] In the early 90's, Kramer became interested in the idea
] that the public might do a better job of protecting its
] rights than the courts. He became convinced that the
] framers of the Constitution expected it to be interpreted
] not by unelected judges but by the people themselves --
] through petitions, juries, voting and civil disobedience.
] Several years later, he was astonished to find the
] Supreme Court striking down laws one after the other and
] claiming to do so in the name of the founders' vision.

Frankly, the people of the United States are not particularly interested in freedom, nor do we seem to understand it very well. We want to be safe from the scary things we see on our televisions. We want to control things that we don't like. Whether they are administrated by the federal, state, or local governments, tort/civil cases, or voluntary mandatory contractual arrangements like employment contracts and homeowners associations, laws regulate every aspect of our lives, from when you can buy a beer, to what color you can paint your garage door.

The freedom that we have consists of a vauge choice between two extremely entrenched political parties, the ability to pursue most economic business with comparatively little restriction versus many other societies (assuming you have the means), and a precious few fundamental rights which are enshrined in the Constitution and defended only by the court system.

The later rights are extremely controversial as a practical matter. They've received quite a battering as people have argued time and time and time again that the thing they want to control really isn't the thing that the founders were trying to defend. If the court's ability to uphold the bill of rights and act as a check upon the power of our popularly elected government was done away with, great swathes of our culture would be banned on short order, and our anti-terrorism efforts would see us rapidly deteriorate into a police state.

This observation isn't anti-populist. Its realist. I wish that I found myself in a society that valued freedom. I don't. America values wealth over freedom; safety over freedom; religious morality over freedom; even aesthetics over freedom. It is natural now that we turn to wrapping our calls for a tyranny of the majority in the rhetoric of populism. Its the only way we'll be able to smash those miserable amendments for good. This effort isn't populist. Its anti-freedom.

The argument presented here is tortuous in its logic. The court system is the only institution in our government that respects fundamental rights, so people who are interested in protecting fundamental rights ought to work to limit the power of the court system? This seems an attempt by the right to build sympathy from some of the duller minds on the left for its ongoing campaign against checks and balances.

Popular Constitutionalism