The provocative premise of this book is that “the people themselves,” in James Madison's phrase, are the enforcers of constitutional boundaries and limits. In Larry Kramer's able hands, popular sovereignty is not an abstraction, where the people quickly fade from view and the Constitution they ratified is given life by courts and lawyers. On the contrary, Kramer seeks to document how the people themselves are not just active participants in the constitutional enterprise but the fundamental bearers of constitutionalism.

Kramer is at his best in the masterful opening chapters that illuminate the spirit of “popular constitutionalism.” He deserves great praise for his detailed historical research, which recaptures the flavor of early constitutionalism and its deep connection with an active and spirited American people. He also deserves great praise for untangling the different conceptions of “constitution” floating around and rendering that understanding easily accessible to a modern audience. While “modern discourse has so thoroughly conflated the meaning of ‘constitution’ with ‘law’ and ‘law’ with ‘courts’ that we simply presume that the Supreme Court is the authoritative enforcer of the Constitution,” it was not always so (p. 24). Thus, Kramer argues, the fundamental misconception of the modern insistence upon judicial supremacy “is the assumption not just that someone must have final authority to resolve routine constitutional conflicts, but that this someone must be a governmental agency” (p. 107).

Beginning with the notion of the “customary constitution,” Kramer illustrates how fundamental law is best understood as “political-legal,” distinguishing it from both ordinary law and ordinary politics, but binding upon the legislature nevertheless. Even prior to the notion of a written constitution, the language of “constitutional” and “unconstitutional” was invoked as a means of “maintaining liberty against arbitrary power” (p. 28). And demanding adherence to the “customary constitution” was something that came from the community itself by way of voting, petitioning, pamphleteering, jury nullification, and even “mobbing” (which has since been given a bad name). A great virtue of the author's argument is that it makes constitutional sense of so much activity within the age of revolutionary politics—like the Boston Tea Party.

Kramer then turns his attention to the development of judicial review within the confines of written constitutionalism. Even here, he contends, the notion of fundamental law enforced by “the people themselves” applies. The practice of judicial review must be understood within the contours of popular constitutionalism. Happily, this does not rehash the tired debates about the “problem” of judicial review and democracy that have so preoccupied constitutional theory, as if judicial review were the whole of American constitutionalism. Indeed, Kramer demonstrates how judicial review emerged as one aspect of enforcing fundamental law long before Chief Justice John Marshall's famous Marbury opinion. But most importantly, contrary to the modern understanding, judicial review was only one way of maintaining fundamental law, not the way.

This gives new resonance to Marshall's insistence that when the Court refused to abide by an unconstitutional law, it was simply adhering to the will of the people as expressed in fundamental law. Against the modern reading of Marbury, which equates judicial review with judicial supremacy, Kramer persuasively argues that it is best understood as a claim for the Court as a coequal interpreter of the Constitution. Nowhere does Marshall insist in Marbury that the other branches of government are bound by the Court's interpretation of the Constitution once it has spoken. On the contrary, Marshall noted, “courts, as well as other departments, are bound by that instrument.”

Yes, political scientists have taken up many of these arguments (some of whom Kramer acknowledges in the text and footnotes). And one could certainly quibble with some of his readings of the Federalists and the Republicans. Still, in tracing out the changing context of constitutional law and its connection with party politics over the first half of the nineteenth century, Kramer deepens our understanding of constitutionalism in this era. Connecting popular constitutionalism with Andrew Jackson and Martin Van Buren against the Whig defense of judicial supremacy is one of the most interesting aspects of this work, as this era is often glossed over. By taking the story further into the nineteenth century than past scholars have done, he also illuminates the conceptual struggle to reduce fundamental law (as embraced by our written Constitution) to a more ordinary form of law.

However, while Kramer is right to reject judicial supremacy, I wonder if he does not overplay “popular constitutionalism” to the point of draining the written Constitution of any fixed meaning. He persuasively highlights Madison's departmentalist understanding and connects it, at root, to the people. But he seems to neglect the fact that Madison's departmentalism was a way to best preserve constitutional meaning. At times, it seems that Kramer thinks the Constitution could be whatever the people make it. I think this belies Madison's argument. If the people are, practically speaking, the final arbiters of constitutional meaning, there is an immediate distance between the people and their representatives by way of constitutional forms. And these forms, including the judiciary, are structured so that they might, when necessary, act against the “popular current.” (This view might also go some way toward reconciling the tension Kramer sees between the “young” and “old” Madison on the scope of judicial power.) This does not mar the author's analysis of constitutional politics in the late eighteenth and early nineteenth centuries, but it does make his discussion of popular constitutionalism in the twentieth century wholly unpersuasive.

Here, Kramer attempts to play the progressive critique of constitutionalism and the New Deal's casting off of many constitutional limits as acts of popular constitutionalism. All too predictably, he offers up the “New Deal settlement” as the proper understanding of our constitutionalism: “While making their presence felt on questions of individual right, these Courts carefully respected the space carved out for popular constitutionalism at the time of the New Deal and left questions respecting the scope of national powers to the political process” (p. 220). Recent scholarship, for example, Ken Kersch's Constructing Civil Liberties (2004), makes this a very difficult sell. But even more importantly, Kramer ducks the hard questions of why the judicial protection of (some) rights is consistent with popular constitutionalism while judicial limitations on national power are not. Nor does he explain why Ronald Reagan's rejection of the New Deal settlement is not the most recent manifestation of popular constitutionalism. These latter chapters read far more like typical law school advocacy, falling short of the book's promise and making one wish that Kramer had stopped in the mid–nineteenth century. There, The People Themselves is a provocative and original analysis of American constitutionalism that will command a wide audience.