105

By enacting Prop 2, the people of Michigan rejected the use of state-sponsored affirmative action as a matter of state constitutional law and thereby nullified the U.S. Supreme Court’s decisions in the University of Michigan cases in the state of Michigan.

I became interested in learning how proponents of popular constitutionalism felt about Prop 2 after a colleague posted on ConLawProf that a pro-affirmative action group called By Any Means Necessary (BAMN, for short) had filed a lawsuit requesting that a court invalidate the November 7 decision by the people of Michigan. On the one hand, Prop 2 is precisely what popular constitutionalists had envisioned: the people of Michigan had defined what the state’s constitution means. On the other hand, most popular constitutionalists are on the political Left and are strong supporters of affirmative action.

I believed that the BAMN litigation was destined to fail because the Court had ruled in the University of Michigan cases that Michigan may—not must—consider race in its admissions decisions under federal equal protection law, but the merits of the litigation were not what interested me. I posted to ConLawProf: “Separate and apart from the merits of the argument presented to a court, I would be curious to learn what proponents of popular constitutionalism feel about this effort to ask a court to declare an amendment by ‘the people themselves’ unconstitutional.”

I spent much of the next day and a half pouring through the dozens of replies to my query. The first reply maintained that Prop 2 merely was part of an “ongoing” debate “over the place of race and gender conscious diversity programs in public institutions.” Under that interpretation of what happened on November 7, popular constitutionalism means that some people—for example, administrators at the University of Michigan—can ignore what the majority of the people have said if they do not want to hear it. I informed the list that the proffered definition seemed strange to me. After all, what was passed on November 7 was a popularly enacted amendment to the state’s constitution.

Another reply insisted that Prop 2 was not a legitimate exercise of popular constitutionalism because its language was “so confusing, many people voted to ban affirmative action, believing that they were voting in favor of it.” But this particular reply failed to appreciate that the amendment unambiguously prohibits “preferential treatment” on the basis of, among other things, “race.” The idea of preferential treatment is easy to understand, and the reply gave Michigan voters—educated by numerous ads and counter-ads about Prop 2—much too little credit.

Still another reply insisted that there was no reason why a popular constitutionalist should think that the people of Michigan should have the last word on the meaning of the federal Constitution, “which is what the opponents of the amendment are relying on.” But, of course, the people of Michigan amended their state constitution, not the federal Constitution—and as to the meaning of their state constitution, they surely do have the last word.

(p.360) Moreover, as one of the small handful of opponents of affirmative action in the legal professoriate replied, such a position is elitist. In other words, this conservative law professor explained, Prop 2 is

based in large part on a notion that constitutional guarantees of equality (even if the public isn’t aware specifically of the 14th Amendment’s [equal protection] clause) prohibit government discrimination based on race, period. Just like much of the opposition to gun control is based on a notion that there is a constitutional right to bear arms, even among people who’ve never read the Second Amendment. If “popular constitutionalism” is restricted to individuals specifically studying specific parts of the Constitution and coming to informed conclusions about the wrongness of specific [U.S. Supreme Court] decisions, that would mean that “popular constitutionalism” would mean “law professor (and a few others) constitutionalism.”

I could not have said it better myself.

Another reply characterized what happened in Michigan as a mere “policy” judgment by the people of Michigan. No one seemed to take this post seriously. The Michigan constitution was changed on November 7.

Yet another reply suggested that a popular constitutionalist is simply opposed to judicial supremacy, not judicial review. Under this strand of popular constitutionalism, the author of the reply insisted, judges are permitted to interpret the Constitution, but legislators are to have the final say.

I posted two reactions to this reply: (1) popular constitutionalists who seek to eliminate, rather than limit, judicial review—Tushnet, for example—cannot be characterized in such a fashion; and (2) the Michigan legislature had nothing to do with what happened in Michigan on November 7—again, the people of the state amended their constitution.

Arguments in favor of both popular constitutionalism and the BAMN litigation continued to flood my inbox like ads from amazon.com during the height of the holiday shopping season. I found none of them persuasive.

Finally, one response did give me pause. A poster whom I know to be an African-American proponent of affirmative action reported that “only 14% (or something similar to that) of minority voters supported it. So [affirmative action] was rejected essentially by white voters.” She remarked that this made her “question whether this vote was popular constitutionalism, or simply self-interest by whites who assume (falsely) their opportunities will be substantially limited by affirmative action.”

For me, this post captured well why the popular constitutionalist assault on judicial review is misguided. As John Hart Ely reminded the legal academy a generation ago in his classic book Democracy and Distrust, judicial review must be available to ensure that the political process is functioning properly.106 When “discrete and insular minorities”107 are prohibited from participating fairly in the political process, a court must step in to eliminate the barriers to democratic participation.

(p.361) Unfortunately for the opponents of Prop 2, the BAMN litigation is not about leveling barriers to democratic participation in Michigan on November 7. There were not any barriers. Instead, the litigation is about asking a judge to tell the people of Michigan that they cannot define what their constitution means through their state’s constitutional amendment process. No judge is likely to say that to “the people themselves.” In fact, BAMN lost its case.108

Conclusion

Laurence H. Tribe, the most prominent constitutional law scholar of the last several decades, shares my concerns about popular constitutionalism. Tribe, a political liberal, published a blistering review of Kramer’s The People Themselves that concluded with the following observation:

In succumbing to the trendy siren song of those who would have the fleeting “constitutional” sentiments of a temporarily controlling faction bring the court to heel, Larry Kramer risks playing Pied Piper to a large and potentially impressionable universe of readers and students. Meanwhile, he sadly misses the whole point of Chief Justice Marshall’s great reminder: It is “a constitution we are expounding.”109

While I have disagreed with Tribe in the past on questions such as Clarence Thomas’s use of the Declaration of Independence in constitutional interpretation,110 the exegesis in the history of ideas undertaken by the present book suggests that Tribe is correct about the most important constitutional law question of all. Put directly, constitutional law scholars should feel free to disagree all they want with the Court’s decisions in hot buttons cases such as Bush v. Gore—the ruling that provoked Kramer’s call to arms against judicial review111—but they are treading on dangerous ground when they try to suggest that it is not the Court’s place to make those decisions.

With any luck, popular constitutionalism will prove but a passing fad. The same cannot be said for the contributions of Aristotle, Polybius, Marsilius of Padua, John Fortescue, Gasparo Contarini, Charles I, Montesquieu, and John Adams. The Court and the Constitution are better for it.

Notes:

(1.) 5 U.S. (1 Cranch) 137 (1803).

(2.) MARK V. TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS 181 (1999). See also LARRY D. KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW (2004); CASS R. SUNSTEIN, ONE CASE AT A TIME: JUDICIAL MINIMALISM ON THE SUPREME COURT (1999). Sunstein focuses on the judicial, rather than the popular, side of the question and calls his theory “judicial minimalism.” He agrees with Tushnet and Kramer that the people, not the Court, should enjoy the primary responsibility for determining what the Constitution means.

(3.) See Larry D. Kramer, Foreword: We the Court, 115 HARV. L. REV. 4 (2001); Cass R. Sunstein, Foreword: Leaving Things Undecided, 110 HARV. L. REV. 6 (1996). Tushnet also has penned a Harvard Law Review Foreword, albeit on a different subject than popular constitutionalism. See Mark V. Tushnet, Foreword: The New Constitutional Order and the Chastening of Constitutional Aspiration, 113 HARV. L. REV. 29 (1999).

(4.) See, e.g., Mark V. Tushnet & Timothy Lynch, The Project of Harvard “Forewords”: A Social and Intellectual History, 11 CONST. COMMENT. 463, 463–67 (1994).

(5.) E.g., Symposium, Commentaries on Mark Tushnet’s Taking the Constitution Away from the Courts, 34 U. RICH. L. REV. 359 (2000); A Symposium on The People Themselves: Popular Constitutionalism and Judicial Review, 81 CHI.-KENT L. REV. 809 (2006).

(6.) See, e.g., Larry Alexander & Lawrence B. Solum, Popular? Constitutionalism?, 118 HARV. L. REV. 1594 (2005) (reviewing KRAMER, supra note 2); Neal Devins, The Democracy-Forcing Constitution, 97 MICH. L. REV. 1971 (1999) (reviewing SUNSTEIN, supra note 2); Saikrishna B. Prakash, America’s Aristocracy, 109 YALE L.J. 541 (1999) (reviewing TUSHNET, supra note 2).

(7.) See, e.g., Corey Brettschneider, Popular Constitutionalism and the Case for Judicial Review, 34 POL. TH. 516 (2006) (reviewing KRAMER, supra note 2); Stephen B. Presser, Book Review, 110 AM. HIST. REV. 1565 (2005) (same).

(8.) E.g., John O. McGinnis, Whose Constitution Is It, Anyway?, WALL ST. J., Aug. 10, 2004, at D8 (reviewing KRAMER, supra note 2); Edmund S. Morgan & Marie Morgan, Bill of Wrongs, N.Y. REV. BOOKS, March 10, 2005, at 31 (reviewing KRAMER, supra note 2); Jeffrey Rosen, The Age of Mixed Results, NEW REPUBLIC, June 28, 1999, at 43 (reviewing SUNSTEIN, supra note 2).

(9.) See The Supreme Court, Program Four: The Rehnquist Revolution (PBS television broadcast Feb. 7, 2007). See generally Scott D. Gerber, The Supreme Court, Part I: The Least Dangerous Branch, 93 J. AM. HIST. 971 (2006) (reviewing the PBS series about the Supreme Court).

(10.) See CASS R. SUNSTEIN, RADICALS IN ROBES: WHY EXTREME RIGHT-WING COURTS ARE WRONG FOR AMERICA (2005).

(11.) See, e.g., Posting of Mark Tushnet, mtushnet@law.harvard.edu, to conlawprof@lists.ucla.edu (Nov. 29, 2006) (on file with the author) (discussing the origins of popular constitutionalism).

(12.) James Bradley Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 HARV. L. REV. 129 (1893).

(13.) Henry P. Monaghan, Marbury and the Administrative State, 83 COLUM. L. REV. 1, 7 (1983). See generally One Hundred Years of Judicial Review: The Thayer Centennial Symposium, 88 NW. U. L. REV. 1 (1993).

(14.) Thayer, supra note 12, at 138–42.

(15.) See Jay Hook, A Brief Life of James Bradley Thayer, 88 NW. U. L. REV. 1, 6–7 (1993). Tushnet characterizes Thayer as a “moderate conservative.” Mark Tushnet, Thayer’s Target: Judicial Review or Democracy?, 88 NW. U. L. REV. 9, 23 (1993). Tushnet, however, is a Marxist, and most policy positions seem conservative from a Marxist perspective. See Mark Tushnet, A Marxist Analysis of American Law, 1 MARXIST PERSP. 96 (1978).

(16.) 198 U.S. 45 (1905).

(17.) See, e.g., Barry Friedman, The Birth of an Academic Obsession: The History of the Countermajoritarian Difficulty, Part Five, 112 YALE L.J. 153 (2002).

(18.) See Barry Friedman, The Cycles of Constitutional Theory, 67 LAW & CONTEMP. PROB. 149 (2004).

(19.) For a revisionist account of the significance of both Marbury and Chief Justice Marshall, see SERIATIM: THE SUPREME COURT BEFORE JOHN MARSHALL (Scott Douglas Gerber ed., 1998).

(20.) TUSHNET, supra note 2, at 181.

(21.) See, e.g., Henry Steele Commager, Judicial Review and Democracy, in JUDICIAL REVIEW AND THE SUPREME COURT: SELECTED ESSAYS 73 (Leonard W. Levy ed., 1967) (“Congress, and not the courts, emerges as the instrument for the realization of the guarantees of the Bill of Rights.”).

(22.) TUSHNET, supra note 2, at 11–12.

(23.) See Mark V. Tushnet, Clarence Thomas: The Constitutional Problems, 63 GEO. WASH. L. REV. 466, 477 (1995) (reviewing JANE MAYER & JILL ABRAMSON, STRANGE JUSTICE: THE SELLING OF CLARENCE THOMAS (1994)). Tushnet softened his position on Justice Thomas in a later work. See MARK TUSHNET, A COURT DIVIDED: THE REHNQUIST COURT AND THE FUTURE OF CONSTITUTIONAL LAW 71–72 (2005).

(24.) 515 U.S. 200 (1995).

(25.) Id. at 240 (Thomas, J., concurring in part and concurring in the judgment). See also Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738, 2768 (2007) (Thomas, J., concurring) (stating that affirmative action in public primary and secondary education assignment plans is unconstitutional); Grutter v. Bollinger, 539 U.S. 306, 351, 357, 378 (2003) (Thomas, J., concurring in part and dissenting in part) (maintaining that affirmative action in public higher education admissions programs is unconstitutional and invoking the Declaration of Independence). See generally SCOTT DOUGLAS GERBER, FIRST PRINCIPLES: THE JURISPRUDENCE OF CLARENCE THOMAS (expanded ed. 2002).

(26.) MARK V. TUSHNET, MAKING CONSTITUTIONAL LAW: THURGOOD MARSHALL AND THE SUPREME COURT, 1961–1991, at 196 (1997).

(27.) See SCOTT DOUGLAS GERBER, TO SECURE THESE RIGHTS: THE DECLARATION OF INDEPENDENCE AND CONSTITUTIONAL INTERPRETATION 173–75 (1995) (arguing that the Declaration of Independence mandates colorblind constitutionalism).

(28.) SUNSTEIN, supra note 2, at ix-xi. The prolific Sunstein has repeated his minimalist approach in many places. See, e.g., Cass R. Sunstein, Burkean Minimalism, 105 MICH. L. REV. 353, 355–56 (2006).

(29.) SUNSTEIN, supra note 2, at 24–45.

(30.) Id. at 63–68.

(31.) See id. at 9.

(32.) See id.

(33.) A 2007 book on the Rehnquist Court by an influential legal journalist characterizes Justices O’Connor and Kennedy as liberal on social issues. See JAN CRAWFORD GREENBURG, SUPREME CONFLICT: THE INSIDE STORY OF THE STRUGGLE FOR CONTROL OF THE UNITED STATES SUPREME COURT 29–30 (2007).

(34.) See SUNSTEIN, supra note 2, at 11. Sunstein also attaches the “maximalist” label to Justice Scalia. Id.

(35.) Id.

(36.) Interview by Ted Leventhal with Cass R. Sunstein, Karl N. Llewellyn Distinguished Serv. Professor of Jurisprudence, Univ. of Chicago, in Chicago, Ill, in Ted Leventhal, On Theory-Builders and Threats, LEGAL TIMES, June 28, 1999, at 62.

(37.) 517 U.S. 484 (1996).

(38.) Id. at 522–23 (Thomas, J., concurring in part and concurring in the judgment).

(39.) David G. Savage, 1st Amendment Rulings Are Out of Order, Liberals Complain, L.A. TIMES, Dec. 18, 1996, at A5 (quoting Burt Neuborne).

(40.) 44 Liquormart, 517 U.S. at 522 (Thomas, J., concurring in part and concurring in the judgment).

(41.) GERBER, FIRST PRINCIPLES, supra note 25, at 161.

(42.) SUNSTEIN, supra note 2, at xi–xiv. After the publication of Sunstein’s book, the Court inserted itself into the fundamental values debate in the Michigan affirmative action cases and the Texas gay rights case more than Sunstein’s theory would suggest it should, although Sunstein himself was almost certainly pleased with the liberal results of those cases. See, e.g., Cass R. Sunstein, Liberty After Lawrence, 65 OHIO ST. L.J. 1059 (2004). See generally Lawrence v. Texas, 539 U.S. 558 (2003); Grutter v. Bollinger, 539 U.S. 306 (2003); Gratz v. Bollinger, 539 U.S. 244 (2003).

(43.) SUNSTEIN, supra note 2, at 133.

(44.) See, e.g., Antonin Scalia, Common-Law Courts in a Civil-Law System, in A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 1, 22 (Amy Gutmann ed., 1997) (arguing that it is “simply not compatible with democratic theory …that [unelected judges decide] that laws mean whatever they ought to mean”).

(45.) SUNSTEIN, supra note 2, at 211–12, 261–62. Sunstein reprises his critique of the conservative federal judiciary in, among other places, RADICALS IN ROBES, supra note 10.

(46.) ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW (1990).

(47.) See id. at 129–32. The Burger Court was a liberal court too. It gave the nation Roe v. Wade, 410 U.S. 113 (1973) (legalizing abortion), and Regents of the University of California v. Bakke, 438 U.S. 265 (1978) (permitting the use of race in public higher education admissions programs).

(48.) See Michael J. Gerhardt & Larry D. Kramer, Protect Our Rights, Keep the Filibuster, PITT. TRIB. REV., May 1, 2005, http://www.pittsburghlive.com/x/pittsburghtrib/s_329413.html (arguing, at the dawn of the Roberts Court era, for the legitimacy of the filibuster in the confirmation process for judicial nominees).

(49.) KRAMER, supra note 2, at 225–30.

(50.) 531 U.S. 98 (2000).

(51.) KRAMER, supra note 2, at 249.

(52.) Kramer, supra note 3, at 169.

(53.) KRAMER, supra note 2 (quoting Mark Tushnet). I had the privilege of debating Dean Kramer about his book at Stanford Law School. The audio is available at http://www.law.stanford.edu/calendar/details/2844/Debating%20Popular%20C/#related_media.

(54.) KRAMER, supra note 2, at 5.

(55.) Id. at 3–5.

(56.) See generally SCOTT DOUGLAS GERBER, THE IVORY TOWER: A NOVEL (2002); SCOTT DOUGLAS GERBER, THE LAW CLERK: A NOVEL (2007).

(57.) KRAMER, supra note 2, at 9–34.

(58.) Id. at 24.

(59.) Id. at 15.

(60.) Id. at 34.

(61.) See id. at 25–27.

(62.) Id. at 27.

(63.) Kramer is not the first scholar to claim that colonial mobs followed “rules.” See, e.g., PAULINE MAIER, FROM RESISTANCE TO REVOLUTION: COLONIAL RADICALS AND THE DEVELOPMENT OF AMERICAN OPPOSITION TO BRITAIN, 1765–1776, at 32–34 (1972).

(64.) See Ultimate Fighting Championship, UFC Rules, http://www.ufc.com/index.cfm?fa=LearnUFCRules.

(65.) See Scott D. Gerber, Whatever Happened to the Declaration of Independence? A Commentary on the Republican Revisionism in the Political Thought of the American Revolution, 26 POLITY 207, 230–31 (1993) (arguing that the founders relied on Locke’s writings in drafting the Declaration of Independence).

(66.) THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776).

(67.) KRAMER, supra note 2, at 35. The debate over the origins of judicial review remains as vibrant as ever. See, e.g., Mary Sarah Bilder, Why We Have Judicial Review, 116 YALE L.J. POCKET PART 215, 215 (2007), http://thepocketpart.org/2007/01/09/bilder.html (arguing that the origins of judicial review lie in corporate law); Scott D. Gerber, The Political Theory of an Independent Judiciary, 116 YALE L.J. POCKET PART 223, 223 (2007), http://thepocketpart.org/2007/01/09/gerber.html (disagreeing with Bilder about the roots of judicial review); William Michael Treanor, Original Understanding and the Whether, Why, and How of Judicial Review, 116 YALE L.J. POCKET PART 218, 219 (2007), http://thepocketpart.org/2007/01/09/treanor.html (discussing why judicial review exists). See generally Mary Sarah Bilder, The Corporate Origins of Judicial Review, 116 YALE L.J. 502 (2006). See also PHILIP HAMBURGER, LAW AND JUDICIAL DUTY (2008) (tracing the origins of something akin to judicial review to the common law judicial duty to decide in accord with the law of the land). Hamburger’s thesis, while intriguing, is ultimately unconvincing. He fails to appreciate that the reason colonial and early American judges were reluctant to declare statutes unconstitutional—what he characterizes as the judges “squirming” to avoid doing so—was because they lacked the independence to do it. Frankly, it is startling that Hamburger fails to even mention this possibility. See WILLIAM S. CARPENTER, JUDICIAL TENURE IN THE UNITED STATES: WITH ESPECIAL REFERENCE TO THE TENURE OF FEDERAL JUDGES v (1918) (“When the judges …became the custodians of the Constitution a really independent judiciary became necessary to enable the courts fearlessly to mark out provisions of the other departments of government.”).

(68.) KRAMER, supra note 2, at 58–65.

(69.) Id. at 55.

(70.) Kramer backs off his statement as soon as he makes it. See id. (acknowledging that reducing constitutions to writing “gave a powerful boost to the new awareness of popular sovereignty”).

(71.) Marbury v. Madison, 5 U.S. (1 Cranch) 137, 178 (1803).

(72.) MD. CONST. OF 1776, Declaration of Rights art. XXX.

(73.) MASS. CONST. OF 1780, Declaration of Rights art. XXIX.

(74.) See THE DECLARATION OF INDEPENDENCE: ORIGINS AND IMPACT 16–18 (Scott Douglas Gerber ed., 2002); GERBER, TO SECURE THESE RIGHTS, supra note 27, at 1–3.

(75.) MASS. CONST. prmb.

(76.) KRAMER, supra note 2, at 73–77.

(77.) U.S. CONST. art. I, sec. 7.

(78.) Id. art. II, sec. 2.

(79.) Id. art. I, sec. 7.

(80.) Id. art. III, sec. 1.

(81.) Id. art. I, sec. 2.

(82.) THE FEDERALIST No. 48, at 308 (James Madison) (Clinton Rossiter ed., 1961).

(83.) The remainder of Kramer’s book is dedicated to post-ratification episodes of popular constitutionalism, such as President Andrew Jackson’s refusal in the 1830s to enforce the Court’s decision that Cherokee Indians could not be removed from their land by the government of Georgia, and to the rise of so-called judicial supremacy during the heyday of the Warren Court. These episodes are irrelevant to the original understanding of the Constitution.

(84.) The “Brezhnev Doctrine” was announced in November 1968 by then-Soviet leader Leonid Brezhnev to justify the Soviet invasion of Czechoslovakia. Brezhnev declared that the Soviet Union had a duty to maintain a “correct” vision of socialism in countries within the Soviet sphere of influence. The doctrine was extended to countries not already within the Soviet sphere of influence in 1979 by the invasion of Afghanistan. It was renounced by Mikhail Gorbachev in 1989. See, e.g., MATTHEW J. OUIMET, THE RISE AND FALL OF THE BREZHNEV DOCTRINE IN SOVIET FOREIGN POLICY 2–4, 66–88 (2003).

(85.) TUSHNET, supra note 2, at 155.

(86.) Mark Tushnet, Is Judicial Review Good for the Left?, DISSENT, Winter 1998, at 65.

(87.) 347 U.S. 483 (1954).

(88.) Tushnet, supra note 86, at 66. Tushnet’s antijudicial review book was written before the Court decided the University of Michigan and Seattle and Louisville affirmative action cases. See generally Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738 (2007) (Seattle and Louisville cases); Grutter v. Bollinger, 539 U.S. 306 (2003) (University of Michigan law school case); Gratz v. Bollinger, 539 U.S. 244 (2003) (University of Michigan undergraduate school case).

(89.) Cass R. Sunstein, Op-Ed, The Courts’ Perilous Right Turn, N.Y. TIMES, June 2, 1999, at A25.

(90.) See Am. Trucking Ass’ns, Inc. v. EPA, 175 F.3d 1027 (D.C. Cir. 1999), aff’d in part and rev’d in part sub nom., Whitman v. Am. Trucking Ass’ns, 531 U.S. 457 (2001).

(91.) See Brzonkala v. Va. Polytechnic Inst. & State Univ., 169 F.3d 820 (4th Cir. 1999) (en banc) (holding that the provision of the Violence Against Women Act creating a private right of action for victims of gender-motivated violence exceeded Congress’s powers under the Commerce Clause and Section 5 of the Fourteenth Amendment), aff’d sub nom., United States v. Morrison, 529 U.S. 598 (2000); Condon v. Reno, 155 F.3d 453 (4th Cir. 1998) (holding that the Driver’s Privacy Protection Act violated the Tenth Amendment and exceeded Congress’s power under Section 5 of the Fourteenth Amendment), rev’d, 528 U.S. 141 (2000); United States v. Wilson, 133 F.3d 251 (4th Cir. 1997) (striking down a provision of the Clean Water Act as applied in EPA regulations because it exceeded Congress’s power under the Commerce Clause).

(92.) 384 U.S. 436 (1966).

(93.) See United States v. Dickerson, 166 F.3d 667 (4th Cir. 1999) (holding admissibility of confessions in federal court to be governed by statute, which allowed admission of voluntary confessions, rather than by the rule of Miranda), rev’d, 530 U.S. 428 (2000).

(94.) Sunstein, The Courts’ Perilous Right Turn, supra note 89.

(95.) Id..

(96.) SUNSTEIN, RADICALS IN ROBES, supra note 10.

(97.) L.A. Powe, Jr., Are “the People” Missing in Action (and Should Anyone Care)?, 83 TEX. L. REV. 855, 887 (2005) (reviewing KRAMER, supra note 2).

(98.) MICH. CONST. art. I, sec. 26, cl. 2.

(99.) The discussion that follows in this section draws from Scott D. Gerber, Michigan’s Controversial Proposition 2, Eliminating Affirmative Action in the State: A Good Example of Popular Constitutionalism?, FINDLAW.COM, Nov. 16, 2006, http://writ.news.findlaw.com/commentary/20061116_gerber.html.

(100.) Grutter v. Bollinger, 539 U.S. 306 (2003); Gratz v. Bollinger, 539 U.S. 244 (2003).

(101.) Gratz, 539 U.S. at 251.

(102.) Id. at 271–72.

(103.) Grutter, 539 U.S. at 343–44.

(104.) Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 269 (1978) (opinion of Powell, J.).

(105.) Grutter, 539 U.S. at 324–25.

(106.) JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW (1980).

(107.) United States v. Carolene Products Co., 304 U.S. 144, 152 n. 4 (1938).

(108.) E.g., Coalition to Defend Affirmative Action v. Granholm, 501 F.3d 775 (6th Cir. 2007), cert. denied sub nom., Michigan Civil Rights Initiative Committee v. Coalition to Defend Affirmative Action, 129 S. Ct. 35 (2008). At this writing, final judgment in litigation requesting that a federal court overturn an amendment to the California Constitution banning same-sex marriage remains pending on appeal.

(109.) Laurence H. Tribe, The People’s Court, N.Y. TIMES, Oct. 24, 2004, sec. 7 (Book Review), at 32 (reviewing KRAMER, supra note 2). For Kramer’s response to Tribe’s review, see Larry D. Kramer, Letter to the Editor, Kramer vs. Tribe, N.Y. TIMES, Nov. 21, 2004, sec. 7 (Book Review), at 6. For Tribe’s reply to Kramer’s response, see Laurence H. Tribe, Letter to the Editor, Kramer vs. Tribe, N.Y. TIMES, Nov. 21, 2004, sec. 7 (Book Review), at 6.

(110.) GERBER, FIRST PRINCIPLES, supra note 25, at 40–41. Tribe objected to then-U.S. Supreme Court nominee Thomas’s use of the Declaration of Independence in civil rights cases, whereas as I agreed with it.

(111.) See Kramer, supra note 3, at 169. (p.362)