Rights and Structure In Constitutional Theory

Abstract

Ever since the constitutional revolution of the 1930s, constitutional law and theory have been dominated by questions of civil rights. The expansion of rights under the Warren Court constituted a deep-seated shift in judicial attitudes that has proved remarkably stable over time. Despite protests in some quarters that the Burger Court (1969–1986) and the current Rehnquist Court have undermined civil rights recognized during the Warren Court era (1953–1969), the fact is that the changes have been surprisingly marginal. Even precedents that were widely believed to be endangered species a decade ago – such asMirandaandRoe v. Wade– continue in force, although they have indeed been pruned back. Despite their importance, however, these high-profile cases do not go to the core of the Supreme Court's agenda. The core is epitomized byBrown v. Board of Educationon the one hand, representing an aggressive and interventionist attitude toward government discrimination against discrete minorities, and footnote four of theCarotene Productscase, on the other hand, representing an extraordinarily deference to the political process with respect to economic regulation. The Rehnquist Court's commitment to this core agenda is not dramatically different than that of its predecessors, at least not when the broad sweep of constitutional law is taken into account.