It's Time to Ditch Judicial Supremacy for Popular Constitutionalism | Opinion

Many observers, progressive and conservative alike, have come to see the federal courts as too politicized.

But the criticism of a politicized judiciary has flipped its political valence in recent years. For decades, conservatives complained that the Supreme Court was a political body controlled by liberals, as the Court expanded criminal defendants' protections and afforded constitutional protection to progressive causes like abortion and gay rights. Now, it is liberals who rightly worry that a Court controlled by conservatives will be too overtly political.

Different as they are substantively, each of these complaints emanate from the same premise: that interpreting the Constitution is a task just for the Supreme Court. To be sure, a rich historical tradition supports that idea. The longstanding theory of judicial supremacy says it is the courts, and ultimately the Supreme Court, that determine the Constitution's meaning.

But there is another equally rich tradition of constitutional interpretation that deserves our attention today: popular constitutionalism. That's the idea that ordinary people act through politics, and not the courts, to articulate and advance their understandings of the Constitution. They go into the streets with sloganeering placards, attempting to convince their fellow citizens. Over time, as these social movements gain strength, they lead other Americans, including judges, to accept their constitutional viewpoints.

Popular constitutionalism is constitutional interpretation via social movements—not via legal scholarship. It deserves fresh consideration for several reasons. It offers a more accurate description of how constitutional change has actually happened. Re-invigorating popular constitutionalism might also turn down the heat in our discussions of the Supreme Court, by making the Court less important in debates about constitutional meaning.

The core advantage of popular constitutionalism is simple: It expresses democracy's core commitment to popular self-government. Judicial supremacy, by contrast, expresses a commitment to government by black-robed elites.

Popular constitutionalism's critics suggest that popular constitutionalism is an oxymoron, because the Constitution was designed to check the passions of majorities. That argument fails, first of all, because popular constitutionalism can be based on popular reasoning rather than passion—not the reasoning we see in judicial opinions, of course, but reasoned judgments about what the Constitution means. That reasoning leads people into the streets as advocates, not as tempestuous "mobs."

It also fails because popular constitutionalism doesn't displace courts completely. Unlike a referendum that switches the Constitution's meaning from one position to another, popular constitutionalism establishes a system of dialogue and interaction. The people offer constitutional interpretations, the courts accept, modify, or reject them, and the people respond further if need be.

Popular constitutionalism has a long history. Bottom-up movements helped to shape how the Constitution was understood in the early years of the republic. Labor organizers from the 1890s onward argued that the Constitution protected their right to organize and strike. Eventually, legislatures and courts came around—to some degree—and gave those rights strong statutory protection. The robust right of free speech we have today was created by popular constitutionalism, as well: the result of free speech campaigns by the Industrial Workers of the World ("Wobblies") in the early years of the 20th century. In the sit-in movement of the 1960s, African-American student activists violated Jim Crow segregation and trespass laws because, they said via actions and slogans, they had a right to eat where they wanted. In the end, the students' vision of the Constitution prevailed.

Opponents of popular constitutionalism sometimes point to the supposed ignorance of lay citizenry. A 2017 survey, for example, found that 37 percent of those asked could not name any of the five rights protected by First Amendment, and only 48 percent could name freedom of speech. But these surveys can be misleading. Often what they show is that people don't understand the precise terms used in the Constitution, rather than the ideas captured by those terms. This is hardly a debilitating blow against popular constitutionalism.

Supreme Court
U.S. Supreme Court SAUL LOEB/AFP via Getty Images

Progressives sometimes object to the idea of popular constitutionalism not because the people's views of the Constitution are uninformed, but because those views are—they claim—more conservative than those of the elite.

Maybe popular constitutionalism is more conservative today, but that has not always been the case. During the New Deal/Great Society-era constitutional order of mid-20th-century America, popular support for universal health care and even a job guarantee was high. Such political support for those goals, if sustained, might have been translated into constitutional terms. There is nothing inherently substantive—be it progressive or conservative—about popular constitutionalism as a procedural norm.
Furthermore, popular constitutionalism might provide common ground for discussion—as opposed to the coercion that results when the Court "definitively" resolves intense controversies. Maybe progressives could persuade the people that the Constitution should indeed be understood to protect LGBTQ rights, including marriage. Maybe conservatives could persuade the people that the Constitution should be understood to secure an individual right to keep and bear arms.

Popular constitutionalism, though, is not merely something that comes and goes as political conditions change—nor is it inherently connected to progressive or conservative substantive views about the Constitution's meaning. Rather, popular constitutionalism is an attractive account of how ordinary people can govern ourselves in a constitutional system rooted in the popular sovereignty of which the Constitution's Preamble so clearly speaks.

Mark Tushnet is the William Nelson Cromwell Professor of Law at Harvard Law School and the author of the upcoming book Taking Back the Constitution, from which this is adapted.

The views expressed in this article are the writer's own.