An entrenched legacy: how the New Deal constitutional revolution continues to shape the role of the Supreme Court

2008 ◽  
Vol 45 (11) ◽  
pp. 45-6443-45-6443
Author(s):  
Randy E. Barnett

This chapter examines the revival of the presumption of constitutionality and its almost immediate qualification in the form of Footnote Four, which it argues is inconsistent with the Ninth Amendment. The era in which the Supreme Court attempted to scrutinize the necessity and propriety of state and federal restrictions on liberty came to a close as the perceived legitimacy of legislative activism continued to grow. The doctrinal vehicle used by the New Deal Court to overturn the Progressive Era precedents was the adoption of a presumption of constitutionality. The chapter first provides an overview of Footnote Four before discussing the Ninth Amendment, which mandates that unenumerated rights be treated the same as those that are listed. It shows that Footnote Four runs afoul of the text of the Constitution, and more specifically the Ninth Amendment.


1983 ◽  
Vol 39 ◽  
pp. 23-23
Author(s):  
William E. Leuchtenburg

The year 1937 marks a great division in the history of the Supreme Court. In a period of 18 months in 1935 and 1936, the Court struck down more important social and economic legislation of the national government and of state government than at any time in its history, including such landmarks of the New Deal as the National Industrial Recovery Act and the Agricultural Adjustment Act. In the nearly half-century since then, the Court has not invalidated even one piece of significant social legislation. The seminar will explore how this “Constitutional Revolution of 1937” came about. It will examine the changes wrought by the New Deal, the character of the Court in the era of “the nine old men,” controversial rulings such as those in the Schecter and Butler cases, the origins and nature of FDR's “court packing“ plan, and the long term consequences of the Constitutional Revolution.


1945 ◽  
Vol 39 (1) ◽  
pp. 54-61
Author(s):  
Oliver P. Field

The paragraphs that follow answer the same questions with respect to unconstitutional legislation by Congress that were answered with respect to unconstitutional legislation in the ten states (Colorado, Massachusetts, New Hampshire, Minnesota, Wisconsin, North Dakota, South Dakota, Illinois, Indiana, and New York) included in my study published in 1943 under the title, Unconstitutional Legislation in Ten Selected States. The congressional statutes and the decisions of the Supreme Court analyzed herein are based upon the list found in Professor Charles Grove Haines, The Doctrine of American Judicial Supremacy. The reason why this list was chosen as the basis for analysis was that it covers approximately the same period, namely, from the beginnings to the early thirties, not including the period of the New Deal which formally began in 1933. This does not mean that there is no point in analyzing the later statutes and decisions, but that for purposes of comparison it was thought safer to restrict this analysis to the same general period for both state and national materials. The three cases under No. 1 in the Haines list have been omitted because no decrees based on invalidity followed their decision.


1992 ◽  
Vol 54 (3) ◽  
pp. 345-368
Author(s):  
John B. Taylor

American political history is often conceived as a series of stable eras, controlled by dominant party coalitions and demarcated by realigning elections, most often identified as those of 1828, 1860, 1896, and 1932. Since there is a lag in the corresponding reconstitution of the Supreme Court, it is often deemed a countermajoritarian drag on the workings of electoral democracy. An examination of judicial review in relation to political eras shows that view to be correct only in the New Deal era. Judicial review most commonly occurs within eras rather than across them, with a Court reconstituted by the prevailing coalition negating legislation passed by that coalition. This reality significantly alters the normative question of the Court's role in a democracy, and it raises questions about the concept of stable eras. The current trend of political party dealignment calls into question the continuing validity of the critical-elections approach.


Thought ◽  
1941 ◽  
Vol 16 (3) ◽  
pp. 582-582
Author(s):  
Walter B. Kennedy ◽  

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