Wednesday, September 26, 2012

G. Edward White on West Coast Hotel

We've just notice the appearance in the Yale Law Journal Online of the essay West Coast Hotel’s Place in American Constitutional History by G. Edward White of the University of Virginia School of Law.  It commences:
This year marks the seventy-fifth anniversary of West Coast Hotel Co. v. Parrish, which for many years has been part of one of the central narratives of twentieth-century American constitutional history. In that narrative, West Coast Hotel represents the Supreme Court’s abandonment of a constitutional jurisprudence featuring aggressive scrutiny of legislation that regulated economic activity or redistributed economic benefits. Prior to West Coast Hotel, successive Court majorities treated state and federal minimum-wage legislation as interfering with the “liberty” of employers and employees to bargain for the terms of employee services. In West Coast Hotel, the Court upheld minimum-wage legislation in the face of this “liberty of contract” argument, and, according to the traditional narrative, the change in the Court’s posture was triggered by the introduction of a plan by the Roosevelt Administration to alter the membership of the Court.
This Essay seeks to show that the conventional narrative is misleading and distorts the significance of West Coast Hotel. It also seeks to show that West Coast Hotel’s significance comes from its position in a different narrative, one featuring clashing views on the issue of constitutional adaptivity: how the general provisions of the Constitution are adapted to new controversies and whether the meaning of those provisions can be said to change in the process. In that narrative the interpretive postures of “originalism” and “living Constitution” jurisprudence make their appearance, serving to tie West Coast Hotel to contemporary debates about constitutional interpretation.

Update:: The essay is also available as an SSRN paper.