The Right Coast

August 10, 2004
McGinnis on Kramer
By Mike Rappaport

My sometime coauthor, John McGinnis, reviews Stanford Law School Dean Larry Kramer's new book on the Constitution:

The American Constitution also differs from the (unwritten) British one in its source of authority. In 1789 the Framers drafted a specific text that the people themselves ratified in every state. It is this consensus that gives the Constitution its power and justifies the disregard of even democratically made laws that conflict with it. But the meaning of that consensus can be discovered only by referring to the words themselves and to their historical context--not by relying on the "political-legal" interpretation that Mr. Kramer suggests. Constitutional interpretation based on politics places the people's own considered judgments at the mercy of rash and temporary majorities. Only a document fixed by law--and subject to strict rules of amendment--can protect, in the words of Justice David Brewer, "Peter Sober from Peter Drunk."
Coincidentally, I am now finishing a short paper that criticizes the law review article that Kramer's book is based upon. I plan to post that paper in the near future.