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Supreme Court Review

Article Title

Civil Liberties Outside the Courts

Abstract

When critics of a countermajoritarian judiciary agonize over the cost to civil liberties of deference to the elected branches, they proceed on a false historical premise. They assume that courts were inextricably tied to the American tradition of expressive freedom and minority rights that emerged in the aftermath of the First World War. In fact, even the staunchest interwar advocates of civil liberties shared deep misgivings about judicial power. Many imagined and administered alternative regimes for civil liberties enforcement—methods that marshaled state power to counteract distortions in the marketplace of ideas and to advance substantive rights. Surprisingly, these early proponents of civil liberties linked the term, above all, to workers’ rights to organize, picket, and strike. As partisans of organized labor, they were profoundly skeptical of judicial intervention. The court-centered strategy that ultimately prevailed was fiercely contested throughout the New Deal, well after the foundational First Amendment victories. Reconstructing these competing visions of civil liberties and the corresponding experiments in civil liberties enforcement before and after the “Constitutional Revolution” of the New Deal provides an important corrective to contemporary debates over court-based constitutionalism. In areas ranging from same-sex marriage to racial equality, recent decades have witnessed a resurgence of interest in extrajudicial approaches to advancing civil rights. Endorsements of popular constitutionalism and calls for constitutional amendment and judicial restraint manifest a growing aversion to the court-centered rights mobilization that dominated legal academia and the liberal imagination for almost half a century.

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