Fall Reading II: The Supreme Court & American Constitutional Development

Mark Graber

Readers tired of constititutional history that does little more than search for quotes that can be employed (out of context usually) when defending or opposing ROE V. WADE should quickly purchase a copy of Kahn and Kersch, eds., THE SUPREME COURT AND CONSTITUTIONAL DEVELOPMENT. This anthology has numerous virtues. Kahn and Kersch have brought together many of the leading constitutional thinkers in political science (and for those desperately needing a law professor fix, there is an essay by Mark Tushnet). Unlike many collections, which too often include essays contributors would be embarrassed to put in their promotion file, virtually every contributor to THE SUPREME COURT brings their A-game. Most important, the essays reflect what is best about what has become know as the "historical institutionalist" school in political science. Orthodoxies on the left and right are challenged by scholars on both the left and right. Rather than write history designed to privilege a presentist end, the essays try to explain how the developmental paths responsible for contemporary American constitutional politics, paths that were foreclosed by past choices, and exercises in historical forgetfullness that ought to be remembered.

Several of the essays in the collection develop a "regime politics" approach to judicial review. Howard Gillman and Mark Tushnet point out that, rather than thwart the will of majorities, judicial review is often a means by which members of majority coalitions realize such diverse aims as enforcing national norms in localities, getting hot button items off the political agenda, and entrenching regime norms for the future. Ken Kersch's essay notes how, rather than understand some regimes as more committed to civil liberties than others, we will better understand the New Deal regime as committed to a different set of civil liberties than the previous regime, that part of the way a regime governs is by creating a history in which its notion of right is identified with right per se, and rival notions of rights and reconceptualized as oppression. Progressive era conservations had a rich notion of rights, not all of which can be understood as simply protecting the interests of the wealthy. New Dealers triumphed, not simply by winning elections, but by redefining rights as consistent with the New Deal view of the world.

Many essays in the volume recover a forgotten past, not because that past represents a desirable alternative, but because our reasons for forgetting cast light on the nature of contemporary constitutional politics. Consider Pamela Brandwein's analysis of state neglect that brings in notions of natural law and nineteenth century concerns with state power when explaining why both the Rehnquist Court and Rehnquist Court dissenters misread the CIVIL RIGHTS CASES of 1883. Julie Novkov's analysis of the central role miscengenation played in the construction of southern constitutional politics after the Civil War reminds us of how families were thought central to constitutionalism before the New Deal. Both essays highlight histories Americans lost, in part because we no longer wish to remember them and in part because later political regimes had a vested interest in forgetfulness. Neither essay will provide the knockdown argument for any constitutional policy today. Nevertheless, these and the other fine essays in the volume suggest that American constitutional politics is far more interesting and contains many more developmental paths than one would realize from just reading the Supreme Court reports and the law reviews.
Posted 1:49 PM by Mark Graber [link]