Rethinking the New Deal Court: The Structure of a Constitutional RevolutionRethinking the New Deal Court: The Structure of a Constitutional Revolution challenges the prevailing account of the Supreme Court of the New Deal era, 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. |
Contents
| 3 | |
| 9 | |
A New Trial for Justice Roberts | 45 |
The Trail of the Yellow Dog | 107 |
The Levee Breaks | 139 |
Notes | 227 |
Index | 309 |
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Rethinking the New Deal Court: The Structure of a Constitutional Revolution Barry Cushman Limited preview - 1998 |
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79 Cong Adair Adkins Alsop and Catledge Amendment association bargaining bill Brandeis Brief business affected Cardozo Carter Coal Charles Evans Hughes Chief Justice citing commerce clause commerce doctrine commerce power Congress congressional constitutionality contended Coppage Corwin current of commerce Deal Lawyers decision dissent due process economic employees federal Felix Frankfurter flow Frankfurter Franklin D Harlan Fiske Stone Holmes Ibid industry interstate commerce intrastate Jackson MSS Jones & Laughlin judicial Justice Roberts legislation Leuchtenburg liberty of contract majority opinion manufacturing Mason Memorandum ment merce minimum wage Munn Nebbia NLRB overruled Parrish police power political price regulation production protection provisions public interest Railroad Railway Ribnik Roosevelt Schechter Senate Stafford Stanley Reed statute stockyards substantive due process Supreme Court Sutherland Taft tion Tipaldo tobacco union United upholding Virginian Railway vote wage regulation Wagner Act Wickard Wolff Packing workers wrote yellow-dog contracts York
Popular passages
Page 48 - Property does become clothed with a public interest when used in a manner to make it of public consequence, and affect the community at large. When, therefore, one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good, to the extent of the interest he has thus created.
Page 141 - Not only, therefore, can there be no loss of separate and independent autonomy to the States, through their union under the Constitution, but it may be not unreasonably said that the preservation of the States, and the maintenance of their governments, are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the National government. The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States.
Page 248 - If, therefore, a statute purporting to have been enacted to protect the public health, the public morals, or the public safety has no roal or substantial relation to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the constitution.
Page 80 - It is clear that there is no closed class or category of businesses affected with a public interest, and the function of courts in the application of the Fifth and Fourteenth Amendments is to determine in each case whether circumstances vindicate the challenged regulation as a reasonable exertion of governmental authority or condemn it as arbitrary or discriminatory. Wolff Packing Co. v. Court of Industrial Relations, 262 US 522, 535. The phrase "affected with a public interest...
Page 132 - It is hereby declared to be the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce and to mitigate and eliminate these obstructions when they have occurred by encouraging the practice and procedure of collective bargaining...
Page 287 - But the authority of the federal government may not be pushed to such an extreme as to destroy the distinction, which the commerce clause itself establishes, between commerce "among the several States" and the internal concerns of a State.
Page 132 - The inequality of bargaining power between employees who do not possess full freedom of association or actual liberty of contract, and employers who are organized in the corporate or other forms of ownership association substantially burdens and affects the flow of commerce, and tends to aggravate recurrent business depressions, by depressing wage rates and the purchasing power of wage earners in industry and by preventing the stabilization of competitive wage rates and working conditions within...
Page 274 - ... no employee and no one seeking employment shall be required as a condition of employment to join any company union or to refrain from joining, organizing, or assisting a labor organization of his own choosing...
Page 163 - The denial by employers of the right of employees to organize and the refusal by employers to accept the procedure of collective bargaining lead to strikes and other forms of industrial strife or unrest...
Page 163 - ... materially affecting, restraining, or controlling the flow of raw materials or manufactured or processed goods from or into the channels of commerce...