Judicial elections as popular constitutionalism

Columbia Law Review

Volumn 110, Issue 8, 2010, Pages 2047-2134

  Pozen, David E ^a  

^a INDIANA UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 78649513943     PISSN: 00101958     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (343)

1. See Andrew B. Coan, Well, Should They? A Response to If People Would Be Outraged by Their Rulings, Should Judges Care?, 60 Stan. L. Rev. 213, 238 (2007) ("[P]opular constitutionalism . . . has taken constitutional theory by storm over the last decade."); Jedediah Purdy, Presidential Popular Constitutionalism, 77 Fordham L. Rev. 1837, 1837 (2009) (calling popular constitutionalism "the most important and influential strand of recent constitutional theory"); Larry Alexander & Lawrence B. Solum, Popular? Constitutionalism?, 118 Harv. L. Rev. 1594, 1594, 1640 (2005) (book review) (describing popular constitutionalism as "the theory du jour"). Popular (or political) constitutionalism has likewise assumed a central role in debates over the legitimacy of judicial review in several Commonwealth countries. See Paul Craig, Political Constitutionalism and Judicial Review, in Effective Judicial Review: A Cornerstone of Good Governance 19, 19 (Christopher Forsyth et al. eds., 2010).
2. Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review 125 (2004) [hereinafter Kramer, The People Themselves].
3. David L. Franklin, Popular Constitutionalism as Presidential Constitutionalism?, 81 Chi.-Kent L. Rev. 1069, 1069 (2006); see also Todd E. Pettys, Popular Constitutionalism and Relaxing the Dead Hand: Can the People Be Trusted?, 86 Wash. U. L. Rev. 313, 354 n.191, 321 (2008) (observing that "popular constitutionalists have not yet rallied behind specific proposals concerning the ways in which the American people might reveal their constitutional interpretations," and asserting that "[t]hese are vitally important matters on which popular constitutionalists owe their critics a persuasive response").
4. Alexander & Solum, supra note 1, at 1635.Robust popular constitutionalism, in Alexander and Solum's taxonomy, is the view that "the court of popular opinion [ought to be] the tribunal of last resort-superior to the United States Supreme Court on issues of constitutional law." Id. at 1621.
5. Id. at 1635-40.
6. Larry Kramer, Response, 81 Chi.-Kent L. Rev. 1173, 1182 (2006) [hereinafter Kramer, Response]. Note the slippage in Kramer's statement between popular constitutionalism and democratic constitutionalism. The question of how popular constitutionalist practices relate to democratic ideals will be a central concern of this Article.
7. Robert Post & Reva Siegel, Roe Rage: Democratic Constitutionalism and Backlash, 42 Harv. C.R.-C.L. L. Rev. 373, 380 (2007) [hereinafter Post & Siegel, Roe Rage]. Bruce Ackerman is sometimes classed as a popular constitutionalist, but his "constitutional moments" appear to be still rarer and more difficult to achieve than formal amendments, and the judiciary plays the lead role in interpreting and consolidating them during periods of normal politics. See generally 1 Bruce Ackerman, We the People: Foundations 288-90 (1991) [hereinafter Ackerman, Foundations]; 2 Bruce Ackerman, We the People: Transformations 350-82 (1998). Although the moments themselves may be signal achievements of popular constitutionalism, they are therefore even less suited to the task set forth by Kramer. See Larry D. Kramer, Popular Constitutionalism, circa 2004, 92 Calif. L. Rev. 959, 961 n.3 (2004) [hereinafter Kramer, Popular Constitutionalism] (stating that popular constitutionalism "refers," not to revolutionary acts of constitutional revision, but "to some idea that the people retain authority in the day-to-day administration of fundamental law"); Post & Siegel, Roe Rage, supra, at 380 ("And if twenty-seven constitutional amendments cannot ensure democratic accountability, neither can three or four discrete 'constitutional moments.'").
8. David E. Pozen, The Irony of Judicial Elections, 108 Colum. L. Rev. 265, 328 (2008) [hereinafter Pozen, Irony of Elections].
9. There is, to be sure, a large literature that evaluates judicial elections in light of communal and constitutional values. No previous work has offered any sustained analysis of the relationship between judicial elections and popular constitutionalism.
10. U.S. Const. art. II, § 2, cl. 2 (requiring presidential nomination and Senate approval); id. art. III, § 1 (providing that federal judges "shall hold their Offices during good Behaviour").
11. See infra Parts II.A, III.D.2 (discussing significance of state courts and constitutions for popular constitutionalism).
12. A biannual series of reports by the Brennan Center for Justice, the Justice at Stake Campaign, and the Institute for Money in State Politics has popularized this label. See, e.g., James Sample, Lauren Jones & Rachel Weiss, The New Politics of Judicial Elections 2006 (Jesse Rutledge ed., 2007).
13. On the distinction between the old and new models of judicial elections, see Pozen, Irony of Elections, supra note 8, at 265-68, 296-306. The new model has not entirely supplanted the old; many races for the bench still fail to generate much public participation, discussion, or interest. Yet it is remarkable to learn that on at least two key metrics, challenger and retention rates, partisan state supreme court elections are now significantly more competitive than elections for the U.S. House of Representatives. Melinda Gann Hall, Competition as Accountability in State Supreme Court Elections, in Running for Judge: The Rising Political, Financial, and Legal Stakes of Judicial Elections 165, 182-83 (Matthew J. Streb ed., 2007).
14. A vast descriptive literature, spanning several disciplines, explores this question. For an excellent overview, see Kramer, Popular Constitutionalism, supra note 7, at 967-74.
15. Erwin Chemerinsky, In Defense of Judicial Review: The Perils of Popular Constitutionalism, 2004 U. Ill. L. Rev. 673, 676.
16. Suzanna Sherry, Putting the Law Back in Constitutional Law, 25 Const. Comment. 461, 463 (2009); see also Barry Friedman, Mediated Popular Constitutionalism, 101 Mich. L. Rev. 2596, 2598 (2003) [hereinafter Friedman, Mediated Constitutionalism] (stating that "the particulars" of popular constitutionalism "have not been worked out"). But cf. Mark Tushnet, Popular Constitutionalism as Political Law, 81 Chi.-Kent L. Rev. 991, 996 (2006) [hereinafter Tushnet, Political Law] (defending "the inherent fuzziness of the category popular constitutionalism").
17. I also draw heavily on the work of Robert Post and Reva Siegel, though it should be noted that much of their scholarship in this area is positive rather than normative, and their views diverge from Kramer's and Tushnet's in important ways. If my primary focus on Kramer seems methodologically suspect, I can say only that his writings have proven especially influential-they helped crystallize the perception of popular constitutionalism as a major school of thought-and that many have been interested in working out their implications. In condensing an "enormous" literature, Kramer, Popular Constitutionalism, supra note 7, at 961, the discussion sacrifices nuance in the hope of clarifying common themes.
18. For a lucid summary of recent critiques of judicial review, including but not limited to popular constitutionalists', see Ori Aronson, Inferiorizing Judicial Review: Popular Constitutionalism in Trial Courts, 43 U. Mich. J.L. Reform 971, 974-82 (2010). The major charges against judicial review, in Aronson's telling, are that it "is at odds with democratic rule"; funnels "morally-laden issues" to "professionally [in]adequate arbiters"; "impedes, numbs, and diverts political deliberation on constitutional issues"; and constitutes "an elitist mechanism for preserving the social structure." Id. at 975.Aronson's project, which aims to "break[] down th[e] monolithic concept of 'the courts' by shifting the focus to the lower levels of the judicial system," id. at 971, echoes and complements my own. Aronson, however, rules out the possibility of incorporating state courts into his "inferiorizing" strategy-and he cites their typically elective nature as one of two reasons why. See id. at 973 n.2, 997 n.98. (The other reason is "extreme jurisdictional complexities." Id. at 973 n.2.) I admire Aronson's insightful analysis but find this an unfortunate limitation, because it severely limits the practical relevance of his project and because, as I will show, some of the same critiques of judicial review that motivate his work can be used to motivate a popular constitutionalist defense of elective judiciaries.
19. Kramer, Popular Constitutionalism, supra note 7, at 964.
20. See, e.g., Barry Friedman, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution 83-91, 266-67 (2009) [hereinafter Friedman, Will of the People] (providing notable examples from early 1800s and 1960s); cf. Lee J. Strang, Originalism as Popular Constitutionalism? It Depends 5 (Aug. 13, 2010) (unpublished manuscript), available at http://ssrn.com/ abstract=1658549 (on file with the Columbia Law Review) ("The historical narrative frequently told by popular constitutionalists . . . argues that popular constitutionalism is the initial American form of constitutional interpretation.").
21. Kramer, The People Themselves, supra note 2, at 229."Constitutional history was recast-turned on its head, really-as a story of judicial triumphalism." Id.
22. Friedman, Mediated Constitutionalism, supra note 16, at 2600; id. at 2606-13 (reviewing empirical literature on this issue from Robert Dahl's canonical work forward).
23. Alexander & Solum, supra note 1, at 1608; Doni Gewirtzman, Glory Days: Popular Constitutionalism, Nostalgia, and the True Nature of Constitutional Culture, 93 Geo. L.J. 897, 904 (2005); Robert Post & Reva Siegel, Popular Constitutionalism, Departmentalism, and Judicial Supremacy, 92 Calif. L. Rev. 1027, 1027 (2004) [hereinafter Post & Siegel, Popular Constitutionalism]; see also Keith E. Whittington, Extrajudicial Constitutional Interpretation: Three Objections and Responses, 80 N.C. L. Rev. 773, 776 n.17 (2002) [hereinafter Whittington, Extrajudicial Interpretation] (cataloguing criticisms of judicial supremacy). I am using "judicial supremacy" in the sense articulated by Larry Kramer, among many others, as the notion that judges are the preeminent and ultimate arbiters of constitutional meaning for everyone. See supra note 2 and accompanying text; see also Keith E. Whittington, Political Foundations of Judicial Supremacy 6-7 (2007) ("A model of judicial supremacy posits that the Court does not merely resolve particular disputes . . . . It also authoritatively interprets constitutional meaning."). A still more perfidious enemy is "judicial sovereignty," the notion that judges have not merely the final word but the only word in constitutional interpretation. Larry D. Kramer, The Supreme Court, 2000 Term-Foreword: We the Court, 115 Harv. L. Rev. 4, 13 (2001); Robert C. Post & Reva B. Siegel, Legislative Constitutionalism and Section Five Power: Policentric Interpretation of the Family and Medical Leave Act, 112 Yale L.J. 1943, 2023 n.250 (2003). All of the criticisms of judicial supremacy and then some would apply to judicial sovereignty. I focus on the former because the term "judicial sovereignty" is not in widespread use, and because the idea that extrajudicial actors lack the authority even to partake in constitutional interpretation is not a plausible depiction of American constitutional practice: Just glance at the editorial pages of the New York Times or the Wall Street Journal after a major Supreme Court ruling, or at any issue of this journal. In this regard, judicial sovereignty was a strawman in Kramer's Harvard Law Review Foreword, and it is notable that he has not returned to the term.
24. Post & Siegel, Popular Constitutionalism, supra note 23, at 1029; Robert C. Post & Reva B. Siegel, Protecting the Constitution from the People: Juricentric Restrictions on Section Five Power, 78 Ind. L.J. 1, 2 (2003).
25. Cooper v. Aaron, 358 U.S. 1, 18 (1958) (citing Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)). The Rehnquist Court took the Warren Court's view of judicial supremacy further, articulating it more frequently and more stridently. See, e.g., Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721, 728 (2003) ("[I]t falls to this Court, not Congress, to define the substance of constitutional guarantees."). Particularly galling to many popular constitutionalists, the Court repeatedly invoked its own interpretive supremacy in curtailing Congress's explicit grant of power to legislate under Section Five of the Fourteenth Amendment. See John F. Preis, Constitutional Enforcement by Proxy, 95 Va. L. Rev. 1663, 1725 (2009) ("Popular constitutionalists reserve their fiercest criticism for the Rehnquist Court's 'Section Five' decisions . . . . "). The judicial supremacist logic of Cooper v. Aaron has now found its way into the Supreme Court visitor's guide. See U.S. Supreme Court, Visitor's Guide to the Supreme Court, available at http:// www.supremecourt.gov/visiting/guide_court.pdf (on file with the Columbia Law Review) (last visited Sept. 17, 2010) ("The Court stands as the final arbiter of the law and guardian of constitutional liberties.").
26. Mark Tushnet, Taking the Constitution Away from the Courts (2000) [hereinafter Tushnet, Taking the Constitution]; see also Jamin B. Raskin, Overruling Democracy: The Supreme Court vs. the American People 224 (2003) (urging Americans "to outflank the new system of judicial supremacy").
27. Abraham Lincoln famously defended this judicial supremacy floor in arguing that the Supreme Court's Dred Scott decision was binding upon the parties-meaning Scott himself would have to remain a slave-but not upon Congress, the Executive, or the American people. Tushnet, Taking the Constitution, supra note 26, at 8-9. Above this floor, there is "intense controversy" over the extent to which extrajudicial actors ought to be bound by the principles and reasons of judicial opinions as well as by their specific holdings. Post & Siegel, Popular Constitutionalism, supra note 23, at 1040; see also William Baude, The Judgment Power, 96 Geo. L.J. 1807, 1811-12, 1841-45 (2008) (summarizing views of leading scholars).
28. See Robert Post & Reva Siegel, Democratic Constitutionalism: A Reply to Professor Barron, 1 Harv. L. & Pol'y Rev. (Online) (Sept. 18, 2006), at http:// amendwww. hlpronline.com/2006/08/post_siegel_01.html (on file with the Columbia Law Review) (refuting this charge).
29. Tushnet, Political Law, supra note 16, at 999.Although many non-popular constitutionalists would agree with Tushnet that judges should not have a monopoly on constitutional meaning, most American lawyers would depart from him in assigning the courts some degree of normative priority over other interpreters.
30. Post & Siegel, Popular Constitutionalism, supra note 23, at 1042-43 (internal quotation marks omitted) (recapitulating Larry Kramer's thesis).
31. See Strang, supra note 20, at 5 (citing, as "clear favorite" normative argument of popular constitutionalists, idea that "by privileging Supreme Court constitutional interpretations, democracy is undermined and the Supreme Court's countermajoritarian position is aggravated").
32. Cf. Jack M. Balkin, Original Meaning and Constitutional Redemption, 24 Const. Comment. 427, 461-66 (2007) (arguing that American people must recognize Constitution not only as "basic law" and "higher law" but also as "our law").
33. Kramer, Popular Constitutionalism, supra note 7, at 959.
34. U.S. Const. art. I, § 3, cl. 1.
35. No significant popular constitutionalist, that is, embraces what Larry Alexander and Lawrence Solum call "noninterpretive popular constitutionalism," Alexander & Solum, supra note 1, at 1619-21, or what James Fleming calls "populist anti- constitutionalism," James E. Fleming, Judicial Review Without Judicial Supremacy: Taking the Constitution Seriously Outside the Courts, 73 Fordham L. Rev. 1377, 1378-79 (2005).
36. See Pettys, supra note 3, at 339-58 (defending this view and noting that "popular constitutionalists share a deep faith in citizens' ability to constrain themselves and their elected officials in the kinds of desirable ways that lead us to value the Constitution in the first place").
37. Kramer, The People Themselves, supra note 2, at 242-44 (citing Jack Balkin, Richard Parker, Mark Tushnet, and Roberto Unger for having "similarly noted the profoundly anti-democratic attitudes that underlie modern support for judicial supremacy"); see also Whittington, Extrajudicial Interpretation, supra note 23, at 839 (observing that supporters of judicial supremacy "tend[] to assume that there is an inherent antagonism between populism and principle").
38. See Alexander & Solum, supra note 1, at 1637 ("[T]he idea that the judicial branch should act as the final and authoritative interpreter of the Constitution has been a profoundly popular one."); Jamal Greene, Giving the Constitution to the Courts, 117 Yale L.J. 886, 910-11 (2008) (book review) (summarizing theoretical and empirical literature and "hypothesiz[ing] that members of the public, more than institutional political actors, have laid the foundations for judicial supremacy"); see also Kramer, The People Themselves, supra note 2, at 230-33 (acknowledging pervasive "[p]ublic acceptance of judicial supremacy").
39. Franklin, supra note 3, at 1074.
40. Cf. Stephen M. Griffin, American Constitutionalism: From Theory to Politics 45 (1996) ("The meaning of most provisions in the Constitution is . . . determined in the course of the interaction between the executive and legislative branches."); Lawrence Gene Sager, Fair Measure: The Legal Status of Underenforced Constitutional Norms, 91 Harv. L. Rev. 1212, 1213-20 (1978) [hereinafter Sager, Fair Measure] (arguing that courts systematically underenforce Constitution on account of institutional limitations and strategic concerns). Note that these claims are perfectly compatible with the originalist premise that the semantic meaning of a constitutional provision remains fixed from the time of its framing and ratification. See Lawrence B. Solum, District of Columbia v. Heller and Originalism, 103 Nw. U. L. Rev. 923, 944-47 (2009) [hereinafter Solum, Heller and Originalism] (identifying this "fixation thesis" as core tenet of originalism).
41. Keith E. Whittington, Constitutional Construction: Divided Powers and Constitutional Meaning 6 (1999). Constitutional construction may legitimately be used, in Whittington's view, when originalist interpretation does not resolve a question. Keith E. Whittington, Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review 5-14 (1999). Although this Article draws on Whittington's basic idea of constitutional construction, it does not apply the distinction between "interpretation" and "construction" as it has been developed by so-called new originalists. See generally Solum, Heller and Originalism, supra note 40, at 973 (distinguishing interpretation, "[t]he activity of determining the linguistic meaning-or semantic content-of a legal text," from construction, "[t]he activity of translating the semantic content of a legal text into legal rules"). To the extent that popular constitutionalists have shown an interest in the substance of constitutional exegesis, they have focused on questions of construction: When they insist that the people play a role in determining the Constitution's "meaning," they generally do not have the document's semantic content in mind. Like the popular constitutionalism literature, this Article uses the term "interpretation" more loosely. My sense is that the interpretation/ construction distinction raises a number of interesting questions for popular constitutionalism-both the democratic and consequentialist case for pluralizing interpretation, for instance, seem much weaker than the case for reducing judicial control over construction-but an exploration of those questions will have to wait for another day.
42. Cass R. Sunstein, If People Would Be Outraged by Their Rulings, Should Judges Care?, 60 Stan. L. Rev. 155, 207 (2007).
43. Those such as Bruce Ackerman who have tried to establish rigorous criteria have been cast out of the popular constitutionalist community for setting too high a bar. See Kramer, Popular Constitutionalism, supra note 7, at 961 n.3 (arguing that Ackerman's theory of non-Article V amendments "does not in fact fit the concept" of popular constitutionalism in light of its "stringent rules of recognition").
44. Alexander & Solum, supra note 1, at 1624.The taxonomy offered here draws on Alexander and Solum's but simplifies their categories. What they break out into "modest," "trivial," and "expressive" popular constitutionalism, id. at 1623-26, I lump together into "modest." And whereas they see departmentalism as a "rival" to popular constitutionalism, id. at 1607-15, I see the latter as subsuming the former. While Alexander and Solum's scheme offers attractive precision, it does not do a very good job of tracking the arguments that popular constitutionalists themselves make.
45. Franklin, supra note 3, at 1071.
46. Alexander & Solum, supra note 1, at 1626; see also Richard D. Parker, "Here, the People Rule": A Constitutional Populist Manifesto 79, 87 (1994) (assailing legal culture's "chronic fetishism of the Constitution, constitutional law, and the Supreme Court" and arguing that "'higher' law" rhetoric is "poisonous to our society and our polity").
47. See generally Stephen Breyer, Active Liberty: Interpreting Our Democratic Constitution (2005).
48. Franklin, supra note 3, at 1071.Franklin dubs this the "populist sensibility model" of popular constitutionalism, which he contrasts with models that aim to empower the people through strong forms of departmentalism or through direct action. Id. at 1071-77.
49. Tushnet, Taking the Constitution, supra note 26, at 154.
50. Alexander & Solum, supra note 1, at 1621.
51. See Kramer, The People Themselves, supra note 2, at 27-28, 109-11, 128, 168.
52. See, e.g., Kramer, Response, supra note 6, at 1175 ("Mobs were fine in their context and in their time, but no one, least of all me, is suggesting that this is a good way to go about doing things today."). Kramer has also clarified the departmentalist basis of his theory of popular constitutionalism. See id. at 1180 (describing "goal" of "restor[ing] a true departmental system" as envisioned by Madison and Jefferson).
53. See, e.g., Tushnet, Taking the Constitution, supra note 26, at 154-94; Jeremy Waldron, Law and Disagreement 282-312 (1999) [hereinafter Waldron, Law and Disagreement] (addressing judicial review of legislation); Jeremy Waldron, The Core of the Case Against Judicial Review, 115 Yale L.J. 1346, 1376-406 (2006) [hereinafter Waldron, Core of the Case] (same); see also Parker, supra note 46, at 111 (advocating formal continuation but functional diminishment of judicial review, through norm "that it's all right not only to criticize or even condemn constitutional argument enforced by judges, but also to disobey it").
54. See, e.g., Kramer, The People Themselves, supra note 2, at 249; Tom Donnelly, Note, Popular Constitutionalism, Civic Education, and the Stories We Tell Our Children, 118 Yale L.J. 948, 953, 958 (2009).
55. Alexander & Solum, supra note 1, at 1609-15.
56. See, e.g., Edwin Meese III, The Law of the Constitution, 61 Tul. L. Rev. 979 passim (1987).
57. See, e.g., Christopher L. Eisgruber, The Most Competent Branches: A Response to Professor Paulsen, 83 Geo. L.J. 347, 348 (1994).
58. See, e.g., Louis Fisher, Constitutional Dialogues: Interpretation as Political Process ch. 7 (1992).
59. See Alexander & Solum, supra note 1, at 1609 n.37 ("Departmentalism places ultimate constitutional authority in the hands of the departments . . . whereas popular constitutionalism insists that the people have the final say over constitutional interpretation . . . . ").
60. Popular constitutionalists have had little to say about the unelected components within the political branches, such as the heads of executive agencies.
61. Popular elections currently play some role in the selection or retention of approximately ninety percent of these judgeships, across thirty-nine states. Roy A. Schotland, New Challenges to States' Judicial Selection, 95 Geo. L.J. 1077, 1105 app. 2 (2007) [hereinafter Schotland, New Challenges]. Election methods vary significantly across the states: Some elections are "competitive" (i.e., multicandidate) whereas others are for retention purposes only; some are "partisan" (i.e., candidates run under party labels) whereas others forbid party affiliation; some recur annually whereas others take a decade or more; some apply stringent campaign contribution limits whereas others do not apply any. See generally Am. Judicature Soc'y, Judicial Selection in the States: Appellate and General Jurisdiction Courts (2009), available at http://ajs.org/selection/docs/ Judicial%20Selection%20Charts.pdf (on file with the Columbia Law Review); Schotland, New Challenges, supra, at 1084-86, 1104 app. 1.Any attempt to evaluate "judicial elections" as a collective phenomenon therefore entails a simplifying conceit. The analysis that follows generally assumes competitive, partisan elections-"the strongest case for defending the democratic nature of judicial elections," Mariah Zeisberg, Should We Elect the US Supreme Court?, 7 Persp. on Pol. 785, 787 (2009)-though much of it holds up for nonpartisan elections as well.
62. See Hans A. Linde, Elective Judges: Some Comparative Comments, 61 S. Cal. L. Rev. 1995, 1996 (1988) ("To the rest of the world, the American adherence to judicial elections is as incomprehensible as our rejection of the metric system."); Adam Liptak, Rendering Justice, with One Eye on Re-election, N.Y. Times, May 25, 2008, at A1 (examining judicial elections as part of "American Exception[alism]" series).
63. See Herbert M. Kritzer, Law Is the Mere Continuation of Politics by Different Means: American Judicial Selection in the Twenty-First Century, 56 DePaul L. Rev. 423, 431 (2007) (stating that judicial elections are used outside United States only in several Swiss cantons and in Japan for its high court retention elections).
64. Juries are the only plausible rival. Yet their role in the system is intermittent and highly constrained-by judges, no less-and does not involve explicit legal interpretation. A robust practice of jury nullification, however, could upend the balance of interpretive power between judge and jury.
65. Jason Mazzone, When the Supreme Court Is Not Supreme, 104 Nw. U. L. Rev. (forthcoming 2010) (manuscript at 2) (on file with the Columbia Law Review); see also Neal Devins, How State Supreme Courts Take Consequences into Account: Toward a State- Centered Understanding of State Constitutionalism, 62 Stan. L. Rev. 1629, 1636 (2010) [hereinafter Devins, State Constitutionalism] (describing "volume and import of state supreme court decision-making" as "truly awesome" and identifying examples of state high courts "paving the way for Supreme Court decisions expanding constitutional protections"). Professor Mazzone concludes that given this functional "sharing" of interpretive authority, "we should worry less about the Supreme Court, and more about what is happening to federal constitutional law as it is developed and implemented in the state courts and in other venues." Mazzone, supra (manuscript at 2).
66. See Jennifer Friesen, State Courts as Sources of Constitutional Law: How to Become Independently Wealthy, 72 Notre Dame L. Rev. 1065, 1075 (1997) ("Even now, state courts [that] have no doubt of their power to disagree with the Supreme Court often do not wish to use this power after the Supreme Court has already visited the issue . . . . "). But see William J. Brennan, Jr., The Bill of Rights and the States: The Revival of State Constitutions as Guardians of Individual Rights, 61 N.Y.U. L. Rev. 535, 549 (1986) (asserting that, in interpreting their own constitutions, "state courts have responded with marvelous enthusiasm to many not-so-subtle invitations to fill the constitutional gaps left by the decisions of the Supreme Court majority").
67. James A. Gardner, The Failed Discourse of State Constitutionalism, 90 Mich. L. Rev. 761 (1992). "[S]tate constitutional law today," in Gardner's subtle formulation, "is a vast wasteland of confusing, conflicting, and essentially unintelligible pronouncements." Id. at 763.
68. See Republican Party of Minn. v. White, 536 U.S. 765, 784 (2002) ("Not only do state-court judges possess the power to 'make' common law, but they have the immense power to shape the States' constitutions as well.").
69. See Gardner, supra note 67, at 818-19; Helen Hershkoff, State Courts and the "Passive Virtues": Rethinking the Judicial Function, 114 Harv. L. Rev. 1833, 1876-905 (2001) [hereinafter Hershkoff, Passive Virtues]; Robert A. Schapiro, Identity and Interpretation in State Constitutional Law, 84 Va. L. Rev. 389, 391 (1998).
70. Douglas S. Reed, Popular Constitutionalism: Toward a Theory of State Constitutional Meanings, 30 Rutgers L.J. 871, 873 (1999). See generally Randall T. Shepard, The Maturing Nature of State Constitution Jurisprudence, 30 Val. U. L. Rev. 421, 421 (1996) (heralding "renaissance in state constitution jurisprudence [that] has extended for nearly a generation"); Robert F. Williams, Juristocracy in the American States?, 65 Md. L. Rev. 68, 68-73 (2006) [hereinafter Williams, Juristocracy] (describing post-1960s emergence of state courts as "major policymakers" and constitutional interpreters).
71. Devins, State Constitutionalism, supra note 65, at 1635; see also Traylor v. State, 596 So. 2d 957, 961, 962 (Fla. 1992) (asserting that "state courts and constitutions have traditionally served as the prime protectors of their citizens' basic freedoms" and that "[s]tate courts function daily as the prime arbiters of personal rights").
72. Helen Norton, Reshaping Federal Jurisdiction: Congress's Latest Challenge to Judicial Review, 41 Wake Forest L. Rev. 1003, 1023 (2006).
73. See Pozen, Irony of Elections, supra note 8, at 265-68, 297-302.
74. Reed, supra note 70, at 892.
75. James L. Gibson, Campaigning for the Bench: The Corrosive Effects of Campaign Speech?, 42 Law & Soc'y Rev. 899, 910 (2008).
76. Cf. Robert C. Post, The Supreme Court, 2002 Term-Foreword: Fashioning the Legal Constitution: Culture, Courts, and Law, 117 Harv. L. Rev. 4, 8-9 (2003) ("The boundary between culture and constitutional culture is quite indistinct . . . . [Lay persons] can fervently believe that the federal government ought to have plenary power, or that abortion is murder, without ever connecting these views to a conclusion about the nature of the Constitution.").
77. Although the idea of electing U.S. Supreme Court Justices has never gained substantial political traction, it continually resurfaces. See, e.g., Stephen L. Carter, The Confirmation Mess: Cleaning Up the Federal Appointments Process 201-06 (1994) (proposing hybrid system of presidential nomination and electoral ratification); Friedman, Will of the People, supra note 20, at 182-83 (summarizing Progressive Era proposals).
78. Kramer, The People Themselves, supra note 2, at 197.
79. See Waldron, Law and Disagreement, supra note 53, at 113-14. According to Professor Waldron, "it is well known, as a matter of decision-theory, that the principle of majority-decision and only the principle of majority-decision" permits each member of a community to have his or her voice count equally in a common settlement. Jeremy Waldron, A Majority in the Lifeboat, 90 B.U. L. Rev. 1043, 1055 (2010).
80. See Carlo Guarnieri & Patrizia Pederzoli, The Power of Judges: A Comparative Study of Courts and Democracy 34-67 (2002) (discussing European civil law systems); David M. O'Brien, The Politics of Judicial Selection and Appointments in Japan and Ten South and Southeast Asian Countries, in Appointing Judges in an Age of Judicial Power: Critical Perspectives from Around the World 355 (Kate Malleson & Peter H. Russell eds., 2006) (discussing Asian systems).
81. Kramer, The People Themselves, supra note 2, at 241 (quoting Parker, supra note 46, at 4).
82. Hard, but not impossible: Judicial selection by random lottery would do so even more forcefully.
83. Kramer, The People Themselves, supra note 2, at 229.
84. Friedman, Mediated Constitutionalism, supra note 16, at 2613.Even definitive proof that Supreme Court decisions always track public opinion would not dispel the procedural critiques of judicial supremacy outlined in Part I, though it might take the edge off.
85. Pozen, Irony of Elections, supra note 8, at 284-85.
86. Id. at 285-86 & n.91, 312-13, 329.
87. Research on this question has exploded in the past decade. For summaries of the literature with citations to leading studies, see David F. Levi & Mitu Gulati, Judging Measures, 77 UMKC L. Rev. 381, 397-99 (2008); Joanna M. Shepherd, The Influence of Retention Politics on Judges' Voting, 38 J. Legal Stud. 169, 174-76 (2009); Jed Handelsman Shugerman, Economic Crisis and the Rise of Judicial Elections and Judicial Review, 123 Harv. L. Rev. 1061, 1064-65 (2010) [hereinafter Shugerman, Economic Crisis].
88. Take another example: A watershed event in the modern history of judicial elections occurred in 1986, when Chief Justice Rose Bird and two of her colleagues on the California Supreme Court were unseated after an aggressive campaign attacked their low rate of affirmance in death penalty cases. No California justice had ever lost a retention election before; a new breed of judicial elections had arrived. The legal establishment responded with indignation at the affront to judicial independence. See Pozen, Irony of Elections, supra note 8, at 287 & n.99. To the popular constitutionalist, however, the moral of the story could easily be flipped. Justice Bird and her colleagues consistently declined to uphold death sentences in a jurisdiction that had legislated their use. Having witnessed their constitutional beliefs defied for too long, the people rose up to assert their sovereign authority. They also bothered, for once, to take an interest in what their courts were doing and to come out to vote. This was accountability in action.
89. By "constitutional change," I mean to refer to changes in the official doctrines, statutes, regulations, and practices that interpret and implement the Constitution. I do not mean to take any position on the relative significance, legitimacy, or canonicity of such predevelopments as compared to an Article V amendment-an issue on which the popular constitutionalism literature is all but silent.
90. See Griffin, supra note 40, at 42 ("Many different observers have accepted the thesis that judicial interpretation has been the primary means of adapting the Constitution to change outside Article V."); Jack M. Balkin & Sanford Levinson, Understanding the Constitutional Revolution, 87 Va. L. Rev. 1045, 1066-83 (2001) (arguing that "constitutional revolutions" occur through partisan entrenchment of federal judges).
91. Bruce A. Ackerman, Transformative Appointments, 101 Harv. L. Rev. 1164 (1988).
92. Post & Siegel, Roe Rage, supra note 7, at 380; see supra notes 7, 33, and accompanying text (explaining insufficiency of Article V amendment process for popular constitutionalism).
93. See Friedman, Will of the People, supra note 20, at 383 (discussing "stickiness" of Supreme Court's constitutional decisions).
94. Reed, supra note 70, at 887.
95. See generally David E. Pozen, We Are All Entrepreneurs Now, 43 Wake Forest L. Rev. 283, 300-10 (2008) (explaining related concepts of policy entrepreneurship and norm entrepreneurship).
96. See Robert Post & Reva Siegel, Questioning Justice: Law and Politics in Judicial Confirmation Hearings, 115 Yale L.J. Pocket Part 38, 44-51 (2006), at http://www.thepocketpart.org/images/pdfs/27.pdf (urging more robust discussion of nominees' views, especially on previously decided cases); Richard Brust, No More Kabuki Confirmations, A.B.A. J., Oct. 2009, at 38 (reporting widespread dissatisfaction with Justice Sotomayor's confirmation hearings). But see Tushnet, Taking the Constitution, supra note 26, at 64 (discussing "public edification" value of Robert Bork hearings).
97. Roy A. Schotland, Comment, Law & Contemp. Probs., Summer 1998, at 149, 150 [hereinafter Schotland, Comment].
98. Cf. Stephen J. Choi, G. Mitu Gulati & Eric A. Posner, Professionals or Politicians: The Uncertain Empirical Case for an Elected Rather than Appointed Judiciary, 26 J.L. Econ. & Org. 290, 327 (2010) (finding that elected judges are "more politically involved, more locally connected, more temporary, and less well educated than appointed judges," and hence "are more like politicians and less like professionals").
99. In line with this hypothesis, Melinda Gann Hall and Chris Bonneau recently found that increased spending on judicial elections leads to increased voter turnout. Melinda Gann Hall & Chris W. Bonneau, Mobilizing Interest: The Effects of Money on Citizen Participation in State Supreme Court Elections, 52 Am. J. Pol. Sci. 457, 467-68 (2008). "[E]xpensive campaigns," Hall and Bonneau conclude, thus "strengthen the critical linkage between citizens and [judges] and enhance the quality of democracy." Id. at 457, 458, 468.
100. Keith E. Whittington, Give "The People" What They Want?, 81 Chi.-Kent L. Rev. 911, 913 (2006).
101. Inst. for the Advancement of the Am. Legal Sys., Univ. of Denver, Shared Expectations: Judicial Accountability in Context 19-61 (2006), available at http:// www.du.edu/legalinstitute/pubs/SharedExpectations.pdf (on file with the Columbia Law Review).
102. Eugene V. Rostow, The Democratic Character of Judicial Review, 66 Harv. L. Rev. 193, 208 (1952). It is conventional wisdom among political scientists that the Court's rulings do not in fact have this capacity. See, e.g., Gerald R. Rosenberg, Romancing the Court, 89 B.U. L. Rev. 563, 564 (2009) ("[F]or decades social science researchers have repeatedly found that judicial opinions neither educate nor teach. Ordinary people do not know about them, are unlikely to find out about them, and are not interested.").
103. N.Y. State Bd. of Elections v. Lopez Torres, 552 U.S. 196, 212 (2008) (Kennedy, J., concurring). Only Justice Breyer joined Kennedy's concurrence. Id. at 209.
104. Indeed, an opinion that Justice Kennedy joined half a decade earlier, Republican Party of Minnesota v. White, 536 U.S. 765 (2002), foreclosed state efforts to concentrate discussion on the candidates' qualities by preventing them from announcing their views on disputed legal and political issues. Id. at 788 (striking down Minnesota Code of Judicial Conduct's prohibition on such announcements as violation of First Amendment).
105. See supra note 53 and accompanying text.
106. See Whittington, Extrajudicial Interpretation, supra note 23, at 780 ("Critics of judicial supremacy . . . are united in the view that nonjudicial actors should be active constitutional interpreters whose interpretations are entitled to respect and deference from the courts.").
107. See Matthew D. Adler, Popular Constitutionalism and the Rule of Recognition: Whose Practices Ground U.S. Law?, 100 Nw. U. L. Rev. 719, 723-24 (2006) (summarizing "concrete legal proposals" that popular constitutionalists have offered).
108. The limited empirical evidence we have on this question is somewhat mixed. Focusing on abortion cases, Paul Brace, Melinda Gann Hall, and Laura Langer found that judges subject to competitive reelections are less likely to overturn statutes than meritselected judges and judges with life tenure; that gubernatorial and legislative retention procedures lead to the fewest invalidations; and that the latter result is driven by judges' declining to hear challenges rather than rejecting them on the merits. Paul Brace, Melinda Gann Hall & Laura Langer, Judicial Choice and the Politics of Abortion: Institutions, Context, and the Autonomy of Courts, 62 Alb. L. Rev. 1265, 1291-95 (1999). More recently, Joanna Shepherd found "that no statistically significant difference exists among retention methods in judges' likelihood of overturning statutes," but "that judges facing gubernatorial reappointment become less likely to overturn statutes as retention approaches." Joanna M. Shepherd, Are Appointed Judges Strategic Too?, 58 Duke L.J. 1589, 1616-23 (2009). Shepherd further found that state high court justices facing gubernatorial or legislative reappointment are more likely to vote for litigants from the other branches in civil cases, and that they do so with increasing frequency as their reappointment date approaches. Id. at 1616-22.
109. See generally James B. Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 Harv. L. Rev. 129 (1893).
110. Stephen B. Burbank & Barry Friedman, Reconsidering Judicial Independence, in Judicial Independence at the Crossroads: An Interdisciplinary Approach 9, 26 (Stephen B. Burbank & Barry Friedman eds., 2002); see also supra note 87 and accompanying text (discussing empirical literature).
111. Brace, Hall & Langer, supra note 108, at 1271 n.34.
112. Melinda Gann Hall, The Controversy over Electing Judges and Advocacy in Political Science, 30 Just. Sys. J. 284, 286 (2009) [hereinafter Hall, Controversy over Electing].
113. Devins, State Constitutionalism, supra note 65, at 1664 (alterations in original) (quoting Melinda Gann Hall, Justices as Representatives: Elections and Judicial Politics in the American States, 23 Am. Pol. Q. 485, 488 (1995)). The most familiar piece of anecdotal evidence is former California Supreme Court Justice Otto Kaus's oft-repeated remark that ignoring the potential political consequences of one's decisions, as an elected judge, is "'like ignoring a crocodile in [one's] bathtub.'" Julian N. Eule, Crocodiles in the Bathtub: State Courts, Voter Initiatives and the Threat of Electoral Reprisal, 65 U. Colo. L. Rev. 733, 739 (1994).
114. See Caleb Nelson, A Re-Evaluation of Scholarly Explanations for the Rise of the Elective Judiciary in Antebellum America, 37 Am. J. Legal Hist. 190, 207-19 (1993) (discussing reformers' motivations); Shugerman, Economic Crisis, supra note 87, at 1066-68, 1097-105, 1143-44 (discussing reformers' motivations and analyzing invalidation rates).
115. See Pozen, Irony of Elections, supra note 8, at 283-85 (contrasting term lengths and reselection practices in elective versus appointive systems).
116. Shugerman, Economic Crisis, supra note 87, at 1064, 1067; see also Jed Handelsman Shugerman, The Twist of Long Terms: Judicial Elections, Role Fidelity, and American Tort Law, 98 Geo. L.J. 1349, 1401 (2010) [hereinafter Shugerman, Twist of Long Terms] (citing, as factors weakening elective judiciaries since nineteenth century, increase in cost of campaigns and power of political parties and special interests, and decrease in average term lengths).
117. Kramer, The People Themselves, supra note 2, at 253; see also id. (suggesting that Court invites disaster when it "pa[ys] too little mind to the public's view of things"); Jeffrey Rosen, The Most Democratic Branch: How the Courts Serve America, at xiii (2006) (contending that federal judges should aspire to "reflect the constitutional views of national majorities" in their decisions); Preis, supra note 25, at 1726 (stating that popular constitutionalism entails that judges "listen[] to the populace in setting constitutional meaning"). Some have read Barry Friedman's recent work to make a similar point. See, e.g., Justin Driver, Why Law Should Lead, New Republic, Apr. 8, 2010, at 28, 29, 32 (book review) (arguing that Friedman's The Will of the People valorizes "view of the Supreme Court . . . as an instrument for transforming popular sentiment into law," and "seems to admonish" Justices "to spend less time reading precedents and more time parsing polling data").
118. Richard A. Posner, How Judges Think 136-37 (2008) [hereinafter Posner, How Judges Think].
119. Friedman, Mediated Constitutionalism, supra note 16, at 2598 (describing popular constitutionalist agenda).
120. Chris W. Bonneau & Melinda Gann Hall, In Defense of Judicial Elections 15 (2009); see also Hall, Controversy over Electing, supra note 112, at 286 (suggesting that "judges should adjust their behavior to constituency preferences in matters where they have discretion"). I devote greater attention to Bonneau and Hall's book, and to Hall's normative turn more generally, in a companion piece to this Article. David E. Pozen, Are Judicial Elections Democracy-Enhancing?, in What's Law Got to Do with It? What Judges Do and Why It Matters (Charles Gardner Geyh ed., forthcoming 2011).
121. This label is also crude. "The people," of course, are not necessarily coextensive with a majority of the people, nor do majorities always get their way. And as we will see, numerous difficulties may confound any judicial effort to follow the "prevailing" view. Bonneau & Hall, supra note 120, at 15.Notwithstanding its crudeness, I can think of no better label. Like politics itself, majoritarian judicial review may not reflect a purely numbers-driven calculus in practice. But in theory, at least, those who have urged judges to draw upon public sentiment appear to agree that judges should attend primarily to the most widely held sentiment; there is an irreducibly majoritarian basis to the literature's popular theories of judging. It is useful, furthermore, to draw the rhetorical contrast with the so-called "countermajoritarian" theories of judicial review that predominate in academic discussions of the U.S. Supreme Court.
122. Jed Rubenfeld, Freedom and Time: A Theory of Constitutional Self-Government 57-58 (2001). Tiedeman is far from an isolated example in earlier American legal thought. To take just one other, Justice Benjamin Cardozo, while serving as an elected judge on the New York Court of Appeals, argued that when the legal answer is unclear, the judge has "a duty to conform to the accepted standards of the community" and may depart only in rare circumstances. Benjamin N. Cardozo, The Nature of the Judicial Process 108 (1921); see also Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging 125-27 (2010) [hereinafter Tamanaha, Beyond the Divide] (providing additional explication of Cardozo's views and noting widespread assent they received from contemporaneous judges).
123. Christopher G. Tiedeman, The Unwritten Constitution of the United States 151 (1890).
124. Id. at 154.
125. Rubenfeld, supra note 122, at 58.
126. Id. As Rubenfeld sees clearly, nothing about these interpretive commitments leads inherently to a "'restrained'" judicial philosophy. Id. at 58-59. Majoritarian review also shares affinities with "dynamic statutory interpretation," the interpretive method championed by William Eskridge whereby judges adapt the meaning of statutes in light of changed circumstances and political preferences. See William N. Eskridge, Jr., Dynamic Statutory Interpretation (1994); cf. Einer Elhauge, Statutory Default Rules: How to Interpret Unclear Legislation passim (2008) (arguing that courts should aim to maximize satisfaction of "current enactable preferences" when statutory text is unclear). Yet, whereas Eskridge's dynamic interpreter uses her discretion primarily to pursue justice or the common welfare-to pursue what she thinks would be good for the public-the majoritarian jurist aspires, in the first instance, to do what the public appears to wish for itself.
127. See Helen Hershkoff, Positive Rights and State Constitutions: The Limits of Federal Rationality Review, 112 Harv. L. Rev. 1131, 1179-82 (1999) [hereinafter Hershkoff, Positive Rights]; Hershkoff, Passive Virtues, supra note 69, at 1842-76.
128. In outcome terms, accordingly, the distinction between judicial restraint and judicial populism may collapse in a substantial number of cases. Majoritarian jurists may turn out to be modest jurists; elected judges may be deferential so as to be popular.
129. Judges might also look to public opinion not as a distinct end or source of meaning, but rather as a guide to the "correct" interpretation of a constitutional provision, with correctness determined by other criteria. See generally Sunstein, supra note 42, at 183-95, 206-12 (discussing and critiquing proposition that, in virtue of its numbers and heterogeneity, populace is more likely than any given judge to be "right" about questions of interpretation). This kind of epistemic weighting of public opinion, in the service of an objectively best answer that does not itself depend on public opinion, is a separate enterprise from majoritarian review. Similarly, it does not count as majoritarian review when a judge uses public opinion to inform a pragmatic inquiry into the expected effects of a ruling. This judge cares about the people's views only instrumentally, as a variable in a consequentialist equation, and not for their own sake.
130. Richard A. Posner, The Role of the Judge in the Twenty-First Century, 86 B.U. L. Rev. 1049, 1053, 1065-66 (2006).
131. Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).
132. Cheney v. U.S. Dist. Court, 541 U.S. 913, 920 (2004) (Scalia, J., denying motion to recuse).
133. Symposium, The Debate over Judicial Elections and State Court Judicial Selection, 21 Geo. J. Legal Ethics 1347, 1357 (2008) (remarks of Professor Geyh) (describing "traditional[]" model of judging).
134. Kathleen M. Sullivan, Republican Party of Minnesota v. White: What Are the Alternatives?, 21 Geo. J. Legal Ethics 1327, 1334 (2008); see also Note, The Rule of Law in the Marketplace of Ideas: Pledges or Promises by Candidates for Judicial Election, 122 Harv. L. Rev. 1511, 1525-26 (2009) (tracing intellectual lineage of view that judges should "stand outside public opinion").
135. Pozen, Irony of Elections, supra note 8, at 277.
136. Robert M. Cover, Justice Accused: Antislavery and the Judicial Process (1975).
137. Shugerman, Twist of Long Terms, supra note 116, at 1396-401.
138. Id. at 1379-85, 1396-97. Elections, the theory went, could reduce the corrupting influence of party machines and special interests at the same time that they realigned judicial incentives with popular preferences. Id.
139. Id. at 1399.In conceptualizing the elected judge's role fidelity (or role morality) in these terms, Shugerman is thus inverting the standard conception of judicial role fidelity as precluding considerations of public opinion.
140. Sullivan, supra note 134, at 1334.
141. See supra notes 121-126 and accompanying text (discussing pedigree of theory of majoritarian review).
142. Devins, State Constitutionalism, supra note 65, at 1651; see supra note 127 and accompanying text (discussing policymaking and administrative functions of state judges).
143. See sources cited supra note 87.
144. See, e.g., Gregory A. Huber & Sanford C. Gordon, Accountability and Coercion: Is Justice Blind When It Runs for Office?, 48 Am. J. Pol. Sci. 247, 253-62 (2004) (finding Pennsylvania trial court judges give significantly longer sentences for aggravated assault, rape, and robbery convictions as retention-election date draws nearer); Carlos Berdej ́o & Noam Yuchtman, Crime, Punishment, and Politics: An Analysis of Political Cycles in Criminal Sentencing 15 (Aug. 2009) (unpublished manuscript), available at http://isites.harvard.edu/fs/docs/icb.topic613697.files/Thursday_01_Paper_01_Berdejo_ 10-01.pdf (on file with the Columbia Law Review) (finding in Washington Superior Court "essentially the same defendant . . . having committed the same crime, facing the same judge, receives 10 percent more time in prison if he is sentenced at the end of the judge's political cycle rather than the beginning"); see also Melinda Gann Hall, Electoral Politics and Strategic Voting in State Supreme Courts, 54 J. Pol. 427, 438-43 (1992) (finding state supreme court justices become significantly more likely to uphold death sentences in years immediately preceding reelection).
145. Brian Z. Tamanaha, The Distorting Slant in Quantitative Studies of Judging, 50 B.C. L. Rev. 685, 751-53, 757 (2009).
146. See, e.g., Brace, Hall & Langer, supra note 108, passim.
147. See, e.g., Michael R. Dimino, Sr., The Worst Way of Selecting Judges-Except All the Others That Have Been Tried, 32 N. Ky. L. Rev. 267, 271 (2005) ("It would appear indisputable, though distasteful to many observers, that elected judges do take public opinion into account. Nevertheless, there is no reason to criticize judicial elections for that fact while ignoring the effect of public opinion on appointed judges.").
148. See, e.g., Ronald Dworkin, The Forum of Principle, 56 N.Y.U. L. Rev. 469 (1981).
149. See, e.g., Larry Alexander & Frederick Schauer, On Extrajudicial Constitutional Interpretation, 110 Harv. L. Rev. 1359 (1997).
150. See, e.g., John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (1980).
151. See, e.g., Richard H. Fallon, Jr., The Core of an Uneasy Case for Judicial Review, 121 Harv. L. Rev. 1693 (2008).
152. Charles Gardner Geyh, The Endless Judicial Selection Debate and Why It Matters for Judicial Independence, 21 Geo. J. Legal Ethics 1259 (2008).
153. Donald S. Lutz, Toward a Theory of Constitutional Amendment, 88 Am. Pol. Sci. Rev. 355, 362-64 (1994).
154. Henry Paul Monaghan, Doing Originalism, 104 Colum. L. Rev. 32, 35 (2004).
155. Hershkoff, Positive Rights, supra note 127, at 1163; see also id. (describing state constitutions as "more plastic and porous"); Hershkoff, Passive Virtues, supra note 69, at 1902 (discussing "conditional nature of state constitutional decisionmaking").
156. See Devins, State Constitutionalism, supra note 65, at 1641-43 (summarizing variation in constitutional amendment procedures across states); William B. Fisch, Constitutional Referendum in the United States of America, 54 Am. J. Comp. L. 485, 493-94, 498-99 (2006) (indicating that more than one-third of states use simple majority thresholds for legislative votes on constitutional amendments, as do most states that allow popular constitutional initiatives); Robert F. Williams, Rights, in 3 State Constitutions for the Twenty-First Century: The Agenda of State Constitutional Reform 7, 11 (G. Alan Tarr & Robert F. Williams eds., 2006) ("It might initially seem odd that by a mere majority vote of the electorate, a constitutional amendment can be ratified or a new constitution adopted that can change state constitutional rights guarantees . . . . Yet this is a fundamental feature of state constitution making."); infra notes 160-164 and accompanying text (explaining initiatives and referenda).
157. Griffin, supra note 40, at 34; see also Gardner, supra note 67, at 818-20 (noting that average state constitution is nearly four times as long as federal Constitution and deals with fairly pedestrian policy details); G. Alan Tarr, Introduction, in Constitutional Politics in the States, at xiii, xv (G. Alan Tarr ed., 1996) ("Far from viewing their constitutions as sacrosanct and above politics, the states have treated them as political documents to be changed in accordance with the shifting needs and opinions of their citizens.").
158. Robert L. Maddex, State Constitutions of the United States, at vii (1998); see also Helen Hershkoff, Foreword: Positive Rights and the Evolution of State Constitutions, 33 Rutgers L.J. 799, 803-05 (2002) (contrasting state and federal patterns of constitutional change). Throughout the 1970s and 1980s, "the average state amended its constitution 2.0 times per year." Daniel Berkowitz & Karen Clay, American Civil Law Origins: Implications for State Constitutions, 7 Am. L. & Econ. Rev. 62, 63 (2005).
159. Kathleen M. Sullivan, Constitutional Amendmentitis, Am. Prospect, Sept. 21, 1995, at 20; cf. John Dinan, Foreword: Court-Constraining Amendments and the State Constitutional Tradition, 38 Rutgers L.J. 983, 1019-38 (2007) (reviewing post-1960s criticism of rate of constitutional amendment in states).
160. Initiative & Referendum Inst., State-by-State List of Initiative and Referendum Provisions, at http://www.iandrinstitute.org/statewide_i&r.htm (on file with the Columbia Law Review) (last visited Sept. 17, 2010). Initiatives permit a specified number of citizens to petition to place a legislative proposal or constitutional amendment on the ballot. Referenda permit citizens to approve or disapprove a measure the legislature has already passed. Twenty-one states use both initiatives and referenda. Id.
161. Id. Every state except for Delaware requires a popular vote to approve constitutional amendments. Id.
162. Marvin Krislov & Daniel M. Katz, Taking State Constitutions Seriously, 17 Cornell J.L. & Pub. Pol'y 295, 302-04 & fig.1.1 (2008). A different set of eighteen states allow public officials to be "recalled," following a successful petition drive and vote, before the next regular election. Nat'l Conference of State Legislatures, Recall of State Officials (Sept. 23, 2010), at http://www.ncsl.org/programs/legismgt/elect/recallprovision.htm (on file with the Columbia Law Review). At least twenty-nine states allow recall of officials at the local level. Id.
163. See Shaun Bowler & Todd Donovan, Measuring the Effect of Direct Democracy on State Policy: Not All Initiatives Are Created Equal, 4 St. Pol. & Pol'y Q. 345, 348-51 (2004) (comparing and contrasting states' constitutional initiative processes); Krislov & Katz, supra note 162, at 310-20 (same).
164. Glen Staszewski, Rejecting the Myth of Popular Sovereignty and Applying an Agency Model to Direct Democracy, 56 Vand. L. Rev. 395, 396 (2003); see also id. at 401-12 (summarizing standard critiques of direct democracy).
165. See Hershkoff, Positive Rights, supra note 127, at 1163 & n.183 (invoking dialogue metaphor and providing citations to commentators doing same).
166. Christine M. Durham, The Judicial Branch in State Government: Parables of Law, Politics, and Power, 76 N.Y.U. L. Rev. 1601, 1605 (2001); Williams, Juristocracy, supra note 70, at 80-81.
167. See Alex B. Long, "If the Train Should Jump the Track . . . ": Divergent Interpretations of State and Federal Employment Discrimination Statutes, 40 Ga. L. Rev. 469, 500-02 (2006) (observing that state legislatures are more likely to "be aware of and able to respond to the decisions of [their] courts," and that "state judges may approach statutory interpretation with a higher expectation that the legislature will step in and 'correct'" their work). Curiously, I have not seen any systematic empirical study of this question, just impressionistic comparisons.
168. Dinan, supra note 159, at 1038; accord Reed, supra note 70, at 889 ("[P]opular reversals of judicial interpretations of state constitutional provisions have become increasingly common . . . .").
169. According to one state supreme court justice, "[i]n the more than two hundred years since judicial review was first introduced, there has been very little controversy or debate about the legitimacy of the practice of judicial review in the state context." Durham, supra note 166, at 1605.
170. Aaron Jay Saiger, Constitutional Partnership and the States, 73 Fordham L. Rev. 1439, 1457 (2005). Saiger goes on to undercut this claim by recounting notable examples of popular and governmental resistance to judicial constructions of state constitutions, in particular a Vermont Supreme Court school finance equalization decision. Id. at 1459-62.
171. Shepard, supra note 70, at 442.
172. Friedman, Mediated Constitutionalism, supra note 16, at 2606.
173. The allusion is to Richard Parker's influential manifesto, "Here, the People Rule," the title of which he attributes to President Gerald Ford. Parker, supra note 46, at iii.
174. Common to many state constitutions, this rule limits ballot propositions to one "subject." The rule is notoriously "difficult to apply," and has been used by state courts to invalidate a wide range of direct democracy measures in recent years. Michael D. Gilbert, How Much Does Law Matter? Theory and Evidence from Single Subject Adjudication 2, 9-10 (July 22, 2010) (unpublished manuscript), available at http://ssrn.com/ abstract=1433796 (on file with the Columbia Law Review). Two noted scholars recently found that judges' partisan affiliation is highly correlated with enforcement rates of the single subject rule. John G. Matsusaka & Richard L. Hasen, Aggressive Enforcement of the Single Subject Rule, 9 Election L.J. (forthcoming 2010) (manuscript at 28-29) (on file with the Columbia Law Review).
175. Cf. Kramer, The People Themselves, supra note 2, at 251 (suggesting without explication that "a strong case can be made for easing the difficulty of [formal constitutional] amendment" as remedy for judicial supremacy).
176. In re Marriage Cases, 183 P.3d 384 (Cal. 2008).
177. Cal. Const. art. I, § 7.5 (codifying Proposition 8, passed Nov. 4, 2008). The California Supreme Court subsequently sustained Proposition 8 against a variety of legal challenges. Strauss v. Horton, 207 P.3d 48 (Cal. 2009).
178. This argument appeared nowhere, for example, on the websites of leading advocacy groups such as Equality for All, at http://www.noonprop8.com (last visited Sept. 17, 2010), and Equality California, at http://www.eqca.org (last visited Sept. 17, 2010), or in most newspaper editorials urging rejection of the ballot proposition, see, e.g., Editorial, The Myths of Prop. 8, L.A. Times, Nov. 2, 2008, at A31; Editorial, Preserve Marriage Rights, S.F. Chron., Oct. 1, 2008, at B8. But see Editorial, Preserving California's Constitution, N.Y. Times, Sept. 29, 2008, at A20 ("[T]he majority in the 4-to-3 ruling was acting to protect a vulnerable group from unfair treatment. Enforcing the state's guarantee of equal protection is a job assigned to judges.").
179. Some who equate popular constitutionalism with popular outcomes have suggested that the former is alive and well at the national level, too, notwithstanding the glacial rate of constitutional amendment and the rise of judicial supremacy. See, e.g., Barry Friedman, The Politics of Judicial Review, 84 Tex. L. Rev. 257, 322 (2005) ("For positive scholars, the whole debate [over popular constitutionalism] is overplayed; they believe that constitutional law typically reflects popular values, albeit at some ill-understood remove."). As Part I explained, however, many popular constitutionalists deny this equivalence; if anything, the literature has been more concerned with the manner in which constitutional law gets made than with its content.
180. The most developed argument to this effect belongs to Doni Gewirtzman. Gewirtzman, supra note 23, at 911-37; see also Ilya Somin & Neal Devins, Can We Make the Constitution More Democratic?, 55 Drake L. Rev. 971, 993 (2007) (arguing that "[p]olitical ignorance and irrationality could easily reduce the quality of constitutional change" that bypasses supermajority mechanisms of Article V); Neal Devins, The D'oh! of Popular Constitutionalism, 105 Mich. L. Rev. 1333, 1335 (2007) (book review) [hereinafter Devins, Popular Constitutionalism] (arguing that "the people are uninterested in the Constitution and the Supreme Court" and that consequently "it makes no sense for the Court to sort out the Constitution's meaning by looking to the American people").
181. Ilya Somin, Political Ignorance and the Countermajoritarian Difficulty: A New Perspective on the Central Obsession of Constitutional Theory, 89 Iowa L. Rev. 1287, 1304-05 (2004); see also id. at 1304-14 (summarizing recent research).
182. Cf. id. at 1308 (reporting finding from 2000 that only eleven percent of Americans could identify post held by Chief Justice William Rehnquist); Michael C. Dorf, Whose Constitution Is It Anyway? What Americans Don't Know About Our Constitution- and Why It Matters, FindLaw (May 29, 2002), at http://writ.news.findlaw.com/dorf/ 20020529.html (on file with the Columbia Law Review) (reporting finding from 2002 that "sixty-nine percent of respondents either thought that the United States Constitution contained Marx's maxim, ['From each according to his ability, to each according to his needs,'] or did not know whether or not it did").
183. Schotland, Comment, supra note 97, at 150.
184. See, e.g., James L. Gibson & Gregory A. Caldeira, Citizens, Courts, and Confirmations ch. 2 (2009) (using survey data to argue that public knows significantly more about Supreme Court than is commonly assumed).
185. See, e.g., supra note 13 (noting Melinda Gann Hall's research showing partisan state supreme court elections are now significantly more competitive than elections for U.S. House of Representatives in terms of challenger and retention rates).
186. See, e.g., Bonneau & Hall, supra note 120, at 96-103 (finding that voters are more likely to select candidates who have previous judicial experience as against candidates who lack it and asserting that, in light of these findings, "[j]udicial reform advocates need to rethink traditional notions that the electorate is incapable of responding to candidate stimuli").
187. See Sample, Jones & Weiss, supra note 12, at 8-11 (providing noteworthy examples).
188. See, e.g., Caperton v. A.T. Massey Coal Co., 129 S. Ct. 2252, 2257 (2009) (describing coal company executive's funneling of judicial campaign contributions through shell organization named "And For The Sake Of The Kids").
189. Kramer, The People Themselves, supra note 2, at 242.
190. Devins, Popular Constitutionalism, supra note 180, at 1335.
191. Gewirtzman, supra note 23, at 934.
192. Akhil Reed Amar, Philadelphia Revisited: Amending the Constitution Outside Article V, 55 U. Chi. L. Rev. 1043, 1101 (1988).
193. "A man named Gene Kelly once won a Texas primary against a far more experienced and widely endorsed candidate, without campaigning. His opponent in the general election was able to eke out a victory only after spending nearly all of his funds on advertisements saying, 'He's Not That Gene Kelly.'" Pozen, Irony of Elections, supra note 8, at 267.
194. Id. at 266-67, 297-300, 311.
195. Zeisberg, supra note 61
196. Id. at 787.
197. Id. at 792.
198. Id. at 793.
199. Id. at 794.
200. See, e.g., Robert Post & Reva Siegel, Originalism as a Political Practice: The Right's Living Constitution, 75 Fordham L. Rev. 545, 568-69 (2006) (describing rise of originalism as conservative political practice, in contrast with "the idea of living constitutionalism that has been at the core of progressive constitutional thought since the 1970s"); L.A. Powe, Jr., Are "the People" Missing in Action (and Should Anyone Care)?, 83 Tex. L. Rev. 855, 884-86 (2005) (book review) (arguing that Larry Kramer overlooks extent to which "the party system of the past several decades has found its own method of embracing its adherents' views of the Constitution," via appointment of Supreme Court Justices). Zeisberg acknowledges that her argument would not hold if "major party divisions [were to] occur along jurisprudential lines." Zeisberg, supra note 61, at 794.
201. See supra note 186.
202. Cf. David Schleicher, Why Is There No Partisan Competition in City Council Elections?: The Role of Election Law, 23 J.L. & Pol. 419, 426-27, 465-67 (2007) (discussing potential for partisan heuristic, coupled with reforms designed to increase competition and elicit information, to improve quality of decisionmaking in local elections). If the partisan heuristic is seen as irredeemably arbitrary or otherwise undesirable in the judicial election context, more radical reforms might be contemplated to deal with the problem of low information voters: for instance, assigning some role in the selection process to citizen assemblies. See generally Heather K. Gerken & Douglas B. Rand, Creating Better Heuristics for the Presidential Primary: The Citizen Assembly, 125 Pol. Sci. Q. 233 (2010) (advocating use of citizen assemblies to deal with this problem in situation where partisan heuristic is unavailable).
203. Harry T. Edwards, Public Misperceptions Concerning the "Politics" of Judging: Dispelling Some Myths About the D.C. Circuit, 56 U. Colo. L. Rev. 619, 645 tbl.IV (1985).
204. Cf. 151 Cong. Rec. S10,366 (daily ed. Sept. 22, 2005) (statement of Sen. Obama on nomination of John Roberts to Supreme Court) ("[W]hile adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court, so that both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95 percent of the cases-what matters on the Supreme Court is those 5 percent of cases that are truly difficult. In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon.").
205. See Devins, State Constitutionalism, supra note 65, at 1649 (explaining that "most state supreme courts retain substantial," though far from plenary, "discretion over which cases to hear").
206. Zeisberg, supra note 61, at 797.
207. Gewirtzman, supra note 23, at 910.
208. See Brennan Ctr. for Justice, Chart of State Canons of Judicial Conduct, at http://www.brennancenter.org/page/-/d/download_file_9221.pdf (on file with the Columbia Law Review) (last visited Sept. 17, 2010) (identifying eleven state codes of judicial conduct that allow judges to engage in any form of partisan political activity, and ten that allow candidates to issue pledges or promises on how they will decide cases).
209. Letter from Thomas Jefferson to William Charles Jarvis (Sept. 28, 1820), in 10 The Writings of Thomas Jefferson 1816-1826, at 160, 161 (Paul Leicester Ford ed., New York, G.P. Putnam's Sons 1899).
210. See Pozen, Irony of Elections, supra note 8, at 296-300 (elaborating ways in which "new era" may enhance deliberative, participatory, and representative character of judicial elections).
211. See Brief for Justice at Stake et al. as Amici Curiae Supporting Respondent at 5, Citizens United v. Fed. Election Comm'n, 130 S. Ct. 876 (2010) (No. 08-205) ("Funding of judicial elections . . . has emerged as a central concern for groups seeking to enhance the effective administration of justice."). The focal point of much recent discussion was the case of Caperton v. A.T. Massey Coal Co., 129 S. Ct. 2252 (2009), in which the Supreme Court used an egregious set of facts to clarify the due process limitations on judges' hearing disputes that involve campaign contributors. For a lucid overview and defense of Caperton, see James Sample, Caperton: Correct Today, Compelling Tomorrow, 60 Syracuse L. Rev. 293 (2010).
212. Pozen, Irony of Elections, supra note 8, at 319-24.
213. See supra note 130 and accompanying text.
214. See supra Part II.C.3.
215. See supra note 144 and accompanying text.
216. Eric Helland & Alexander Tabarrok, The Effect of Electoral Institutions on Tort Awards, 4 Am. L. & Econ. Rev. 341, 356-68 (2002); Alexander Tabarrok & Eric Helland, Court Politics: The Political Economy of Tort Awards, 42 J.L. & Econ. 157, 177-87 (1999).
217. Brief for Conference of Chief Justices as Amicus Curiae Supporting Respondents at 14, Republican Party of Minn. v. White, 416 F.3d 738 (8th Cir. 2005) (No. 99-4021) [hereinafter CCJ Brief]; see also id. at 13-14 (arguing that partisan elections can lead to "links with party leaders that interfere with the administration of the courts and justice").
218. Joanna M. Shepherd, Money, Politics, and Impartial Justice, 58 Duke L.J. 623, 669 (2009); see also id. at 651 (summarizing prior empirical research on this question).
219. Zogby Int'l, Attitudes and Views of American Business Leaders on State Judicial Elections and Political Contributions to Judges 4-5 (2007).
220. Greenberg Quinlan Rosner Research, Inc. et al., Justice at Stake-State Judges Frequency Questionnaire 5 (2002). Nearly half of the 2,428 judges surveyed said they believed campaign contributions have at least "a little influence" on judges' decisions. Id.
221. Richard H. Pildes, The Supreme Court, 2003 Term-Foreword: The Constitutionalization of Democratic Politics, 118 Harv. L. Rev. 29, 44, 78-80 (2004).
222. Jack M. Balkin, Framework Originalism and the Living Constitution, 103 Nw. U. L. Rev. 549, 554 (2009) (discussing function of constitutions).
223. Cf. Shugerman, Economic Crisis, supra note 87, at 1064-65, 1143-44 (suggesting judicial elections have failed to live up to their popular constitutionalist potential because of special interest and partisan influences).
224. Cf. supra note 35 and accompanying text (noting that popular constitutionalists remain committed, at minimum, to following Constitution's clear textual commands).
225. As an exercise in unconstrained populism, judging would lose any claim to authority. The whole enterprise of adjudication would collapse.
226. It might be argued that a popular constitutionalist should want judges to follow the law for instrumental reasons relating to their limited institutional capacity, as a secondbest strategy for approximating the popular will. This argument has not featured in the popular constitutionalism literature, so far as I am aware, and it fails to account for the many cases in which the legal answer is unclear or in which deviating from the best legal answer is likely to satisfy more people in a particular community than following it.
227. Comparative measures of judicial quality remain especially crude. Among the most notable results, see Choi, Gulati & Posner, supra note 98, at 308-19 (finding, inter alia, that partisan-elected judges tend to produce more opinions than appointed and merit-selected judges, but that former group's opinions are cited less often by out-of-state courts); Schotland, New Challenges, supra note 61, at 1087-88 (presenting evidence that initially elected judges have been disciplined more frequently than initially appointed judges). On public perceptions, compare Damon M. Cann & Jeff Yates, Homegrown Institutional Legitimacy: Assessing Citizens' Diffuse Support for State Courts, 36 Am. Pol. Res. 297, 316 (2008) (finding that "[c]itizens' views of their state courts diminish as they are exposed to 'new style' state judicial election races" featuring policy-oriented campaigning and high information content), with James L. Gibson, Challenges to the Impartiality of State Supreme Courts: Legitimacy Theory and "New-Style" Judicial Campaigns, 102 Am. Pol. Sci. Rev. 59, 69-70 (2008) (finding that public faith in judicial impartiality is not diminished by candidates' policy pronouncements, though it is by campaign contributions and, to lesser extent, by attack ads). The evidence on judicial diversity is also mixed. See Lawyers' Comm. for Civil Rights Under Law, Answering the Call for a More Diverse Judiciary: A Review of State Judicial Selection Models and Their Impact on Creating a More Diverse Judiciary 17 (2005), available at http://www.abanet.org/buslaw/2005minoritylawyer/materials/jdr.pdf (on file with the Columbia Law Review) (reviewing empirical literature and asserting that no "definitive conclusions" can be reached as to which selection method best promotes diversity on bench).
228. Bonneau & Hall, supra note 120, at 7, 139.Bonneau and Hall's further charge that nonelective systems "promote the unfettered exercise of personal preferences," id. At 137, is never substantiated-and indeed seems downright bizarre in light of the judiciary's practical inability to enforce its own judgments, the relative ease and frequency with which state supreme court rulings are overturned, and the voluminous literature showing that even appointed, life-tenured federal judges rarely stray from mainstream opinion. All judging is fettered. The relevant questions concern by whom, to what degree, and through which mechanisms.
229. See supra note 108 (noting Joanna Shepherd's recent findings on this question). All but three of the nonelective states deny their justices any form of life tenure. Am. Judicature Soc'y, supra note 61, at 4-11.
230. See Deborah Goldberg, James Sample & David E. Pozen, The Best Defense: Why Elected Courts Should Lead Recusal Reform, 46 Washburn L.J. 503, 525-34 (2007) (outlining possible recusal reforms).
231. Pozen, Irony of Elections, supra note 8, at 310-24.
232. Cf. Robert M. Cover, The Uses of Jurisdictional Redundancy: Interest, Ideology, and Innovation, 22 Wm. & Mary L. Rev. 639, 643-46 (1981) (explicating dual functions of "norm articulation" and "dispute resolution" served by common law courts).
233. See supra notes 200-202 and accompanying text.
234. See Michael S. Kang & Joanna M. Shepherd, The Partisan Price of Justice: An Empirical Analysis of Campaign Contributions and Judicial Decisions, 86 N.Y.U. L. Rev. (forthcoming 2011) (manuscript at 1) (on file with the Columbia Law Review) (finding "a statistically significant relationship between campaign contributions and judicial decisions in favor of contributors' interests only for judges elected in partisan elections, not nonpartisan ones," and hypothesizing that this discrepancy reflects parties' unique ability to facilitate contributions and to punish or reward judicial performance).
235. CCJ Brief, supra note 217, at 13.Holding elections more frequently would enhance popular control over the judiciary while exacerbating these risks. Hold elections often enough, and we would no longer have to worry about cyclical behavior in criminal sentencing. See supra note 144 and accompanying text (summarizing empirical evidence). Judges would instead be punitive all the time.
236. I outlined some additional grounds on which to build a democratic case against elective judiciaries in Pozen, Irony of Elections, supra note 8, at 317-24, and I will outline several more infra Parts III.E.3-5.
237. See supra note 127 and accompanying text.
238. The idea that lower courts and state courts should not be so bound, that a kind of vertical departmentalism should complement horizontal departmentalism, does not appear in the popular constitutionalism literature, so far as I am aware. One assumes that the potential costs of intrajudiciary interpretive anarchy are seen as too steep in relation to any possible democratic benefits. The idea has appeared in the legal literature, however. See, e.g., Michael Stokes Paulsen, Accusing Justice: Some Variations on the Themes of Robert M. Cover's Justice Accused, 7 J.L. & Religion 33, 77-88 (1989) (contending that lower court judges are not obligated to follow higher court precedents when confident precedents are fundamentally wrong).
239. Steven P. Croley, The Majoritarian Difficulty: Elective Judiciaries and the Rule of Law, 62 U. Chi. L. Rev. 689, 713-28 (1995). Majoritarian judicial review, to which I will return infra Part III.E, can be seen as a partial determinant of the majoritarian difficulty. The former provides an (incomplete) explanatory theory of how elected judges decide cases when the orthodox legal materials underdetermine outcomes. The latter provides a normative critique of how elected judges can undermine the rule of law, not only in the legal interpretations they render but also in the character of the justice they dispense, the social messages they transmit, and the internal perspective they adopt. Pozen, Irony of Elections, supra note 8, at 279-90. Majoritarian review is just one of several mechanisms through which elective judiciaries may generate the majoritarian difficulty.
240. Posner, How Judges Think, supra note 118, at 135.
241. Barry Friedman & Scott B. Smith, The Sedimentary Constitution, 147 U. Pa. L. Rev. 1, 78 (1998).
242. Moreover, overinclusiveness is to some extent inevitable in any governmental vehicle of popular constitutionalism. The departmentalists' preferred institutions, the legislative and executive branches, also make countless nonconstitutional decisions.
243. Ernest A. Young, The Constitution Outside the Constitution, 117 Yale L.J. 408, 454 (2007).
244. Reva B. Siegel, Text in Contest: Gender and the Constitution from a Social Movement Perspective, 150 U. Pa. L. Rev. 297, 315 (2001) (discussing role of social movements in shaping constitutional meaning).
245. Richard Parker is a notable exception. In his 1994 Constitutional Populist Manifesto, he denies that there is any such thing as "constitutionalism," as distinct from ordinary politics or lawmaking. Parker, supra note 46, at 115.
246. See, e.g., Kramer, Popular Constitutionalism, supra note 7, at 961 n.3 (distancing himself from Akhil Amar's early work on non-Article V amendments). The "dualist" distinction between normal politics and higher lawmaking is central to Bruce Ackerman's theory of American constitutionalism and to his defense of judicial review. See Ackerman, Foundations, supra note 7, ch. 1.
247. Post, supra note 76, at 9 (arguing that authority of Constitution derives in part from its "'sacred'" status (quoting Hanna Fenichel Pitkin, The Idea of a Constitution, 37 J. Legal Educ. 167, 169 (1987))).
248. See supra note 42 and accompanying text.
249. Even if we accept that uncodified public sentiment ought to be relevant in the context of criminal sentencing, we might wonder why the judge should be the one to channel it, when a jury of the defendant's peers may also be sitting in the room. An enhanced role for juries would seem to provide a procedurally, substantively, and symbolically more efficacious means of integrating the views of the community into the operation of the criminal justice system.
250. See supra notes 9-13, 61-77 and accompanying text.
251. Gardner, supra note 67, at 823-30.
252. Paul W. Kahn, Interpretation and Authority in State Constitutionalism, 106 Harv. L. Rev. 1147, 1159 n.52 (1993). Unsurprisingly, this view was roundly criticized by state judges, as was Professor Kahn's call to turn away from "unique state sources" in favor of a national perspective. See Hans A. Linde, State Constitutions Are Not Common Law: Comments on Gardner's Failed Discourse, 24 Rutgers L.J. 927, 928-31 (1993); Shepard, supra note 70, at 440-44.
253. Cf. Aronson, supra note 18, at 985 ("[A]ll major critiques [of judicial review], and all major normative responses to the critiques, focus almost solely on the acts and omissions of the [U.S.] Supreme Court in its capacity as a constitutional court."); Sandy Levinson, Our Dysfunctional States, Balkinization, June 11, 2009, at http://balkin. blogspot.com/2009/06/our-dysfunctional-states.html (on file with the Columbia Law Review) (calling state constitutions "an extremely important, but almost wholly ignored subject by elite law professors and political scientists").
254. Kramer, Popular Constitutionalism, supra note 7, at 963.
255. See supra note 69 and accompanying text.
256. Sager, Fair Measure, supra note 40, at 1213-20.
257. Lawrence Gene Sager, Foreword: State Courts and the Strategic Space Between the Norms and Rules of Constitutional Law, 63 Tex. L. Rev. 959, 976 (1985); see also Lawrence Friedman, The Constitutional Value of Dialogue and the New Judicial Federalism, 28 Hastings Const. L.Q. 93, 97, 129 (2000) (celebrating "attempts by state courts independently to interpret the meaning of cognate textual provisions" for advancing "the federal constitutional value of dialogue" and "providing an interpretative counterpoint to the U.S. Supreme Court"); Post & Siegel, Roe Rage, supra note 7, at 382 (asserting that "state court opinions about state law are venues within which national values are continually contested and reshaped"). Notwithstanding his support for a dynamic state constitutionalism, Sager's more recent work strongly suggests that he would oppose the use of elective judiciaries in pursuit thereof. See, e.g., Lawrence G. Sager, Justice in Plainclothes 74 (2004) (identifying members' job security and detachment from "the potentially distorting influence of public will" as key reasons why federal courts are "particularly well structured to address questions of constitutional justice"). Elective judiciaries, it seems, are deeply incompatible with Sager's justice seeking account of American constitutional practice.
258. As a formal matter, this has been true since the Constitution was ratified. As a cultural or phenomenological matter, it became increasingly true after the Reconstruction Amendments began to reconstitute conceptions of citizenship. See generally Akhil Reed Amar, America's Constitution: A Biography 381-82 (2005) (observing that Fourteenth Amendment "codified a profound nationalization of American identity").
259. Cf. Tamanaha, Beyond the Divide, supra note 122, at 72 (explaining that "a proposal for the recall of individual [state] judicial decisions" by popular referendum was "seriously debated" in early twentieth century).
260. Schotland, Comment, supra note 97, at 150.
261. Cf. supra notes 23-26 and accompanying text (discussing popular constitutionalist critique of "juricentrism"). Michel Foucault once rejected a proposal for a "people's court" to judge the police, on the ground that a court, by its very nature, would tend to deform rather than advance communal values. See Michel Foucault, On Popular Justice: A Discussion with Maoists, in Power/Knowledge: Selected Interviews and Other Writings 1972-1977, at 1, 1-34 (Colin Gordon ed., Colin Gordon et al. trans., 1980) (identifying bureaucratic structure of courts and purported neutrality, universality, and authoritativeness of judicial decisions as features antithetical to "popular justice," which "cannot achieve its full significance unless it is clarified politically, under the supervision of the masses themselves").
262. Later in the Article, I will give some additional reasons for skepticism. See infra Part III.E.5 (discussing consequences of elected judges' efforts to avoid backlash).
263. To be clear, underinclusiveness is not a problem per se: No one mechanism of popular constitutionalism need do all the work. It is a problem only to the extent that judicial elections warp or crowd out other, better mechanisms.
264. See supra note 23 and accompanying text (noting literature's characterization of judicial supremacy as "enemy" of popular constitutionalism).
265. Abraham Lincoln, First Inaugural Address (Mar. 4, 1861), in 4 The Collected Works of Abraham Lincoln 262, 269 (Roy P. Basler ed., 1953) ("This country, with its institutions, belongs to the people who inhabit it.").
266. Osborn v. Bank of the U.S., 22 U.S. (9 Wheat.) 738, 866 (1824); see also Post & Siegel, Roe Rage, supra note 7, at 384 (expanding on this point).
267. Post & Siegel, Popular Constitutionalism, supra note 23, at 1037.
268. See supra notes 108-116 and accompanying text.
269. At least, such is my position. Some judicial selection scholars, most notably Michael Dimino, do not agree. See, e.g., Michael R. Dimino, Sr., Accountability Before the Fact, 22 Notre Dame J.L. Ethics & Pub. Pol'y 451, 455-67 (2008) (advocating initial popular election of judges followed by fixed, nonrenewable terms). Jed Shugerman has recently argued that, in the mid-nineteenth century, judicial elections were conceptualized in paradoxically "countermajoritarian" terms, in that they were meant to empower courts to uphold the rule of law against government abuses by reducing their links to parties and factions. Shugerman, Economic Crisis, supra note 87, at 1126-44. Shugerman's fascinating history cautions against broad generalizations about the "point" of judicial elections, which have assumed different forms and engendered different social understandings over time. There is no plausible normative defense of these elections, however, that does not embrace the unique weight they assign to public opinion, the unique connection they forge between voters and judges. As I understand Shugerman's account, the countermajoritarian label is an awkward fit for the theory that prevailed in the 1800s. For many reformers, the main attraction of elections was that they were seen as enhancing courts' ability to defy the other branches when those branches had failed to act as the citizenry's faithful agents. See id. at 1067, 1125.Elections were intended to decrease judges' dependence on special interests and machine politicians but to increase their dependence on "the people"-and more specifically on electoral majorities. It may well be the case that Americans of this era generally wanted judges who would uphold the rule of law, and that the judges they chose struck down a relatively large number of statutes in the service of this goal. Yet, notwithstanding the traditional association of the "countermajoritarian difficulty" with statutory invalidations by the Supreme Court, it hardly seems helpful to maintain that these early elective regimes were therefore countermajoritarian. The basic logic on which these regimes operated, indeed the very impetus for their creation, was to advance majoritarian values. Cf. supra Part II.C.2 (explaining that judges seeking to mirror popular views may be more or less deferential to legislative judgments, depending on context). This semantic quibble with Shugerman's masterful analysis would not deserve mention, except that it illustrates some of the ways in which elective judiciaries can confound the standard categories of constitutional theory.
270. See supra notes 117-126 and accompanying text (quoting suggestive passages by Larry Kramer, Richard Posner, Jeffrey Rosen, Chris Bonneau, and Melinda Gann Hall and summarizing views of other scholars). I do not mean to claim that Kramer, Posner, or Rosen would, on considered reflection, endorse majoritarian review, just that their writings contain hints of this view and help illuminate what a popular constitutionalist defense of the practice would look like.
271. Also in order is a restatement of my original caveat about the crudeness of the "majoritarian" label. See supra note 121.
272. See supra note 61.
273. Whether and how popular constitutionalists can reconcile their rejection of judicial supremacy with the Constitution's claim to being supreme law, U.S. Const. art. VI, cl. 2, and with rule of law values generally, is an especially important question beyond the scope of this Article. The question is all the more acute for those versions of normative popular constitutionalism that emphasize methods of "constitutional change" outside of the Article V amendment process and the faithful interpretation and construction of the Constitution's text.
274. Section III.D.1 explored concerns relating to majoritarian review and nonconstitutional judicial decisionmaking.
275. See supra notes 122-126 and accompanying text.
276. Rubenfeld, supra note 122, at 58-59. As Rubenfeld also makes clear, Tiedeman's interpretive philosophy is deeply incompatible with Rubenfeld's own commitmentarian theory of constitutional law. See, e.g., id. at 172-73 (arguing that, to honor enduring commitments embodied in Constitution and thereby facilitate intertemporally extended self-government, "[c]onstitutional interpretation cannot be vested in organs of government beholden to or expressing popular will").
277. See Waldron, Core of the Case, supra note 53, at 1384-86 (contrasting richness of British legislative debates on important issues of rights with sterility of American judicial reasoning).
278. Although these canons are currently being challenged in lawsuits around the country, most state codes of judicial conduct still contain a "Commit Clause," banning statements that commit or appear to commit the candidate with respect to cases or controversies likely to come before the court, and/or a "Pledges or Promises Clause," banning "'pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office.'" Goldberg, Sample & Pozen, supra note 230, at 506-07 (quoting Mich. Code of Judicial Conduct Canon 7B.1.c (1994); Ohio Code of Judicial Conduct Canon 7(B)(2)(c) (1997)); see also Brennan Ctr. for Justice, supra note 208 (tabulating state canons).
279. See Goldberg, Sample & Pozen, supra note 230, at 518 & n.78 (documenting that nearly every state code of judicial conduct requires disqualification whenever judge's impartiality might reasonably be questioned).
280. Schotland, New Challenges, supra note 61, at 1094.There is nothing inevitable about this arrangement; a state could grant its elected judges shorter terms than its legislators. That every state has done the opposite suggests a widely held ambivalence about the representative function of elective judiciaries-a concern that these judges not be too responsive to their constituents.
281. See supra notes 105-107 and accompanying text (explaining that scholars sympathetic to popular constitutionalism have preached various forms of judicial restraint as means of reconciling judicial review with democratic imperatives). This logic also suggests why in some cases there may be a net democratic loss from a jurisprudence that asks courts to adapt the meaning of legislation in light of contemporary norms, as the court perceives them, rather than apply the most textually or purposively sound reading of the statute. See supra note 126 (discussing William Eskridge's "dynamic statutory interpretation").
282. For now, let us continue to bracket concerns about the notion of a "popular will."
283. See Friedman, Will of the People, supra note 20, at 372 (arguing that "the Court of late seems to be doing a better job than the Congress in meeting public expectations" and that, "[i]f any worry seems legitimate," it is not that Justices defy public opinion but rather that they "kowtow" to it); Devins, Popular Constitutionalism, supra note 180, at 1347 (arguing that "the Supreme Court . . . may be more reflective of public opinion than Congress"); Corinna Barrett Lain, The Countermajoritarian Classics (and an Upside-Down Theory of Judicial Review) 5 (Aug. 31, 2010) (unpublished manuscript), available at http://ssrn.com/abstract=1669560 (on file with the Columbia Law Review) (arguing that in classic mid-twentieth-century cases, "the Court's position was actually a better reflection of prevailing sentiment than [was] that of the democratically elected, representative branches").
284. See supra note 108.
285. See Friedman, Will of the People, supra note 20, at 186 & n.182 (identifying three U.S. states that have used supermajority invalidation rules); Stephen Gardbaum, The New Commonwealth Model of Constitutionalism, 49 Am. J. Comp. L. 707, 719-39 (2001) (explaining that Canadian Constitution grants legislature express power to reenact legislation courts have found invalid, British Human Rights Act of 1998 allows for fast track statutory amendment in wake of judicial invalidation, and New Zealand Bill of Rights gives courts no power to invalidate statutes deemed incompatible with its guarantees); Waldron, Core of the Case, supra note 53, at 1353-59 (distinguishing American-style "strong judicial review" from these "weak[er]" models); see also Jed Handelsman Shugerman, A Six-Three Rule: Reviving Consensus and Deference on the Supreme Court, 37 Ga. L. Rev. 893, 916, 988-91, 995-96 (2003) (discussing legislative proposals in 1820s, 1860s, and 1920s that would have required two-thirds vote of U.S. Supreme Court to invalidate act of Congress).
286. See, e.g., Waldron, Law and Disagreement, supra note 53, at 282-312; Waldron, Core of the Case, supra note 53.
287. Devins, State Constitutionalism, supra note 65, at 1669-71.
288. Hershkoff, Positive Rights, supra note 127, at 1177-79.
289. This is not to say that social welfare, or the courts' social standing, is likely to be enhanced in the long run by judicial efforts to satisfy popular preferences, see, e.g., Sunstein, supra note 42, at 200, 211-12 (defending traditional, law-focused model of judging on second-order consequentialist grounds), just that judges are reasonably capable of discerning and applying these preferences.
290. Rubenfeld, supra note 122, at 58.
291. Id.
292. Cf. supra note 232 and accompanying text (invoking Robert Cover's insight that common law courts serve dual functions of "norm articulation" and "dispute resolution" and discussing potential tensions between these two).
293. This fairly modest predictive claim could be expanded into a stronger normative one. Whatever its virtues or vices as a framework for judicial elaboration of constitutional meaning, it might be argued, there is no reason to believe that the case format provides a suitable framework for collective decisionmaking. In light of the systemic biases, fleeting passions, partisan attachments, and informational cascades that can affect the popular view of any given controversy, institutional designers may be wise to force members of the public to engage constitutional questions prospectively, in general rather than in casespecific terms. These sorts of arguments can easily bleed into a broader mistrust of popular politics that is anathema to popular constitutionalism. But they need not. There are many different ways to enhance the people's control over constitutional law without giving them control, even indirectly, over active disputes between specific parties.
294. Friedman, Mediated Constitutionalism, supra note 16, at 2598 (suggesting this notion is key "share[d]" tenet of scholars identified with popular constitutionalism).
295. These questions lead us back to the identification problem. See supra note 42 and accompanying text. Until we have a clear understanding of what counts as popular constitutionalism, and what counts as superior or inferior forms of popular constitutionalism, we cannot confidently develop a theory of how it should bear on the judicial function-or on anything else, for that matter.
296. But see Raphael Rajendra, "The People" and "The People": Disaggregating Citizen Lawmaking from Popular Constitutionalism, 27 Law & Ineq. 53, 84-91 (2009) (arguing that ballot initiatives should not count as popular constitutionalism because they "fetishiz[e] constitutional texts" and substitute discrete mode of political engagement for more dynamic and diffuse social movements). When a thoughtful, published paper argues that "initiative constitutionalism"-whereby ordinary citizens propose and vote on explicit reforms to their constitution-"is not, and cannot be, popular constitutionalism," id. at 91, one has to wonder whether the vocabulary of "popular constitutionalism" has ceased to interadvance comprehension. At this point, we may be better off simply retiring the phrase, and thereby pushing authors to focus on the specific forms of popular constitutional engagement they mean to celebrate or critique.
297. See supra note 164 and accompanying text (summarizing criticisms).
298. I thank Heather Gerken for emphasizing this point to me.
299. Readers who reject the analogy between federal constitutional law and state constitutional law may not much care what theorists of the former have had to say. This is a complicated issue that I cannot adequately treat here. I take it, however, that most participants in the debate over state judicial selection view state constitutions as "real" constitutions and state supreme court justices as "real" constitutional judges, and so would at least be inclined to entertain the analogy.
300. Bonneau & Hall, supra note 120, at 15.I take this view to be common to many advocates of both judicial elections and popular constitutionalism.
301. I will have nothing novel to say here about the relationship between nonmajoritarian models of judicial review and democratic legitimacy (if anything novel remains to be said). My limited point is that the popular constitutionalist critique of the former necessarily presupposes a theory of the latter that is compatible with "constitutionalism," and yet it is not clear what that theory is.
302. Ronald Dworkin, Freedom's Law: The Moral Reading of the American Constitution 20 (1996).
303. Post & Siegel, Popular Constitutionalism, supra note 23, at 1036.
304. See id. at 1035-36 (summarizing well known variations on this idea).
305. See, e.g., Yuval Eylon & Alon Harel, The Right to Judicial Review, 92 Va. L. Rev. 991, 999-1006 (2006).
306. The view that judges should be guided by public perceptions may further conflict with the central tenet of American constitutionalism that the best understanding of the principles set forth in the Constitution ought to trump the public's latest desires, no matter how strongly they are expressed short of formal revision. There is no conflict if public preferences help judges to identify the "best" understanding of the Constitution, cf. supra note 129 (distinguishing epistemic rationale for consulting public opinion from majoritarian review), or if the best understanding itself depends upon popular acceptance or approval.
307. The classic work is William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489 (1977). See also Paul W. Kahn, Two Communities: Professional and Political, 24 Rutgers L.J. 957, 968-69 (1993) (discussing Justice Brennan's "political agenda for the state courts-they are to be a counterforce to the increasingly conservative federal courts"-and contrasting it with movement for more vigorous state constitutionalism on grounds of state sovereignty); Peter R. Teachout, Against the Stream: An Introduction to the Vermont Law Review Symposium on the Revolution in State Constitutional Law, 13 Vt. L. Rev. 13, 34-35 (1988) (similar). In response to the argument in the main text, it might be objected that because the Supremacy Clause, U.S. Const. art. VI, cl. 2, commits all courts to follow the federal Constitution, state judges are bound to be at least as protective of individual and minority rights as Article III judges. Michelle T. Friedland, Disqualification or Suppression: Due Process and the Response to Judicial Campaign Speech, 104 Colum. L. Rev. 563, 627-31 (2004). Furthermore, the federal courts can devote special scrutiny to potentially compromised decisions by elected state courts. See Pozen, Irony of Elections, supra note 8, at 329 (flagging this possibility); see also Amanda Frost & Stefanie A. Lindquist, Countering the Majoritarian Difficulty, 96 Va. L. Rev. 719 passim (2010) (developing this idea). It is true that the federal floor protects all Americans from certain forms of state abuse, and that the federal courts, particularly the Supreme Court, can police their state counterparts on certain issues. Yet these rebuttals would hardly satisfy a liberal like Justice Brennan, given that the guarantees in the Bill of Rights cover only a minimal slate of basic rights, Supreme Court doctrine elaborating these rights often leaves great discretion to state judges, Supreme Court review of any given state court ruling is discretionary and exceedingly rare, and state constitutions cover far more substantive ground than the federal Constitution. More generally, if one takes seriously the idea that state constitutions provide independent sources of fundamental rights and values in our federalist system, as this Article does, then it will never be a sufficient response to an argument about their systematic misapplication that the federal courts can pick up the slack.
308. Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 17 (2d ed. 1986).
309. Cf. Adrian Vermeule, The Supreme Court, 2008 Term-Foreword: System Effects and the Constitution, 123 Harv. L. Rev. 4, 37-39 (2009) (discussing obverse form of this "fallacy of composition," as it manifests in countermajoritarian critiques of U.S. Supreme Court).
310. See supra Parts II.C.2-3, III.B, III.E.2.
311. Richard Primus, Public Consensus as Constitutional Authority, 78 Geo. Wash. L. Rev. 1207, 1220 (2010). In Primus's view, public opinion may legitimately be consulted only when it "approach[es] consensus." Id. at 1209, 1222.
312. Post & Siegel, Roe Rage, supra note 7, at 375.
313. See supra Part III.D.1 (presenting overinclusiveness critique).
314. 410 U.S. 113 (1973).
315. See generally Post & Siegel, Roe Rage, supra note 7.
316. Id. at 388-406.
317. Id. at 390, 395.
318. 347 U.S. 483 (1954).
319. A Conversation with Judge Richard A. Posner, 58 Duke L.J. 1807, 1822 (2009); see also Melinda Gann Hall, Constituent Influence in State Supreme Courts: Conceptual Notes and a Case Study, 49 J. Pol. 1117, 1117-19 (1987) (finding that elected judges are less likely to publish dissents on politically volatile issues).
320. Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941 (Mass. 2003).
321. In re Marriage Cases, 183 P.3d 384 (Cal. 2008).
322. Kerrigan v. Comm'r of Pub. Health, 957 A.2d 407 (Conn. 2008).
323. Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009).
324. Baehr v. Lewin, 852 P.2d 44 (Haw. 1993).
325. Baker v. State, 744 A.2d 864 (Vt. 1999).
326. Lewis v. Harris, 908 A.2d 196 (N.J. 2006).
327. Am. Judicature Soc'y, supra note 61, at 4-10. This is not to say that all nonelective high courts have endorsed same-sex marriage rights. See, e.g., Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006).
328. To my knowledge, Neal Devins is the only legal scholar to have drawn this connection. See Devins, State Constitutionalism, supra note 65, at 1676 ("The most salient characteristic shared by all seven courts [that have interpreted their constitutions to provide expansive protections for same-sex couples] is their retention schemes. None of the seven makes use of contested judicial elections."). Devins's article provides a nuanced account of the same-sex marriage decisions and the lessons they hold for how and why state courts take backlash risks into account. Id. at 1675-91.
329. See Tonja Jacobi, How Massachusetts Got Gay Marriage: The Intersection of Popular Opinion, Legislative Action, and Judicial Power, 15 J. Contemp. Legal Issues 219, 223 (2006).
330. Frank Phillips & Rick Klein, 50% in Poll Back SJC Ruling on Gay Marriage, Bos. Globe, Nov. 23, 2003, at A1.
331. Thomas M. Keck, Beyond Backlash: Assessing the Impact of Judicial Decisions on LGBT Rights, 43 Law & Soc'y Rev. 151, 162 (2009); see also Jacobi, supra note 329, at 220-23 (finding no negative electoral repercussions for Massachusetts politicians who supported same-sex marriage following Goodridge).
332. See, e.g., Richard Just, Maine and Judicial Activism, New Republic The Plank Blog (May 8, 2009, 6:52 PM), at http://tnr.com/blog/the-plank/maine-and-judicialactivism (on file with the Columbia Law Review) (citing remarks by Governor of Maine for claim that "as judges across the country reinterpret equal protection clauses in light of our culture's changing understanding of homosexuality, they are not merely persuading themselves or their peers in other courts; they are also persuading those outside the judicial system").
333. Compare, e.g., Carlos A. Ball, The Backlash Thesis and Same-Sex Marriage: Learning from Brown v. Board of Education and Its Aftermath, 14 Wm. & Mary Bill Rts. J. 1493 (2006) (summarizing and criticizing backlash thesis as applied to same-sex marriage), with William N. Eskridge, Jr., Pluralism and Distrust: How Courts Can Support Democracy by Lowering the Stakes of Politics, 114 Yale L.J. 1279, 1324-27 (2005) (urging judicial caution in this area).
334. To take just one notable recent example, Reva Siegel has demonstrated that, notwithstanding the Supreme Court's explicit focus on the original meaning of the Second Amendment in District of Columbia v. Heller, 128 S. Ct. 2783 (2008), a dedicated movement of gun rights activists and partisan politicians helped lay the groundwork for that decision over many years. Reva B. Siegel, The Supreme Court, 2007 Term-Dead or Alive: Originalism as Popular Constitutionalism in Heller, 122 Harv. L. Rev. 191, 201-45 (2008).
335. Supra text accompanying note 319.
336. Post & Siegel, Popular Constitutionalism, supra note 23, at 1036.The implicit reference here is to Habermas. See, e.g., J ̈urgen Habermas, Between Facts and Norms 304 (William Rehg trans., MIT Press 1996) (1992) ("Deliberative politics acquires its legitimating force from the discursive structure of opinion- and will-formation that can fulfill its socially integrative function only because citizens expect its results to have a reasonable quality.").
337. Lawrence B. Solum, Narrative, Normativity, and Causation, 2010 Mich. St. L. Rev. (forthcoming) (book review) (manuscript at 17) (on file with the Columbia Law Review).
338. Friedman, Will of the People, supra note 20, at 383.
339. See supra Part III.D.3.
340. See supra Part II.B.3.
341. Bickel, supra note 308, at 17.
342. Kramer, Response, supra note 6, at 1182.
343. See generally Barry Friedman, The Birth of an Academic Obsession: The History of the Countermajoritarian Difficulty, Part Five, 112 Yale L.J. 153 (2002); Barry Friedman, The Counter-Majoritarian Problem and the Pathology of Constitutional Scholarship, 95 Nw. U. L. Rev. 933 (2001).