Popular constitutionalism: The new living constitutionalism

Popular constitutionalists seek to recover the popular sovereignty foundations of American constitutionalism, bringing the people in as active participants in the constitutional enterprise as they create and refashion the Constitution by “majoritarian and populist mechanisms” (Amar, 1995, p. 89). The result is to recover an understanding, in FDR's words, of constitution as a “layman's document, not a lawyer's contract” (Kramer, 2004, p. 207). This understanding has deep roots in American constitutionalism, tracing its lineage back to the founding and, as popular constitutionalists insist, finds powerful expression in the likes of The Federalist and Abraham Lincoln (Ackerman, 1991; Tushnet, 1998). In exercising popular sovereignty, the people founded the Constitution, but they did not simply retreat from the trajectory of constitutional development. Rather, as Bruce Ackerman argues, since the Constitution of 1787 the people have spoken in a manner that has re-founded the Constitution giving us a “multiple origins originalism” (Kersch, 2006a, p. 801; see also Amar, 1998 and 2005). In turning to founding era thought and the notion of constitutional foundations, popular constitutionalists like Ackerman and Amar make common cause with conservatives who turn to original intent, but then they seek to synthesize this understanding with democratic expressions of popular will by emphasizing both formal and informal constitutional change, giving us layered “foundings,” and a more complex version of “living constitutionalism.” Such constitutional change, however, can only legitimately come from an authentic expression of “We the People.”