A Layman’s Document, Not a Lawyer’s Contract the continuing struggle for popular constitutionalism

Abstract

Abstract By the early 1840s, popular constitutionalism and judicial supremacy were sharing space in American political culture, coexisting in an uncertain and sometimes tense relationship. The very diffuseness and decentralization of popular constitutionalism, combined with uncertainty over the means through which it was expressed, helped make this possible by leaving room for advocates of judicial supremacy to continue nursing their claim. The resulting dialectical tug of war continues even today. Struggle has not been constant. It has consisted of periodic confrontations or blowups occurring after years or sometimes decades during which active backers of the two perspectives jostled for position while ordinary citizens remained largely indifferent or unconcerned. Though we cannot know for sure, it is possible, and maybe even probable, that popular constitutionalism was the dominant public understanding during most of these latent periods, even as judicial supremacy was favored by and within the legal profession. What is certain is that popular constitutionalism was the clear victor each time matters came to a head. Yet the end of one cycle simply began another in which the Court and its supporters eventually renewed their efforts to establish judicial supremacy. Resurgent claims of judicial authority, in turn, gave rise to a new wave of criticism as opponents of the judiciary pushed back by advocating a revived or restored commitment to popular constitutionalism.