I just finished listening to a really great podast compliments of the official Stanford podcast (side note: I highly recommend adding this to your itunes podcast selection for the content quality and variety alone).
The speaker was Larry D. Kramer and he was speaking about his new book, “Popular Constitutionalism“. The basic thrust of his book is that the constitution’s interpretation should be left to the legislative and executive branches–or, at the very least, not so dependent on the unquestionable “final say” of the judicial branch.
In fact, he makes some great points:
1) The Revolutionary War (and, more broadly, the reason for America’s division from Great Britian was actually a dispute about the failure of the British government to uphold the BRITISH constitution–one that guarenteed rights of representation which the colonists were not able to exercise.
2) After having a war fought for the right of self-determination, would the founding fathers suddenly be willing to give up that right to a handful of unaccountable, unelected judges?
3) The Supreme Court was never intended to be the final arbitrar of CONSTITUTIONAL RIGHTS… it was not until Marbury v. Madison that the Supreme court took on this role. On a broader level, the courts were only to be one voice in a loud chorus of voices that debated the constitutionality of laws.
After listening to his speech, I must admit I felt challenged in my “originalist” tendencies. It seems that originalism isn’t necessary a very “originalist” method of constitutional interpretation. Nevertheless, we can’t pretend that ‘populist’ interpretation can co-exist with an entrenched judiciary that still commands absolute fealty when determining constitutionality.
I don’t have hours to touch-up this post and fully develop many of these thoughts… but hey, that’s what the comments section is for!