Roe Rage: Democratic Constitutionalism and Backlash

Reva B. Siegel, Yale Law School
Robert C. Post, Yale Law School

Abstract

Progressive confidence in constitutional adjudication peaked during the Warren Court and its immediate aftermath. Courts were celebrated as "fora of principle," privileged sites for the diffusion of human reason. But progressive attitudes toward constitutional adjudication have recently begun to splinter and diverge. Some progressives, following the call of "popular constitutionalism," have argued that the Constitution should be taken away from courts and restored to the people. Others have emphasized the urgent need for judicial caution and minimalism.