What Is HeinOnline?
HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.
Already a HeinOnline Subscriber?
Log In
![handle is hein.journals/hjlpp22 and id is 23 raw text is: THE STRUCTURAL CONSTITUTION AND THE
COUNTERMAJORITARIAN DIFFICULTY
STEVEN G. CALABRESI*
The last quarter century has seen an astonishing revival of
judicial, and especially Supreme Court, enforcement of the
structural constitution.1 This revival began in separation of
powers cases and has spread most recently to federalism cases.
From 1937 to the mid-1970s, the Supreme Court rarely enforced
structural constitutional guarantees when faced with
problematic congressional or presidential actions. Beginning in
the mid-1970s, however, a sea change occurred such that in
recent years the most talked about cases on the High Court's
docket have all been separation of powers or federalism cases.2
The purpose of this Symposium Issue is to explore the
striking revival in judicial enforcement of the structural
constitution in more depth. I want to begin that process in this
Foreword by offering a brief positive account of how and why
the structural constitutional revival began in the separation of
powers area precisely a quarter century ago during the Nixon
presidency, and how it gained force over the past six years
during the Clinton presidency. Analyzing the origins of the
separation of powers revival is helpful to understanding its
value and to appreciating its likely staying power. I believe the
origins of the structural constitutional revival suggest that
judicial enforcement of the structural constitution is likely to be
with us for some time to come.
As I suggested above, between 1937 and 1974, the Supreme
Court behaved in a largely Choperian fashion3 and rarely
* George C. Dix Professor of Constitutional Law, Northwestern University. I am
very grateful for the helpful suggestions of Gregory . Maggs, Gary Lawson, and
Thomas W. Merrill.
1. Steven G. Calabresi, Textualism and the Countenmajoritarian Dificulty, 65 GEO. WASH.
L. REV. 1373,1375-82 (1998) [hereinafter Textualism].
2 Id. at 137582.
3. JESSE H. CHOPER, JUDIcIAL REVIEW AND THE NATIONAL POLITICAL PROCESS: A
FUNCTIONAL RECONSIDERATION OF THE ROLE OF THE SUPREME COURT (1980) (arguing](ViewImageLocal?handle=hein.journals/hjlpp22&div=12&collection=&method=preview&ext=.png&size=3)