Olken on New Deal Constitutionalism

Samuel R. Olken, John Marshall Law School, has posted The Decline of Legal Classicism and the Evolution of New Deal Constittutionalism, which appears in the Notre Dame Law Review 89 (2014).  Here is the abstract:

Insofar as historians and constitutional scholars have focused upon the question whether external or internal changes precipitated the jurisprudential transformation that occurred in constitutional law during the 1930sand 1940s, they have characterized the change as revolutionary. Accordingly, they have described Legal Classicism (also referred to as Classical Legal thought), the bundle of jurisprudential tenets at the core of Lochner era police powers jurisprudence, in pejorative terms. Moreover, they have assumed that by the end of the 1930s, the Hughes Court’s adoption of constitutional adaptivity in its jurisprudence of economic liberty marked a relatively clear rejection of classical legal principles of legal formalism, factional aversion, laissez faire constitutionalism dual federalism. As Chief Justice Hughes himself noted in the seminal cases of Home Building and Loan Ass’n v. Blaisdell (1934) and West Coast Hotel Co. v. Parrish (1937), it was important for the Court to recognize the public interest in private contracts and the necessity to adapt the constitution to changing economic circumstances. And in Commerce Clause cases such as Jones & Laughlin Steel Corp. v. NLRB (1937), the Court employed a more flexible approach towards assessing the relationship between intrastate activities and interstate commerce, heralding a more realistic conception of commerce and a willingness to accord more deference to Congress than they had at the height of the Lochner era.

Notwithstanding this significant doctrinal transformation, relatively little attention has been given to the manner in which Legal Classicism itself may have actually contributed to the so-called constitutional revolution of the 1930s. This article will discuss how the ascension within the Hughes Court of Legal Realism and its notion of constitutional adaptation evolved from some of the very principles of classical legal thought that Chief Justice Hughes, and the other more progressive members of his court, such as Justices Stone, Brandeis and Cardozo earlier decried. Eventually, the underlying principles of Legal Classicism crumbled, and its assumptions about the relationship between the individual and government, as well as its presumed dichotomy between public power and private rights, proved untenable as the Supreme Court sought to interpret and apply the Constitution to the problems spawned by the Depression.

Though a slim majority of the Hughes Court ultimately jettisoned Legal Classicism, their approach was less revolutionary than evolutionary, and their willingness to recognize the public interest in private contracts, to balance the public good with private rights and to embrace the stream of commerce rationale in Commerce Clause cases was more of an incremental than abrupt departure from classical legal thought. In this regard, the comparative rigidity of Legal Classicism facilitated this evolution, much as a snake sloughs off its skin to adapt to its changing needs.

Ironically, Legal Classicism was more policy oriented and its juridical adherents more creative than their critics may have thought, and this article will show how certain members of the Hughes Court – Hughes, of course, but also Stone, Cardozo and Brandeis, and before them, Holmes – realized this and devised a means of attack that ultimately revealed the flaws of classical legal thought. Indeed, one of the greatest ironies of the late Lochner era, is that the Judiciary Act of 1925, which legal classicists such as William Howard Taft and Willis Van Devanter had helped draft as a means for the Court to exert more control of its case load so that the justices could apply the law to the facts, enabled the justices to incorporate more policy in constitutional adjudication by virtue of enabling them to reduce their case load and spend more time with each case. Interestingly, neither Taft nor other legal classicists who perceived the judicial function as being one devoid of overt policymaking anticipated that this procedural change would facilitate a deviation from the mechanical jurisprudence that predominated during the late nineteenth and early twentieth centuries.

Moreover, Legal Classicism’s emphasis upon a broad concept of liberty foreshadowed the Supreme Court’s eventual recognition of non-economic fundamental constitutional rights and liberties. Indeed, two of the more conservative justices on the Supreme Court, James McReynolds and George Sutherland, wrote opinions in the 1920s and 1930s that contributed significantly to this development. McReynolds may have relied in large part upon liberty of contract, a staple of classical legal thought, to invalidate factional legislation in Pierce v. Society of Sisters (1925) and Meyer v. Nebraska (1923), but his opinions, issued at the apex of Legal Classicism, also signaled a growing concern with non-economic liberties that would become more characteristic of modern constitutional law. Similarly, Sutherland’s opinion in Euclid v. Ambler Realty (1926), with its deference to state police powers, and his opinions in Grosjean v. American Press Co. (1936) and Powell v. Alabama (1932), both important stepping stones in the Court’s growing recognition of non-economic liberties, employed traditional factional aversion in creative ways that demonstrate how 1930s constitutional adaptivity evolved from tenets of classical legal thought.

The article will conclude that although certain external changes help explain the constitutional transformation of the New Deal era, internal changes in terms of dissenting opinions and the intrinsic nature of Legal Classicism also played significant roles in the evolution of New Deal constitutionalism.