In this Wall Street Journal ($) book review, Northwestern University Law Professor John O. McGinniss reviews Stanford Law Dean and Professor Larry Kramer‘s new book — “The People Themselves” — in which he argues that the notion that the judiciary is the sole true arbiter of the Constitution under the American government is a fairly new and inaccurate view. As Professor McGinnis notes from Professor Kramer’s work:

. . . the men who wrote the Constitution would have been aghast at a judicial monopoly on its interpretation. At the time, judges did not claim some exclusive power of constitutional settlement. They believed that judicial review stemmed from their duty to interpret all relevant laws in the course of litigation. But they did not dispute that the White House and Congress had their own duty to interpret the Constitution in the course of their own official actions.
Only later, when the Federalists feared that they would be voted out of office, did the doctrine of judicial supremacy come into play, to insulate Federalist court decisions from correction. But Mr. Kramer shows that presidents from Jefferson to Lincoln refused to yield all authority to judges. They embraced “departmentalism” — each branch of government claiming an equal right to discover the Constitution’s true meaning.

Professor Kramer notes that the doctrine of judicial supremacy has serious implications to American government and society:

Because the court is selected from a narrow social class, he notes, it tends to reflect the views of a modern “aristocracy.” Only the willingness of other branches to disagree with the court prevents our constitutional republic from degenerating into a constitutional oligarchy — with a priestly caste ruling, in effect, by fiat.
Mr. Kramer goes even further. He believes that “the people themselves” should be principal enforcers of the Constitution, as they long enforced the British Constitution through such devices as jury nullification and mobbing — i.e., disturbing the peace. But the American Constitution differs from that of George III. In the U.S., the people themselves can reconstitute all branches of the government — by voting for certain candidates instead of others, of course, and by thus affecting political appointments. Electoral accountability is the essence of popular constitutional control. Thus Americans have not typically resorted to mob violence. The contrast with the British Constitution is striking.

But Professor McGinnis is not completely sold on Professor Kramer’s theory that varied interpretations of the Constitution protect our society against the tyranny of the majority:

The American Constitution also differs from the (unwritten) British one in its source of authority. In 1789 the Framers drafted a specific text that the people themselves ratified in every state. It is this consensus that gives the Constitution its power and justifies the disregard of even democratically made laws that conflict with it. But the meaning of that consensus can be discovered only by referring to the words themselves and to their historical context — not by relying on the “political-legal” interpretation that Mr. Kramer suggests. Constitutional interpretation based on politics places the people’s own considered judgments at the mercy of rash and temporary majorities. Only a document fixed by law — and subject to strict rules of amendment — can protect, in the words of Justice David Brewer, “Peter Sober from Peter Drunk.”

Read the whole piece. Good stuff.