In Defense of Judicial Review: A Reply to Professor Kramer

Abstract

Almost thirty years ago, I decided to go to law school because I wanted to be a civil rights lawyer. Although I have been a law professor for over two decades, at heart I am still very much the civil rights lawyer that I set out to be. Thus, as I read Professor Kramer's stunning new book about constitutionalism,' I kept thinking about what his theory would mean for civil rights and civil liberties litigation. The answer is chilling. Popular would mean that courts would be far less available to protect fundamental rights. The rights of minorities would be largely left to the whims of the political majority with severe consequences for racial, ethnic, sexual orientation, and language minorities as well as criminal defendants, public benefits recipients, and others. Literary theorists tell us that the reader always brings his or her experiences to a text. I have spent much of my time the last few years representing several individuals who are serving life sentences for shoplifting under California's three strikes law. In fact, I literally began reading Professor Kramer's manuscript on the plane returning from arguing one of those cases before the Supreme Court. My client, Leandro Andrade, received a life sentence, with no possibility of parole for fifty years, for shoplifting $153 worth of videotapes. What would Professor Kramer's popular constitutionalism have meant for him? California's three strikes law was adopted by the state legislature and then reenacted by the voters through an initiative. This must be the epitome of popular constitutionalism: the people expressing their interpretation of the Constitution. Indeed, the people of California, wittingly or not, were implicitly limiting the reach of due process and sanctioning a life sentence for shoplifting as within the bounds of the Eighth Amendment. Although