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The People Themselves
 by Larry D. Kramer
Reviewed by Phil Nicolosi
This book is an in-depth, scholarly study of the role the people played in interpreting the Constitution and the evolution and understanding of judicial review. It is an excellent book for teacher background information and anecdotes. It would be extremely challenging for students, although short excerpts of text and sources could be used.
In this book, Kramer places the people and the courts at the center of his historical narrative, arguing that constitutional interpretation never solely rested with judges and the courts. It was, and has always been, for the “people themselves” to interpret. Kramer, a former law clerk to Supreme Court Justice William J. Brennan and current Dean of Stanford Law School, debunks numerous myths about the history of judicial review. Kramer traces the evolution of judicial review and explains in great detail how the people have always possessed, and still possess, the power and control over what the Constitution means.Most notably, Kramer explains, through many historical examples, how the “people” in the colonies had extensive control over constitutional interpretation, legal decisions and the courts. By voting, writing petitions, and frequent mob action, the people’s voice was clear. His analysis of how events like the Stamp Act protests and the Boston Tea Party had “legal” backing in the colonists’ minds provide great anecdotes for classroom lectures and can give students a nuanced understanding of the background to the Revolution. Using such anecdotes in classroom lecture and as background to analyzing documents from events like the Stamp Act protests allows students to see that the early rebels, while certainly pushing the limits of legality, were not necessarily scofflaws.
Incorporating the in-text primary source excerpts into lesson plans can challenge the notion that there has always been acceptance of the court’s role as final arbiter. Excerpts from both the Federalists and Antifederalists make the ratification debate and the concerns over the courts more vivid to students. Federalist and Republican writings on the court’s role can buttress a student’s understanding of the Adams and Jefferson administrations. These documents can also be used to demonstrate why the “midnight appointments” were so controversial and “personally unkind” to Jefferson. While students and teachers may find such primary sources overwhelming, the excerpts provided in this book capture the essence of the arguments and can easily understood and examined by students. Having students read and analyze such excerpts individually or in small groups can enhance the notion that good history is complicated by many underlying causes. Jefferson’s gripe against the appointments was not over his concern for John Adams’ lack of sleep that evening or William Marbury’s position, but which principles – Federalist or Republican – would triumph during that period.
Viewed in the light of Kramer’s argument that the people, not the courts have final say making law, Marbury v. Madison, a mundane case with a complicated decision, takes on a new life. As the myth of John Marshall spontaneously creating judicial review fades, the reader finds Kramer’s analysis both illuminating and inspiring. It reminds us to teach our students that the Constitution has always been, and still is, “the people’s document.”
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September 12th, 2007 at 3:18 pm
Kramer seems to make some interesting points– and his argument is no doubt very much in fashion among conservatives these days. I do wonder, though, what sort of role Kramer does see for the courts? Seems like not much more than adjudicator of the most basic disputes.