The Jurisprudence of the Hughes Court: The Recent Literature

By Cushman, Barry | Notre Dame Law Review, May 2014 | Go to article overview

The Jurisprudence of the Hughes Court: The Recent Literature


Cushman, Barry, Notre Dame Law Review


D. Parrish

Professor Parrish distances himself from "traditional accounts" that "emphasize the importance of 1937 and argue that the Hughes Court executed a sudden constitutional revolution, an abrupt departure from earlier rulings when it came under intense political pressure from Roosevelt and Congress." (414) Instead, he clearly associates himself with "[r]evisionist interpretations" that "stress a more gradual constitutional evolution during the decade, one with doctrinal roots that reached back to the jurisprudence of the Taft and White eras." (415) He maintains that "[t]he year 1937, dominated by the 'Court-packing' fight and the Court's endorsement of critical New Deal reforms, has loomed so large in histories of the era that it has tended to oversimplify the convoluted course of constitutional development during the decade," (416) and urges greater attention to "the internal dynamics of legal reasoning and the more astute lawyering of the Roosevelt administration and its allies after 1935." (417) He rejects the contentions of scholars such as Edward Corwin and Bruce Ackerman that American constitutional law underwent a "sea change" during Hughes's tenure. (418) While he recognizes that decisions such as Nebbia, West Coast Hotel, and Jones & Laughlin "formally emancipated both state and federal governmental authority from constitutional constraints that had limited their regulatory functions over the previous half century," he insists that those constraints "had been weakened significantly during the progressive movement prior to World War I and even during the years of so-called constitutional fundamentalism under Chief Justice Taft. The depression decade," on this view, "provided the occasion for their final interment through a slow ritual that might have been shortened had the Court not been often sharply divided and, like most courts, unwilling to break too suddenly from the doctrinal grooves laid down in the past." (419) "In short, the Hughes Court finally confirmed the revolution in the relationship between the state and the American economy, one made ad hoc, piece by piece, at least since the eras of Theodore Roosevelt and Woodrow Wilson." (420) "American constitutional law," he concludes, "has been one long, winding river of development. So, too, with Hughes and his brethren. The road to West Coast Hotel, Jones iff Laughlin, or Herndon v. Lowry had been mapped, however faintly, by those jurists who came before them." (421)

Professor Parrish recognizes the important role that the narrow category of '"businesses affected with a public interest'" played in limiting government power to regulate wages and prices before 1934. (422)

   Marshaling a slim majority of five, the Hughes Court methodically
   chipped away at this inherited due process limitation beginning in
   1931 with O'Gorman & Young v. Hartford Fire Insurance Co., which
   sustained a legislative regulation of the commissions paid to
   insurance agents by their companies. Nebbia three years later
   effectively eliminated "business affected with a public interest"
   as a due process barrier to price regulations mandated by the
   state.... (423)

"The Four Horsemen, who dissented [in Nebbia], rightly regarded this judicial innovation as one that opened wide the doors to legislative control of the economy. Blaisdell and Nebbia, it can be argued, represented a significant shift in constitutional doctrine equal to any that came later." (424) For Nebbia "ultimately laid the foundation for the successful defense of state and federal minimum wage legislation," (425) "and the walls came tumbling down on minimum wage statutes with West Coast Hotel v. Parrish (1937), despite the brief procedural detour taken in Morehead v. New York ex rel. Tipaldo (1936)." (426)

With respect to developments in the Court's federalism jurisprudence, Professor Parrish emphasizes the importance of the doctrinal categories the Hughes Court Justices inherited, and the inattentiveness of early New Deal lawyers to the restraints those categories imposed. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

The Jurisprudence of the Hughes Court: The Recent Literature
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.