The past decade has witnessed a burgeoning of revisionist and even post-revisionist literature
concerning the salience – and coherence – of the New Deal court in and around the “revolutionary” year
of 1937 in an attempt to account for constitutional change in development in the proceeding six decades.
Reacting against almost two generations of public law scholarship that was either directly or indirectly
involved with the higher echelons of New Deal politics, or by those who were educated by the literature
these first-order men produced, these revisionist scholars are questioning the efficacy of traditional
accounts of constitutional change and development more generally. The traditional narrative posits a
court that consciously stepped back from the evils of substance due process in economics and contracts
in the late nineteenth and early twentieth century and instead engaged in the non-substantive, legislative
deferring, non-counter-majoritarian, democratically-based jurisprudence of the post-1937 years. These
courts, the traditional story goes, now took their role to be an active one only when it sought to protect
“preferred freedoms” when normal democratic processes were incapable of doing so.
reemergence of what can only fairly be called “substantive” rulings in so-called privacy cases (e.g.,
Griswold and Roe) has only fueled the fire between those that believe the traditional narrative is correct
literature, while focusing on cases and doctrinal interpretation, is a meta-literature: It is primarily
concerned with correcting or undermining other literature. Moreover, it usually focuses on the effects (or
1
The “revolution of 1937” in terms of case law is assumed to have taken place in West Coast Hotel v. Parrish, 300
US 379 (1937) which overturned Adkins v. Children’s Hospital, 261 US 525 (1923). Salient revisionist literature
includes, but is not limited to, Howard Gillman, The Constitution Besieged: The Rise and Demise of Lochner Era
Police Power’s Jurisprudence (Durham: Duke University Press, 1993)
;
G. Edward White, The Constitution and the
New Deal (Cambridge: Harvard University Press, 2000); Barry Cushman, Rethinking the New Deal Court: The
Structure of a Constitutional Revolution (New York: Oxford University Press, 1998) Michael Klarman, From Jim
Crow to Civil Rights (Oxford: Oxford University Press, 2004); and Ken Kersch, Constructing Civil Liberties:
Discontinuities in the Development of American Constitutional Law (Cambridge: Cambridge University Press,
2004). Revisionist literature that seeks to save the traditional narrative include William Leuchtenberg, William
Leuchtenburg, The Supreme Court Reborn (New York: Oxford University Press, 1994) and Bruce Ackerman, We
the People: Foundations (Cambridge: Harvard University Press, 1991); and Cass Sunstein, The Partial Constitution
(Cambridge: Harvard University Press, 1993), especially ch.2
2
United States v. Carolene Products, 304 U.S. 144, 152 (1938).
3
I am not suggesting that the outcomes in these cases (especially abortion rights) explain scholars’ reaction to them,
only the fact that their doctrinal justifications do not ‘fit” within the traditional narrative’s thesis.
2
Convention