An Entrenched Legacy
How the New Deal Constitutional Revolution Continues to Shape the Role of the Supreme Court
Publication Year: 2009
Published by: Penn State University Press
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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. ...
1 The New Deal Constitutional Revolution
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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. ...
2 At the Heart of the Revolution: The Constitution’s Structural Provisions
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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. ...
3 How the Administrative State Has Boosted Judicial Power
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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 ...
4 The Court’s Federalism Revolution
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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 ...
5 A One-Sided Federalism Revolution: Ignoring the Liberty Side of Federalism
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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 ...
6 Contradicting the Federalism Revolution: The Court’s Nationalizing Rights-Jurisprudence
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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, ...
Conclusion: A Stifling of the Democratic Process
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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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Page Count: 200
Publication Year: 2009