In the next few years, many Americans understand, the Supreme Court may provide answers to some of the most hotly contested questions of constitutional law—the scope of affirmative action and federal power, for example, or the future of Roe v. Wade. What fewer recognize is that if the balance of the current Court changes, the settlement of these questions will not be part of the ordinary stream of decisions, but will instead represent the culmination of a more fundamental battle over the Constitution that has been waged since the New Deal era, one whose outcome could define American government and politics for many decades to come.
This is not the first battle over the Constitution in American history, but the fourth. All four battles have concerned the nature and scope of federal power in balancing the values declared to be self-evident in the Declaration of Independence: liberty, equality, and popular sovereignty. In this sense, the fourth battle echoes the three earlier battles and encapsulates the unique status of the Constitution in American life as the one document that both divides and unites us.
The first battle, fought from 1787 to 1791 over the proposal and ratification of the Constitution, concerned the nature and scope of federal power to raise funds for the common defense, to create a national economy, and to protect private property against mob violence. The second battle, fought during and after the Civil War, concerned the preservation of the Union, the extinction of slavery, and the promise of extending civil and political rights to African Americans. The third battle, fought over Franklin D. Roosevelt’s court-packing proposal in 1937, concerned the constitutionality of the Progressive-era and New Deal regulatory state and whether the Supreme Court should interpret the federal government’s power to regulate the economy broadly or narrowly. This included Congress’s power to delegate authority to the president and the president’s power to act unilaterally at home and abroad.
Ever since the third battle ended in the Supreme Court’s decision to uphold the post–New Deal regulatory state, conservatives and libertarians have insisted that by abandoning checks on congressional, executive, and judicial power, the Court betrayed the original meaning of the Constitution. Ushering in the fourth battle for the Constitution, Republican presidents since Ronald Reagan have pledged to appoint justices who would reverse the post–New Deal understanding of the Constitution and limit federal and judicial power by reining in the administrative state, overturning Roe v. Wade, and enforcing the ideal of a color-blind Constitution.