Rethinking 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.
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