The New Deal Supreme Court revised a well-known set of constitutional doctrines. Legal scholarship has principally focused on the changes that occurred in three areas--federalism, delegation, and economic liberty. This Article identifies a new and important fourth element of New Deal constitutionalism: a change in the constitutional doctrine of due process notice, the doctrine that specifies the minimum standards for constitutionally adequate notice of the law. The law of due process notice--which includes the doctrines of vagueness, retroactivity, and the rule of lenity--evolved dramatically over the course of the New Deal to permit lesser clarity and to tolerate more retroactivity. The upshot has been the near-total elimination of successful notice-based challenges other than in the limited context of First Amendment vagueness attacks.
Unlike the more famous doctrinal changes of this period, changes to due process notice doctrine were not obviously necessary to accommodate the New Deal legislative agenda, either as a matter of jurisprudence or as a matter of politics. Due process notice doctrine nonetheless underwent a radical transformation in this era, as the Court came to regard its broader shift toward deferring to legislative and executive policy decisions as requiring the relaxation of due process notice doctrine. The link forged between deference and notice had significant functional effects on the most important audience for the Court's notice jurisprudence--Congress. By loosening the strictures of due process notice doctrine, the Court lowered sharply the enactment costs of federal legislation and thereby facilitated its proliferation. This is a distinct, and hitherto unacknowledged, mechanism by which the Court in this period enhanced national power and encouraged the flourishing of the emerging administrative state.
Like much of the New Deal "settlement," the New Deal reformulation of due process notice doctrine is today the subject of ferment in the courts. Recognizing the New Deal roots of due process notice doctrine is critical for understanding these ongoing judicial debates--and for beginning the conceptual work of mapping the future shape of this vital cluster of doctrines.
TABLE OF CONTENTS Introduction I. The Facets of Due Process Notice Doctrine II. The New Deal Reformulation of Due Process Notice Doctrine A. Vagueness 1. Facial Challenges 2. Civil Economic Legislation 3. Criminal Legislation B. Retroactivity C. The Rule of Lenity D. Summary III. The Buffer's Significance IV. The Buffer's Durability Conclusion.
It is an oft-told tale. In the latter half of the 1930s, with the country in the grip of the Great Depression, the Supreme Court reversed course on three constitutional issues of vital significance to President Roosevelt's legislative agenda for economic recovery. The Court abandoned the doctrine of liberty of contract, (1) it approved congressional delegations to federal regulatory agencies, (2) and it embraced an expansive view of Congress's legislative powers under Article I. (3) By thus reformulating the rights of individuals, of the federal government, and of the states, New Deal constitutionalism upended the existing architecture of American government and laid the groundwork for the subsequent flourishing of the administrative state . (4)
On the list of doctrinal changes that make up New Deal constitutionalism, the most famous entries are the revisions to the doctrines of economic due process, delegation, and federalism. (5) A longer version of the list espoused by some scholars also includes the New Deal Court's emerging solicitude for civil and political rights, (6) its approval of augmented presidential powers over foreign affairs, (7) and its shifting treatment of common-law sources, (8) But another significant change that also …