Larry Kramer article
NYU law professor Larry Kramer, a noted constitutional scholar, has a new piece in the Boston Review titled We the People: Who has the last word on the Constitution? . An excerpt:
Who has the last word when it comes to the meaning of the Constitution? Who ultimately decides whether a state can regulate or outlaw abortion? Or whether Congress can legislate to protect the elderly or the disabled? Who decides the winner in a contested presidential election? On these and countless other matters of fundamental interest to society, the answer in recent years has been the Supreme Court. And most Americans seem willing, even happy, to leave it at that. Indeed, if recent surveys are to be believed, most think this is how our Founding Fathers meant it to be. What lawyers call "judicial supremacy"—the idea that judges decide finally and for everyone what the Constitution means—has found wide public acceptance. Other actors get to have their say, of course. The president, Congress, the states, and ordinary citizens can all express opinions about the meaning of the Constitution. But the Justices decide whether those opinions are right or wrong, and the Justices' judgments are supposed to settle matters for everyone, subject only to the practically impossible process of formal amendment.
It was not always thus. On the contrary, broad acceptance of judicial supremacy is of surprisingly recent vintage, a development that really only began in the 1960s and did not come to fruition until the 1980s. Certainly the men and women of our founding generation would not have accepted—did not accept—being told that a lawyerly elite had charge of the Constitution, and they would have been incredulous if told (as we are often told today) that the main reason to worry about who becomes president is that the winner will control judicial appointments. Giving an unelected judiciary that kind of importance and deference "makes the Judiciary Department paramount in fact," James Madison mused in 1788, "which was never intended and can never be proper." The Constitution of the founding generation was a popular one: the people's charter, made by the people. And it was, in Madison's words, "the people themselves"—working through and responding to their agents in government—who "can alone declare [the Constitution's] true meaning and enforce its observance." The idea of turning this responsibility over to judges was simply unthinkable.