Roe Rage: Democratic Constitutionalism and Backlash

Abstract

Progressive confidence in constitutional adjudication peaked during the Warren Court and its immediate aftermath. Courts were celebrated as "fora of principle,"' privileged sites for the diffusion of human reason. But progressive attitudes toward constitutional adjudication have recently begun to splinter and diverge. Some progressives, following the call of "popular constitutionalism," have argued that the Constitution should be taken away from courts and restored to the people. Others have emphasized the urgent need for judicial caution and minimalism. One of the many reasons for this shift is that progressives have become fearful that an assertive judiciary can spark "a political and cultural backlash that may ... hurt, more than" help, progressive values. A generation ago, progressives responded to violent backlash against Brown v. Board of Education by attempting to develop principles of constitutional theory they hoped would justify controversial decisions. Today, there are many progressives who have lost confidence in this project. They fear that adjudication may cause backlash of the kind they attribute to Roe v. Wade,' which they believe gave birth to the New Right. Stunned by the ferocity of the conservative counterattack, progressives have concluded that the best tactic is to take no action that might provoke populist resentments. In our view the pendulum has swung too far, from excessive confidence in courts to excessive despair. In this Essay we offer a more realistic account of how courts actually function in our democracy. We propose a model that we call "democratic constitutionalism" to analyze the understandings and practices by which constitutional rights have historically been established in the context of cultural controversy. Democratic constitutionalism views interpretive disagreement as a normal condition for the development of constitutional law.