I just want to make sure that I understand the concept and definition of "Popular Constitutionalism." As I understand it, it is the concept that the people, either directly or through their elected legislatures, have the final authority to interpret the constitutional or Fundemental law and not the courts. Also the term elected legislatures could mean either federal or state bodies which would open the door to state nullification. This of course is the opposite of Judicial Review. Am I on the right track?
Jim
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Well, the problem is the "final" part of the final authority. There are ways for the people to express their constitutional views in Kramer's formulation, and one of them is actually judicial review. But you are on the right track.
Is Kramer's argument that neither the 3 branches nor "the people" have the final interpretation? Therefore, each of the four groups can generate their own interpretation.
Not quite, and very important question. Does Kramer acknowledge that "the people" is a fiction? What role "public reason"? And perhaps his complaint is really about such contentious cases as City of Boerne, in which the modern court tried to assert its power over Congress. If this is the case, how is he then using the past?
I could be wrong, but I understood popular constitutionalism to be where the people regarded themselves as both the creators and the ultimate interpreters of the Constitution. Going back to the consideration given judicial review during the Constitutional Convention and ratification process, the fact that the Framers readily accepted and even took for granted that the federal courts could review the constitutionality of state acts demonstrated that American popular constitutionalism was unique in that it recognized the need for some institutional mechanism of constitutional enforcement.
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