The People, In a Way

The People Themselves: Popular Constitutionalism and Judicial Review, by Larry D. Kramer (Oxford, 376 pp., $29.95)

FOR students of the Supreme Court, a crucial question is how to approach what the late Yale law professor Alexander Bickel called the “counter-majoritarian difficulty.” Is the final authority to interpret the Constitution-of a democratic republic-really possessed by nine jurists who are not elected and who serve for life, subject to no meaningful threat of removal no matter what decisions they render? Constitutional-law scholarship is divided roughly in two on this question. Some (mostly, but not exclusively, political scientists and historians) claim that the Court actually quite rarely challenges prevailing political views, but instead “follows the election returns.” Others (chiefly law professors) insist on the Court’s importance as a restraint on democratic follies, happily embracing a vision of the justices as the proper arbiters of all constitutional questions. We might call the first camp “realists” and the second “idealists”; what they have in common is the denial, each in its own way, of the existence of the counter-majoritarian difficulty. For the realists there isn’t really much countermajoritarianism to worry about; for the idealists, counter-majoritarianism is desirable, so there isn’t any difficulty about it.

About the Author

Matthew J. Franck

Matthew J. Franck is a senior fellow at the Witherspoon Institute, a senior contributing editor of Public Discourse, a lecturer in politics at Princeton University, and professor emeritus of political science at Radford University.

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The People Themselves: Popular Constitutionalism and Judicial Review, by Larry D. Kramer (Oxford, 376 pp., $29.95)

FOR students of the Supreme Court, a crucial question is how to approach what the late Yale law professor Alexander Bickel called the “counter-majoritarian difficulty.” Is the final authority to interpret the Constitution-of a democratic republic-really possessed by nine jurists who are not elected and who serve for life, subject to no meaningful threat of removal no matter what decisions they render? Constitutional-law scholarship is divided roughly in two on this question. Some (mostly, but not exclusively, political scientists and historians) claim that the Court actually quite rarely challenges prevailing political views, but instead “follows the election returns.” Others (chiefly law professors) insist on the Court’s importance as a restraint on democratic follies, happily embracing a vision of the justices as the proper arbiters of all constitutional questions. We might call the first camp “realists” and the second “idealists”; what they have in common is the denial, each in its own way, of the existence of the counter-majoritarian difficulty. For the realists there isn’t really much countermajoritarianism to worry about; for the idealists, counter-majoritarianism is desirable, so there isn’t any difficulty about it.

About the Author

Matthew J. Franck

Matthew J. Franck is a senior fellow at the Witherspoon Institute, a senior contributing editor of Public Discourse, a lecturer in politics at Princeton University, and professor emeritus of political science at Radford University.