Robert Post and Reva Siegel (Yale Law School) have posted Roe Rage: Democratic Constitutionalism and Backlash (Harvard Civil Rights-Civil Lilberties Law Review, 2007) on SSRN. Here is the abstract:
After decades of assault on the jurisprudence of the Warren Court, many progressive legal scholars have lost faith in judicial enforcement of constitutional rights. Some have responded by embracing popular constitutionalism and advocating mobilization against the Rehnquist and Roberts Courts; others, chastened, urge a minimalist jurisprudence that will avoid giving any group offense. There is fear of provoking the kind backlash that many associate with Roe, which is often regarded as having caused the rise of the New Right. In this article, we offer a new account of the relationship between adjudication and popular constitutionalism, which we call “democratic constitutionalism.” Democratic constitutionalism affirms both the need for judicially enforced rights and the fundamental significance of popular constitutional engagement.
We begin from the understanding that, in the American tradition, constitutional politics and constitutional law depend on one another, however insistently they assert their autonomy. This article offers an account of democratic constitutionalism which emphasizes the interdependence of judicial and popular enforcement of constitutional rights, despite perpetual friction between them. Judicially enforceable rights give concrete and institutional form to constitutional values; ongoing popular constitutional engagement ensures that these values retain democratic legitimacy.
Interpretive disagreement is a normal condition for the development of constitutional law. We identify understandings and practices that enable citizens to make claims on the Constitution and government officials to resist and respond to their claims; these interactions shape the Constitution's meaning over time in ways that sustain citizen engagement in our constitutional order and reconcile Americans' competing commitments to the rule of law and to self-governance.
We draw on these understandings to question leading accounts of backlash featured in the work of Michael Klarman, William Eskridge, and Cass Sunstein. Each of these theorists tends in his own way to overestimate the costs of backlash and to underestimate its benefits. They are each attuned to the harms that attend constitutional conflict, but they do not sufficiently consider how citizen engagement in constitutional contestation can contribute to social cohesion in a normatively heterogeneous polity.
Roe symbolizes the fears of those who counsel courts to avoid controversy. Legal scholars and political commentators commonly assert that judicial overreaching produced Roe rage, arguing that legislatures might have liberalized access to abortion if only the Court had stayed its hand. We examine scholarship on Roe's reception, as well as primary sources of the era, which together undermine this conventional account. Backlash to Roe was not just about judicial overreaching. Political mobilization against the decision expressed opposition to abortion's liberalization that began in state legislatures years before Roe was decided. As importantly, backlash to Roe was not just about abortion. Mobilization against Roe evolved during the 1970s into the form we now associate with Roe rage - a broad-based social movement hostile to legal efforts to secure the equality of women and the separation of church and state. Roe rage opposes ideals of individualism and secularism that lie at the foundation of our modern constitutional order. Accommodating resistance to Roe thus presents normative questions analogous to those posed by accommodating resistance to Brown.
The article concludes by illustrating how the themes of Roe rage have recently found expression in the Supreme Court's opinion in Carhart.
And some more from the body of the essay:
In this Essay we propose a model for understanding official efforts to enforce the Constitution under conditions of public controversy. We call this model “democratic constitutionalism.” Democratic constitutionalism affirms the role of representative government and mobilized citizens in enforcing the Constitution at the same time as it affirms the role of courts in using professional legal reason to interpret the Constitution. Unlike popular constitutionalism, democratic constitutionalism does not seek to take the Constitution away from courts. Democratic constitutionalism recognizes the essential role of judicially enforced constitutional rights in the American polity. Unlike a juricentric focus on courts, democratic constitutionalism appreciates the essential role that public engagement plays in guiding and legitimating the institutions and practices of judicial review. Constitutional judgments based on professional legal reason can acquire democratic legitimacy only if professional reason is rooted in popular values and ideals. Democratic constitutionalism observes that adjudication is embedded in a constitutional order that regularly invites exchange between officials and citizens over questions of constitutional meaning.
Our concern in this Essay is what happens when judicially elaborated constitutional law conflicts with constitutional meanings generated elsewhere within our constitutional system. Backlash is one possible result of this conflict. Viewed from the systemic perspective of the overarching American constitutional order, backlash seeks to maintain the democratic responsiveness of constitutional meaning. Viewed from the perspective of courts, backlash is a threat to the maintenance of legal authority and control. Democratic constitutionalism invites us to analyze backlash from these distinct but interdependent perspectives.
We begin from history. Americans have continuously struggled to shape the content of constitutional meaning. They did so with regard to questions of race in the 1960s, questions of gender in the 1970s, and we are now in the midst of such a struggle about questions of abortion, gay rights, and religion. Americans have used a myriad of different methods to shape constitutional understandings--sit-ins, protests, political mobilization, congressional use of section five powers, ordinary federal and state legislation, state court litigation, and so on. These struggles are premised on the belief that the Constitution should express a nomos that Americans can recognize as their own.
Through these struggles, Americans have consistently sought to embody their constitutional ideals within the domain of judicially enforceable constitutional law.20 Constitutional ideals enforced by courts express national identity; they radiate gravitas and consequence. When entrenched through the professional logic of legal reason, otherwise contested understandings of the nation’s ideals receive official endorsement and application by those who feel obligated to obey the law. They become guides for the juridical organization of society, wielding enormous symbolic power and shaping the social meaning of innumerable nonlegal transactions.
Americans have thus found it important that courts articulate a vision of the Constitution that reflects their own ideals. The legitimacy of the American constitutional system has come to depend on the many practices Americans have developed to ensure the democratic accountability of their constitutional law. No doubt constitutional lawmaking plays an important role in sustaining the democratic legitimacy of the American constitutional order, yet because the difficulty of lawmaking is so great and its successful achievement so infrequent, lawmaking alone cannot sustain the Constitution’s democratic legitimacy. Article V amendments are so very rare that they cannot provide an effective avenue for connecting constitutional law to popular commitments.
Very highly recommended. Download it while its hot!
