Rethinking the New Deal Court The Structure of a Constitutional Revolution

by Cushman, Barry

• ISBN13: 9780195115321
• ISBN10: 0195115325
• Format: Hardcover
• Copyright: 1998-02-26
• Publisher: Oxford University Press

Summary

The Structure of a Constitutional Revolution 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 clausedoctrine. 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 playedin 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.LRecasting this central story in Americanconstitutional 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 collapsedduring 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 hadplayed a central role.

Table of Contents

Introduction	3	(6)
Part I Rethinking the New Deal Court	9	(36)
1 Roosevelt's Shadow	11	(22)
2 Judging the Image of New Deal Court Judging	33	(12)
Part II A New Trial for Justice Roberts	45	(62)
3 The Public/Private Distinction and the Minimum Wage	47	(19)
4 From Adkins to Nebbia	66	(18)
5 The Minimum Wage Cases Revisited	84	(23)
Part III The Trail of the Yellow Dog	107	(32)
6 The Liberal Dilemma	109	(10)
7 Associationalism Ascendant	119	(12)
8 Doctrinal Synergies	131	(8)
Part IV The Levee Breaks	139	(88)
9 A Stream of Legal Consciousness	141	(15)
10 Catching the Current	156	(21)
11 The Persistence of Memory	177	(31)
12 The Struggle with Judicial Supremacy	208	(19)
Notes	227	(82)
Index	309