The complete history of the Lincoln-Douglas debates provides additional support for the main thesis of Larry Kramer's The People Themselves: Popular Constitutionalism and Judicial Review, while casting doubt on a subtheme. The Lincoln-Douglas debates of 1840 are yet another instance when judicial power was contested in American history. Professor Kramer, however, treats American constitutional history as an ongoing struggle between aristocrats who support judicial supremacy and "democrats" committed to a more popular constitutionalism. The complete Lincoln-Douglas debates suggest that political struggles to control constitutional meaning have been more protean. Douglas was one of many ambitious politicians who rose to power championing popular constitutionalism, but after political allies established control over the courts, found judicial supremacy a useful means for stabilizing their political coalition, for exercising authority over resisting localities, and for entrenching their policy preferences. Lincoln was one of many ambitious politicians who first defended courts as a bulwark against an insurgent political movement with an alternative constitutional vision and then, after the insurgents had consolidated power and gained control over the judiciary, attacked courts when leading an different insurgent political movement with an alternative constitutional vision. Douglas in 1840 and Lincoln in 1858 were attacking institutions controlled by their political rivals and regarded appeals to popular constitutionalism as efforts to transfer constitutional authority to institutions they believed more favorably disposed to their constitutional vision. Lincoln in 1840 and Douglas in 1858 were defending institutions controlled by their political supporters and regarded appeals to popular constitutionalism as efforts to transfer constitutional authority to institutions they believed less favorably disposed to their constitutional vision.
Mark A. Graber,
Popular Constitutionalism, Judicial Supremacy, and the Complete Lincoln-Douglas Debates,
Chi.-Kent L. Rev.
Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol81/iss3/9