Cover image for An Entrenched Legacy: How the New Deal Constitutional Revolution Continues to Shape the Role of the Supreme Court By Patrick M. Garry

An Entrenched Legacy

How the New Deal Constitutional Revolution Continues to Shape the Role of the Supreme Court

Patrick M. Garry


$30.95 | Paperback Edition
ISBN: 978-0-271-03281-8

Available as an e-book

200 pages
5.5" × 8.5"

An Entrenched Legacy

How the New Deal Constitutional Revolution Continues to Shape the Role of the Supreme Court

Patrick M. Garry

“This is a clear and well-informed addition to the line of strong critiques of the modern practice of judicial review.”


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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.

“This is a clear and well-informed addition to the line of strong critiques of the modern practice of judicial review.”
“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.”
“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 the 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 a 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. It thesis is important, its prose clear as a bell.”
“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.”
“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.”
“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 and 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.”
“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.”
“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.”
“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 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.”
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.”
An Entrenched Legacy is a short book, which is a refreshing change for a legal text. It is crisp and informative, providing the right amount of detail to inform the novice and refresh the experienced lawyer.”
“In An Entrenched Legacy, Patrick Garry delivers a forceful indictment of the most basic trajectories of U.S. Supreme Court decision making in the modern period.”

Patrick M. Garry is Associate Professor of Law at the University of South Dakota.



1. The New Deal Constitutional Revolution

2. At the Heart of the Revolution: The Constitution’s Structural Provisions

3. How the Administrative State Has Boosted Judicial Power

4. The Court’s Federalism Revolution

5. A One-Sided Federalism Revolution: Ignoring the Liberty Side of Federalism

6. Contradicting the Federalism Revolution: The Court’s Nationalizing Rights-Jurisprudence

Conclusion: A Stifling of the Democratic Process



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