Roe Rage: Democratic Constitutionalism and Backlash
![handle is hein.journals/hcrcl42 and id is 377 raw text is: Roe Rage:
Democratic Constitutionalism and Backlash
Robert Post*
Reva Siegel*
Progressive confidence in constitutional adjudication peaked during
the Warren Court and its immediate aftermath. Courts were celebrated as
fora of principle,' privileged sites for the diffusion of human reason.
But progressive attitudes toward constitutional adjudication have recently
begun to splinter and diverge.2 Some progressives, following the call of
popular constitutionalism, have argued that the Constitution should be
taken away from courts and restored to the people.3 Others have empha-
sized the urgent need for judicial caution and minimalism.4
One of the many reasons for this shift is that progressives have be-
come fearful that an assertive judiciary can spark a political and cultural
backlash that may ... hurt, more than help, progressive values.5 A gen-
eration ago, progressives responded to violent backlash against Brown v.
Board of Education6 by attempting to develop principles of constitutional
* David Boies Professor of Law, Yale University.
Nicholas deB. Katzenbach Professor of Law, Yale University. Many thanks to Bruce
Ackerman, Jack Balkin, David Barron, Eric Citron, Bill Eskridge, Owen Fiss, Barry Friedman,
Sarah Gordon, Mark Graber, Michael Graetz, David Hollinger, Dawn Johnsen, Amy Kapczyn-
ski, Michael Klarman, Scott Lemieux, Sandy Levinson, Joanne Meyerowitz, Sasha Post,
Judith Resnik, Neil Siegel, and Christine Stansell for comments on the manuscript. We had
the pleasure of working with an extraordinary group of Harvard and Yale research assis-
tants on this Essay, including Nick Barnaby, Robert Cacace, Kathryn Eidmann, Rebecca
Engel, Sarah Hammond, Kara Loewentheil, Sandra Pullman, Sandeep Ramesh, Sandra Vasher,
and Justin Weinstein-Tull.
' Ronald Dworkin, The Forum of Principle, 56 N.Y.U. L. REV. 469 (1981).
2 Mark Kende observes: It used to be easy. Liberals generally liked the U.S. Supreme
Court. Conservatives were skeptical. Mark S. Kende, Foreword, 54 DRAKE L. REV. 791,
791 (2006). But now, he writes, quoting Bob Dylan, The times, they are a-changin'. Id.
3 LARRY D. KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND
JUDICIAL REVIEW (2004); MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE
COURTS (1999); ROBIN WEST, PROGRESSIVE CONSTITUTIONALISM: RECONSTRUCTING THE
FOURTEENTH AMENDMENT 281-318 (1994); Owen Fiss, Between Supremacy and Exclusiv-
ity, in THE LEAST EXAMINED BRANCH: THE ROLE OF LEGISLATURES IN THE CONSTITU-
TIONAL STATE 452-67 (Richard W. Bauman & Tsvi Kahana eds., 2006); Jeremy Waldron,
The Core of the Case Against Judicial Review, 115 YALE L.J. 1346 (2006).
4CASS R. SUNSTEIN, ONE CASE AT A TIME: JUDICIAL MINIMALISM ON THE SUPREME
COURT 54 (1999); Martha M. Ertman, Contractual Purgatory for Sexual Marginorities:
Not Heaven, but Not Hell Either, 73 DENV. U. L. REV. 1107 (1996); Girardeau A. Spann,
Proposition 209, 47 DUKE L.J. 187 (1997).
5 Kende, supra note 2, at 792.
6347 U.S. 483 (1954). For a discussion, see Reva B. Siegel, Equality Talk: Antisubordi-
nation and Anticlassification Values in Constitutional Struggles over Brown, 117 HARV. L.
REV. 1470 (2004) [hereinafter Siegel, Equality Talk] (tracing the influence of movements](ViewImageLocal?handle=hein.journals/hcrcl42&div=17&collection=&method=preview&ext=.png&size=3)
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Roe Rage: Democratic Constitutionalism and Backlash
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