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Why Law Should Lead

Publication Date: 
April 02, 2010
The New Republic
Justin Driver

Dean Larry Kramer is mentioned in this review of Barry Friedman's book, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution, for his scholarship on constitutional law:

In 1952, as the Supreme Court contemplated the set of cases that would eventually become known as Brown v. Board of Education, a law clerk named William H. Rehnquist wrote a memorandum modestly styled as “A Random Thought on the Segregation Cases.” Far from a tangential observation regarding the Fourteenth Amendment’s implications for racially segregated public schools, the two-page manifesto provided nothing less than a unified theory of American constitutional law. “One hundred and fifty years of attempts on the part of this Court to protect minority rights of any kind whether those of business, slaveholders, or Jehovah’s Witnesses have all met the same fate,” Rehnquist wrote. “One by one the cases establishing such rights have been sloughed off, and crept silently to rest.” The memo further suggested that the Supreme Court elevates constitutional principle above majority preference only at its own peril: “To the argument . . . that a majority may not deprive a minority of its constitutional right, the answer must be made that while this is sound in theory, in the long run it is the majority who will determine what the constitutional rights of the minority are.”

Barry Friedman does not analyze the reasoning of Rehnquist’s memo in his history of the Supreme Court, but no single document better--or more chillingly--encapsulates his book’s argument. Friedman’s book, like Rehnquist’s memo, understands the judiciary to afford minorities protection almost exclusively on a theoretical level. “In theory,” Friedman declares, “this desire to separate law and politics is an admirable one.” But such a separation, he continues, remains unattainable in the real world: “the instinct to keep politics entirely separate from decisions about constitutional law is plainly impossible with regard to the Supreme Court. It simply is the case that the judiciary’s capacity to give the Constitution meaning, to protect minority rights, always has been limited by popular support for those decisions.”


Apart from its intellectual debt to Bickel, Friedman’s history can usefully be understood as a modified version of an approach known as popular constitutionalism, which is most prominently associated with Larry D. Kramer. Popular constitutionalists emphasize that Supreme Court justices are not the only citizens who should interpret the Constitution. Ordinary Americans, too, should reclaim an interpretive role, because the Constitution was written for the people. Although Kramer decries the way in which everyday Americans have been marginalized from the modern constitutional order, Friedman offers a more sanguine assessment. He suggests that the people’s constitutional voice is now heard more clearly than ever by the Court, as justices almost invariably interpret the Constitution in accordance with popular views. Kramer and Friedman travel different routes, but they reach the same populist destination. Kramer ended the last chapter of his book, The People Themselves, by imploring: “The Supreme Court is not the highest authority in the land on constitutional law. We are.” Friedman concludes The Will of the People by declaring: “In the final analysis, when it comes to the Constitution, we are the highest court in the land.”