Institutional Recalibration and Judicial Delimitation

Abstract

Throughout American history, a peculiar and recurrent disjunction often arises between the substance of transformative reforms, and the decidedly less-radical governing arrangements that arise in the aftermath of reform. In seeking to account for this disjunction, this article puts forth a theory of post-reform “recalibration.” Political processes of recalibration are the means by which vague, indeterminate principles of reform are given operational meaning, and translated into new governing arrangements. This article illuminates recalibration processes with an examination of two case-studies: African-American rights in the post-Reconstruction era of the 1870s and 1880s, and labor rights in the post-New Deal era of the late 1930s. Finally, the article also highlights the crucial role of the Supreme Court in recalibration processes, and sets forth a theory of judicial behavior as driven by an institutional-interest in stability.