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AHR Forum
The Debate over the Constitutional Revolution of 1937
Introduction
ALAN BRINKLEY
| Most historians and legal scholars agree that a major change in constitutional jurisprudence occurred in the 1930s. For decades before the Great Depression, according to this almost uncontested story, the Court had been resolute in its defense of the doctrine of liberty of contract—a position most clearly articulated by the 1905 Lochner decision and sustained ever since. The Court had also been generally, if not consistently, committed to a narrow reading of the interstate commerce clause of the Constitution, exemplified by the E. C. Knight decision of 1895. Together, these convictions sustained a constitutional regime that consistently limited the power of the state to intervene in the affairs of the private economy. That regime survived largely unchanged through the first third of the twentieth century and into the early years of the New Deal. By the end of 1936, the Court had struck down a series of legislative efforts by the Roosevelt administration to extend the federal government's role in shaping and regulating economic life. The president and his allies feared that the justices were on the verge of dismantling the New Deal's achievements altogether. |
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Beginning in 1937, however, the Court appeared conspicuously to change course. Over the next decade and beyond, it dramatically expanded its view of Congress's power over economic activity. The Court also became more active in incorporating new, but far from universal, social and cultural norms into its reading of the Bill of Rights and the Fourteenth Amendment. Although the Warren Court of the 1950s and 1960s is the most renowned example of a modern "liberal" jurisprudence, the changes in the Court were becoming visible more than a decade before Earl Warren became chief justice. |
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But if there is relatively little disagreement about the timing and significance of this jurisprudential change, there has been considerable debate in recent years over why it happened. This debate came as something of a surprise to many historians, most of whom had long accepted the arguments of Roosevelt's contemporaries and of the first great historians of the New Deal—most notably William E. Leuchtenburg1—that there was a reasonably simple, political explanation for the Court's change of course. |
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In early 1937, shortly after his landslide reelection victory, Franklin Roosevelt introduced to Congress what became known as the "Court-packing plan," which would have permitted the president to nominate a new justice to the Court for every sitting justice over the age of seventy. Since the Court in 1937 was unusually aged, the plan would have allowed Roosevelt to appoint six new members immediately, and thus decisively shift the ideological balance among the justices. The plan created a political firestorm and did considerable damage to the president's standing within his own party and among the public. But according to more than a generation of scholars, it also frightened the justices themselves, at least one of whom, Owen Roberts, appeared to switch positions in response to the growing political pressure and to begin supporting New Deal legislation. Since many of the anti–New Deal decisions of the Court prior to 1937 had been the result of 5–4 decisions, Roberts's shift proved decisive in changing the balance of the justices. This "switch in time," as a columnist allegedly quipped in the 1930s, had "saved nine," dooming Roosevelt's Court-packing plan, but also removing the Court as an obstacle to New Deal legislation. |
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Over the last decade or so, this comfortable consensus has come under attack, as a group of historians and legal scholars have argued that the Court's changing positions were not a response to Court packing at all, but a natural and understandable evolution of constitutional thinking that began long before 1937 and continued for many years after. The Court did not change because of politics. It changed because of an intellectual evolution within the judicial world itself over the proper relationship between the state and the national economy, evidence of which was the narrow balance of many of its decisions in the 1930s. Roberts's apparent shift in 1937 was a logical continuation of a change in his legal thinking, and the thinking of others, that had been in progress for some time.2 |
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This Forum brings together several of the leading figures in this lively new debate. Laura Kalman, an eminent legal historian, attempts to reconcile the two arguments, while conceding that the truth behind the motivations of Owen Roberts, the key figure in this story, may never be known. William E. Leuchtenburg, the most eminent proponent of the earlier view of a Court responding to political threats, offers a richly documented picture of a Court stubbornly resisting change until the political pressures on it grew nearly intolerable. And G. Edward White, who is among the group of scholars now challenging the traditional "switch in time" position, offers a portrait of a Court struggling to adapt its positions to changing times, but doing so firmly within the boundaries of "the doctrinal and interpretive edifice of constitutional decisions." |
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What is at stake in this argument? Not, certainly, the question of whether the Court changed directions in the 1930s. Virtually all scholars accept that it did. Nor is the central question as simple as whether the shift in judicial thinking in 1937 was sudden or gradual. What drives this debate are more basic questions that have been at the forefront of both political and scholarly debate for generations. |
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One of these questions involves the role of the judiciary in U.S. history. At almost every moment during the more than two hundred years since the adoption of the Constitution, judges and justices have encountered criticism and, at times, organized opposition from those who believe that they have made political rather than legal judgments and that they have exercised undemocratic power by thwarting the will of the people and their elected leaders. In the first decades of the republic, a movement emerged to strip the power of interpretation from judges by codifying common law—transforming legal principles based on careful reading of precedents into statutes written and enacted by legislatures. "In republics," one critic wrote in the early nineteenth century, "the very nature of the constitution requires the judges to follow the letter of the law." Judicial interpretation, another argued, was a violation of "the prerogative of the legislature, for those that made the laws ought to give them meaning when they are doubtful."3 The codification movement failed, but it was only one of many examples of assaults on what some citizens of the early republic called "judge-made law" as an undemocratic force in American life. |
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As William Novak has shown, community leaders and local judiciaries through much of the nineteenth century felt almost wholly unconstrained by the federal courts in asserting an extensive local police power over speech, behavior, and economic life in ways that were often at odds with national constitutional norms.4 Greenbackers, Knights of Labor, Populists, Socialists, progressives, and many others, all at times expressed dismay at the behavior of the courts, and of the federal courts in particular, denouncing them as bulwarks of conservatism and protectors of the interest of moneyed elites. |
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The New Deal assault on the Court in 1937—although the most legislatively significant challenge to the institution—was only one of many twentieth-century expressions of unhappiness with the seemingly antidemocratic impact of the judiciary. After World War II, when the Court itself moved to the left, the attacks on the justices began to come primarily from the right, but with similar justifications. Since the 1980s, as the Court—and the judiciary generally—have moved to the right, contempt for the institution has emerged again from the left. These consistent criticisms, running throughout U.S. history, have placed a heavy burden on those who believe in the integrity and necessity of an independent judiciary. They have had to struggle against powerful opposition in their efforts first to legitimize and then to defend the role of the courts. |
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The debate over the courts has, unsurprisingly, closely paralleled the continuing debate over the meaning of the Constitution. In the twentieth and twenty-first centuries, in particular, skeptics have challenged the long-held belief that the Constitution provides a kind of fundamental law for the United States.5 Many have come to argue, instead, that the Constitution is little more than an institutional framework for an ever-changing set of legal norms. The law, such critics have argued, is neither pure nor timeless. It is, and has always been, the product of a political process, in which judges are only a part. The legal realists of the 1930s—many of whom became part of the Roosevelt administration and whose ideas Laura Kalman has so successfully illuminated6—provided an early intellectual justification for this view. The critical legal theorists of more recent decades have posed even more radical challenges to the traditional notion that the evolution of the law is a largely internal process, insulated from politics and based on constitutional principles and the gradual accumulation of precedent. |
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But scholarly debates, particularly when they mirror impassioned political debates, often create sharper differences than historical evidence supports. The impressive scholarly arguments presented here most starkly by William Leuchtenburg and G. Edward White are, in fact, not nearly as incompatible with one another as the rhetoric surrounding this issue suggests. The members of the Supreme Court in the 1930s were surely aware of the power of the New Deal and the threat it had raised in 1937 to their power and traditions. The justices certainly knew, and resented, the savage attacks they were receiving from their critics. But that is not itself conclusive evidence that the West Coast Hotel decision, or any other decision, can be understood simply as a pragmatic response to political pressure. Similarly, the doctrinal evolution that White describes—like all doctrinal evolutions—did not exist in a vacuum. It represented, as all political and judicial thinking does, an awareness of changing social and political norms. Judicial decisions are almost always a result of both "internal" constitutional principles and "external" social, cultural, and political influences. Stark disagreements in scholarly discourse, much like stark disagreements in popular political discourse, often mask a far more complex reality in which two seemingly opposed positions are in fact more comcompatible with one another than they seem. |
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The debate over the so-called constitutional revolution of 1937 is about a great deal more than what Owen Roberts was thinking when he voted in West Coast Hotel Co. v. Parrish to support a Washington State minimum wage law, thus signaling a significant departure from the 1905 Lochner decision and limiting the power of "freedom of contract" to prevent legislatures from regulating economic behavior.7 The so-called internalist argument—that the road to West Coast Hotel was paved with a gradual series of prior judicial rulings that made the 1937 decision unsurprising and without need of political explanations—is, intentionally or not, a defense of a view of the law as a self-regulating process that is not fundamentally shaped by the politics of the moment. The so-called externalist argument—that the "constitutional revolution of 1937" was a product of political pressure from the New Deal, and from the particular threat that the Court-packing plan raised—is, again intentionally or not, part of the long-standing claim that the courts and the law have always been part of the political world, and that the claim of judicial insulation from the hurly-burly of a constantly changing society is a mythological construct with no basis in reality. |
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Rather than choosing between these two well-developed arguments (a choice that Laura Kalman maintains is virtually impossible to make on the basis of the available evidence), scholars might do better to consider how these seemingly conflicting claims are really two complementary parts of the complex process by which the Constitution is, and has always been, interpreted by the Courts. |
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Alan Brinkley is the Allan Nevins Professor of History and Provost at Columbia University. He is the author of Voices of Protest: Huey Long, Father Coughlin, and the Great Depression (1982), The End of Reform: New Deal Liberalism in Recession and War (1995), and Liberalism and Its Discontents (1998).
Notes
1 William E. Leuchtenburg, The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt (New York, 1996).
2 See, e.g., Barry Cushman, "Rethinking the New Deal Court," Virginia Law Review 80 (1994): 201, 260–261; Cushman, Rethinking the New Deal Court: The Structure of a Constitutional Revolution (New York, 1998); Richard Friedman, "Switching Time and Other Thought Experiments: The Hughes Court and Constitutional Transformation," University of Pennsylvania Law Review 142 (1994): 1891–1984; G. Edward White, The Constitution and the New Deal (Cambridge, Mass., 2000).
3 Morton J. Horwitz, The Transformation of American Law, 1780–1860 (Cambridge, Mass., 1977), 17–18, 257–258.
4 William Novak, The People's Welfare: Law and Regulation in Nineteenth-Century America (Chapel Hill, N.C., 1996).
5 In response to the growing demand from the right in the late twentieth and early twenty-first centuries for a "literal interpretation" of the Constitution, historians have sought to demonstrate that even among the framers themselves, there were many different interpretations of the document—that there is, in fact, no clear "original intent" to which later generations can usefully refer. See, for example, Jack Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (New York, 1996), and Lance Banning, The Sacred Fire of Liberty: James Madison and the Founding of the Federal Republic (Ithaca, N.Y., 1995).
6 Laura Kalman, Legal Realism at Yale, 1927–1960 (Chapel Hill, N.C., 1986).
7 Charles Evans Hughes, in his majority opinion arguing that freedom of contract had to compete against other interests, wrote: "What is this freedom? The Constitution does not speak of freedom of contract." West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937).
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