The burden of this Essay is to argue that the conventional wisdom about the Court's resolution of the crisis of 1937 both begs the question of the Court's jurisdiction to prescribe substantive rules governing our rights,' and misses the point that history proves the Court unfit to be the sole repository of such a sweeping power. Part I will argue that the Founders' vision of a "compound"
American republic was lost when the Supreme Court of the United States used the New Deal controversy over the limits of judicial review to accomplish one of the most far-reaching power grabs in the history of the Republic. Part II will discuss how erroneous assumptions about the prescriptive jurisdiction of the Court lead lawyers, judges, academics, and politicians to forget that the "crisis of 1937" was about neither "values" nor "political participation." It was about power. They therefore miss Madison's point: No branch of government can be trusted with preemptive power to define our rights and duties. Parts III and IV argue that the Supreme Court's post-New Deal vision of the role of the political branches in the struggle for human dignity and equal rights is too weak, and that it has done great harm to the body politic each time it has attempted to settle a difficult political and moral issue by striking what appears, at the time, to be a "balance" between otherwise irreconcilable world-views. From this perspective, the Rehnquist Court serves the cause of civil rights each time it reaffirms the "compound" nature of our republic by forcing a political solution.
The Essay concludes by making three points about the Realpolitik of footnote four. The first is that it should come as no surprise that politicians are sometimes either unable or unwilling to protect the liberty, security, and equal rights of each person. The Court does not do so either. Footnote four and the text it accompanies hold that the type and degree of protection owed by the Justices themselves to the litigants who appear before them varies in inverse proportion to the Court's perception of their social status or need.
The second is that when politicians and judges take the oath of office prescribed by Article VI, each of them undertakes the same sacred duty to the "whole person" embodied in each individual subject to their political jurisdiction. The oath-like the Constitution they are sworn to "support and defend"-is neither selective nor abstract. Its stated goal is the equal protection of the whole person and citizen, not disembodied "values," abstract liberties, or factional interests.
The third point follows from the first two. Like the framers of the Fourteenth Amendment, FDR attacked the Court because he believed that it had taken sides in what he called the "unending struggle between those who would preserve this original broad understanding of the Constitution as a layman's instrument of government and those who would shrivel the Constitution into a lawyer's contract." Until the Court accepts the proposition that a judiciary perceived for any reason to be biased or otherwise "activist" contributes to the destruction of the fabric of republican self-government envisioned in Federalist 51, it is pointless to decry the increasingly vitriolic tenor of the rhetoric surrounding judicial decisions and nominations. "In the compound republic of America," it is the threat that "different governments will control each other" that provides the guarantee that "at the same time... each will be controlled by itself."
Robert A. Destro, Federalism, Human Rights, and the Realpolitik of Footnote Four, 12 WIDENER L. J. 373 (2003).