An Entrenched Legacy

An Entrenched Legacy: How the New Deal Constitutional Revolution Continues to Shape the Role of the Supreme Court

PATRICK M. GARRY
Copyright Date: 2008
Pages: 200
https://www.jstor.org/stable/10.5325/j.ctt7v5kh
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  • Book Info
    An Entrenched Legacy
    Book Description:

    An Entrenched Legacy takes a fresh look at the role of the Supreme Court in our modern constitutional system. Although criticisms of judicial power today often attribute its rise to the activism of justices seeking to advance particular political ideologies, Patrick Garry argues instead that the Supreme Court’s power has grown mainly because of certain constitutional decisions during the New Deal era that initially seemed to portend a lessening of the Court’s power. When the Court retreated from enforcing separation of powers and federalism as the twin structural protections for individual liberty in the face of FDR’s New Deal agenda, it was inevitably drawn into an alternative approach, substantive due process, as a means for protecting individual rights. This has led to many controversial judicial rulings, particularly regarding the recognition and enforcement of privacy rights. It has also led to the mistaken belief that the judiciary serves as the only protection of liberty and that an inherent conflict exists between individual liberty and majoritarian rule. Moreover, because the Court has assumed sole responsibility for preserving liberty, the whole area of individual rights has become highly centralized. As Garry argues, individual rights have been placed exclusively under judicial jurisdiction not because of anything the Constitution commands, but because of the constitutional compromise of the New Deal.During the Rehnquist era, the Court tried to reinvigorate the constitutional doctrine of federalism by strengthening certain powers of the states. But, according to Garry, this effort only went halfway toward a true revival of federalism, since the Court continued to rely on judicially enforced individual rights for the protection of liberty. A more comprehensive reform would require a return to the earlier reliance on both federalism and separation of powers as structural devices for protecting liberty. Such reform, as Garry notes, would also help revitalize the role of legislatures in our democratic system.

    eISBN: 978-0-271-05482-7
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. INTRODUCTION
    (pp. 1-10)

    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. This activism has, according to critics, allowed the Court to masquerade its members’ political views as constitutional principles. Under this interpretation, the Court’s growing power results simply from raw politics, from Justices intent on shaping American society according to their own personal ideology.

    Unquestionably, the Court...

  4. 1 THE NEW DEAL CONSTITUTIONAL REVOLUTION
    (pp. 11-26)

    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. Civic institutions and the rule of law were threatened by social upheaval and revolution. In response to this crisis, the Hoover administration had relied on the same instruments of public aid that had been used during the previous economic depressions of the nineteenth century—state governments. But upon his election, President Franklin D. Roosevelt...

  5. 2 AT THE HEART OF THE REVOLUTION: THE CONSTITUTION’S STRUCTURAL PROVISIONS
    (pp. 27-38)

    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. Referred to as structural provisions of the Constitution, both federalism and separation of powers encompass an array of clauses and articles that together create an organizational scheme of government.

    Federalism refers to the distribution of power between two different levels of government that represent the same constituency. Under the dual governmental structure established by the Constitution, power is balanced between the...

  6. 3 HOW THE ADMINISTRATIVE STATE HAS BOOSTED JUDICIAL POWER
    (pp. 39-70)

    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 to administrative agencies. By delegating more power to the administrative state, over which the judiciary exercises a greater supervisory role, Congress has allowed the courts to effectively acquire a larger role in the policymaking function normally reserved to the legislative arena.

    This shift of power to the judiciary has not been...

  7. 4 THE COURT’S FEDERALISM REVOLUTION
    (pp. 71-100)

    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 were largely ignored. Under the leadership of the late Chief Justice William Rehnquist, however, and through a wide array of cases employing both the Tenth and Eleventh Amendments, the Court has slowed or even stalled the constitutional drift of power from the states to the federal government that began in the 1930s. This new...

  8. 5 A ONE-SIDED FEDERALISM REVOLUTION: IGNORING THE LIBERTY SIDE OF FEDERALISM
    (pp. 101-132)

    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 and its strengthening of state and local governments. But in addition to this size-of-government concern, there is another side of federalism—the individual liberty side. In the view of the constitutional framers, a vibrant federalism would help ensure individual liberty by limiting and monitoring the power of the federal government to infringe on the...

  9. 6 CONTRADICTING THE FEDERALISM REVOLUTION: THE COURT’S NATIONALIZING RIGHTS-JURISPRUDENCE
    (pp. 133-178)

    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, the Court has consolidated the matter at the national level, dictating to the entire nation a uniform view and application of individual rights. In this respect, according to Robert Nagel, the Court has proved “hostile to the basic impulses underlying a robust form of federalism,” especially when it comes to decentralizing its own power.¹

    Contrary to...

  10. CONCLUSION: A STIFLING OF THE DEMOCRATIC PROCESS
    (pp. 179-188)

    The story of the Court’s escalating activism regarding individual rights often begins with the New Deal opinion inUnites 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 was inherently well-suited to handle. The implication was that only the courts, through judicial enforcement of selected individual rights, could provide an adequate safeguard to liberty.

    By the time of the Warren era, theCarolene Productssuggestion had so ingrained itself into the American legal mentality that it was generally...

  11. INDEX
    (pp. 189-192)
  12. Back Matter
    (pp. 193-193)