The Anti-Antidiscrimination Agenda

Abstract

People are pretty sure there is something going on in constitutional law these days, but they don't know what it is. Since about 1995, the Supreme Court has issued groundbreaking decisions on so many subjects—for example, the commerce power, affirmative action, the Eleventh Amendment, Section 5 of the Fourteenth Amendment, and expressive association—that observers are beginning to step back from the various doctrinal debates to see if a bigger picture is emerging. One recent symposium asked whether constitutional law was undergoing a "sea change," as opposed to minor modifications in disparate areas. Those who sympathize with the Court's decisions have seen a new "textualism" at work; critics have claimed, on the contrary, that a new "judicial activism," especially in the area of federalism, can be seen below the recent tectonic shifts.