Why Liberals and Conservatives Flipped on Judicial Restraint: Judicial Review in the Cycles of Constitutional Time
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Why Liberals and Conservatives Flipped on
Judicial Restraint: Judicial Review in the
Cycles of Constitutional Time
Jack M. Balkin*
INTRODUCTION.................................................. 215
I. POLITICAL REGIMES IN POLITICAL TIME......................... 220
A. The Idea of a Constitutional Regime ......... ......... 220
B. Judicial Time ........................................ 224
II. How THE RISE AND FALL OF REGIMES AFFECTS JUDICIAL REVIEW. 227
III. THE ROLE OF CONSTITUTIONAL THEORY IN THE CYCLE OF
REGIMES .......................... ................. 242
A. The Cycle of Regimes and Living Constitutionalism............. 245
B. The Cycle of Regimes and Originalism....... .......... 250
C. The Return of Liberal Skepticism About Judicial Review ..... 260
CONCLUSION ..................................... ...... 263
Introduction
Over the course of a little more than a century, American liberals (or, in
an earlier period, progressives) and conservatives have switched positions on
judicial review, judicial restraint, and the role of the federal courts-not once,
but twice.'
At the beginning of the twentieth century, progressives grew
increasingly skeptical of judicial review, while conservatives embraced
judicial review to limit federal and state regulation and protect property
rights.2 After the New Deal, these positions gradually flipped. By
midcentury, liberals in both parties had begun to defend strong courts and
* Knight Professor of Constitutional Law and the First Amendment, Yale Law School. My
thanks to Sandy Levinson for his comments on a previous draft of this Article.
1. See Barry Friedman, The Cycles of Constitutional Theory, 67 LAW & CONTEMP. PROBS.,
Summer 2004, at 149, 157-64 (2004) (detailing the shifts); see also Keith E. Whittington, The New
Originalism, 2 GEO. J.L. & PUB. POL'Y 599, 604 n.27 (2004) (Constitutional theory regarding
judicial activism and restraint, and relative authority of the various branches of government, is
linked to long partisan cycles of reconstruction and affiliation with dominant constitutional norms
and institutions.).
2. Davison M. Douglas, The Rhetorical Uses of Marbury v. Madison: The Emergence of a
Great Case, 38 WAKE FOREST L. REv. 375, 386-402 (2003) (explaining how turn-of-the-century
conservatives looked to strong judicial review to resist popular demands for economic regulation);
Friedman, supra note 1, at 157 (From 1890 until 1937 ... [p]rogressives were troubled by [judicial
review]; conservatives admired its preservationist and anti-democratic character.); see infra notes
93-100 and accompanying text.](ViewImageLocal?handle=hein.journals/tlr98&div=12&collection=&method=preview&ext=.png&size=3)
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Why Liberals and Conservatives Flipped on Judicial Restraint: Judicial Review in the Cycles of Constitutional Time
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