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15 N. Ky. L. Rev. 437 (1988)
The Federalist and the Anomalies of New Right Constitutionalism

handle is hein.journals/nkenlr15 and id is 445 raw text is: The Federalist and the Anomalies of New Right Constitutionalism Sotirios A. Barber* I. INTRODUCTION This Essay concerns the New Right, judicial review, and The Federalist. By the New Right I mean elements of the Reagan right; I shall name names below. By judicial review I mean the institution originally defended in The Federalist, the source of the classical and still official theory of judicial review. According to this theory judges are supposed to apply the rules and prin- ciples of the Constitution in resolving concrete constitutional questions. The classical theory denies that judges should decide constitutional questions in a manner that defers to the constitu- tional opinions of elected officials. Yet the classical theory is fully aware that constitutional questions are often controversial and that judges can confuse the Constitution's meaning with their partisan preferences. I submit a two-part argument here. First, I discuss some anomalies of New Right constitutionalism, then I try to show that The Federalist supports judicial activism, warts and all. The New Right has made remarkable headway in its longstand- ing crusade against an active and independent judiciary. We can attribute at least part of this success to the New Right's appro- priation of certain symbols. New Right spokespersons have in- voked such values and sources of authority as the Founding Fathers, tradition, morality, and democracy. The fact that the public associates New Right constitutionalism with these values is a fact with unflattering implications about our system's capac- ity to perpetuate an appreciation of its foundations. If the public knew more about these foundations, more people would know that New Right constitutionalism falsely appropriates and even- * Professor of Government, University of Notre Dame. The author is grateful to Sue Hemberger for her criticism and assistance. This article is based on a paper delivered to the Salmon P. Chase College of Law, Northern Kentucky University, September 18, 1987.

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