The Decline of Legal Classicism and the Evolution of New Deal Constitutionalism
Olken, Samuel R., Notre Dame Law Review
The constitutional revolution of the New Deal era was neither swift nor the calculated response of embattled jurists to the external pressures of politics and culture. More evolutionary than revolutionary, the transformation of the Supreme Court's constitutional jurisprudence of economic liberty occurred in an incremental manner that was non-linear in both its chronology and scope. Although external matters such as the appointment of more progressive Justices between 1925 and 1941, in addition to the catalytic effect of the Great Depression, were significant elements in this jurisprudential change, the Court's adoption of a more deferential approach towards public regulation of private economic affairs (1) was primarily the product of a series of internal doctrinal developments. Over the last quarter of a century historians and legal scholars have debated both the nature of this jurisprudential shift and its rationale. In an effort to deconstruct, or perhaps reconstruct, what happened nearly seventy-five years ago, they have also examined in some depth the characteristics of Lochner era police powers jurisprudence. (2) Not surprisingly, a broad range of explanations has emerged with no real unifying theory about why or how the Supreme Court altered its views about public control of private economic activity. (3) There even persists some disagreement about the actual timing of this change. (4)
Interestingly, the role that legal classicism itself played in the transformation of the Court's constitutional jurisprudence has been somewhat overlooked. Notwithstanding classical legal thought's obvious contribution to this jurisprudential change with the erosion of its principles as jurists struggled to apply its tenets to the problems of the New Deal era--a subject that has logically concerned many scholars (5)--there has been relatively little attention afforded to the manner in which some aspects of legal classicism actually helped facilitate the jurisprudential shift. This shift was one that displaced a structure of thought and set of ideologies that pervaded constitutional law throughout the late nineteenth and early twentieth centuries. By the end of the 1930s, a divided Court adopted a more flexible and pragmatic approach towards assessing the constitutional limits of public regulation of private economic activity, one that featured a conscious effort to apply the Constitution to changing economic conditions and balanced public power and private rights. Yet this transformation in part was shaped by the persistent influence of legal classicism, as the Justices grappled with the parameters of local economic regulation during a period that challenged their assumptions about the role of judicial review and the nature of constitutional limitations. Consideration of the interplay between legal classicism and the emergence of New Deal constitutional adaptivity on the Supreme Court underscores the evolutionary nature of this jurisprudential shift and its essentially internal characteristics.
This Article explores how some of the salient characteristics of classical legal thought influenced the evolution of the Supreme Court's constitutional jurisprudence during the New Deal era. It focuses upon the Court's jurisprudence of economic liberty in the context of substantive due process. Though a similar pattern of evolution occurred in the Court's Commerce Clause jurisprudence, examination of this area of constitutional development is beyond the scope of this Article. Part I provides an overview of legal classicism and its influence upon late nineteenth and early twentieth-century constitutional law. The next Part examines the paradox of legal classicism and its eventual decline. The final Part analyzes the interplay between legal classicism and the evolution of New Deal constitutionalism.
I. THE EDIFICE OF CLASSICAL LEGAL THOUGHT
Throughout the late nineteenth and well into the twentieth century, constitutional law derived much of its analytical and interpretative framework from classical legal thought. …