Roe Rage: Democratic Constitutionalism and Backlash

After decades of assault on the jurisprudence of the Warren Court, many progressive legal scholars have lost faith in judicial enforcement of constitutional rights. Some have responded by embracing popular constitutionalism and advocating mobilization against the Rehnquist and Roberts Courts; others, chastened, urge a minimalist jurisprudence that will avoid giving any group offense. There is fear of provoking the kind of backlash that many associate with Roe, which is often regarded as having caused the rise of the New Right. In this article, we offer a new account of the relationship between adjudication and popular constitutionalism, which we call democratic constitutionalism. Democratic constitutionalism affirms both the need for judicially enforced rights and the fundamental significance of popular constitutional engagement. We begin from the understanding that, in the American tradition, constitutional politics and constitutional law depend on one another, however insistently they assert their autonomy. This article offers an account of democratic constitutionalism which emphasizes the interdependence of judicial and popular enforcement of constitutional rights, despite perpetual friction between them. Judicially enforceable rights give concrete and institutional form to constitutional values; ongoing popular constitutional engagement ensures that these values retain democratic legitimacy. Interpretive disagreement is a normal condition for the development of constitutional law. We identify understandings and practices that enable citizens to make claims on the Constitution and government officials to resist and respond to their claims; these interactions shape the Constitution's meaning over time in ways that sustain citizen engagement in our constitutional order and reconcile Americans' competing commitments to the rule of law and to self-governance. We draw on these understandings to question leading accounts of backlash featured in the work of Michael Klarman, William Eskridge, and Cass Sunstein. Each of these theorists tends in his own way to overestimate the costs of backlash and to underestimate its benefits. They are each attuned to the harms that attend constitutional conflict, but they do not sufficiently consider how citizen engagement in constitutional contestation can contribute to social cohesion in a normatively heterogeneous polity. Roe symbolizes the fears of those who counsel courts to avoid controversy. Legal scholars and political commentators commonly assert that judicial overreaching produced Roe rage, arguing that legislatures might have liberalized access to abortion if only the Court had stayed its hand. We examine scholarship on Roe's reception, as well as primary sources of the era, which together undermine this conventional account. Backlash to Roe was not just about judicial overreaching. Political mobilization against the decision expressed opposition to abortion's liberalization that began in state legislatures years before Roe was decided. As importantly, backlash to Roe was not just about abortion. During the 1970s, opponents of the Equal Rights Amendment and the school prayer decisions condemned the abortion right as an expression of "secular humanism," giving birth to the coalition politics we now associate with Roe rage - a broad-based social movement hostile to legal efforts to secure the equality of women and the separation of church and state. Roe rage opposes ideals of individualism and secularism that lie at the foundation of our modern constitutional order. Accommodating resistance to Roe thus presents normative questions analogous to those posed by accommodating resistance to Brown. The article concludes by illustrating how the themes of Roe rage have recently found expression in the Supreme Court's opinion in Carhart.