Popular Constitutionalism, circa 2004

American constitutional law has, practically from the start, consisted of a struggle between two principles, which can be called "popular constitutionalism" and "legal constitutionalism." Although both principles have been with us from nearly the beginning, popular constitutionalism came first and was dominant for most of American history. But something changed in the last few decades of the twentieth century. Not only did legal constitutionalism suddenly find widespread acceptance, but history itself was recast. Yet change is in the air, and the traditional discomfort with judicial authority seems to be stirring again. This shift in perspective has changed the grounds of debate by raising different arguments against judicial supremacy, arguments that rest on different conceptions of the Constitution and its relationship to democratic citizenship. The aim of this essay is to describe the contours of the emerging new discourse.