Rethinking the New Deal Court: The Structure of a Constitutional Revolution

Rethinking the New Deal Court: The Structure of a Constitutional Revolution

Rethinking the New Deal Court: The Structure of a Constitutional Revolution

Rethinking the New Deal Court: The Structure of a Constitutional Revolution

Synopsis

Rethinking the New Deal Court challenges the prevailing account of the New Deal era Supreme Court, which holds that in the spring of 1937 the Court suddenly abandoned jurisprudential positions it had staked out in such areas as substantive due process and commerce clause doctrine. In this view, the impetus for such a dramatic reversal was provided by external political pressures manifested in FDR's landslide victory in the 1936 election, and by the subsequent Court-packing crisis. Author Barry Cushman, by contrast, discounts the role that political pressure played in securing this "constitutional revolution." Instead, he reorients study of the New Deal Court by focusing attention on the internal dynamics of doctrinal development and the role of New Dealers in seizing opportunities presented by doctrinal change. Recasting this central story in American constitutional development as a chapter in the history of ideas rather than simply an episode in the history of politics, Cushman offers a thoroughly researched and carefully argued study that recharacterizes the mechanics by which laissez-faire constitutionalism unraveled and finally collapsed during FDR's reign. Identifying previously unseen connections between various lines of doctrine, Cushman charts the manner in which Nebbia v. New York's abandonment of the distinction between public and private enterprise hastened the demise of the doctrinal structure in which that distinction had played a central role.

Excerpt

This is not the book I set out to write. After watching me engage in more than the usual amount of fumbling around for a dissertation topic, my graduate adviser mercifully pulled me aside and suggested one. My subject was to be the evolution of constitutional culture during the decade of the 1920s. In order to elucidate the range of constitutional constraints and opportunities within which policy makers confronting the economic crisis of the 1930S worked, I was to undertake a set of case studies designed to determine the contours of contemporary thought concerning the commerce power, the spending power, and substantive due process on the eve of the depression decade. My story would stop with the death of Chief Justice Taft in 1930, and it would be for someone else (if anyone at all) to unpack the implications (if any) of my findings for subsequent events.

I began with the commerce power study, and with the legislative history of the Packers and Stockyards Act of 1921. In perusing the debates over the bill's constitutionality, I found the legislators discussing commerce clause doctrine in ways that seemed odd and unfamiliar to me. I recognized that there was something going on that I didn't fully appreciate, but I couldn't dope out exactly what it was. Walking home from the gym one day, under the influence of an unusually heavy dose of endorphins, it occurred to me that the debates in question had seemed peculiar because they had assumed relationships between commerce clause jurisprudence and substantive due process doctrine that had previously eluded my attention. As I probed deeper into my study, I began to notice more such interdoctrinal connections. Eventually, I came to the conclusion that the story of these connections--their formation, development, and disintegration--might help to explain some of the constitutional change of the New Deal period. It is that story that I seek to tell in this, the book I inadvertently wrote.

In the course of this misadventure I have accumulated a great many debts and made a great many friends. My greatest intellectual debt is to Charles McCurdy. In addition to teaching me how to run the West Coast offense, he was the merciful graduate adviser who initially suggested the project and guided it to completion as a dissertation. Throughout the process he brought to the enterprise the keen critical and synthetic capacities and the staggering breadth and depth of knowledge of . . .

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