Saturday, February 9, 2013
The People Themselves
I'm just wondering if I'm reading The People Themselves correctly- Kramer is arguing within his history of judicial review and popular constitutionalism that the people have given up their power of being the ultimate interpreters/enforcers of the Constitution as the courts have gained that power (judicial supremacy)?
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In its most general sense, yes. Which of course begs the question--wasn't judicial review, or its concept, understood during the creation of the Constitution? during Ratification? During the early republic? How does Kramer deal with the early practice of judicial review?
The most striking aspect of this book was Kramer's discussion of Marbury v. Madison in relation to judicial supremacy. His reading of the decision does not give the Supreme Court any new powers of review, which challenges my own education on the topic. This case still has political significance. The decision blocked a Federalist attempt to appoint more judges, after losing seats in Congress and the Presidency.
Kramer argues that judicial supramcy comes much later in U.S. history.
Technically the decision did not block the Federalists' attempt to put more judges on the Court. That was the companion case, Stuart v. Laird, which was dismissed by the Court. But the point is that Federalists wanted the Court to go much further, and if judicial supremacy had really been established, it would have. But it did not.
Most people's understanding of Marbury is totally wrong. So you are in good company!
Kramer notes that the Framers readily acknowledged that the federal courts would have the power to void unconstitutional state acts, rejecting as unnecessary Madison's suggestion that Congress have a legislative veto over state laws it saw as unconstitutional. During ratification, Kramer found that the vast majority of participants were thinking in terms of popular constitutionalism, and the idea of judicial review was not something they even considered.
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