An Entrenched Legacy: How the New Deal Constitutional Revolution Continues to Sh

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An Entrenched Legacy takes a fresh look at the role of the Supreme Court in our modern constitutional system. Although criticisms of judicial power today often attribute its rise to the activism of justices seeking to advance particular political ideologies, Patrick Garry argues instead that the Supreme Courts power has grown mainly because of cert

FORMATPaperback LANGUAGEEnglish CONDITIONBrand New Publisher Description

An Entrenched Legacy takes a fresh look at the role of the Supreme Court in our modern constitutional system. Although criticisms of judicial power today often attribute its rise to the activism of justices seeking to advance particular political ideologies, Patrick Garry argues instead that the Supreme Court's power has grown mainly because of certain constitutional decisions during the New Deal era that initially seemed to portend a lessening of the Court's power. When the Court retreated from enforcing separation of powers and federalism as the twin structural protections for individual liberty in the face of FDR's New Deal agenda, it was inevitably drawn into an alternative approach, substantive due process, as a means for protecting individual rights. This has led to many controversial judicial rulings, particularly regarding the recognition and enforcement of privacy rights. It has also led to the mistaken belief that the judiciary serves as the only protection of liberty and that an inherent conflict exists between individual liberty and majoritarian rule. Moreover, because the Court has assumed sole responsibility for preserving liberty, the whole area of individual rights has become highly centralized. As Garry argues, individual rights have been placed exclusively under judicial jurisdiction not because of anything the Constitution commands, but because of the constitutional compromise of the New Deal.During the Rehnquist era, the Court tried to reinvigorate the constitutional doctrine of federalism by strengthening certain powers of the states. But, according to Garry, this effort only went halfway toward a true revival of federalism, since the Court continued to rely on judicially enforced individual rights for the protection of liberty. A more comprehensive reform would require a return to the earlier reliance on both federalism and separation of powers as structural devices for protecting liberty. Such reform, as Garry notes, would also help revitalize the role of legislatures in our democratic system.

Author Biography

Patrick M. Garry is Associate Professor of Law at the University of South Dakota.

Table of Contents

ContentsIntroduction1.The New Deal Constitutional Revolution2.At the Heart of the Revolution: The Constitution's Structural Provisions 3.How the Administrative State Has Boosted Judicial Power4.The Court's Federalism Revolution5.A One-Sided Federalism Revolution: Ignoring the Liberty Side of Federalism6.Contradicting the Federalism Revolution: The Court's Nationalizing Rights-JurisprudenceConclusion: A Stifling of the Democratic ProcessIndex

Review

"Patrick Garry's new book is a brilliant, incisive, and comprehensive account of sweeping - and very troubling - changes in the fundamental structural dimensions of our constitutional practices over the last century. Garry provides illuminating analyses of the Constitution's original structural design for the protection of individual freedom, grounded in the separation of powers and federalism; the Court's retreat from serious enforcement of that structural design in the face of the economic crisis of the Great Depression; and the Court's resulting assumption in the mid-twentieth century of an activist role as ultimate policymaker in the area of individual rights, a role at odds with the Founders' constitutional design and with representative democracy. A tour de force." - Jack Wade Nowlin, The University of Mississippi School of Law "Garry's book does an excellent job describing how a Constitution that originally employed federalism and the separation of powers to protect the people has been transformed into one that relies on the Supreme Court. Garry also argues persuasively that this transformation has greatly empowered the Supreme Court even in areas where the Court claims to grant deference to the political branches." - Michael Rappaport, University of San Diego "This is a clear and well-informed addition to the line of strong critiques of the modern practice of judicial review." - Robert F. Nagel, University of Colorado"

Long Description

An Entrenched Legacy takes a fresh look at the role of the Supreme Court in our modern constitutional system. Although criticisms of judicial power today often attribute its rise to the activism of justices seeking to advance particular political ideologies, Patrick Garry argues instead that the Supreme Court's power has grown mainly because of certain constitutional decisions during the New Deal era that initially seemed to portend a lessening of the Court's power. When the Court retreated from enforcing separation of powers and federalism as the twin structural protections for individual liberty in the face of FDR's New Deal agenda, it was inevitably drawn into an alternative approach, substantive due process, as a means for protecting individual rights. This has led to many controversial judicial rulings, particularly regarding the recognition and enforcement of privacy rights. It has also led to the mistaken belief that the judiciary serves as the only protection of liberty and that an inherent conflict exists between individual liberty and majoritarian rule. Moreover, because the Court has assumed sole responsibility for preserving liberty, the whole area of individual rights has become highly centralized. As Garry argues, individual rights have been placed exclusively under judicial jurisdiction not because of anything the Constitution commands, but because of the constitutional compromise of the New Deal. During the Rehnquist era, the Court tried to reinvigorate the constitutional doctrine of federalism by strengthening certain powers of the states. But, according to Garry, this effort only went halfway toward a true revival of federalism, since the Court continued to rely on judicially enforced individual rights for the protection of liberty. A more comprehensive reform would require a return to the earlier reliance on both federalism and separation of powers as structural devices for protecting liberty. Such reform, as Garry notes, would also help revitalize the role of legislatures in our democratic system.

Review Text

"In An Entrenched Legacy , Patrick Garry delivers a forceful indictment of the most basic trajectories of U.S. Supreme Court decision making in the modern period." --Bradley J. Best, Law and Politics Book Review

Review Quote

"Patrick Garry's new book is a brilliant, incisive, and comprehensive account of sweeping--and very troubling--changes in the fundamental structural dimensions of our constitutional practices over the last century. Garry provides illuminating analyses of the Constitution's original structural design for the protection of individual freedom, grounded in the separation of powers and federalism; the Court's retreat from serious enforcement of that structural design in the face of the economic crisis of the Great Depression; and the Court's resulting assumption in the mid-twentieth century of an activist role as ultimate policymaker in the area of individual rights, a role at odds with the Founders' constitutional design and with representative democracy. A tour de force." --Jack Wade, Lecturer in Law and Associate Professor of Law, University of Mississippi School of Law

Details ISBN0271032812 Author Patrick M. Garry Short Title ENTRENCHED LEGACY Pages 200 Language English ISBN-10 0271032812 ISBN-13 9780271032818 Media Book Year 2009 Imprint Pennsylvania State University Press Subtitle How the New Deal Constitutional Revolution Continues to Shape the Role of the Supreme Court Place of Publication Pennsylvania Country of Publication United States Residence US Format Paperback UK Release Date 2009-08-15 NZ Release Date 2009-08-15 US Release Date 2009-08-15 Publisher Pennsylvania State University Press Publication Date 2009-08-15 Alternative 9780271032801 DEWEY 342.73029 Audience Undergraduate AU Release Date 2009-07-14 We've got this

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