Monday, April 14, 2014

Lain on Reconstructing Engler

Corinna Lain, University of Richmond School of Law, has posted God, Civic Virtue, and the American Way: Reconstructing Engel, which is forthcoming in the Stanford Law Review 67 (2015).  Here is the abstract:    
If ever a decision embodied the heroic, countermajoritarian function we romantically ascribe to judicial review, it was the 1962 decision that struck down school prayer — Engel v. Vitale. Engel provoked more outrage, more congressional attempts to overturn it, and more attacks on the Supreme Court than perhaps any other decision in its history. Indeed, Engel’s countermajoritarian narrative is so strong that scholars have largely assumed that the historical record supports our romanticized conception of the case. It does not. Using the lens of legal history, this Article reconstructs the story of Engel, then explores the implications of this reconstructed narrative. Engel is not the countermajoritarian case it seems, but recognizing what it is not allows us to see Engel for what it is: a remarkably thick account of Supreme Court decision-making that enriches a number of conversations in constitutional law. Engel adds a new strand to a burgeoning body of scholarship on the power of culture in general, and social movements in particular, to generate constitutional change. It presents a rare glimpse of the Justices explicitly engaging in the dialogic function of judicial review. And it exposes qualitative differences in the way popular constitutionalism might play out in practice, with implications for the theory itself. In the end, Engel is still a case that offers valuable insights about Supreme Court decision-making and the role of judicial review. They just aren’t the insights that conventional wisdom would have us think.

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