An Entrenched Legacy: How the New Deal Constitutional Revolution Continues to Shape the Role of the Supreme Court. By Patrick M. Garry. (University Park: Pennsylvania State University Press, 2008. 192 pp. $35.00, ISBN 978-0-271-03280-1.)

Abstract

Patrick M. Garry's new book argues that the New Deal “revolution” in constitutional interpretation led the U.S. Supreme Court to abandon older constitutional rules that protected the states from federal government intrusiveness and, in so doing, “severely weakened the Constitution's structural protections of liberty” (p. 24). This change enabled the increasing number of federal regulatory agencies to do their work unencumbered by opposition from the states. Having essentially dismissed federalism as an unenforceable constitutional principle, Garry's thesis continues, “the only remaining legal limit on federal power was the Bill of Rights” (ibid.). Thus, he concludes, an increase in the Court's willingness to protect individual rights followed naturally and inevitably from its unwillingness after 1937 to limit the federal government's power vis-à-vis the states. Such a result has been problematic in more ways than one, Garry argues. First, abandoning earlier federalism doctrines was possible only by ignoring what he calls “the unchanging text” of the Constitution (ibid.). Second, the emergence of the modern administrative state in the form of federal regulatory agencies has diminished the power not only of the states but also of Congress because the work of such agencies is typically supervised by the courts rather than by lawmakers on Capitol Hill. Even more troubling, Garry contends, has been the nationalizing tendencies of the new emphasis on protecting individual liberties via the Bill of Rights. Without robust constitutional protections for the states, the Supreme Court's civil libertarian rulings tend to establish uniform national rules in such areas as reproductive rights, freedom of speech, and freedom of religion, despite the sometimes substantial differences in community standards in those areas.