Print Price: $61.95

Format:
Paperback
336 pp.

ISBN-13:
9780195120431

Publication date:
January 1998

Imprint: OUP US

Rethinking the New Deal Court

The Structure of a Constitutional Revolution

Barry Cushman

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.

Readership : legal historians, law professors, political scientists, and others teaching constitutional law

Reviews

• "Cushman makes a strong case for weighing intellectual developments on the Court."
  aw and History Reviews (Spring 2002)
• "...thoroughly researched, carefully reasoned, and clearly argued presentation."--Historian
• "A meticulous craftsman, Cushman builds a convincing case for his revisionist thesis. His book is a smooth blend of intellectual and political history; he is equally at home with the nuances of legal doctrine on the Court and the political battles going on outside it. He brings out of the large unruly mass of constitutional cases decided between 1870 and 1937 a strong, clear story, powerful in its simplicity and very persuasive. After this book no one will be able to talk about the 'Constitutional Revolution of the New Deal' in quite the same way again."--Robert W. Gordon, Yale Law School
• "It is not often that a book comes along that provides a whole new way of thinking about a familiar subject. But Barry Cushman has written a convincing, revolutionary reinterpretation of the conventional wisdom about the so-called 'Constitutional Revolution of 1937' and its notorious 'switch in time'. In the process, Cushman provides us with a compelling and powerful counter-argument about the true origins and dimensions of constitutional and historical change in the New Deal period."--Alfred S. Konefsky, SUNY at Buffalo Law School
• "Rejecting as simplistic and incomplete the now familiar political switch-in-time explanations of the Court's decisions upholdingkey New Deal legislation, Cushman offers an account of those 1937 cases that sees them as logical as well as intellectually and legally honest outcomes of somewhat earlier developments in constitutional doctrine...This is a well-crafted book; it offers a compelling story." --Law and Politics Book Review
• "Professor Cushman has written a brilliant, provocative account that contributes a much-needed broadened interpretive perspective to the constitutional history of the New Deal era."--The Journal of American History
• "Rejects the standard interpretation of the New Deal as a revolution in constitutional law necessitated by conservative judicial opposition to modern liberalism...Cushman bases his account on case fact situations, the arguments of counsel, the opinions of judges, and private correspondence...Eliminating a standard explanation of it, he raises the question of what Roosevelt administration was really trying to do, constitutionally speaking." The Journal of Southwestern History

Introduction
PART I: Rethinking the New Deal Court
1. Roosevelt's Shadow
2. Judging the Image of New Deal Court Judging
PART II: A New Trial for Justice Roberts
3. The Public/Private Distinction and the Minimum Wage Issue
4. From Adkins to Nebbia
5. The Minimum Wage Cases Revisited
PART III: The Trail of the Yellow Dog
6. The Liberal Dilemma
7. Associationalism Ascendant
8. Doctrinal Synergies
PART IV: The Levee Breaks
9. A Stream of Legal Consciousness
10. Catching the Current
11. The Persistence of Memory
12. The Struggle with Judicial Supremacy

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Barry Cushman is at Saint Louis University.

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