The Cycles of Constitutional Theory

Friedman presents information on the cyclical nature of constitutional theory. Because constitutional theory is a reaction to the current developments of constitutional law, it is interesting to view constitutional issues through the framework of different historical circumstances

Dialogue and Judicial Review

This article argues that most normative legal scholarship regarding the role of judicial review rests upon a descriptively inaccurate foundation. The goal of this article is to redescribe the landscape of American constitutionalism in a manner vastly different than most normative scholarship. At times this article slips across the line into prescription, but by and large the task is descriptive. The idea is to clear the way so that later normative work can proceed against the backdrop of a far more accurate understanding of the system of American constitutionalism. This article proceeds in three separate parts. Parts I and II argue that the very premises of the countermajoritarian difficulty are faulty. Part I challenges the basic notion that courts are countermajoritarian. Part II rejects the underlying premises of the countermajoritarian argument. Part III is a redescription of the landscape of American constitutionalism, one in which courts are seen as promoters of, and participants in, a national dialogue about the meaning of the Constitution

Neutral Principles: A Retrospective

Once upon a time, Enlightenment ideals prevailed across the land. Neutrality, objectivity, and reason were accepted as the firmaments of Supreme Court decisionmaking. Americans tend[ed] to believe that \u27playing fair\u27 [meant] making everyone play by the same rules, and any deviation from this definition [was] immediately suspect. \u27 But then, some scholars.., abandoned the fundamental aspiration toward. . . neutrality in government. Neutrality came to be considered a chimera, an illusion used by those in power to justify and perpetuate existing hierarchies. The nation was threatened with a return to pre-Enlightenment days, a return to a world in which it matters not what is said, but who says it, where objectivity is replaced by power. This is the story Professor Suzanna Sherry tells about the time of the Rehnquist Court. In All the Supreme Court Really Needs to Know It Learned from the Warren Court, Professor Sherry argues that some academics have unfairly called the Rehnquist Court conservative for adhering to the very same values of neutrality and objectivity advanced by that beacon of [liberalism], the Warren Court. According to Professor Sherry, two groups of scholars threaten these ideals. First, there are those who would replace the decisionmaking ideal of [flormal neutrality with the conflicting idea of substantive neutrality or equality of results. Second, and even worse, are some scholars, commonly called postmodernists or social constructivists, who attack the very idea of neutrality. These scholars have abandoned the fundamental aspiration toward.., neutrality in government, 9 which explains the[ir] condemnation of the current Supreme Court: its adherence to principles of neutrality places it squarely among those committed to perpetuating existing hierarchies of power. One of Professor Sherry\u27s particular targets is affirmative action. According to Professor Sherry, the Warren Court pursued a policy of race neutrality, insisting that race play no part in governmental decisionmaking. Such neutrality was a step forward at the time, Professor Sherry explains, but it failed to eliminate all barriers to full racial equality, and so some scholars began to demand different remedies-remedies that would transgress the command of formal neutrality in favor of equality of results. Although Professor Sherry does not come down squarely against affirmative action, she considers any argument for substantive neutrality to be difficult to justify because it would deviate from the widely-held norm of formal neutrality. She saves particular criticism for those who have begun to attack the idea of neutrality altogether. What is intriguing about Professor Sherry\u27s story is that with just one difference, it is very nearly the same story that could be told about the years of the Warren Court. Some scholars during that time, purporting to represent the mainstream of opinion, extolled the values of reason, neutrality, and objectivity, viewing them as bedrock principles of law. What Professor Sherry does not explain, however, is that these neutral scholars were attacking the Warren Court, not defending it. The work of the Warren Court was defended by other scholars, who felt that it was the substantive equality of results rather than the formal neutrality of rules that mattered. Moreover, some of the Warren Court defenders-like the scholars Professor Sherry criticizes today--also suggested that neutrality and adherence to principled reasoning were an illusion meant only to preserve existing power hierarchies and to subordinate minority interests. The fact that Professor Sherry could tell very nearly the same story about today\u27s debate as could be told about the debate over the Warren Court suggests that it would be profitable to revisit that earlier debate. Professor Herbert Wechsler\u27s famous paper, Toward Neutral Principles in Constitutional Law, delivered in 1958, is in a sense what kicked off all the earlier debate about neutrality in Supreme Court decisionmaking. Professor Sherry states that by insisting on neutrality she does not mean to invoke anything so grand as Herbert Wechsler\u27s \u27neutral principles.\u27 Professor Sherry\u27s modesty aside, however, her paper and Professor Wechsler\u27s do bear similarity

Mediated Popular Constitutionalism

There are divergent views in the legal academy concerning judicial review, but at their core these views share a common (and possibly flawed) premise. The premise is that the exercise of judicial review is countermajoritarian in nature. There is a regrettable lack of clarity in the relevant scholarship about what countermajoritarian actually means. At bottom it often seems to be a claim, and perhaps must be a claim, that when judges invalidate governmental decisions based upon constitutional requirements, they act contrary to the preferences of the citizenry. Some variation on this premise seems to drive most normative scholarship regarding judicial review. Some scholars laud judicial review precisely because of its countermajoritarian character. Those of this view believe constitutional strictures exist to constrain the majority, that constitutional rights are not to be subject to majority will. For those who hold this view, countermajoritarian judicial review is normatively desirable, although these theorists may diverge when it comes to precisely how judicial power should be exercised. Other scholars criticize judicial review precisely because it interferes with the popular will. Under this view, representative government - such as what we enjoy in the United States - is intended to reflect majority preferences. When judges invalidate government acts, they inappropriately interfere with democracy

Popular Dissatisfaction with the Administration of Justice: A Retrospective (and a Look Ahead)

Conference of Chief Justices and Conference of State Court Administrators Annual Meeting July 29-August 2, 2006 Indianapolis, Indiana