Mark A. Graber


A new populism is taking root in the strangest soil, American law schools. Tocqueville regarded "the profession of law" as an "aristocratic element," "a sort of privileged body in the scale of intellect." Lawyers, he observed, belonged to "thehighest political class," and routinely developed "some of the tastes and habits of aristocracy." During the 1990s, however, bold challenges to elite rule in the name ofpopular majoritarianism were issued by distinguished professors and chair holders at the most prestigious law schools in the United States. Such leading jurists as Richard Parker, Jack Balkin, Akbil Reed Amar, Sanford Levinson, and Mark Tushnet proudly declared their populist identity, and urged fellow law professors to join the people's crusade.' Deploring the "chronic fetishism ofthe Constitution, constitutional law, and the Supreme Court," these scholars are presently calling for constitutional theory that acknowledges "that 'common' people, ordinary people-not their 'betters,' not somebody else's conception of their supposed 'better selves' are the ones who are entitled to govern our country." This "vision of 'populist constitutionalism,' Levinson notes, "seems to permeate the Yale Law School," and is a presence on the legal faculties at Harvard, Michigan, Texas, and Georgetown.