Conservative Reformation, Popularization, and the Lessons of Reading Criminal Justice as Constitutional Law


Legal scholars tend to segregate the Supreme Court's criminal justice cases from the rest of the Court's constitutional jurisprudence. Leading accounts of the Rehnquist Court, for instance, understandably will focus on the Court's noteworthy work in federalism, national power, race, and religion, while scarcely making even passing mention of the Court's work in criminal justice. The consequence is an incomplete picture of constitutional law that neglects the lessons that might be taken from criminal justice to illuminate our understanding of the Court and its jurisprudence.
Criminal justice is an integral component of American constitutional law that needs to be integrated into the narrative of our constitutional times. When we view criminal justice in that spirit, we discover that post-Warren Court criminal justice jurisprudence has been the conceptual, theoretical, and strategic forerunner of the Rehnquist Court's prominent and groundbreaking activity in federalism, race, religion, and the like. By including criminal justice in the picture, we can recognize with greater clarity that the nation is in a period of conservative constitutional reformation that first began some thirty-five years ago in the criminal justice area. It was there that a distinctive cultural, political, and legal dynamic took shape to support the cause of conservative constitutional law reform. And it was there that the Court developed a distinctive conservative law reform discourse to bring about change in the law. That discourse has since fanned out across the constitutional landscape, bringing about conservative reform in one area after another.

Yet even as conservative reformation proceeds in several areas today, it has ended in criminal justice. The forces that inspired the conservative reformation of criminal justice are spent; a social, cultural, and political turn has been reached. Criminal justice has entered a new period of constitutional development that is significantly more liberty affirming than stereotypes of the Rehnquist Court would lead one to expect. The Court's recent decisions indicate that we have entered a period of popularization in criminal justice, with the development of a new corresponding discourse of popularization to sustain it. What is more, there is reason to think that criminal justice may once again be in the vanguard, and that the distinctive discourse of popularization can and will spread to other areas of constitutional law.

About the Author

Samuel Ashe Distinguished Professor of Constitutional Law, University of North Carolina at Chapel Hill.

By uclalaw