Tuesday, December 5, 2006
An SSRN paper by Willy Forbath, Univerity of Texas Law School is circulating: Popular Constitutionalism in the Twentieth Century: Reflections on the Dark Side, the Progressive Constitutional Imagination, and the Enduring Role of Judicial Finality in Popular Understandings of Popular Self-Rule. The paper is part of a symposium issue of the Chicago-Kent Law Review of Larry Kramer, The People Themselves: Popular Constitutionalism and Judicial Review, which includes essays by many legal history luminaries. Here's Forbath's Abstract: Written for a Symposium on The People Themselves, this essay aims to revise and strengthen some important features of Larry Kramer's pioneering account of popular constitutionalism, particularly during the last century, which Kramer covers on the run. In doing so, the essay also complicates the normative path of Kramer's narrative. First, I discuss the role of racism in shaping American popular constitutionalism and its rivals. The People Themselves has been assailed for glossing over this and other dark chapters in popular constitutionalism's history. I sketch how and why Kramer's narrative should take these dark chapters on board. Next, I turn to the Progressive Era and the New Deal. In both these moments, Kramer argues, when matters came to a head, Americans chose popular constitutionalism over judicial finality. In fact, I argue, Americans preferred to have it both ways. While Progressives' and New Dealers' attacks on conservative judicial doctrines enjoyed broad support, efforts to demote the courts and institute more democratic allocations of interpretive authority never gained broad and deep popular approval. The Progressive Era was the first and last time Americans seriously considered profound institutional changes aimed at enlarging ordinary citizens' role in determining the meaning of the Constitution and the course of its development. Progressive efforts to rethink popular self-rule and make constitutionalism more democratic in a modern, urbanized America were deep and systematic - more so than Kramer's or any of today's constitutional thinkers. What can we learn from them? Popular political sway over constitutional questions in both eras stood in tension with a conservative current of popular skepticism about the people's collective enthusiasms about the uses of state power, a current that ran in favor of judicial finality. Americans refused to forsake the ideal or myth of judicially enforceable constitutional commitments standing obdurately above and beyond the sway of non-judicial political actors. Throughout the twentieth century, I suggest, even in the thick of popular constitutional battles against the courts, Americans associated judicial finality with the stability of firm, unduckable, law-like constitutional guarantees. They disagreed about what rights the Constitution vouchsafed and about what rights were properly safeguarded by courts. But on all sides, they were believers in the indispensability of judicial finality in respect of some important set of rights, which they deemed essential to their rival conceptions of popular self-rule and constitutional democracy. This basic agreement on the virtues of judicial finality across the liberal-conservative divide, which Kramer bemoans as a late twentieth century development, arose many decades earlier. But contrary to Kramer, I do not find that this agreement has spelled the demise of popular constitutionalism. From the New Deal right down to the present, party politics and social movements, including movements to amend the Constitution, have been lively sites of popular involvement in - and popular influence over - the nation's constitutional development.