AN ENTRENCHED LEGACY

Description of An Entrenched Legacy: How the New Deal Constitutional Revolution Continues to Shape the Role of the Supreme Court (Penn State University Press)

An Entrenched Legacy: How the New Deal Constitutional Revolution Continues to Shape the Role of the Supreme Court was named as a finalist for the 2009 Henry Paolucci/Walter Bagehot Book Award.  This award considers books from a wide range of humanistic disciplines including but not limited to American foreign policy, political science (especially political philosophy), higher education in the United States, English literature and comparative literature (nonfiction only), intellectual history, the future of the humanities, history, philosophy, and the history of science.

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.

Reviews of An Entrenched Legacy

“This is a clear and well-informed addition to the line of strong critiques of the modern practice of judicial review.”
Robert F. Nagel, Ira C. Rothgerber Jr. Professor of Constitutional Law, University of Colorado

“In An Entrenched Legacy Patrick Garry takes up the central question of constitutional law.  The question is not whether liberty is the goal of our constitutional system.  It surely is.  The question is how our Constitution was basically designed to secure liberty.  Was it by entrusting unelected federal judges with a practically unchecked power to interpret the Bill of Rights?  Or was it by stating with care the extent of our national government’s powers, dividing them among the three branches, and by reserving general authority to the states?  Garry’s book is a lucid and cogent argument that it is the latter. Combining careful historical research with lucid exposition of Supreme Court cases, Garry shows how the Supreme Court since the New Deal has dismantled much of the founders’ deft design, and thus made its own emergence as high protector of liberty almost inevitable.  Call it usurpation or call it progress if you like.  Either way Garry’s telling of the story is spot on and timely. An Entrenched Legacy is for specialists and general readers alike. Its thesis is important; its prose clear as a bell.”
-Gerard V. Bradley, Professor of Law, University of Notre Dame

Patrick Garry argues powerfully and provocatively that the gradual erosion of judicially enforced federalism and separation of powers inevitably forces the federal judiciary to take up sides in broader political and social conflicts.  The end result is a greater centralization of political power not just in the hands of the federal government, but in the judiciary itself.
-Johnathan H. Adler, Professor of Law, Case Western Reserve University School of Law

“This is a fresh, contemporary look at the causes and cure for the temptations of ‘judicial activism’ that have led the Court to preempt important questions of policy that properly belong to the people and their elected representatives in our Republic’s constitutional structure.”
-Lynn Hogue, Professor of Law, Georgia State University

“Patrick Garry has written a thought provoking and important book regarding how the U.S. Supreme Court’s constitutional doctrines in areas such as individual rights, federalism, and separation of powers have evolved in recent history.  Whether one agrees or disagrees with his thesis, the book advances a significant novel perspective on American constitutional law with great clarity.  Professor Garry also does an excellent job writing about these complex topics in an accessible and interesting manner.”
-Mark Kende, Professor of Law, James Madison Chair in Constitutional Law, and Director of the Drake Constitutional Law Center, Drake University Law School

“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, Professor of Law, University of San Diego

“In this important book, Patrick Garry argues that allowing judges to pick and choose which rights are ‘fundamental,’ impose national standards for their enforcement, and remove policy from democratic debate is both a thin reed on which to secure our liberties, and a recipe for democratic atrophy.  Garry calls for revitalizing democracy and protecting individual liberties through a renewed focus on the Constitutional structure of government, including separation of powers, enumerated powers, and most importantly, a truly revitalized federalism.  A fine contrarian work, this book will interest students of constitutional law and history, administrative law, and all those citizens who just want to understand the barren nature of so much political debate.”
-Bradley A. Smith, Professor of Law, Capital University Law School and Former Chairman, Federal Election Commission

“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, Jessie D. Puckett, Jr., Lecturer in Law and Associate Professor of Law, The University of Mississippi School of Law

“Professor Garry demonstrates how the often criticized power of the modern Court has its roots in the constitutional revolution of the New Deal.  Although the Court’s rulings on individual rights are usually the focus of critics of this heightened judicial power, Garry shows how decisions in the areas of separation of powers and federalism have also increased the power of the Court.  In exploring the Rehnquist Court’s federalism revolution, for instance, Garry reveals a one-sidedness to that revolution, convincingly arguing that it should have pursued a rights or judicial federalism along with a legislative federalism. An Entrenched Legacy provides an original, insightful and well-researched analysis into the reasons and ramifications of the constitutional drift of power to the Court.”
-William Quirk, Professor of  Law, University of South Carolina

“In a fluid and engaging style, Patrick Garry synthesizes case law and the secondary literature to break new ground regarding the Constitution’s structural features and the protection of individual rights and liberties. He makes a very compelling case for the revival of federalism and the necessity for judicial restraint in fashioning a rigid codex of national rights and liberties. In a pluralist society, as he clearly argues, there is a need for a more flexible accommodation of individual rights and majority rule. He carefully distinguishes between principles of federalism, which he supports vigorously, from the tired and often misappropriated states-rights argument. The author makes an important contribution to understanding the vitality of the Constitution’s structural principles, their utility in protecting individual liberty, and necessity for greater reliance on the democratic process to correct the misuse of governmental power. This book should provoke a lively debate among students of public law, jurisprudence, and political science.”
-Edward Keynes, Penn State University

“I commend Prof. Garry on writing this fine book, which takes a wide sweep of constitutional theory and history. If the mark of a good book be that it prompts one to think about an issue in new and novel ways, this is a good book.

First, and most important, Prof. Garry is absolutely right that the great divide in our constitutional history is marked by the New Deal Court’s jurisprudence in 1937 and ’38, following President Roosevelt’s infamous Court-packing scheme. And second, he’s right in contending that the Court’s so-called restraint at that time—its deference to the political branches—led to the judicial activism that eventually followed, especially during the era of the Warren and Burger Courts, but continuing right up to the present as well. And third, he’s right that the Court’s failure to enforce the Constitution’s structural principles—in particular, federalism and separation of powers principles—is crucial to explaining how so much today ends up in the courts and how so much in our lives turns on what the courts do.

One cannot but profit from reading Prof. Garry’s insights in this area, because he is on to something when he claims that the Court’s “restraint” in the 1930s, to allow for the governmental “expertise” the Progressives had long championed to be foisted upon us, was the precursor and precondition for the Court’s activism thereafter.”
-Roger Pilon, B. Kenneth Simon, Chair in Constitutional Studies, Director, Center for Constitutional Studies, CATO Institute

Cited in Ronald Rotunda, Treatise on Constitutional Law.

An Entrenched Legacy is crisp and informative, providing the right amount of detail to inform the novice and refresh the experienced lawyer. Professor Garry’s book raises interesting questions and challenges the reader to consider these issues from a new perspective. Whether one agrees or disagrees with Garry’s thesis, An Entrenched Legacy should be read by anyone interested in the interplay between constitutional structure, administrative law, and the expanding role of the federal judiciary in deciding issues of personal liberties.
The Federal Lawyer (for full review click here)

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. A key strength of An Entrenched Legacy is the linearity and concision with which Garry pursues his thesis. 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. 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.
Law and Politics Book Review

In this provocative work, Garry challenges the attitudinal and strategic models of judicial decision making subscribed to by many political scientists and argues instead that the rise of judicial power is not based on justices’ seeking to achieve certain policy outcomes but results from US Supreme Court decisions made during the New Deal.
Choice

Patrick M. Garry’s new book argues that the New Deal “revolution” in constitutional interpretation led the U.S. Supreme Court to abandon older constitutional rules that protected the states from federal government intrusiveness and, in so doing,” severely weakened the Constitution’s structural protections of liberty”. This change enabled the increasing number of federal regulatory agencies to do their work unencumbered by opposition from the states. Having essentially dismissed federalism as an unenforceable constitutional principle, Garry’s thesis continues, “the only remaining legal limit on federal power was the Bill of Rights.” Thus, he concludes, an increase in the Court’s willingness to protect individual rights followed naturally and inevitably from its unwillingness after 1937 to limit the federal government’s power vis-à-vis the states.

Such a result has been problematic in more ways than one, Garry argues. First, abandoning earlier federalism doctrines was possible only by ignoring what he calls “the unchanging text” of the Constitution. Second, the emergence of the modern administrative state in the form of federal regulatory agencies has diminished the power not only of the states but also of Congress because the work of such agencies is typically supervised by the courts rather than by lawmakers on Capitol Hill. Even more troubling, Garry contends, has been the nationalizing tendencies of the new emphasis on protecting individual liberties via the Bill of Rights. Without robust constitutional protections for the states, the Supreme Court’s civil libertarian rulings tend to establish uniform national rules in such areas as reproductive rights, freedom of speech, and freedom of religion, despite the sometimes substantial differences in community standards in those areas.

Garry, who teaches at The University of South Dakota School of Law, does acknowledge that in recent years the Supreme Court has tried to re-strike a balance between the federal government and states. Even that effort, he says, is much more limited than is commonly understood because “federalism’s revival has focused on protecting states from federal domination, [but] it has not significantly restricted the power of the federal government”….

The author has obviously read and considered a large number of relevant precedents, and he writes clearly and passionately on an important topic.
Journal of American History

Recommended as a “Book For Understanding The US Supreme Court” by Booksforunderstanding.org

Named as a finalist for the ISI 2009 Henry Paolucci/Walter Bagehot Book Award