Academic journal article The William and Mary Bill of Rights Journal

The Popular Constitutional Canon

Academic journal article The William and Mary Bill of Rights Journal

The Popular Constitutional Canon

Article excerpt

Introduction.912

I. The Constitutional Canon, Constitutional Norms, and the Process of Constitutional Socialization.918

A. Defining the Constitutional Canon.918

B. Social Norms, Constitutional Socialization, and the Influence of the Constitutional Canon.920

II. The Role of the Constitutional Canon in the Legal Profession ... 926

III. The Popular Constitutional Canon and Its Role in Constitutional Socialization.930

IV. Tending to the Popular Constitutional Canon, A Case Study: The Constitutional Pathologies of Civic Education.935

A. Mythologizing the Supreme Court.937

B. Promoting "Founder Worship".940

C. Downplaying the Achievements of Successive Generations.943

V. Avenues for Future Research.946

Conclusion.948

Introduction

Popular constitutionalism began as a call to action. Richard Parker extolled the virtues of majority rule and popular constitutional values.1 Mark Tushnet sought to abolish judicial review.2 Jeremy Waldron defended legislative supremacy.3 And Larry Kramer, in his pioneering work, The People Themselves, drew on constitutional history to call for an end to judicial supremacy and a return to the American tradition of popular constitutionalism-one that combined popular assertions of constitutional meaning with a commitment to realizing those popular views within our constitutional system, whether through elections and ordinary politics, or blunt curbs on judicial power like court-packing and jurisdiction-stripping.4

While critics have long attacked popular constitutionalism as lacking a clear definition or a concrete (or, at minimum, realistic) reform agenda,5 Kramer did offer a sweeping constitutional vision:

[T]o control the Supreme Court, we must first lay claim to the Constitution ourselves. That means publicly repudiating Justices who say that they, not we, possess ultimate authority to say what the Constitution means. It means publicly reprimanding politicians who insist that "as Americans" we should submissively yield to whatever the Supreme Court decides. It means refusing to be deflected by arguments that constitutional law is too complex or difficult for ordinary citizens. . . . Above all, it means insisting that the Supreme Court is our servant and not our master: a servant whose seriousness and knowledge deserves much deference, but who is ultimately supposed to yield to our judgments about what the Constitution means and not the reverse. The Supreme Court is not the highest authority in the land on constitutional law. We are.6

Kramer's vision demanded a citizenry prepared to assume constitutional responsibility.7 However, Kramer and his popular constitutionalist compatriots have spent precious little time studying the institutions and other forces that shape the constitutional views of the average citizen.8

At the same time, a different strand of popular constitutionalism-more descriptive than normative-sought to understand the relationship between public opinion and constitutional doctrine.9 This scholarship grew out of the legal academy's decadeslong obsession with the countermajoritarian difficulty.10 While popular constitutionalist scholars like Kramer offer normative theories that attack judicial authority,11 another set of scholars has decided to play a different game. Rather than churning out grand theories designed to legitimize or attack judicial review,12 this new generation aims to prove that the countermajoritarian difficulty is no difficulty at all.13 While not all of these scholars self-identify as popular constitutionalists, their scholarship establishes that constitutional doctrine, far from imposing the views of an outof-touch legal elite on the general public, tends to track public opinion-particularly in the areas where the public cares most.14 These scholars have devoted most of their time to working out the large-scale processes that produce this result-and to great avail; the proposition that constitutional doctrine tracks public opinion in high-salience cases is now the conventional wisdom among constitutional scholars. …

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