Popular Constitutionalism as Presidential Constitutionalism?

This essay, which focuses on Larry Kramer's book The People Themselves, makes three points. First, although Kramer makes popular constitutionalism the conceptual centerpiece of his book, it's not at all clear what popular constitutionalism is. Kramer's work can be read to embody two very different versions of popular constitutionalism: a populist sensibility model and a departmentalist model. Second, whichever model Kramer has in mind, he has performed a valuable service by reminding us that the meaning of the Constitution is not identical to the doctrines the Supreme Court uses to implement that meaning.

Third, popular constitutionalism in 2006 may in practice mean presidential constitutionalism—an outcome that should give us cause for concern. The essay concludes with two brief case studies, involving medical marijuana and warrantless wiretapping. Both case studies raise questions about the President's capacity to develop independent, reasonable constitutional understandings in a deliberative and transparent way.