This book 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 the conventional 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 several different lines of doctrine, Rethinking
the New Deal Court 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. As intelligent as it is
revisionist, this volume will greatly interest students of legal
history, constitutional law, and political science.
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