Edward know that agreeing with Roosevelt wouldEdward know that agreeing with Roosevelt would

G. White and Barry Cushman challenge the view that the Constitutional
Revolution was directly caused by President Roosevelt’s New Deal or
court-packing plan. Scholars are still not sure how to best
understand the how the reigning Supreme Court came to their decision,
and where the change took place, but these two see the moment in
history for its many dimensions. I will be giving a summary of Edward
G White’s opinions in his book, The Constitution and the New Deal,
and Barry Cushman’s opinions in his book, Rethinking the
New Deal Court.

will begin with a summary of Cushman, since I read his book first.

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Cushman writes in his book that the story of the Constitutional
Revolution being a direct product of Roosevelt’s New Deal and
court-packing plan are wrong. Suggesting they were a direct product
is saying that the changes that took place happened overnight.

Cushman notes that these
changes took place over a long period of time, and instead of the
1937 court-packing plan, the Nebbia case in 1934 was much more of a
factor in the courts decision. Cushman’s view of the justices is
important in his view of how he thinks they made their decisions.

Cushman saw justices as more than just politicians
who are working solely to get their own views across.

many blame the justices for their own views getting in the way,
Cushman contests these theories. The Supreme Court voted on the key
cases that ended up causing this dispute before the court-packing
plan had even been announced by Roosevelt. These
justices did not even know that agreeing with Roosevelt would save
their positions. Had they
have known about the plan, they still would have very little on the
line, since the support for the plan was small, and enemies of the
plan were numerous.

idea that is repeated many times throughout the book is that law
cannot be reduced to politics. That is not to say there is not
politics inside of the court. What may seem like a small issue to
someone not deeply involved in law, can be the turning factor for a
switch in majority. For example, Roberts’ apparent switch during the
Nebbia case was actually just Robert being objective, and listening
to the views being brought up. When
looking at Roberts’ switch from his decision on Tipaldo to his
decision on the West Coast Hotel cases, Roberts’
opinion was switched because of the litigants bringing forward a more
just case, not because of the court-packing plan. The court-packing
plan was a small event when looking at the grand scale, and economic
state at the time. This is right after the depression, and the
government is striking down laws that could regulate wages and help
to direct economic growth.

believes that the uncertainty of opinion around the Constitutional
Revolution has to do with the difference in modern jurisprudence from
that of the 1930’s. Doctrine
in the 1930’s was much more interconnected, than today’s doctrine
that all follow their own separate
rules. This means that one law could have an effect on another one.

Cushman suggests that this was a major cause of the Constitutional
Revolution. This collapse of laissez-faire constitutionalism that
broke down because of removal
of the
public and private that
really made the whole structure unravel
and collapse. This
laissez-faire constitutionalism is made up of Congress’s power under
the commerce clause, and freedom of contract.

of the court cases that Cushman says played a large role in the
constitutional revolution is Nebbia, a New York law that regulated
the prices of milk. This case really got rid of that public and
private distinction. Justice
Robert’s decisions in Nebbia, and his view of creating a new system
that gets rid of the private and public difference is
what Cushman points out as being a larger player
in the story of
the constitutional revolution than the court-packing plan. Cushman
thought that changing this part of the economy eroded the very
system/web that the country was built upon. Businesses
needed to be identified as being affected with a public interest
before they were being regulated publicly. This is where Nebbia came
into play, because it defined “business affected with a public
interest”.Transactions which before were much more private and were
between the customer and business, and the employee and the employer,
switched to a system of wage and hour regulation. Wage regulation
became an idea that was affected businesses even not affected with a
public interest, because a standard wage affected public health.

was Chief Justice Hughes that pointed out the nation’s increasing
call for relief. Cushman
explains that during and after WWI there was a high amount of jobs,
and wages which set a precedent for years to come. It was not until
the case of Adkins v. Children’s Hospital that the freedom of
contract came along. The change in economic conditions in America was
not evident in the legislature. Following the depression, employment
and wages were far down, so the laws had to switch to suit the shift.

sees the real constitutional revolution happening in 1942 with the
case Wickward v. Filburn that created new limits for congress to
regulate interstate commerce. The
courts could not argue against the idea that the food that the farmer
was growing and solely consuming was part of interstate commerce.

This was therefore no longer for the courts to decide. Instead it
would fall into the powers of congress to decide what is and is not a
power of interstate commerce. According to Cushman the constitutional
revolution did not happen because the justices folded to the
pressures of the New Deal legislation and Roosevelt’s court-packing
plan, but instead because of the justices appointed by Roosevelt to
the supreme court, who thought in a different way and passed
legislation to aid the public aside from political reasons.

account of the Constitutional shows a significant transformation in
constitutional law that happened over a longer period of time than
overnight in 1937. He offers a retelling of the history that
accounted more for due process and the commerce clause rather than
the New Deal legislation and the court-packing plan.

Edward G. White does in his book The Constitution and the
New Deal, is similar to what
Cushman does, as he challenges the conventional view of what caused
the constitutional revolution. In White’s point of view, the
conventional history is that the evil judges, businessmen who
believed in an outdated constitution who continually thwarted the
attempts of New Dealers, were
eventually crushed by the pressures of the public to enact new deal
legislation. White believe that this story needs to be revised.

attributes much of the information about the constitutional
revolution to New Dealers that he calls triumphists. They rode on the
back of their success in passing New Deal legislation, and often
overlook the complexities of the time. A time with a change in
constitutional limitations, the public/private distinction, and free
expression .

writes about the labels put on conservative and liberal judges based
on their support or lack of support of the New Deal. While
liberals were in wide support of New Deal Legislation, conservative
opposed it. This seperation
of liberal and conservative can be traced back to different
translations of the constitution.

Justices like Butler, McReynolds, Sutherland, and Devanter are
being called the four
horsemen. White sees this as history written by the winners, and
those who would group these judges together
are not looking at their entire history and instead at just a
portion. These justices did not always vote as a group, and sometimes
even voted for New Deal legislation. While judges on the other side
of the coin sometimes voted to strike down New Deal legislation.

White does not approve of this place those four justices have landed
in history.

does think that this transformation during the 1930-40’s was largely
because of a shift in how we think about law. Though he sees the
changes as more gradual, starting far before the New Deal legislation
began to arise. Federal powers were beginning to sprout out and take
over inconsistent state powers from the beginning of the 20th
century. The judges role in how they made their decisions, and the
role of the judicial branch had already started before the 1937
court-packing plan announcement. He sees this court-packing plan as a
symptom of the revolution rather than the cause of it.

to White the changes in doctrine in that formational period was far
more complicated than the conventional story tells. That the
court-packing plan and the New Deal played a part, but were not the
cause. White recognizes the changes in constitutional law that took
place during the 1920s to post WWII, and thinks that the
‘Constitutional Revolution of 1937’ should be dismissed.

spends some time discusses modernism, a description of the world we
live in that is molded by capitalism, democracy, less class based,
and more focused on science, and how people view modern life. How
people can shape their own destinies, rather than be constrained by
these older constitutional rules. He
writes that the conventional account for the revolution is tied in
with modernist accounts. Changes in free speech, foreign affairs, and
administrative law took place gradually
in the decades leading up to the arrival of New Deal legislation. The
conventional modernist account of the constitutional revolution sees
the judges as interpreters of the constitution, that make laws. That
the judges who interpret the constitution have their own set of
powers from the constitution itself.

shows that several years before the New Deal the courts had already
started to question the constitutions doctrine pertaining to foreign
affairs. The courts had started to look at federal powers and respect
internationally. Foreign affairs were starting to be seen as
completely different from domestic affairs. George Sutherland, a
newer justice, had an increased role because of his ideas about
juricial respect in foreign affairs. According to White the changes
to administrative law took place in the years after 1937. Before the
1940s justices sole job was to preserve the constitution, but these
new administrative agencies seemed to breach the seperation of power.

The legitimacy of these agencies sparked debate in the supreme court.

Free speech was also a topic
of debate starting near the beginning of the 20th
century. Justice Holmes said that speech that presents a clear and
present danger needs to be limited. This questions what speech
exactly presents a clear and present danger. It was Brandeis who
brought up speech as a safeguard against tyranny. This transformation
really took place when the courts took more protection for the first

Roberts position in various cases has to be brought into
consideration. Nebbia v. New York, declined to the idea of ‘business
affected with a public interest’. He then switched the majority in
cases during 1937. Wickard v. Filburn, the case that established the
commerce clause. White puts a lot of importance on the case Wickard
v. Filburn. Congress’s power
to regulate wheat on a farm is to give a lot of power to Congress,
but the real importance lies in the commerce clause. New laws were
not being created to replace the old ones, but instead were allowing
the states and Congress to regulate. This case confined the power of
the courts, and it was the mark of the courts stepping down as the
monitor of private rights. By stepping down from this role of
policing the private order, they were changing the way that they

G. White writes to complicate the conventional account of the
constitutional revolution that is retold by politicians and
historians. The New Deal was not the turning point that many still
see it as, and . White forces the reader to re-examine fundamental
premises, and question the
nature of law.