AN ENTRENCHED LEGACY

Vol. 18 No. 10 (October, 2008) pp.867-870

AN ENTRENCHED LEGACY: HOW THE NEW DEAL CONSTITUTIONAL REVOLUTION CONTINUES TO SHAPE THE ROLE OF THE SUPREME COURT, by Patrick M. Garry. University Park, PA: The Pennsylvania State University Press, 2008. 200pp. Cloth. $35.00. ISBN: 9780271032801.

Reviewed by Bradley J. Best, Department of Political Science, Buena Vista University. E-Mail: Best [at] bvu.edu.

In AN ENTRENCHED LEGACY, Patrick Garry delivers a forceful indictment of the most basic trajectories of US Supreme Court decision making in the modern period. Put simply, Garry casts the post-1936 Court’s embrace of an expansive federal regulatory power and individual rights jurisprudence as nothing less than a betrayal of sacred constitutional principles. The scale of interventionist, national government power in post-New Deal America, he argues, evinces a sustained repudiation of federalism and separation of powers principles. Furthermore, expanding zones of constitutionally protected individual liberty are, in Garry’s view, the result of the Court’s disregard of the limits of the judicial function and rejection of the Ninth and Tenth Amendments as constraints on the powers of the national government. Undergirding Garry’s thesis is the steadfast conclusion that the last seven decades of Supreme Court history reveal an institution whose powers are of unmitigated “centralizing tendency” and exert a “corrosive effect on democratic processes” (p.181).

Orbiting Garry’s thesis are secondary claims about the correctness of dual federalist, interpretivist, and judicial restraintist orientations. He is unapologetically sympathetic to nineteenth century conceptions of the federal commerce power and rejects expansive readings of the Fourteenth Amendment’s due process guarantee. Garry espouses a theory of the Constitution that denies any plausible basis for the Supreme Court’s practices of unilaterally identifying and nationalizing fundamental political and social liberties. His reading of American history leads to the claim that state legislatures are best able to discern the optimal range of personal liberty on such matters as freedom of expression, religious practice, and personal privacy. Importantly, Garry argues in favor of judicial minimalism not only as a matter of principle but in recognition of the instrumental value of decentralized democracy – i.e., federalism as conceived in the Founders’ day.

A key strength of AN ENTRENCHED LEGACY is the linearity and concision with which Garry pursues his thesis. The initial pages of the book contain a short set of prefatory statements, wherein Garry articulates his core purposes, followed by Chapter One’s treatment of the New Deal Court’s rejection of separation of powers and federalism doctrines. Here, Garry relates for the first time what he sees as the process by which the justices effectuated a dramatic expansion of the limits on Congress’ regulatory power, allowed unmitigated delegation of legislative authority to the [*868] administrative branch, and set aside the Tenth Amendment’s protection of state police power. The combined impact of these processes, as Garry insists in Chapter Two, is to deny both the Framers’ intention that national government authority extend no further than the Constitution’s grant of enumerated powers and the Tenth Amendment’s purpose of preserving the states’ role as chief authorities in defining the limits of individual freedom.

Garry is at his analytical and explanatory best in Chapter Three. Here, he outlines the most compelling claim of the book, the proposition that the uninterrupted growth of judicial power since the New Deal is a result of an indirect and little appreciated process.

The economic exigencies of the Great Depression, Garry observes, encouraged the Court to discard the enumerated powers, federalism, and nondelegation doctrines that constrained the national government’s legislative authority in the 1800s. Congress, in turn, assigned undue measures of legislative-type power to executive branch agencies. Subsequently, the Court lengthened its reach into the policy process by intensifying its review of agency rule-making processes and redrafting administrative rules. Such is the trend, Garry indicates, beginning with Franklin Roosevelt’s presidency. When added to the justices’ willingness to craft uniform, national standards for the protection of fundamental civil liberties, the Court has, Garry finds, effectuated a comprehensive undoing of the Constitution’s core structural limitations on federal power.

Chapters Four and Five contain closely linked discussions of what Garry views as the two strands of a necessary “federalism revolution.” First, he lauds the Rehnquist Court’s decade long effort to resurrect the Tenth and Eleventh Amendments as means to restore traditional preserves of state sovereignty. Next, Garry mourns the failure of the “second half of a federalism revolution – a stepping back of [judicial recognition of] substantive individual rights as the only protection of individual liberty” (p.102). As evidence of the dangers of placing individual liberties in the sole protection of the judiciary, rather than legislative bodies, Garry refers to the case of privacy rights. He explains that privacy interests, unlike the concerns of a permanent racial or religious minority, are universally shared and therefore optimally balanced by democratic processes wherein competing social interests are granted full consideration. In short, Garry argues that trading structural means – federalism and separation of powers – of protecting individual liberty for judicially dominated strategies risks a jurisprudence that miscasts personal rights as beyond the ken of the people’s elected representatives.

At 54 pages, Chapter Six is AN ENTRENCHED LEGACY’s longest and most wide-ranging. Garry extends his discussion of the Court’s refusal to allow the states primacy in the identification of the outer boundaries of individual liberty. In lengthy, case-specific examinations of religious freedom, free speech, and personal privacy, Garry repeats an abundantly familiar theme: nationalization of rights by the Supreme Court precludes states and municipalities from finding the [*869] proper balance-point between the goal of securing individual freedom and the need to hem in that freedom in ways commanded by local circumstance. What democracy requires, apparently, is individual liberty molded and customized by each community in accord with their own sense of good taste and practical necessity. In the final pages of the chapter, Garry offers a summarizing rant against substantive due process as a theory guiding judicial definitions of liberty. Here, he chastises the modern Court for employing the theory of substantive due process as a vehicle to unprincipled, politically motivated decisions about which individual rights deserve fundamental status and, thus, heightened protection by the judiciary. Inasmuch as he regards substantive due process as an invitation to arbitrariness in the judiciary’s ranking of personal freedoms, he relegates the theory to the category of predictable, anti-democratic consequences of the Court’s retreat from the separation of powers and federalism doctrines.

Political scientists are cautioned that this book is, in form and purpose, a legal argument in support of normative conclusions Garry derived, I am guessing, long prior to the completion of the work’s initial draft. Little space is dedicated to examination of competing scholarly perspectives, and Garry proceeds without mentioning or reacting to stock critiques of claims to objective knowledge of the Framers’ intentions. Supreme Court decisions running counter to Garry’s preferred brand of constitutional interpretation are tagged as acts of gross infidelity to original intention rather than plausible applications of broad principles to specific factual scenarios. Finally, that Garry proceeds more in the mode of argument than investigation contributes to the book’s most glaring weakness. Garry dedicates the final ten pages to yet another rant against the undemocratic character of the Court’s individual-rights jurisprudence.

AN ENTRENCHED LEGACY would benefit from a concluding chapter that considers the workability of the second half of the “federalism revolution” Garry prescribes. Are readers to believe that significant decentralization of individual rights – i.e., allowing each state to statutorily enforce its own conceptions of freedom of speech, religion, and privacy – is sustainable in a “flat” world? Furthermore, is it reasonable to imply, as I think Garry does in Chapter Five, that individuals disenchanted with the “climate of individual liberty” (p.124) in their state would (or could) without undue stresses move to one of the other forty-nine “laboratories of democracy” in search of more agreeable social and cultural climates? Such questions are left, for the most part, unanswered.

Although I hesitate to add this volume to the corpus of “must-reads” on constitutional theory and interpretation, Garry’s work will strike the reader as fresh and distinctive. His account of twentieth century departures from nineteenth century doctrine on the matters of federalism, separation of powers, and judicial role will add new dimensions to graduate seminars in constitutional history. Furthermore, Garry provides a brief, economical counterargument to the typically sympathetic and adulatory histories of Supreme Court decision making in civil liberties cases. Perhaps most important, [*870] Garry’s alternative claim about the link between the rise of the administrative state and the growth of judicial power since 1936 invites discussion and a more exhaustive inquiry. Nonetheless, graduate faculty teaching constitutional law and history courses are well advised to treat the Garry text as supplemental to standard works such as Abraham and Perry’s (2003) FREEDOM AND THE COURT. In addition, I firmly urge the assignment of less normatively oriented titles, such as Edward Purcell’s (2007) recent effort, whenever Garry’s presentation is required reading.

REFERENCES:

Abraham, Henry J. and Barbara A. Perry. 2003. FREEDOM AND THE COURT: CIVIL RIGHTS AND LIBERTIES IN THE UNITED STATES. Lawrence, KS: University Press of Kansas.

Purcell, Edward A, Jr. 2007. ORIGINALISM, FEDERALISM, AND THE AMERICAN CONSTITUTIONAL ENTERPRISE: A HISTORICAL INQUIRY. New Haven: Yale University Press.

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