The Restoration Narrative in Constitutional Law
As Opposed to the Redemption Narrative
Constitutional law is organized by oppositions: the right vs. the left, originalists vs. nonoriginalists, activism vs. restraint, minimalists vs. maximalists. But if we step back a bit, we will see something else, and something that we have not really seen before.
In area after area, one after another, the Supreme Court is embracing what we might call Restoration Narratives. Those narratives have a simple structure: At the time of ratification, the Constitution meant X; the Constitution was illegitimately understood, in some period, to mean Y; we must now restore X. (It is a bit like Star Wars, the first trilogy. The Empire Struck Back. What we need is: The Return of the Jedi.)
In other periods of constitutional history, Restoration Narratives were not nearly so pervasive. And in prominent (modern) periods of constitutional change, we have not ordinarily seen Restoration Narratives. We have instead seen something altogether different: Redemption Narratives.
(A qualification: During the New Deal, we saw, on occasion, a Restoration Narrative. But it was nothin’ like what we are seeing today.)
(A story: When I clerked for Justice Marshall in the early 1980s, Justice Rehnquist, not yet the Chief, agreed to have lunch with Marshall’s clerks. Rehnquist, who was as nice as he could be, told us about his conception of his role. He put his hands together and slowly tilted them to the left. He said, “In my view, that’s where the Court went. Like a boat whose sail got tilted..” Then he slowly moved his hands to the center, upright. “My job is to put it straight.” Note that Rehnquist was speaking of left and center, not of restoration, at least not directly.)
This is all speculative and preliminary, but let me explain what I have in mind, with reference to examples:
The Unitary Executive: The clear narrative is one of Restoration. (1) The founding generation established a unitary executive. (2) That idea collapsed in 1935, or maybe earlier, in a patent betrayal of the founding document. (3) Now, in 2025, we are restoring it.
Colorblindness: The clear narrative is one of Restoration. (1) The Fourteenth Amendment established a requirement of colorblindness. (2) Plessy departed from that idea; (3) Brown restored it. And (2) The affirmative action cases departed from that idea. (3) Like the Brown Court, the Roberts Court has restored it. (Important note: Brown itself did not embrace a Restoration narrative.)
The Gun Right: The clear narrative is one of Restoration. (1) The founding generation established a private right to possess firearms. (2) The right was not recognized for a long, long time. (3) Now, in the twenty-first century, we are restoring it.
Abortion and substantive due process: The clear narrative is one of Restoration. (1) “Substantive due process” was originally limited to rights vindicated by tradition. (2) Roe v. Wade parted from that understanding, allowing courts to give their own preferred content to “liberty.” (3) Dobbs was an exercise in restoration.
Chevron: The clear narrative is one of Restoration. (1) The Administrative Procedure Act, following Marbury, established that it is emphatically the province and duty of the judicial department to say what the law is. (2) Chevron departed from that idea. (3) Loper Bright restored it.
There are other examples, but you get the point. An emerging - or better, the defining - theme of the Roberts Court lies right here. It’s all about Restoration. Call if the Restoration Court. (That could be a plausible Foreword to the Harvard Law Review’s Supreme Court issue.)
Let’s bracket the question whether the Restoration is real or faux. (For the unitary executive and colorblindness, at least, there is a powerful argument that it is faux.) It’s the Court’s analysis, and I think its self-understanding, that I aim to highlight.
Some illuminating work is now comparing the Roberts Court to the Warren Court. (See https://harvardlawreview.org/print/vol-139/to-a-conservative-warren-court/) In many respects, the analogy holds.
But note well: the Warren Court rarely spoke of Restoration. In striking down racial segregation, in broadly protecting freedom of speech, in calling for one-person, one-vote, in renovating the criminal justice system, and in starting to transform and vindicate substantive due process, its reigning narrative was one of Redemption.
What was being redeemed? Some kind of national promise or commitment. Redemption, not Restoration.
A major fault line in American constitutional law (and maybe American politics) lies here, I suggest.