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Harvard Law Review, vol. 98, pp. 713-46 (1985)


"IP]rejudice against discrete and insular minorities may be a special condition . . . curtail[ing] the operation of those political processes ordinarily to be relied upon to protect minorities, and [so] may call for a correspondingly more searching judicial inquiry."

These famous words, appearing in the otherwise unimportant Carolene Products case, came at a moment of extraordinary vulnerability for the Supreme Court. They were written in 1938. The Court was just beginning to dig itself out of the constitutional debris left by its wholesale capitulation to the New Deal a year before. With the decisive triumph of the activist welfare state over the Old Court, an entire world of constitutional meanings, laboriously built up over two generations, had come crashing down upon the Justices' heads. Indeed, the Court had been so politically discredited by its constitutional defense of laissez-faire capitalism that it was hardly obvious whether any firm ground remained upon which to rebuild the institution of judicial review. How, then, to begin the work of reconstruction?

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