LARRY KRAMER'S NEW BOOK

Just ordered Larry Kramer's new book, The People Themselves: Popular Constitutionalism and Judicial Review. An earlier draft of part of the book can be found here (PDF).

It's recommended by Lawrence Solum and by William at Southern Appeal. Howard Bashman links to a review from Judge Richard Posner in TNR, here.

I'll probably have some more to say about this book later. I liked the draft that chapter linked above. In the context of a constitutional system that rests on popular sovereignty, there is always going to be something attractive about constitutional understandings that a) rely on popular knowledge and b) offer an alternative to current, dominant understandings as they are entrenched in particular institutions. The attempt to retrieve earlier, non-professionalized constitutional understandings is a good thing, in general, in my opinion.

William at SA is right that professional legal education tends to induce suspicion of popular constitutionalism-type arguments. Legal scholars tend to be very comfortable with judicial supremacy. There are some notable exceptions (Mark Tushnet and Sanford Levinson come to mind). My sense is that political scientists are more open to this kind of argument than lawyers -- if political scientists can work through their own professional biases, which often teach them that law is fundamentally a mystifying gloss on power relations.