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In The People Themselves, Larry Kramer argues that Americans have come to treat the Constitution as something beyond their competence, something whose meaning should be decided by judges, assisted by a cadre of lawyers and academics. Yet this submission to a lawyerly elite is a radical and troublesome departure from what was originally the case. In the early years, ordinary Americans exercised active control and sovereignty over their Constitution. The constitutionality of governmental action met with vigorous public debate in struggles whose outcomes might be greeted with celebratory feasts and bonfires, or with belligerent resistance. The Constitution remained, fundamentally, an act of popular will: the people's charter, made by the people.

Editor: How did you become interested in this subject?

Kramer: Early in my career I studied conflict of laws. After a while I felt I had said what I had to say about state-state conflicts, which is what conflict of laws is mostly about, and I got interested in federal-state conflicts, which is federalism. But I soon realized I couldn't make sense of it ahistorically. So I started to look at the history of federalism, and I noticed something surprising in reading the sources, which was that courts were never mentioned. You read the constitutional debates and the discussion about how the Constitution was going to be enforced, and no one said "courts," which of course is what we think of first today. I thought that was curious. So I started looking deeper to understand why. This book is what emerged.

Why do you focus so much on the early history of the nation?
The first eight chapters of the book tell the history of constitutionalism in great detail from about 1760 to the election of 1840. That history was designed to show how the idea of popular constitutionalism was preserved under changing political, social, cultural, and economic circumstances. In each stage there were institutional adaptations to make popular constitutionalism workable in a more complicated world. This was enough to make my basic point while still keeping the book to a readable length. I hope others will be interested enough in the idea to do further work in the later periods.

Why should one believe that the average citizen is going to be a better interpreter of the Constitution than someone who has spent years studying it?
Do I really have a reason to think that Dick Posner or Nino Scalia is going to make a better judgment about whether women should be allowed to get an abortion than my mother? The answer, I believe, is "no." There are a whole slew of legal questions, which are highly technical, which the population at large is never going to care about or pay attention to. With respect to all those questions, the Court will hand down its ruling and that's going to stick because nobody's going to care. But to use that as a lever to say that the Court should have final say over nontechnical questions of basic principle and commitment makes no sense.

Isn't there a danger that the general population can be more reactionary than the judiciary, particularly during times of crisis?
For what it is worth, historically, the Court has generally been far more reactionary. But that doesn't seem to me to be the right question. These are hard questions to which there is seldom a clearly right answer. They are questions about which both elites and nonelites are divided. Look at all the important Supreme Court cases. The votes are invariably 5-4 or 6-3. The question is, do we trust the majority of nine more than the majority of 250 million on questions over which we are going to inevitably be divided?

What is the alternative to judicial supremacy?
The problem is to find a proper balance between independence and accountability. The Europeans who wrote constitutions after World War II did a better job in finding this balance for their courts, because they had our experience upon which to build. So they separated constitutional adjudication from ordinary law and delegated it to a specialized court; they gave the justices on these constitutional courts limited terms; they staggered the terms; they required supermajorities to get judges appointed, which forces moderation; and they made their constitutions easier to amend. Taken together, these sorts of institutional structures produce a different balance and a different kind of court. Ideally we would think about adopting some of the European innovations. But if that's not going to happen—and it's not going to happen, because our Constitution is so hard to amend—then at the very least we should restore and preserve the system that we did develop in the first 150 years for controlling our Court, rather than just letting the justices run wild.