Give "The People" What They Want?

Larry Kramer's The People Themselves argues that "popular constitutionalism" has been the dominant tradition over the course of American history, being eclipsed by "judicial supremacy" only in the last decades of the twentieth century. He posits that political parties have, since the age of Andrew Jackson, been the vehicle for pushing back the forces of judicial supremacy. This article argues that political parties are instead deeply implicated in the political dynamic that gives rise to judicial supremacy in the United States. The article identifies the features of the early party system that allowed it serve the popular constitutionalist function that Kramer emphasizes.

It then shows that these are relatively rare features of American politics. Under more common political conditions, party leaders have ample incentives to encourage the growth of judicial supremacy precisely in order to advance the substantive constitutional commitments to which those political leaders adhere.