:The People Themselves: Popular Constitutionalism and Judicial Review

Abstract

For the last two generations, the central preoccupation of constitutional historians seems to have been to provide a historical foundation to support the work of the Warren, Burger, and Rehnquist Courts in expanding the reach of the Fourteenth Amendment's Equal Protection and Due Process clauses, in order to prevent state legislatures or state law enforcement officials from abusing the rights of criminal defendants, religious and ethnic minorities, women, and homosexuals. Liberals cheered these developments, and liberals wrote those histories that made it seem that from the time of John Marshall forward it had been the job of the United States Supreme Court, consistently with our constitutional scheme, to protect minorities from discrimination by the majority. Conservatives, not much in evidence in the academy, tended to view these Supreme Court decisions with some suspicion, believing that the Court was making up purported constitutional rights out of whole cloth, that the Supreme Court had been legislating rather than judging, and that such conduct was inconsistent with the Constitution, which leaves matters of making up new law to the legislatures and to the people themselves.