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Full-Text Articles in Law
Give "The People" What They Want?, Keith E. Whittington
Give "The People" What They Want?, Keith E. Whittington
Chicago-Kent Law Review
Larry Kramer's The People Themselves argues that "popular constitutionalism" has been the dominant tradition over the course of American history, being eclipsed by "judicial supremacy" only in the last decades of the twentieth century. He posits that political parties have, since the age of Andrew Jackson, been the vehicle for pushing back the forces of judicial supremacy. This article argues that political parties are instead deeply implicated in the political dynamic that gives rise to judicial supremacy in the United States. The article identifies the features of the early party system that allowed it serve the popular constitutionalist function that …
A Historiography Of The People Themselves And Popular Constitutionalism, Morton J. Horwitz
A Historiography Of The People Themselves And Popular Constitutionalism, Morton J. Horwitz
Chicago-Kent Law Review
The People Themselves intervenes in a growing contemporary debate about the role of the Supreme Court in our constitutional system that began to emerge after the end of the Warren Court and reached a crescendo with Bush v. Gore. For the second time since Lochner v. New York was decided, some liberals have begun once again to switch sides on the virtues of judicial review. Many recent liberal books and articles inevitably bring to mind the flood of Progressive attacks on the democratic legitimacy of judicial review written between 1905 and 1937. Yet the book can be approached independently …
Popular Constitutionalism, Judicial Supremacy, And The Complete Lincoln-Douglas Debates, Mark A. Graber
Popular Constitutionalism, Judicial Supremacy, And The Complete Lincoln-Douglas Debates, Mark A. Graber
Chicago-Kent Law Review
The complete history of the Lincoln-Douglas debates provides additional support for the main thesis of Larry Kramer's The People Themselves: Popular Constitutionalism and Judicial Review, while casting doubt on a subtheme. The Lincoln-Douglas debates of 1840 are yet another instance when judicial power was contested in American history. Professor Kramer, however, treats American constitutional history as an ongoing struggle between aristocrats who support judicial supremacy and "democrats" committed to a more popular constitutionalism. The complete Lincoln-Douglas debates suggest that political struggles to control constitutional meaning have been more protean. Douglas was one of many ambitious politicians who rose to …
Constitutional Education For The People Themselves, Sheldon Nahmod
Constitutional Education For The People Themselves, Sheldon Nahmod
Chicago-Kent Law Review
Professor Nahmod, like Dean Kramer, remains profoundly disturbed by the Supreme Court's triumphalist decision in Bush v. Gore. However, he does not go so far as Dean Kramer in arguing normatively for a return to "popular constitutionalism." Rather, his more modest position is that the Supreme Court, Congress, and the President, together with the bar and the media, have a normative obligation to educate "the people themselves" in constitutional matters. This often-overlooked and vitally important "constitutional education" of the people is based on the self-government rationale of both our constitutional structure and the First Amendment. Professor Nahmod suggests how …
Response, Larry Kramer