Bernadette Meyler, Stanford Law School, and Elliot Setzer, Yale University, have posted Cardozo's Living Constitutionalism in Comparative Context, which appeared in the Yale Journal of Law and Humanities:
Although he served as an Associate Justice on the United States Supreme Court from 1932-1938, the source of Benjamin Cardozo’s preeminence has generally been his contributions to common law jurisprudence and his theories of common law judging. This essay argues that several of Cardozo’s unpublished writings suggest he also developed a significant constitutional theory in dialogue with continental—and particularly French—legal thinkers. Despite not appearing prominently in Cardozo’s published constitutional opinions, this theory influenced Chief Justice Hughes’s majority opinion in the case of Home Building and Loan Association v. Blaisdell (1934), a case that not only stripped the Contract Clause of much of its adjudicatory power but also paved the way for the Supreme Court to undo the laissez-faire vision of the Lochner era.
Benjamin N. Cardozo (NYPL)
Cardozo most clearly outlined his theory in an essay on “De Tocqueville and the Judicial Power,” written shortly before his nomination to the Supreme Court, and in a draft concurrence in the Blaisdell case—one that he abandoned after Chief Justice Hughes modified his own opinion to incorporate several of Cardozo’s paragraphs. “De Tocqueville and the Judicial Power” develops Cardozo’s views of judicial authority in America as refracted not only through Tocqueville’s account but also through that of contemporary French jurists, including the comparative law scholar Édouard Lambert. Reading his Blaisdell concurrence against that backdrop both highlights the transatlantic conversations about judicial review ongoing during the 1930s and the potential for a French influence on Cardozo’s understanding of rights.
--Dan Ernst