In December 1801, President Thomas Jefferson quietly pardoned journalists convicted under the Alien and Sedition Acts—overtly flouting a Supreme Court ruling. Thirty years later, Andrew Jackson vetoed Congress’s bid to recharter the national bank, directly defying Chief Justice John Marshall’s constitutional reading. These weren’t mere publicity stunts; they were vivid reminders that the Constitution belongs to the people, not just to nine unelected jurists in black robes. In Taking the Constitution Away from the Courts, Harvard Law Professor Mark Tushnet urges us to reclaim that forgotten promise of popular constitutionalism.

When Presidents Went Rogue

Jefferson and Jackson saw themselves—and their fellow citizens—as partners in interpreting the nation’s charter. After pardoning those journalists, Jefferson published spirited letters defending his decision, sparking pamphlet debates far beyond the Capitol’s walls. Jackson’s veto message against the national bank circulated in newspapers coast to coast, triggering town-hall meetings in places as varied as Savannah and St. Louis. These early reckonings played out in public squares, state legislatures, and bustling print shops rather than marble-lined courtrooms. Then came Marbury v. Madison in 1803, which enshrined judicial review as the final word on constitutional meaning. Tushnet reminds us that this too was a political choice—one we’re free to revisit.

Two Faces of the Constitution

Tushnet distinguishes between what he calls the “thick” and the “thin” Constitution. The thick Constitution covers procedural details—legislative vetoes, appointment protocols, reporting requirements—that courts have the technical chops to handle. In contrast, the thin Constitution embodies our loftiest ideals: free speech, due process, and equal protection. When we debate what equality demands in our schools or how to balance free speech with community harmony, shouldn’t those discussions happen in statehouses, civic forums, and editorial pages—rather than in appellate briefs dusted off decades later? Tushnet believes that entrusting the thin Constitution to ordinary citizens actually strengthens its moral core.

The Chokehold of Judicial Overhang

Here’s a phrase you won’t forget: “judicial overhang.” It describes the chilling effect that the threat of court invalidation has on lawmakers. Take California’s Proposition 187 in 1994. Voters there overwhelmingly barred undocumented immigrants from public services, only to see the measure struck down in court. Yet near-identical bills popped up in other states—not primarily to pass, but to force new rulings. That kind of strategic posturing distorts policy debates, pushing real moral questions into narrow legal channels and discouraging elected officials from tackling tough issues head-on.

Turning Rulings into Starting Points

Imagine judicial opinions not as final edicts but as sparks for public debate. Under Tushnet’s model, legislatures would pass laws reflecting their best understanding of constitutional ideals. Those statutes would then ignite robust conversations—through referenda, citizens’ assemblies, election campaigns, and newsroom op-eds—where competing visions of liberty and justice square off. Prosperous ideas would gain lasting force via formal amendments or binding statutes. In this way, the Constitution becomes a living covenant, adapting continually to new technologies, evolving social norms, and fresh challenges like data privacy or climate change.

Wrestling with Real-World Hurdles

Of course, handing more power to popular majorities raises legitimate concerns. One big worry: who protects minority rights if courts step back? Tushnet doesn’t brush this aside. He points to supermajority requirements for constitutional changes, sunset clauses for controversial laws, and dedicated minority caucuses within citizens’ assemblies as potential safeguards. He also bets on the corrective force of elections and grassroots organizing—if a legislature goes too far, voters can oust them. Yet these fixes rest on an optimistic view of civic engagement—and we all know how uneven that can be in practice.

Equally knotty is the design question: who decides which issues go to the people? How do we avoid a patchwork of conflicting standards across different states? And what role do expert witnesses play in these debates? Tushnet offers prototypes—rolling citizens’ juries, digital deliberation platforms, participatory budgeting models—but admits that the devil is in the details. Crafting workable institutions will take experimentation and patience.

Cultivating a Civic Renaissance

Making popular constitutionalism work requires both new procedures and a cultural shift. States might pilot hybrid conventions that blend elected delegates with randomly chosen citizens or establish permanent “constitutional councils” charged with revisiting core rights every decade. Meanwhile, our schools and community centers must teach not just the nuts and bolts of constitutional law, but also the art of genuine deliberation: listening actively, weighing evidence, and disagreeing respectfully. Local media and civic groups can host moderated forums that model this approach, steering clear of incendiary sound bites and echo chambers. Over time, such efforts could revive our public sphere and equip citizens with the skills needed for sustained, thoughtful debate.

A Living Covenant

The Constitution wasn’t meant to sit on a shelf, interpreted once and for all. It’s a pact among Americans—past, present, and future—about the rights and responsibilities we owe one another. In an age when a single Supreme Court vacancy can overturn settled rights overnight, Tushnet’s call to shift interpretive authority back to the people feels both urgent and achievable. Whether you embrace every detail of his plan or not, his central insight is unmistakable: if we believe in self-government, we must reclaim our role as co-authors of the Constitution. Only through continuous popular engagement can our fundamental charter remain vibrant, relevant, and truly of the people.

The Constitution will endure not as a static commandment, but as a living expression of the people’s will—if we choose to engage it.