Quiet-Revolution Rulings in Constitutional Law

By Coenen, Dan T. | Boston University Law Review, October 2019 | Go to article overview

Quiet-Revolution Rulings in Constitutional Law


Coenen, Dan T., Boston University Law Review


Introduction

Some Supreme Court rulings make a grand entrance. Marbury v. Madison,1 McCulloch v. Maryland,2 and Miranda v. Arizona3 illustrate the point. In each of these cases, the Court launched a transformative constitutional principle in a setting marked by white-hot public debate. Oftentimes, high-profile decisions build on high-profile decisions that came before. Brown v. Board of Education4 drew on Sweatt v. Painter.5 Roe v. Wade6 pointed to the earlier Griswold v. Connecticut7 and Eisenstadt v. Baird8 decisions. The Court's same-sex-marriage ruling in Obergefell v. Hodges9 found support in Romer v. Evans,10 Lawrence v. Texas,11 and United States v. Windsor.12 With these pronouncements, too, visibility was high, and the effort to establish new doctrine met stiff resistance. Citizens took notice. Interest groups took sides. The media editorialized. Opinion leaders railed. Other opinion leaders railed right back.

Sometimes the legal community, more so than the larger political community, takes on the task of monitoring the Supreme Court's work. With regard to Craig v. Boren,13 for example, ordinary citizens likely had little interest in the nuances of state "near beer" regulation, but a majority of the Court used the case both to articulate and to justify a new "intermediate scrutiny" test for laws that treat women and men differently.14 In response, then-Associate Justice Rehnquist penned a vigorous dissent,15 and the importance of the ruling was hardly lost on lawyers and legal academics.16 Many cases fit the mold of Craig. The majority reasons its way to embracing a new legal principle in the face of objections set forth in a dissenting opinion. Constitutional analysts line up on one side or the other. The law takes shape in a crucible of robust disagreement within the legal profession.

Cases such as Marbury, Brown, and Craig-and less famous rulings that share their focus on thoughtful justification-dominate thinking about the Court's work. These are the cases that fill the pages of constitutional law casebooks, in part because the very elaborateness of their reasoning makes them lengthy in character. These decisions combine the announcement of major principles with conscientious exercises of the lawyerly craft, which in turn trigger reactions-often expressed in dissenting opinions-likewise rooted in reason-giving. These rulings conform to lawyerly notions about how law is done in part because lawyerly training and lawyerly work center on reasoned analysis.

Sometimes, however, the Court issues rulings of a very different kind. In these cases, the Court does not exercise the lawyerly craft. Instead, the Court lays down major doctrines without offering reasons on their behalf. New principles thus do not enter the law by earning victory in pitched battles. Instead, they capture ground-often sprawling ground-without the support of any analysis at all. This Article considers this set of "quiet-revolution rulings." In four parts, it documents and explores the significance of this important, but little-noticed, feature of the Supreme Court's constitutional work.

Part I offers examples of quiet-revolution rulings. An illustration is provided by Schenck v. United States,17 the First Amendment case that initially set forth the rhetoric of "clear and present danger."18 In Schenck itself, Justice Holmes used the phrase almost in passing, without stirring even a hint of objection from any other Justice. In dozens of later cases, however, the Court drew on this pronouncement to push First Amendment law in a strongly libertarian direction. As a result, a quiet revolution took place, and it took place because an action of the Court that went largely unnoticed at the time later played a major role in the remolding of constitutional doctrine.19 This Article shows that similar developments mark almost all areas of constitutional law. From incorporation to reverse incorporation, from means-ends analysis to the law of federal courts, from equal-protection limits to commerce-power doctrine-in all these areas, quiet legal revolutions have radically reshaped the legal landscape. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Note: primary sources have slightly different requirements for citation. Please see these guidelines for more information.

Cited article

Quiet-Revolution Rulings in Constitutional Law
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen
Items saved from this article
  • Highlights & Notes
  • Citations
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Search by... Author
    Show... All Results Primary Sources Peer-reviewed

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.