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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
Sotirios A. Barber*
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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