Roe Rage: Democratic Constitutionalism and Backlash
Roe Rage: Democratic Constitutionalism and Backlash Robert Post* Reva Siegel* 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. 2 Some progressives, following the call of "popular constitutionalism," have argued that the Constitution should be taken away from courts and restored to the people.3 Others have empha- sized the urgent need for judicial caution and minimalism.4 One of the many reasons for this shift is that progressives have be- come fearful that an assertive judiciary can spark "a political and cultural backlash that may ... hurt, more than" help, progressive values.5 A gen- eration ago, progressives responded to violent backlash against Brown v. Board of Education6 by attempting to develop principles of constitutional * David Boies Professor of Law, Yale University. Nicholas deB. Katzenbach Professor of Law, Yale University. Many thanks to Bruce Ackerman, Jack Balkin, David Barron, Eric Citron, Bill Eskridge, Owen Fiss, Barry Friedman, Sarah Gordon, Mark Graber, Michael Graetz, David Hollinger, Dawn Johnsen, Amy Kapczyn- ski, Michael Klarman, Scott Lemieux, Sandy Levinson, Joanne Meyerowitz, Sasha Post, Judith Resnik, Neil Siegel, and Christine Stansell for comments on the manuscript. We had the pleasure of working with an extraordinary group of Harvard and Yale research assis- tants on this Essay, including Nick Barnaby, Robert Cacace, Kathryn Eidmann, Rebecca Engel, Sarah Hammond, Kara Loewentheil, Sandra Pullman, Sandeep Ramesh, Sandra Vasher, and Justin Weinstein-Tull. ' Ronald Dworkin, The Forum of Principle, 56 N.Y.U.
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