The Structural Constitution and the Rehnquist Court

By Eric R. Claeys
March 04, 2006
Most retrospectives about the Rehnquist Court frame its legacy in terms of a debate between “the living Constitution” and the “original Constitution.” This contrast captures an important and rich debate on the Rehnquist Court. Chief Justice William Rehnquist, after all, created a name for himself by railing early in his judicial career against “the notion of a living Constitution.” Thus, some retrospectives aggressively criticize the Rehnquist Court for straying from the living Constitution and mistakenly trying to return to the dead, original Constitution. Others portray the Rehnquist Court as a seesaw struggle between the living and original Constitutions, in which some of the Court’s more conservative members surprise all by embracing moderation and preserving the living Constitution....