Popular Constitutionalism in a Populist Age

Authors

• Thomas G. Donnelly

Abstract

Popular constitutionalism burst onto the scene as a challenge to the constitutional authority of the Supreme Court. Decades later, popular constitutionalists remain susceptible to one of the earliest (and most potent) critiques of their project—the charge that they have done far too little to explain how their theory might work in practice. With the rise of modern populism, it’s also fair to ask whether popular constitutionalism is an approach that’s capable of meeting the challenges of the current constitutional moment. In this Article, I offer a new vision for popular constitutionalism—one that shows how the theory might work in practice, both inside the courts and outside of them. In my view, the central goal of popular constitutionalism should be to shape political institutions and constitutional doctrine in ways that meet the classic Madisonian challenge—translating the American people’s considered judgments into policy and doctrine. Moving forward, popular constitutionalists shouldn’t just focus on the pathologies of the modern Supreme Court. They should also lead an institutional turn in constitutional theory—reflecting on how best to reform political institutions and inculcate the constitutional ethos necessary to serve the theory’s broader vision. To show how popular constitutionalism might work, I offer concrete proposals across three main areas: (1) institutional reform; (2) constitutional methodology; and (3) constitutional culture. Finally, I also explore how popular constitutionalism might meet the challenges of America’s populist moment. To that end, popular constitutionalists might seek inspiration in the most unlikely place of all: within the populist tradition itself. Today, it’ popular within the legal academy to attack populism. However, these critics ignore the reform agenda of the most innovative populist movement in American history: the agrarian radicals of the late nineteenth century.

Rights

2026 Brigham Young University Law Review

Recommended Citation

Thomas G. Donnelly, Popular Constitutionalism in a Populist Age, 51 BYU L. Rev. 959 (2026).
Available at: https://digitalcommons.law.byu.edu/lawreview/vol51/iss4/7