Vanderbilt Law Review


Scott D. Gerber

First Page



Several of the nation's most influential constitutional law scholars have been arguing for the better part of a decade that judicial review should be sharply limited, or eliminated altogether. The list includes such prominent thinkers as Professor Mark V. Tushnet of Harvard Law School, Professor Cass R. Sunstein of the University of Chicago Law School, and Dean Larry D. Kramer of Stanford Law School. In place of the doctrine made famous by Chief Justice John Marshall in Marbury v. Madison, these leading voices of the legal academy call for "popular constitutionalism": a constitutional law that is defined outside of the courts by the people themselves, "whether we act in the streets, in the voting booths, or in legislatures as representatives of others."

The purpose of this Article is to demonstrate that popular constitutionalism is wrong and should be rejected. It is difficult to overstate the importance of doing so, given how influential Tushnet, Sunstein, and Kramer are to current thinking about the Supreme Court's role in American life. For example, both Sunstein and Kramer previewed as separate Forewords to the Harvard Law Review's annual survey of the Court's term what they would later explore in their major books on popular constitutionalism. There is no more prestigious a platform for a constitutional law scholar than a Harvard Law Review Foreword.