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An Entrenched Legacy

How the New Deal Constitutional Revolution Continues to Shape the Role of the Supreme Court

Patrick M. Garry

Publication Year: 2009

An Entrenched Legacy takes a fresh look at the role of the Supreme Court in our modern constitutional system. Although criticisms of judicial power today often attribute its rise to the activism of justices seeking to advance particular political ideologies, Patrick Garry argues instead that the Supreme Court’s power has grown mainly because of certain constitutional decisions during the New Deal era that initially seemed to portend a lessening of the Court’s power. When the Court retreated from enforcing separation of powers and federalism as the twin structural protections for individual liberty in the face of FDR’s New Deal agenda, it was inevitably drawn into an alternative approach, substantive due process, as a means for protecting individual rights. This has led to many controversial judicial rulings, particularly regarding the recognition and enforcement of privacy rights. It has also led to the mistaken belief that the judiciary serves as the only protection of liberty and that an inherent conflict exists between individual liberty and majoritarian rule. Moreover, because the Court has assumed sole responsibility for preserving liberty, the whole area of individual rights has become highly centralized. As Garry argues, individual rights have been placed exclusively under judicial jurisdiction not because of anything the Constitution commands, but because of the constitutional compromise of the New Deal.During the Rehnquist era, the Court tried to reinvigorate the constitutional doctrine of federalism by strengthening certain powers of the states. But, according to Garry, this effort only went halfway toward a true revival of federalism, since the Court continued to rely on judicially enforced individual rights for the protection of liberty. A more comprehensive reform would require a return to the earlier reliance on both federalism and separation of powers as structural devices for protecting liberty. Such reform, as Garry notes, would also help revitalize the role of legislatures in our democratic system.

Published by: Penn State University Press


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pp. vii

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pp. 1-10

One of the most enduring and heated public controversies of the past half century has involved the role and power of the Supreme Court. Judicial activism has been blamed for an array of unpopular decisions in which the Court has seemingly gone outside the text of the Constitution to create new kinds of rights. ...

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1 The New Deal Constitutional Revolution

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pp. 11-26

The economic depression of the 1930s created the most cataclysmic social crisis in American history. Tens of millions of people lost their homes and means of livelihood. From 1929 to 1933, nearly two-fifths of all corporate businesses failed.1 One quarter of the working-age population was unemployed. ...

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2 At the Heart of the Revolution: The Constitution’s Structural Provisions

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pp. 27-38

The most important governing structures created by the Constitution are federalism and separation of powers.1 Indeed, the republican system of government created by the Constitution rests upon the twin foundations of federalism and separation of powers as its foundation. ...

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3 How the Administrative State Has Boosted Judicial Power

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pp. 39-70

Over the past several decades, a steady but subtle shift has been occurring with respect to the separation of powers. This shift of power from Congress to the courts has not occurred through any announced doctrinal changes, but through the indirect effects of the transfers of power from Congress ...

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4 The Court’s Federalism Revolution

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pp. 71-100

The revival of federalism has become a defining theme of the Rehnquist Court. Commentators have described the Court’s decisions as sparking a ‘‘federalism revolution.’’ But this so-called revolution comes after a long dormancy. From the late 1930s to the early 1990s, constitutional provisions related to federalism ...

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5 A One-Sided Federalism Revolution: Ignoring the Liberty Side of Federalism

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pp. 101-132

Just as a frustration with the ineffectual response of the states to the Great Depression caused regulators and constitutional lawyers to favor a dramatic expansion of the national government during the 1930s, a frustration with centralized government and its rigid bureaucracies inspired the recent federalism revival ...

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6 Contradicting the Federalism Revolution: The Court’s Nationalizing Rights-Jurisprudence

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pp. 133-178

Despite the modern Court’s dramatic move toward political federalism, it has not made a corresponding move in the area of individual rights. Rather than encouraging a decentralized rights-federalism, giving states leeway to balance social values with their own particularized view of individual rights, ...

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Conclusion: A Stifling of the Democratic Process

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pp. 179-188

The story of the Court’s escalating activism regarding individual rights often begins with the New Deal opinion in Unites States v. Carolene Products, in which the infamous footnote 4 suggested that the Court should give its closest scrutiny to cases involving individual rights, because that was an area the judiciary ...


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pp. 189-192

Back Cover

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E-ISBN-13: 9780271053127
E-ISBN-10: 0271053127
Print-ISBN-13: 9780271032818
Print-ISBN-10: 0271032812

Page Count: 200
Publication Year: 2009