The New Deal and Its Legacy: Critique and Reappraisal

By Robert Eden | Go to book overview

8 Arthur Shenfield
The New Deal and the Supreme Court

Of all the effects of the legacy of the New Deal, the most baleful has almost certainly been its subversion of the Supreme Court. Without this effect the other destructive effects of the New Deal might not have survived long after the trauma of the Great Depression and the fresh memory of it had passed away.

From the time of Chief Justice Marshall's magisterial statement in Marbury v. Madison, 1 it has been a fundamental article of legal and political doctrine that the Supreme Court is the supreme interpreter of the U.S. Constitution and the ultimate authority for its application and enforcement. In effect, this means that it was such ab initio (i.e., from 1787, not from 1803), though Marshall's three predecessors did not say so, and at least Jefferson, of the early Presidents, did not agree with it (though it was already implied in some of Hamilton's observations in The Federalist). 2 Statewise, it had already been explicitly accepted by eight of the seventeen states to which the Union had grown by 1803.

Let us notice here that the Court was properly conceived to be the authority for the enforcement of the Constitution, but not the actual enforcer (remember Andrew Jackson's taunt in the case of the Georgia Indians, "John Marshall has made his judgment. Now let him enforce it"). 3 This point is relevant to our times when federal judges have taken it on themselves to supervise the administration of schools, prisons, and state electoral reapportionment programs, thus in my opinion contumaciously usurping the functions of the executive branch. What Marshall's splendid intellect and wisdom did was not to give birth to the doctrine of the judicial guardianship of the Constitution, but to give it clear and compelling expression, for which generations of Americans must be deep in his debt.

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