The Role of Constitutional Theory in the Cycle of Regimes

Abstract

Constitutional theories such as originalism and living constitutionalism evolve to reflect the changing attitudes of partisans and legal intellectuals in political time. They also develop to reflect changing views about judicial review and judicial restraint. For example, while conservative originalism began as a justification for judicial restraint, it soon evolved to justify strong judicial review; the same thing happened to living constitutionalism earlier in the twentieth century. Because we are near the end of the Reagan regime, Democrats are invested in judicial restraint and Republicans in judicial engagement. The situation is closest to the one faced by Democrats in the 1930s. Democrats’ relative hostility to the courts will continue until Democrats once again gain control through partisan entrenchment. However, because the Trump administration has worked hard to stock the courts with as many young conservative jurists as possible, this change may take some time.