Reining in the courts

Larry Kramer puts a different twist on the usual arguments in favour of a "living constitution," which is generally supposed to entail something approaching judicial supremacy. He argues instead, in "We the People: Who has the last word on the Constitution?", for something he calls popular constitutionalism, in which the courts would defer to the judgements of the electorate on issues of constitutional significance. Writes Kramer:

Making this shift would not entail major changes in the day-to-day business of deciding cases. There would still be briefs and oral arguments and precedents and opinions, and the job of being a Supreme Court justice would look pretty much the same as before. What presumably would change is the justices' attitudes and self-conceptions as they went about their routines. In effect -- though the analogy is more suggestive than literal -- Supreme Court justices would come to see themselves in relation to the public somewhat as lower-court judges now see themselves in relation to the Supreme Court: responsible for interpreting the Constitution according to their best judgment, but with an awareness that there is a higher authority out there with power to overturn their decisions -- an actual authority, too, not some abstract "people" who spoke once, two hundred years ago, and then disappeared.

One could, of course, argue that this popular supremacy is already enshrined in the formal amendment process, yet amending an entrenched constitutional document, in both the US and Canada, is "practically impossible." What is required instead is a sense of restraint on the part of judges themselves.