I count ten times in the past 225 years when judges--without any lead from legislators--have changed the law:
- John Marshall's original judicial review power grab.
- The privileging of entrepreneurial over other property interests in the early republic, as chronicled by Morty Horwitz's Transformation of American Law.
- Roger B. Taney's attempt to entrench slavery in the territories, in Dred Scott.
- The post-Civil War empowering of corporations with exorbitant privileges of citizenship and limited liability at the expense of government regulators and creditors.
- The post-1890 empowering of managers of bankrupt enterprises, at the expense of shareholders and bondholders, to keep their enterprises running.
- The early twentieth century claim that the Constitution enacts Spencer's Social Statics--that the Constitution's Commerce Clause does not say what it says.
- The post-1937 rollback: the claim that the federal government does in fact have the power to regulate interstate commerce and thus economic activity as it wishes.
- The Warren Court's declaration that the Constitution obliges it to do whatever it can to make this a free and equal country.
- The Bork-Posner-led transformation and rollback of antitrust doctrine.
- The Rehnquist trump: no matter what the law says, when an election is tied the right wing wins.
Is that rather a lot of constitutional moments, or rather a little?
