An Entrenched Legacy: How the New Deal Constitutional Revolution Continues to Shape the Role of the Supreme Court

Conclusion: A Stifling of the Democratic Process

conclusion: a stifling of the democratic process The story of the Court’s escalating activism regarding individual rights often begins with the New Deal opinion in Unites States v. Carolene Products, in which the infamous footnote 4 suggested that the Court should give its closest scrutiny to cases involving individual rights, because that was an area the judiciary was inherently well-suited to handle. The implication was that only the courts, through judicial enforcement of selected individual rights, could provide an adequate safeguard to liberty. By the time of the Warren era, the Carolene Products suggestion had so ingrained itself into the American legal mentality that it was generally accepted that indeed the Constitution had envisioned the judiciary as being the primary protector of individual rights (even though the actual holding in Carolene Products reflected a presumption of legislative authority and a warning against judicial interference with that authority).1 But the implications and lessons of Carolene Products were not entirely as they later came to be interpreted . In fact, the prevailing view of Carolene Products is a somewhat distorted view; it is a view that tells only half the story. And this half was true only because the Court’s earlier New Deal opinions had essentially forced it to be true. The message of Carolene Products was not that the Constitution relies mainly on the judiciary to protect individual liberty, or that the courts are the only means by which to protect liberty. Indeed, the framers had envisioned that the structural provisions of the Constitution—for example, federalism and separation of powers— would serve as the primary safeguard of liberty. However, once the 1. 304 U.S. 144, 152 (1938). 180 ■ an entrenched legacy Court had rendered those structural provisions virtually unenforceable , the only remaining protection of liberty lay with the judiciary. Thus, Carolene Products provided the first constitutional justification for what would be the Warren Court’s intensified activism on individual rights. But this justification did not arise from a constitutional model based on the original meaning of the Constitution; instead, it was basically a rationalization necessitated by the Court’s retreat from the doctrines of federalism and separation of powers. As a result of the New Deal constitutional compromise, solidi- fied during the Warren era, any case or issue involving any aspect of individual rights gets swept up by the judiciary. Furthermore, in resolving these cases, the Court has enforced uniform, nationalized individual-rights doctrines. But as Justice John M. Harlan suggested in Roth v. United States, the First Amendment, for instance, should not be seen as imposing a rigid, nationalized uniformity on all state and local communities across the United States.2 With respect to the Establishment Clause, because the framers did not share a uniform notion of the proper relationship between church and state, they drafted a clause that did not constitutionalize one particular permissible relationship but rather reaffirmed the historical federalism arrangement concerning church-state matters.3 Thus, with the Establishment Clause the framers sought to leave the question of church-state relations to the states, and for this reason they chose not to constitutionalize a nationalized individual right of ‘‘nonestablishment.’’4 The way in which the post–New Deal Court has centralized and monopolized individual-rights issues calls into question the proper balance between legislative and judicial power. In 1824, Justice John Marshall expressed the prevailing view of the Court’s role: ‘‘Judicial power is never exercised for the purpose of giving effect to the will of the judge, always for the purpose of giving effect to the will of the legislature.’’5 Marshall also suggested that, on doubtful questions of 2. 354 U.S. 476, 506 (Harlan, J., dissenting). 3. Vincent Phillip Munoz, The Original Meaning of the Establishment Clause and the Impossibility of its Incorporation, 8 U. Pa. J. Const. L. 585, 604 (2006). 4. Id. at 630. 5. Charles L. Black, Jr., The People and the Court (New York: Macmillan, 1960), 159–69. contradicting the federalism revolution ■ 181 constitutionality, the judgments of the political branches ought to prevail.6 Substantive due process cases require the courts not just to judge the specifics of individual cases, but to lay down a general rule that governs a whole society. The question is where the lines should be drawn between privacy and social morality or community values, and this question of balancing various interests to...