The constitutional convention of 1937: The original meaning of the new jurisprudential deal

Fordham Law Review

Volumn 70, Issue 2, 2001, Pages 459-525

  Lash, Kurt T ^a  

^a Loyola Law School Los Angeles   (United States)

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EID: 0035647761     PISSN: 0015704X     EISSN: None     Source Type: Journal    
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References (422)

1. See, e.g., Carter v. Carter Coal Co., 298 U.S. 238 (1936); Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935).
2. See Morehead v. New York ex rel. Tipaldo, 298 U.S. 587 (1936); Adkins v. Children's Hosp., 261 U.S. 525 (1923); Lochner v. New York, 198 U.S. 45 (1905).
3. On a single day in 1935 the Court struck down the Frazier-Lemke Act which provided mortgage relief to bankrupt farmers, denied the President power to replace members of independent regulatory agencies, and invalidated the National Industrial Recovery Act. See Louisville Bank v. Radford, 295 U.S. 555 (1935); Humphrey's Ex'r v. United States, 295 U.S. 602 (1935); Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935). The next year, the Court struck down the Agricultural Adjustment Act, the National Bituminous Coal Act, and New York's minimum wage statute. See United States v. Butler, 297 U.S. 1 (1936); Carter v. Carter Coal Co., 298 U.S. 238 (1936); Morehead v. New York ex rel. Tipaldo, 298 U.S. 587 (1936).
4. See W. Coast Hotel v. Parrish, 300 U.S. 379 (1937) (upholding state minimum wage law for women, and overruling Adkins); NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937).
5. Compare Bruce Ackerman, We the People: Foundations (1991) [hereinafter Ackerman, Foundations] and Bruce Ackerman, We the People: Transformations (1998) [hereinafter Ackerman, Transformations] (arguing that the New Deal was a legitimate constitutional revolution) with Barry Cushman, Rethinking the New Deal Court: The Structure of a Constitutional Revolution (1998) (arguing that the New Deal revolution was more an evolutionary development of doctrine).
6. Compare Bruce Ackerman, We the People: Foundations (1991) [hereinafter Ackerman, Foundations] and Bruce Ackerman, We the People: Transformations (1998) [hereinafter Ackerman, Transformations] (arguing that the New Deal was a legitimate constitutional revolution) with Barry Cushman, Rethinking the New Deal Court: The Structure of a Constitutional Revolution (1998) (arguing that the New Deal revolution was more an evolutionary development of doctrine).
7. Compare Bruce Ackerman, We the People: Foundations (1991) [hereinafter Ackerman, Foundations] and Bruce Ackerman, We the People: Transformations (1998) [hereinafter Ackerman, Transformations] (arguing that the New Deal was a legitimate constitutional revolution) with Barry Cushman, Rethinking the New Deal Court: The Structure of a Constitutional Revolution (1998) (arguing that the New Deal revolution was more an evolutionary development of doctrine).
8. Externalists believe politics forced the change-that it was in fact a political decision, rather than a matter of constitutional interpretation. See, e.g., Laura Kalman, The Strange Career of Legal Liberalism (1996); William E. Leuchtenburg, The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt (1995) [hereinafter Leuchtenburg, Supreme Court Reborn]. Internalists, on the other hand, argue the shift was jurisprudential and occurred gradually over time, reflecting an evolving understanding of the Constitution. See, e.g., Cushman, supra note 5, at 4- 5; Richard D. Friedman, Switching Time and Other Thought Experiments: The Hughes Court and Constitutional Transformation, 142 U. Pa. L. Rev. 1891 (1994). Internalist Barry Cushman points out the Court began as early as 1934 in Nebbia v. New York to abandon the public/private distinction which drove most of the commerce regulation jurisprudence (government may regulate only those businesses pressed with the public interest). See Cushman, supra note 5, at 154-55. Externalists, on the other hand, point out that Nebbia deployed the general framework of Lochner which required heightened judicial scrutiny, and therefore special justification, for government regulation of the economy. This approach was not abandoned until 1937. See Ackerman, Transformations, supra note 5, at 359-82. For a general discussion of the internalist/externalist debate, see Symposium, Moments of Change: Transformation in American Constitutionalism, 108 Yale L.J. 1917 (1999) [hereinafter Symposium, Moments of Change], which presents a number of articles representing both the externalist and internalist perspectives on the New Deal.
9. Externalists believe politics forced the change-that it was in fact a political decision, rather than a matter of constitutional interpretation. See, e.g., Laura Kalman, The Strange Career of Legal Liberalism (1996); William E. Leuchtenburg, The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt (1995) [hereinafter Leuchtenburg, Supreme Court Reborn]. Internalists, on the other hand, argue the shift was jurisprudential and occurred gradually over time, reflecting an evolving understanding of the Constitution. See, e.g., Cushman, supra note 5, at 4- 5; Richard D. Friedman, Switching Time and Other Thought Experiments: The Hughes Court and Constitutional Transformation, 142 U. Pa. L. Rev. 1891 (1994). Internalist Barry Cushman points out the Court began as early as 1934 in Nebbia v. New York to abandon the public/private distinction which drove most of the commerce regulation jurisprudence (government may regulate only those businesses pressed with the public interest). See Cushman, supra note 5, at 154-55. Externalists, on the other hand, point out that Nebbia deployed the general framework of Lochner which required heightened judicial scrutiny, and therefore special justification, for government regulation of the economy. This approach was not abandoned until 1937. See Ackerman, Transformations, supra note 5, at 359-82. For a general discussion of the internalist/externalist debate, see Symposium, Moments of Change: Transformation in American Constitutionalism, 108 Yale L.J. 1917 (1999) [hereinafter Symposium, Moments of Change], which presents a number of articles representing both the externalist and internalist perspectives on the New Deal.
10. Externalists believe politics forced the change-that it was in fact a political decision, rather than a matter of constitutional interpretation. See, e.g., Laura Kalman, The Strange Career of Legal Liberalism (1996); William E. Leuchtenburg, The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt (1995) [hereinafter Leuchtenburg, Supreme Court Reborn]. Internalists, on the other hand, argue the shift was jurisprudential and occurred gradually over time, reflecting an evolving understanding of the Constitution. See, e.g., Cushman, supra note 5, at 4-5; Richard D. Friedman, Switching Time and Other Thought Experiments: The Hughes Court and Constitutional Transformation, 142 U. Pa. L. Rev. 1891 (1994). Internalist Barry Cushman points out the Court began as early as 1934 in Nebbia v. New York to abandon the public/private distinction which drove most of the commerce regulation jurisprudence (government may regulate only those businesses pressed with the public interest). See Cushman, supra note 5, at 154-55. Externalists, on the other hand, point out that Nebbia deployed the general framework of Lochner which required heightened judicial scrutiny, and therefore special justification, for government regulation of the economy. This approach was not abandoned until 1937. See Ackerman, Transformations, supra note 5, at 359-82. For a general discussion of the internalist/externalist debate, see Symposium, Moments of Change: Transformation in American Constitutionalism, 108 Yale L.J. 1917 (1999) [hereinafter Symposium, Moments of Change], which presents a number of articles representing both the externalist and internalist perspectives on the New Deal.
11. Externalists believe politics forced the change-that it was in fact a political decision, rather than a matter of constitutional interpretation. See, e.g., Laura Kalman, The Strange Career of Legal Liberalism (1996); William E. Leuchtenburg, The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt (1995) [hereinafter Leuchtenburg, Supreme Court Reborn]. Internalists, on the other hand, argue the shift was jurisprudential and occurred gradually over time, reflecting an evolving understanding of the Constitution. See, e.g., Cushman, supra note 5, at 4- 5; Richard D. Friedman, Switching Time and Other Thought Experiments: The Hughes Court and Constitutional Transformation, 142 U. Pa. L. Rev. 1891 (1994). Internalist Barry Cushman points out the Court began as early as 1934 in Nebbia v. New York to abandon the public/private distinction which drove most of the commerce regulation jurisprudence (government may regulate only those businesses pressed with the public interest). See Cushman, supra note 5, at 154-55. Externalists, on the other hand, point out that Nebbia deployed the general framework of Lochner which required heightened judicial scrutiny, and therefore special justification, for government regulation of the economy. This approach was not abandoned until 1937. See Ackerman, Transformations, supra note 5, at 359-82. For a general discussion of the internalist/externalist debate, see Symposium, Moments of Change: Transformation in American Constitutionalism, 108 Yale L.J. 1917 (1999) [hereinafter Symposium, Moments of Change], which presents a number of articles representing both the externalist and internalist perspectives on the New Deal.
12. Externalists believe politics forced the change-that it was in fact a political decision, rather than a matter of constitutional interpretation. See, e.g., Laura Kalman, The Strange Career of Legal Liberalism (1996); William E. Leuchtenburg, The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt (1995) [hereinafter Leuchtenburg, Supreme Court Reborn]. Internalists, on the other hand, argue the shift was jurisprudential and occurred gradually over time, reflecting an evolving understanding of the Constitution. See, e.g., Cushman, supra note 5, at 4- 5; Richard D. Friedman, Switching Time and Other Thought Experiments: The Hughes Court and Constitutional Transformation, 142 U. Pa. L. Rev. 1891 (1994). Internalist Barry Cushman points out the Court began as early as 1934 in Nebbia v. New York to abandon the public/private distinction which drove most of the commerce regulation jurisprudence (government may regulate only those businesses pressed with the public interest). See Cushman, supra note 5, at 154-55. Externalists, on the other hand, point out that Nebbia deployed the general framework of Lochner which required heightened judicial scrutiny, and therefore special justification, for government regulation of the economy. This approach was not abandoned until 1937. See Ackerman, Transformations, supra note 5, at 359-82. For a general discussion of the internalist/externalist debate, see Symposium, Moments of Change: Transformation in American Constitutionalism, 108 Yale L.J. 1917 (1999) [hereinafter Symposium, Moments of Change], which presents a number of articles representing both the externalist and internalist perspectives on the New Deal.
13. Externalists believe politics forced the change-that it was in fact a political decision, rather than a matter of constitutional interpretation. See, e.g., Laura Kalman, The Strange Career of Legal Liberalism (1996); William E. Leuchtenburg, The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt (1995) [hereinafter Leuchtenburg, Supreme Court Reborn]. Internalists, on the other hand, argue the shift was jurisprudential and occurred gradually over time, reflecting an evolving understanding of the Constitution. See, e.g., Cushman, supra note 5, at 4- 5; Richard D. Friedman, Switching Time and Other Thought Experiments: The Hughes Court and Constitutional Transformation, 142 U. Pa. L. Rev. 1891 (1994). Internalist Barry Cushman points out the Court began as early as 1934 in Nebbia v. New York to abandon the public/private distinction which drove most of the commerce regulation jurisprudence (government may regulate only those businesses pressed with the public interest). See Cushman, supra note 5, at 154-55. Externalists, on the other hand, point out that Nebbia deployed the general framework of Lochner which required heightened judicial scrutiny, and therefore special justification, for government regulation of the economy. This approach was not abandoned until 1937. See Ackerman, Transformations, supra note 5, at 359-82. For a general discussion of the internalist/externalist debate, see Symposium, Moments of Change: Transformation in American Constitutionalism, 108 Yale L.J. 1917 (1999) [hereinafter Symposium, Moments of Change], which presents a number of articles representing both the externalist and internalist perspectives on the New Deal.
14. Externalists believe politics forced the change-that it was in fact a political decision, rather than a matter of constitutional interpretation. See, e.g., Laura Kalman, The Strange Career of Legal Liberalism (1996); William E. Leuchtenburg, The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt (1995) [hereinafter Leuchtenburg, Supreme Court Reborn]. Internalists, on the other hand, argue the shift was jurisprudential and occurred gradually over time, reflecting an evolving understanding of the Constitution. See, e.g., Cushman, supra note 5, at 4- 5; Richard D. Friedman, Switching Time and Other Thought Experiments: The Hughes Court and Constitutional Transformation, 142 U. Pa. L. Rev. 1891 (1994). Internalist Barry Cushman points out the Court began as early as 1934 in Nebbia v. New York to abandon the public/private distinction which drove most of the commerce regulation jurisprudence (government may regulate only those businesses pressed with the public interest). See Cushman, supra note 5, at 154-55. Externalists, on the other hand, point out that Nebbia deployed the general framework of Lochner which required heightened judicial scrutiny, and therefore special justification, for government regulation of the economy. This approach was not abandoned until 1937. See Ackerman, Transformations, supra note 5, at 359-82. For a general discussion of the internalist/externalist debate, see Symposium, Moments of Change: Transformation in American Constitutionalism, 108 Yale L.J. 1917 (1999) [hereinafter Symposium, Moments of Change], which presents a number of articles representing both the externalist and internalist perspectives on the New Deal.
15. Barry Cushman, for example, argues that the real revolution occurred in 1934 when the Court abandoned the public/private distinction in Nebbia - a move that would allow for much of the New Deal agenda. See Cushman, supra note 5, at 7, 154- 55. Bruce Ackerman emphasizes the importance of Justice Roberts switching his vote in 1937 but argues that, even after 1937, Roosevelt's victory was tenuous and was not assured until the unanimous votes in United States v. Darby and Wickard v. Filburn. See Ackerman, Transformations, supra note 5, at 373; see also Wickard v. Filburn, 317 U.S. 111 (1942); United States v. Darby, 312 U.S. 100 (1941). Both Cushman and Ackerman assume the central issue in the New Deal revolution involves the moment when it became clear the Court no longer would pose a serious threat to New Deal legislation .
16. Barry Cushman, for example, argues that the real revolution occurred in 1934 when the Court abandoned the public/private distinction in Nebbia - a move that would allow for much of the New Deal agenda. See Cushman, supra note 5, at 7, 154- 55. Bruce Ackerman emphasizes the importance of Justice Roberts switching his vote in 1937 but argues that, even after 1937, Roosevelt's victory was tenuous and was not assured until the unanimous votes in United States v. Darby and Wickard v. Filburn. See Ackerman, Transformations, supra note 5, at 373; see also Wickard v. Filburn, 317 U.S. 111 (1942); United States v. Darby, 312 U.S. 100 (1941). Both Cushman and Ackerman assume the central issue in the New Deal revolution involves the moment when it became clear the Court no longer would pose a serious threat to New Deal legislation .
17. Whether the Fourteenth Amendment originally was intended to incorporate some or all of the Bill of Rights has been the subject of an ongoing debate since the New Deal-a significant fact in itself which I address in this article. See discussion infra Part III. For general scholarship on the incorporation debate see sources cited infra notes 26, 28.
18. See Palko v. Connecticut, 302 U.S. 319 (1937). The first clearly articulated doctrine of incorporation, the Preferred Freedoms Doctrine, emerged in 1939. See Jones v. City of Opelika, 316 U.S. 584, 608 (1942). See generally discussion infra Part III.B.
19. See Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938); Swift v. Tyson, 41 U.S. 1 (1842).
20. In a book written before he joined the Court, Robert Jackson wrote that the decision in Erie "was not impelled by 'supervening economic events,' nor was it a part of the program of any political party." Robert H. Jackson, The Struggle For Judicial Supremacy 273 (1941).
21. For a discussion regarding the importance of Erie, see Henry J. Friendly, In Praise of Erie - And of the New Federal Common Law, 39 N.Y.U. L. Rev. 383 (1964). A number of aspects of the Court decision in Erie have been criticized. See, e.g., John H. Ely, The Irrepressible Myth of Erie, 87 Harv. L. Rev. 693 (1974) [hereinafter Ely, Irrepressible Myth]; Jack Goldsmith & Steven Walt, Erie and the Irrelevance of Legal Positivism, 84 Va. L. Rev. 673 (1998). There is no doubt, however, that Erie was viewed at the time as a revolutionary decision. See Jackson, supra note 11, at 272 (referring to Erie as "[p]erhaps the most remarkable decision of this period and in some respects one of the most remarkable in the Court's history").
22. For a discussion regarding the importance of Erie, see Henry J. Friendly, In Praise of Erie - And of the New Federal Common Law, 39 N.Y.U. L. Rev. 383 (1964). A number of aspects of the Court decision in Erie have been criticized. See, e.g., John H. Ely, The Irrepressible Myth of Erie, 87 Harv. L. Rev. 693 (1974) [hereinafter Ely, Irrepressible Myth]; Jack Goldsmith & Steven Walt, Erie and the Irrelevance of Legal Positivism, 84 Va. L. Rev. 673 (1998). There is no doubt, however, that Erie was viewed at the time as a revolutionary decision. See Jackson, supra note 11, at 272 (referring to Erie as "[p]erhaps the most remarkable decision of this period and in some respects one of the most remarkable in the Court's history").
23. For a discussion regarding the importance of Erie, see Henry J. Friendly, In Praise of Erie - And of the New Federal Common Law, 39 N.Y.U. L. Rev. 383 (1964). A number of aspects of the Court decision in Erie have been criticized. See, e.g., John H. Ely, The Irrepressible Myth of Erie, 87 Harv. L. Rev. 693 (1974) [hereinafter Ely, Irrepressible Myth]; Jack Goldsmith & Steven Walt, Erie and the Irrelevance of Legal Positivism, 84 Va. L. Rev. 673 (1998). There is no doubt, however, that Erie was viewed at the time as a revolutionary decision. See Jackson, supra note 11, at 272 (referring to Erie as "[p]erhaps the most remarkable decision of this period and in some respects one of the most remarkable in the Court's history").
24. For a discussion regarding the importance of Erie, see Henry J. Friendly, In Praise of Erie - And of the New Federal Common Law, 39 N.Y.U. L. Rev. 383 (1964). A number of aspects of the Court decision in Erie have been criticized. See, e.g., John H. Ely, The Irrepressible Myth of Erie, 87 Harv. L. Rev. 693 (1974) [hereinafter Ely, Irrepressible Myth]; Jack Goldsmith & Steven Walt, Erie and the Irrelevance of Legal Positivism, 84 Va. L. Rev. 673 (1998). There is no doubt, however, that Erie was viewed at the time as a revolutionary decision. See Jackson, supra note 11, at 272 (referring to Erie as "[p]erhaps the most remarkable decision of this period and in some respects one of the most remarkable in the Court's history").
25. See infra Part II.F.
26. See infra notes 154-57 and accompanying text.
27. See Poe v. Ullman, 367 U.S. 497, 522 (1961) (Harlan, J., dissenting).
28. United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938).
29. Ackerman, Transformations, supra note 5, at 369 (describing Footnote Four as distinguishing between "ordinary economic disputes" and matters involving political rights and "discreet and insular minorities"); see also id. at 370 (contending the Court's decision in Erie indicated that "the great sin of the Lochnerian era was the Court's effort to constitutionalize the categories of the common law"); id. at 372 (stating that Erie was silent on the issue of what were legitimate grounds for judicial review in the New Deal era).
30. It is not enough to say Meyer and Pierce were never reversed. Neither, of course, was Lochner. The abandonment of Lochnerian liberty of contract was clear from the Court's decisions in cases where liberty of contract previously would have played a central role, as in West Coast Hotel v. Parrish, and the absence of such liberty from the list of rights the Court subsequently asserted it would henceforth protect against political majorities. See, e.g., West Coast Hotel v. Parrish, 300 U.S. 379 (1937); Carolene Products, 304 U.S. at 153. Finally, the Court's emphasis on textual rights in cases like Palko, Carolene Products, and West Virginia Board of Education v. Barnette clearly distinguished liberty of contract from the Court's post-1937 individual rights jurisprudence. See infra notes 109-11, 113-18, 211 and accompanying text. All of these same moves occurred in regard to parental rights. See infra notes 154-57 and accompanying text.
31. Reorganization of the Federal Judiciary: Hearing on S. 1392 Before the Senate Comm. on the Judiciary, 75th Cong. 43 (1937) (statement of the Honorable Robert H. Jackson, Assistant Attorney General of the United States) ("Judges who resort to a tortured construction of the Constitution may torture an amendment. You cannot amend a state of mind and mental attitude of hostility to exercise of governmental power. . . ."); see infra notes 75-85 and accompanying text.
32. Darby, Wickard and Erie all were unanimous opinions.
33. Modern theories of originalism tend to distinguish "original meaning" from "original intent." See, e.g., Randy E. Barnett, The Original Meaning of the Commerce Clause, 68 U. Chi. L. Rev. 101, 105 (2001); Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A Matter of Interpretation: Federal Courts and the Law (Amy Gutmann ed., 1997). There is a longstanding debate regarding the normative attractiveness and proper methodology of originalism. For proponents, see Scalia, supra; Keith E. Whittington, Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review (1999); Randy E. Barnett, An Originalism For Nonoriginalists, 45 Loy. L. Rev. 611 (1999) [hereinafter Barnett, Originalism]; and Richard S. Kay, Adherence to the Original Intentions in Constitutional Adjudication: Three Objections and Responses, 82 Nw. U. L. Rev. 226, 233 (1988). See also Robert H. Bork, The Tempting of America: The Political Seduction of the Law 145 (1990). For critiques, see Ronald Dworkin, Law's Empire 359-69 (1986); Paul Brest, The Misconceived Quest for the Original Understanding, 60 B.U. L. Rev. 204 (1980); H. Jefferson Powell, The Original Understanding of Original Intent, 98 Harv. L. Rev. 885 (1985); and Mark V. Tushnet, Following the Rules Laid Down: A Critique of Interpretevism and Neutral Principles, 96 Harv. L. Rev. 781 (1983). This paper will not address either the legitimacy or the methodology of original meaning analysis. My purpose is to explore jurisprudential choices of the New Deal Court. Whatever the appropriate role or methodology of originalism, the justices of the New Deal Convention expressly grounded much of the revolution upon text and what they claimed was the original meaning of the Constitution.
34. Modern theories of originalism tend to distinguish "original meaning" from "original intent." See, e.g., Randy E. Barnett, The Original Meaning of the Commerce Clause, 68 U. Chi. L. Rev. 101, 105 (2001); Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A Matter of Interpretation: Federal Courts and the Law (Amy Gutmann ed., 1997). There is a longstanding debate regarding the normative attractiveness and proper methodology of originalism. For proponents, see Scalia, supra; Keith E. Whittington, Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review (1999); Randy E. Barnett, An Originalism For Nonoriginalists, 45 Loy. L. Rev. 611 (1999) [hereinafter Barnett, Originalism]; and Richard S. Kay, Adherence to the Original Intentions in Constitutional Adjudication: Three Objections and Responses, 82 Nw. U. L. Rev. 226, 233 (1988). See also Robert H. Bork, The Tempting of America: The Political Seduction of the Law 145 (1990). For critiques, see Ronald Dworkin, Law's Empire 359-69 (1986); Paul Brest, The Misconceived Quest for the Original Understanding, 60 B.U. L. Rev. 204 (1980); H. Jefferson Powell, The Original Understanding of Original Intent, 98 Harv. L. Rev. 885 (1985); and Mark V. Tushnet, Following the Rules Laid Down: A Critique of Interpretevism and Neutral Principles, 96 Harv. L. Rev. 781 (1983). This paper will not address either the legitimacy or the methodology of original meaning analysis. My purpose is to explore jurisprudential choices of the New Deal Court. Whatever the appropriate role or methodology of originalism, the justices of the New Deal Convention expressly grounded much of the revolution upon text and what they claimed was the original meaning of the Constitution.
35. Modern theories of originalism tend to distinguish "original meaning" from "original intent." See, e.g., Randy E. Barnett, The Original Meaning of the Commerce Clause, 68 U. Chi. L. Rev. 101, 105 (2001); Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A Matter of Interpretation: Federal Courts and the Law (Amy Gutmann ed., 1997). There is a longstanding debate regarding the normative attractiveness and proper methodology of originalism. For proponents, see Scalia, supra; Keith E. Whittington, Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review (1999); Randy E. Barnett, An Originalism For Nonoriginalists, 45 Loy. L. Rev. 611 (1999) [hereinafter Barnett, Originalism]; and Richard S. Kay, Adherence to the Original Intentions in Constitutional Adjudication: Three Objections and Responses, 82 Nw. U. L. Rev. 226, 233 (1988). See also Robert H. Bork, The Tempting of America: The Political Seduction of the Law 145 (1990). For critiques, see Ronald Dworkin, Law's Empire 359-69 (1986); Paul Brest, The Misconceived Quest for the Original Understanding, 60 B.U. L. Rev. 204 (1980); H. Jefferson Powell, The Original Understanding of Original Intent, 98 Harv. L. Rev. 885 (1985); and Mark V. Tushnet, Following the Rules Laid Down: A Critique of Interpretevism and Neutral Principles, 96 Harv. L. Rev. 781 (1983). This paper will not address either the legitimacy or the methodology of original meaning analysis. My purpose is to explore jurisprudential choices of the New Deal Court. Whatever the appropriate role or methodology of originalism, the justices of the New Deal Convention expressly grounded much of the revolution upon text and what they claimed was the original meaning of the Constitution.
36. Modern theories of originalism tend to distinguish "original meaning" from "original intent." See, e.g., Randy E. Barnett, The Original Meaning of the Commerce Clause, 68 U. Chi. L. Rev. 101, 105 (2001); Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A Matter of Interpretation: Federal Courts and the Law (Amy Gutmann ed., 1997). There is a longstanding debate regarding the normative attractiveness and proper methodology of originalism. For proponents, see Scalia, supra; Keith E. Whittington, Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review (1999); Randy E. Barnett, An Originalism For Nonoriginalists, 45 Loy. L. Rev. 611 (1999) [hereinafter Barnett, Originalism]; and Richard S. Kay, Adherence to the Original Intentions in Constitutional Adjudication: Three Objections and Responses, 82 Nw. U. L. Rev. 226, 233 (1988). See also Robert H. Bork, The Tempting of America: The Political Seduction of the Law 145 (1990). For critiques, see Ronald Dworkin, Law's Empire 359-69 (1986); Paul Brest, The Misconceived Quest for the Original Understanding, 60 B.U. L. Rev. 204 (1980); H. Jefferson Powell, The Original Understanding of Original Intent, 98 Harv. L. Rev. 885 (1985); and Mark V. Tushnet, Following the Rules Laid Down: A Critique of Interpretevism and Neutral Principles, 96 Harv. L. Rev. 781 (1983). This paper will not address either the legitimacy or the methodology of original meaning analysis. My purpose is to explore jurisprudential choices of the New Deal Court. Whatever the appropriate role or methodology of originalism, the justices of the New Deal Convention expressly grounded much of the revolution upon text and what they claimed was the original meaning of the Constitution.
37. Modern theories of originalism tend to distinguish "original meaning" from "original intent." See, e.g., Randy E. Barnett, The Original Meaning of the Commerce Clause, 68 U. Chi. L. Rev. 101, 105 (2001); Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A Matter of Interpretation: Federal Courts and the Law (Amy Gutmann ed., 1997). There is a longstanding debate regarding the normative attractiveness and proper methodology of originalism. For proponents, see Scalia, supra; Keith E. Whittington, Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review (1999); Randy E. Barnett, An Originalism For Nonoriginalists, 45 Loy. L. Rev. 611 (1999) [hereinafter Barnett, Originalism]; and Richard S. Kay, Adherence to the Original Intentions in Constitutional Adjudication: Three Objections and Responses, 82 Nw. U. L. Rev. 226, 233 (1988). See also Robert H. Bork, The Tempting of America: The Political Seduction of the Law 145 (1990). For critiques, see Ronald Dworkin, Law's Empire 359-69 (1986); Paul Brest, The Misconceived Quest for the Original Understanding, 60 B.U. L. Rev. 204 (1980); H. Jefferson Powell, The Original Understanding of Original Intent, 98 Harv. L. Rev. 885 (1985); and Mark V. Tushnet, Following the Rules Laid Down: A Critique of Interpretevism and Neutral Principles, 96 Harv. L. Rev. 781 (1983). This paper will not address either the legitimacy or the methodology of original meaning analysis. My purpose is to explore jurisprudential choices of the New Deal Court. Whatever the appropriate role or methodology of originalism, the justices of the New Deal Convention expressly grounded much of the revolution upon text and what they claimed was the original meaning of the Constitution.
38. Modern theories of originalism tend to distinguish "original meaning" from "original intent." See, e.g., Randy E. Barnett, The Original Meaning of the Commerce Clause, 68 U. Chi. L. Rev. 101, 105 (2001); Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A Matter of Interpretation: Federal Courts and the Law (Amy Gutmann ed., 1997). There is a longstanding debate regarding the normative attractiveness and proper methodology of originalism. For proponents, see Scalia, supra; Keith E. Whittington, Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review (1999); Randy E. Barnett, An Originalism For Nonoriginalists, 45 Loy. L. Rev. 611 (1999) [hereinafter Barnett, Originalism]; and Richard S. Kay, Adherence to the Original Intentions in Constitutional Adjudication: Three Objections and Responses, 82 Nw. U. L. Rev. 226, 233 (1988). See also Robert H. Bork, The Tempting of America: The Political Seduction of the Law 145 (1990). For critiques, see Ronald Dworkin, Law's Empire 359-69 (1986); Paul Brest, The Misconceived Quest for the Original Understanding, 60 B.U. L. Rev. 204 (1980); H. Jefferson Powell, The Original Understanding of Original Intent, 98 Harv. L. Rev. 885 (1985); and Mark V. Tushnet, Following the Rules Laid Down: A Critique of Interpretevism and Neutral Principles, 96 Harv. L. Rev. 781 (1983). This paper will not address either the legitimacy or the methodology of original meaning analysis. My purpose is to explore jurisprudential choices of the New Deal Court. Whatever the appropriate role or methodology of originalism, the justices of the New Deal Convention expressly grounded much of the revolution upon text and what they claimed was the original meaning of the Constitution.
39. Modern theories of originalism tend to distinguish "original meaning" from "original intent." See, e.g., Randy E. Barnett, The Original Meaning of the Commerce Clause, 68 U. Chi. L. Rev. 101, 105 (2001); Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A Matter of Interpretation: Federal Courts and the Law (Amy Gutmann ed., 1997). There is a longstanding debate regarding the normative attractiveness and proper methodology of originalism. For proponents, see Scalia, supra; Keith E. Whittington, Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review (1999); Randy E. Barnett, An Originalism For Nonoriginalists, 45 Loy. L. Rev. 611 (1999) [hereinafter Barnett, Originalism]; and Richard S. Kay, Adherence to the Original Intentions in Constitutional Adjudication: Three Objections and Responses, 82 Nw. U. L. Rev. 226, 233 (1988). See also Robert H. Bork, The Tempting of America: The Political Seduction of the Law 145 (1990). For critiques, see Ronald Dworkin, Law's Empire 359-69 (1986); Paul Brest, The Misconceived Quest for the Original Understanding, 60 B.U. L. Rev. 204 (1980); H. Jefferson Powell, The Original Understanding of Original Intent, 98 Harv. L. Rev. 885 (1985); and Mark V. Tushnet, Following the Rules Laid Down: A Critique of Interpretevism and Neutral Principles, 96 Harv. L. Rev. 781 (1983). This paper will not address either the legitimacy or the methodology of original meaning analysis. My purpose is to explore jurisprudential choices of the New Deal Court. Whatever the appropriate role or methodology of originalism, the justices of the New Deal Convention expressly grounded much of the revolution upon text and what they claimed was the original meaning of the Constitution.
40. Modern theories of originalism tend to distinguish "original meaning" from "original intent." See, e.g., Randy E. Barnett, The Original Meaning of the Commerce Clause, 68 U. Chi. L. Rev. 101, 105 (2001); Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A Matter of Interpretation: Federal Courts and the Law (Amy Gutmann ed., 1997). There is a longstanding debate regarding the normative attractiveness and proper methodology of originalism. For proponents, see Scalia, supra; Keith E. Whittington, Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review (1999); Randy E. Barnett, An Originalism For Nonoriginalists, 45 Loy. L. Rev. 611 (1999) [hereinafter Barnett, Originalism]; and Richard S. Kay, Adherence to the Original Intentions in Constitutional Adjudication: Three Objections and Responses, 82 Nw. U. L. Rev. 226, 233 (1988). See also Robert H. Bork, The Tempting of America: The Political Seduction of the Law 145 (1990). For critiques, see Ronald Dworkin, Law's Empire 359-69 (1986); Paul Brest, The Misconceived Quest for the Original Understanding, 60 B.U. L. Rev. 204 (1980); H. Jefferson Powell, The Original Understanding of Original Intent, 98 Harv. L. Rev. 885 (1985); and Mark V. Tushnet, Following the Rules Laid Down: A Critique of Interpretevism and Neutral Principles, 96 Harv. L. Rev. 781 (1983). This paper will not address either the legitimacy or the methodology of original meaning analysis. My purpose is to explore jurisprudential choices of the New Deal Court. Whatever the appropriate role or methodology of originalism, the justices of the New Deal Convention expressly grounded much of the revolution upon text and what they claimed was the original meaning of the Constitution.
41. Modern theories of originalism tend to distinguish "original meaning" from "original intent." See, e.g., Randy E. Barnett, The Original Meaning of the Commerce Clause, 68 U. Chi. L. Rev. 101, 105 (2001); Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A Matter of Interpretation: Federal Courts and the Law (Amy Gutmann ed., 1997). There is a longstanding debate regarding the normative attractiveness and proper methodology of originalism. For proponents, see Scalia, supra; Keith E. Whittington, Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review (1999); Randy E. Barnett, An Originalism For Nonoriginalists, 45 Loy. L. Rev. 611 (1999) [hereinafter Barnett, Originalism]; and Richard S. Kay, Adherence to the Original Intentions in Constitutional Adjudication: Three Objections and Responses, 82 Nw. U. L. Rev. 226, 233 (1988). See also Robert H. Bork, The Tempting of America: The Political Seduction of the Law 145 (1990). For critiques, see Ronald Dworkin, Law's Empire 359-69 (1986); Paul Brest, The Misconceived Quest for the Original Understanding, 60 B.U. L. Rev. 204 (1980); H. Jefferson Powell, The Original Understanding of Original Intent, 98 Harv. L. Rev. 885 (1985); and Mark V. Tushnet, Following the Rules Laid Down: A Critique of Interpretevism and Neutral Principles, 96 Harv. L. Rev. 781 (1983). This paper will not address either the legitimacy or the methodology of original meaning analysis. My purpose is to explore jurisprudential choices of the New Deal Court. Whatever the appropriate role or methodology of originalism, the justices of the New Deal Convention expressly grounded much of the revolution upon text and what they claimed was the original meaning of the Constitution.
42. Modern theories of originalism tend to distinguish "original meaning" from "original intent." See, e.g., Randy E. Barnett, The Original Meaning of the Commerce Clause, 68 U. Chi. L. Rev. 101, 105 (2001); Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A Matter of Interpretation: Federal Courts and the Law (Amy Gutmann ed., 1997). There is a longstanding debate regarding the normative attractiveness and proper methodology of originalism. For proponents, see Scalia, supra; Keith E. Whittington, Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review (1999); Randy E. Barnett, An Originalism For Nonoriginalists, 45 Loy. L. Rev. 611 (1999) [hereinafter Barnett, Originalism]; and Richard S. Kay, Adherence to the Original Intentions in Constitutional Adjudication: Three Objections and Responses, 82 Nw. U. L. Rev. 226, 233 (1988). See also Robert H. Bork, The Tempting of America: The Political Seduction of the Law 145 (1990). For critiques, see Ronald Dworkin, Law's Empire 359-69 (1986); Paul Brest, The Misconceived Quest for the Original Understanding, 60 B.U. L. Rev. 204 (1980); H. Jefferson Powell, The Original Understanding of Original Intent, 98 Harv. L. Rev. 885 (1985); and Mark V. Tushnet, Following the Rules Laid Down: A Critique of Interpretevism and Neutral Principles, 96 Harv. L. Rev. 781 (1983). This paper will not address either the legitimacy or the methodology of original meaning analysis. My purpose is to explore jurisprudential choices of the New Deal Court. Whatever the appropriate role or methodology of originalism, the justices of the New Deal Convention expressly grounded much of the revolution upon text and what they claimed was the original meaning of the Constitution.
43. Modern theories of originalism tend to distinguish "original meaning" from "original intent." See, e.g., Randy E. Barnett, The Original Meaning of the Commerce Clause, 68 U. Chi. L. Rev. 101, 105 (2001); Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A Matter of Interpretation: Federal Courts and the Law (Amy Gutmann ed., 1997). There is a longstanding debate regarding the normative attractiveness and proper methodology of originalism. For proponents, see Scalia, supra; Keith E. Whittington, Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review (1999); Randy E. Barnett, An Originalism For Nonoriginalists, 45 Loy. L. Rev. 611 (1999) [hereinafter Barnett, Originalism]; and Richard S. Kay, Adherence to the Original Intentions in Constitutional Adjudication: Three Objections and Responses, 82 Nw. U. L. Rev. 226, 233 (1988). See also Robert H. Bork, The Tempting of America: The Political Seduction of the Law 145 (1990). For critiques, see Ronald Dworkin, Law's Empire 359-69 (1986); Paul Brest, The Misconceived Quest for the Original Understanding, 60 B.U. L. Rev. 204 (1980); H. Jefferson Powell, The Original Understanding of Original Intent, 98 Harv. L. Rev. 885 (1985); and Mark V. Tushnet, Following the Rules Laid Down: A Critique of Interpretevism and Neutral Principles, 96 Harv. L. Rev. 781 (1983). This paper will not address either the legitimacy or the methodology of original meaning analysis. My purpose is to explore jurisprudential choices of the New Deal Court. Whatever the appropriate role or methodology of originalism, the justices of the New Deal Convention expressly grounded much of the revolution upon text and what they claimed was the original meaning of the Constitution.
44. See Wickard v. Filburn, 317 U.S. 111 (1942); United States v. Darby, 312 U.S. 100 (1941).
45. See infra Part II.C.
46. See infra Parts III.B, D-E.
47. See Grosjean v. American Press Co., 297 U.S. 233 (1936); Near v. Minnesota, 283 U.S. 697 (1931); Gitlow v. New York, 268 U.S. 652 (1925); Lochner v. New York, 198 U.S. 45 (1905); Allgeyer v. Louisiana, 165 U.S. 578 (1897).
48. See Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction (1998) [hereinafter Amar, Bill of Rights]; Michael Kent Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (1986) [hereinafter Curtis, No State]; Akhil Reed Amar, Did the Fourteenth Amendment Incorporate the Bill of Rights Against States?, 19 Harv. J.L. & Pub. Pol'y 443 (1996); Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment, 101 Yale L.J. 1193 (1992); Richard L. Aynes, On Misreading John Bingham and the Fourteenth Amendment, 103 Yale L.J. 57 (1993) [hereinafter Aynes, Misreading John Bingham]. For additional arguments suggesting the significance of the Privileges or Immunities Clause, see John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 22-30 (1980); William Winslow Crosskey, Charles Fairman, "Legislative History," and the Constitutional Limitations on State Authority, 22 U. Chi. L. Rev. 1 (1954); and Philip B. Kurland, The Privileges or Immunities Clause: "Its Hour Come Round at Last"?, 1972 Wash. U. L.Q. 405. Justice Hugo Black also suggested a new look at the Privileges or Immunities Clause in Adamson v. California, 332 U.S. 46, 68-92 (1947) (Black, J., dissenting). Even if not all modern scholars are convinced about the original intent to incorporate the Bill of Rights by way of the Privileges or Immunities Clause, I am not aware of a single scholar who argues that the framers intended the Due Process Clause to be the vehicle for incorporation.
49. See Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction (1998) [hereinafter Amar, Bill of Rights]; Michael Kent Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (1986) [hereinafter Curtis, No State]; Akhil Reed Amar, Did the Fourteenth Amendment Incorporate the Bill of Rights Against States?, 19 Harv. J.L. & Pub. Pol'y 443 (1996); Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment, 101 Yale L.J. 1193 (1992); Richard L. Aynes, On Misreading John Bingham and the Fourteenth Amendment, 103 Yale L.J. 57 (1993) [hereinafter Aynes, Misreading John Bingham]. For additional arguments suggesting the significance of the Privileges or Immunities Clause, see John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 22-30 (1980); William Winslow Crosskey, Charles Fairman, "Legislative History," and the Constitutional Limitations on State Authority, 22 U. Chi. L. Rev. 1 (1954); and Philip B. Kurland, The Privileges or Immunities Clause: "Its Hour Come Round at Last"?, 1972 Wash. U. L.Q. 405. Justice Hugo Black also suggested a new look at the Privileges or Immunities Clause in Adamson v. California, 332 U.S. 46, 68-92 (1947) (Black, J., dissenting). Even if not all modern scholars are convinced about the original intent to incorporate the Bill of Rights by way of the Privileges or Immunities Clause, I am not aware of a single scholar who argues that the framers intended the Due Process Clause to be the vehicle for incorporation.
50. See Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction (1998) [hereinafter Amar, Bill of Rights]; Michael Kent Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (1986) [hereinafter Curtis, No State]; Akhil Reed Amar, Did the Fourteenth Amendment Incorporate the Bill of Rights Against States?, 19 Harv. J.L. & Pub. Pol'y 443 (1996); Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment, 101 Yale L.J. 1193 (1992); Richard L. Aynes, On Misreading John Bingham and the Fourteenth Amendment, 103 Yale L.J. 57 (1993) [hereinafter Aynes, Misreading John Bingham]. For additional arguments suggesting the significance of the Privileges or Immunities Clause, see John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 22-30 (1980); William Winslow Crosskey, Charles Fairman, "Legislative History," and the Constitutional Limitations on State Authority, 22 U. Chi. L. Rev. 1 (1954); and Philip B. Kurland, The Privileges or Immunities Clause: "Its Hour Come Round at Last"?, 1972 Wash. U. L.Q. 405. Justice Hugo Black also suggested a new look at the Privileges or Immunities Clause in Adamson v. California, 332 U.S. 46, 68-92 (1947) (Black, J., dissenting). Even if not all modern scholars are convinced about the original intent to incorporate the Bill of Rights by way of the Privileges or Immunities Clause, I am not aware of a single scholar who argues that the framers intended the Due Process Clause to be the vehicle for incorporation.
51. See Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction (1998) [hereinafter Amar, Bill of Rights]; Michael Kent Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (1986) [hereinafter Curtis, No State]; Akhil Reed Amar, Did the Fourteenth Amendment Incorporate the Bill of Rights Against States?, 19 Harv. J.L. & Pub. Pol'y 443 (1996); Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment, 101 Yale L.J. 1193 (1992); Richard L. Aynes, On Misreading John Bingham and the Fourteenth Amendment, 103 Yale L.J. 57 (1993) [hereinafter Aynes, Misreading John Bingham]. For additional arguments suggesting the significance of the Privileges or Immunities Clause, see John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 22-30 (1980); William Winslow Crosskey, Charles Fairman, "Legislative History," and the Constitutional Limitations on State Authority, 22 U. Chi. L. Rev. 1 (1954); and Philip B. Kurland, The Privileges or Immunities Clause: "Its Hour Come Round at Last"?, 1972 Wash. U. L.Q. 405. Justice Hugo Black also suggested a new look at the Privileges or Immunities Clause in Adamson v. California, 332 U.S. 46, 68-92 (1947) (Black, J., dissenting). Even if not all modern scholars are convinced about the original intent to incorporate the Bill of Rights by way of the Privileges or Immunities Clause, I am not aware of a single scholar who argues that the framers intended the Due Process Clause to be the vehicle for incorporation.
52. See Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction (1998) [hereinafter Amar, Bill of Rights]; Michael Kent Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (1986) [hereinafter Curtis, No State]; Akhil Reed Amar, Did the Fourteenth Amendment Incorporate the Bill of Rights Against States?, 19 Harv. J.L. & Pub. Pol'y 443 (1996); Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment, 101 Yale L.J. 1193 (1992); Richard L. Aynes, On Misreading John Bingham and the Fourteenth Amendment, 103 Yale L.J. 57 (1993) [hereinafter Aynes, Misreading John Bingham]. For additional arguments suggesting the significance of the Privileges or Immunities Clause, see John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 22-30 (1980); William Winslow Crosskey, Charles Fairman, "Legislative History," and the Constitutional Limitations on State Authority, 22 U. Chi. L. Rev. 1 (1954); and Philip B. Kurland, The Privileges or Immunities Clause: "Its Hour Come Round at Last"?, 1972 Wash. U. L.Q. 405. Justice Hugo Black also suggested a new look at the Privileges or Immunities Clause in Adamson v. California, 332 U.S. 46, 68-92 (1947) (Black, J., dissenting). Even if not all modern scholars are convinced about the original intent to incorporate the Bill of Rights by way of the Privileges or Immunities Clause, I am not aware of a single scholar who argues that the framers intended the Due Process Clause to be the vehicle for incorporation.
53. See Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction (1998) [hereinafter Amar, Bill of Rights]; Michael Kent Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (1986) [hereinafter Curtis, No State]; Akhil Reed Amar, Did the Fourteenth Amendment Incorporate the Bill of Rights Against States?, 19 Harv. J.L. & Pub. Pol'y 443 (1996); Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment, 101 Yale L.J. 1193 (1992); Richard L. Aynes, On Misreading John Bingham and the Fourteenth Amendment, 103 Yale L.J. 57 (1993) [hereinafter Aynes, Misreading John Bingham]. For additional arguments suggesting the significance of the Privileges or Immunities Clause, see John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 22-30 (1980); William Winslow Crosskey, Charles Fairman, "Legislative History," and the Constitutional Limitations on State Authority, 22 U. Chi. L. Rev. 1 (1954); and Philip B. Kurland, The Privileges or Immunities Clause: "Its Hour Come Round at Last"?, 1972 Wash. U. L.Q. 405. Justice Hugo Black also suggested a new look at the Privileges or Immunities Clause in Adamson v. California, 332 U.S. 46, 68-92 (1947) (Black, J., dissenting). Even if not all modern scholars are convinced about the original intent to incorporate the Bill of Rights by way of the Privileges or Immunities Clause, I am not aware of a single scholar who argues that the framers intended the Due Process Clause to be the vehicle for incorporation.
54. See Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction (1998) [hereinafter Amar, Bill of Rights]; Michael Kent Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (1986) [hereinafter Curtis, No State]; Akhil Reed Amar, Did the Fourteenth Amendment Incorporate the Bill of Rights Against States?, 19 Harv. J.L. & Pub. Pol'y 443 (1996); Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment, 101 Yale L.J. 1193 (1992); Richard L. Aynes, On Misreading John Bingham and the Fourteenth Amendment, 103 Yale L.J. 57 (1993) [hereinafter Aynes, Misreading John Bingham]. For additional arguments suggesting the significance of the Privileges or Immunities Clause, see John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 22-30 (1980); William Winslow Crosskey, Charles Fairman, "Legislative History," and the Constitutional Limitations on State Authority, 22 U. Chi. L. Rev. 1 (1954); and Philip B. Kurland, The Privileges or Immunities Clause: "Its Hour Come Round at Last"?, 1972 Wash. U. L.Q. 405. Justice Hugo Black also suggested a new look at the Privileges or Immunities Clause in Adamson v. California, 332 U.S. 46, 68-92 (1947) (Black, J., dissenting). Even if not all modern scholars are convinced about the original intent to incorporate the Bill of Rights by way of the Privileges or Immunities Clause, I am not aware of a single scholar who argues that the framers intended the Due Process Clause to be the vehicle for incorporation.
55. See Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction (1998) [hereinafter Amar, Bill of Rights]; Michael Kent Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (1986) [hereinafter Curtis, No State]; Akhil Reed Amar, Did the Fourteenth Amendment Incorporate the Bill of Rights Against States?, 19 Harv. J.L. & Pub. Pol'y 443 (1996); Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment, 101 Yale L.J. 1193 (1992); Richard L. Aynes, On Misreading John Bingham and the Fourteenth Amendment, 103 Yale L.J. 57 (1993) [hereinafter Aynes, Misreading John Bingham]. For additional arguments suggesting the significance of the Privileges or Immunities Clause, see John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 22-30 (1980); William Winslow Crosskey, Charles Fairman, "Legislative History," and the Constitutional Limitations on State Authority, 22 U. Chi. L. Rev. 1 (1954); and Philip B. Kurland, The Privileges or Immunities Clause: "Its Hour Come Round at Last"?, 1972 Wash. U. L.Q. 405. Justice Hugo Black also suggested a new look at the Privileges or Immunities Clause in Adamson v. California, 332 U.S. 46, 68-92 (1947) (Black, J., dissenting). Even if not all modern scholars are convinced about the original intent to incorporate the Bill of Rights by way of the Privileges or Immunities Clause, I am not aware of a single scholar who argues that the framers intended the Due Process Clause to be the vehicle for incorporation.
56. U.S. Const. amend. XIV, § 1. Although rendered close to a dead letter in the Slaughterhouse Cases, the Supreme Court recently has signaled a renewed interest in the Privileges or Immunities Clause. See Saenz v. Roe, 526 U.S. 489 (1999).
57. See sources cited supra note 26. For an opposing view see Raoul Berger, The Fourteenth Amendment and the Bill of Rights (1989) [hereinafter Berger, Fourteenth Amendment]; Raoul Berger, Incorporation of the Bill of Rights: Akhil Amar's Wishing Well, 62 U. Cin. L. Rev. 1, 3 (1993); Raoul Berger, Incorporation of the Bill of Rights in the Fourteenth Amendment: A Nine-Lived Cat, 42 Ohio St. L.J. 435 (1981) [hereinafter Berger, Nine-Lived Cat]; Charles Fairman, A Reply to Professor Crosskey, 22 U. Chi. L. Rev. 144 (1954) [hereinafter Fairman, Reply]; Charles Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights?, 2 Stan. L. Rev. 5 (1949) [hereinafter Fairman, Fourteenth Amendment].
58. See sources cited supra note 26. For an opposing view see Raoul Berger, The Fourteenth Amendment and the Bill of Rights (1989) [hereinafter Berger, Fourteenth Amendment]; Raoul Berger, Incorporation of the Bill of Rights: Akhil Amar's Wishing Well, 62 U. Cin. L. Rev. 1, 3 (1993); Raoul Berger, Incorporation of the Bill of Rights in the Fourteenth Amendment: A Nine-Lived Cat, 42 Ohio St. L.J. 435 (1981) [hereinafter Berger, Nine-Lived Cat]; Charles Fairman, A Reply to Professor Crosskey, 22 U. Chi. L. Rev. 144 (1954) [hereinafter Fairman, Reply]; Charles Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights?, 2 Stan. L. Rev. 5 (1949) [hereinafter Fairman, Fourteenth Amendment].
59. See sources cited supra note 26. For an opposing view see Raoul Berger, The Fourteenth Amendment and the Bill of Rights (1989) [hereinafter Berger, Fourteenth Amendment]; Raoul Berger, Incorporation of the Bill of Rights: Akhil Amar's Wishing Well, 62 U. Cin. L. Rev. 1, 3 (1993); Raoul Berger, Incorporation of the Bill of Rights in the Fourteenth Amendment: A Nine-Lived Cat, 42 Ohio St. L.J. 435 (1981) [hereinafter Berger, Nine-Lived Cat]; Charles Fairman, A Reply to Professor Crosskey, 22 U. Chi. L. Rev. 144 (1954) [hereinafter Fairman, Reply]; Charles Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights?, 2 Stan. L. Rev. 5 (1949) [hereinafter Fairman, Fourteenth Amendment].
60. See sources cited supra note 26. For an opposing view see Raoul Berger, The Fourteenth Amendment and the Bill of Rights (1989) [hereinafter Berger, Fourteenth Amendment]; Raoul Berger, Incorporation of the Bill of Rights: Akhil Amar's Wishing Well, 62 U. Cin. L. Rev. 1, 3 (1993); Raoul Berger, Incorporation of the Bill of Rights in the Fourteenth Amendment: A Nine-Lived Cat, 42 Ohio St. L.J. 435 (1981) [hereinafter Berger, Nine-Lived Cat]; Charles Fairman, A Reply to Professor Crosskey, 22 U. Chi. L. Rev. 144 (1954) [hereinafter Fairman, Reply]; Charles Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights?, 2 Stan. L. Rev. 5 (1949) [hereinafter Fairman, Fourteenth Amendment].
61. See sources cited supra note 26. For an opposing view see Raoul Berger, The Fourteenth Amendment and the Bill of Rights (1989) [hereinafter Berger, Fourteenth Amendment]; Raoul Berger, Incorporation of the Bill of Rights: Akhil Amar's Wishing Well, 62 U. Cin. L. Rev. 1, 3 (1993); Raoul Berger, Incorporation of the Bill of Rights in the Fourteenth Amendment: A Nine-Lived Cat, 42 Ohio St. L.J. 435 (1981) [hereinafter Berger, Nine-Lived Cat]; Charles Fairman, A Reply to Professor Crosskey, 22 U. Chi. L. Rev. 144 (1954) [hereinafter Fairman, Reply]; Charles Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights?, 2 Stan. L. Rev. 5 (1949) [hereinafter Fairman, Fourteenth Amendment].
62. I believe the evidence does support such a conclusion. See Kurt T. Lash, Power and the Subject of Religion, 59 Ohio St. L.J. 1069 (1998) [hereinafter Lash, Power and Religion]; Kurt T. Lash, The Second Adoption of the Establishment Clause: The Rise of the Nonestablishment Principle, 27 Ariz. St. L.J. 1085 (1995); Kurt T. Lash, The Second Adoption of the Free Exercise Clause: Religious Exemptions Under the Fourteenth Amendment, 88 Nw. U. L. Rev. 1106 (1994) [hereinafter Lash, Free Exercise Clause].
63. I believe the evidence does support such a conclusion. See Kurt T. Lash, Power and the Subject of Religion, 59 Ohio St. L.J. 1069 (1998) [hereinafter Lash, Power and Religion]; Kurt T. Lash, The Second Adoption of the Establishment Clause: The Rise of the Nonestablishment Principle, 27 Ariz. St. L.J. 1085 (1995); Kurt T. Lash, The Second Adoption of the Free Exercise Clause: Religious Exemptions Under the Fourteenth Amendment, 88 Nw. U. L. Rev. 1106 (1994) [hereinafter Lash, Free Exercise Clause].
64. I believe the evidence does support such a conclusion. See Kurt T. Lash, Power and the Subject of Religion, 59 Ohio St. L.J. 1069 (1998) [hereinafter Lash, Power and Religion]; Kurt T. Lash, The Second Adoption of the Establishment Clause: The Rise of the Nonestablishment Principle, 27 Ariz. St. L.J. 1085 (1995); Kurt T. Lash, The Second Adoption of the Free Exercise Clause: Religious Exemptions Under the Fourteenth Amendment, 88 Nw. U. L. Rev. 1106 (1994) [hereinafter Lash, Free Exercise Clause].
65. See Howard Gillman, The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence (1993); Alfred Alvins, Freedom of Choice in Personal Service Occupations: Thirteenth Amendment Limitations on Antidiscrimination Legislation, 49 Cornell L.Q. 228 (1964); Alfred Alvins, The Right to Work and the Fourteenth Amendment: The Original Understanding, 18 Lab. L.J. 15 (1967); Alan Meese, Will, Judgment, and Economic Liberty: Mr. Justice Souter and the Mistranslation of the Due Process Clause, 41 Wm. & Mary L. Rev. 3 (1999); Jeffrey Rosen, Translating the Privileges or Immunities Clause, 66 Geo. Wash. L. Rev. 1241 (1998).
66. See Howard Gillman, The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence (1993); Alfred Alvins, Freedom of Choice in Personal Service Occupations: Thirteenth Amendment Limitations on Antidiscrimination Legislation, 49 Cornell L.Q. 228 (1964); Alfred Alvins, The Right to Work and the Fourteenth Amendment: The Original Understanding, 18 Lab. L.J. 15 (1967); Alan Meese, Will, Judgment, and Economic Liberty: Mr. Justice Souter and the Mistranslation of the Due Process Clause, 41 Wm. & Mary L. Rev. 3 (1999); Jeffrey Rosen, Translating the Privileges or Immunities Clause, 66 Geo. Wash. L. Rev. 1241 (1998).
67. See Howard Gillman, The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence (1993); Alfred Alvins, Freedom of Choice in Personal Service Occupations: Thirteenth Amendment Limitations on Antidiscrimination Legislation, 49 Cornell L.Q. 228 (1964); Alfred Alvins, The Right to Work and the Fourteenth Amendment: The Original Understanding, 18 Lab. L.J. 15 (1967); Alan Meese, Will, Judgment, and Economic Liberty: Mr. Justice Souter and the Mistranslation of the Due Process Clause, 41 Wm. & Mary L. Rev. 3 (1999); Jeffrey Rosen, Translating the Privileges or Immunities Clause, 66 Geo. Wash. L. Rev. 1241 (1998).
68. See Howard Gillman, The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence (1993); Alfred Alvins, Freedom of Choice in Personal Service Occupations: Thirteenth Amendment Limitations on Antidiscrimination Legislation, 49 Cornell L.Q. 228 (1964); Alfred Alvins, The Right to Work and the Fourteenth Amendment: The Original Understanding, 18 Lab. L.J. 15 (1967); Alan Meese, Will, Judgment, and Economic Liberty: Mr. Justice Souter and the Mistranslation of the Due Process Clause, 41 Wm. & Mary L. Rev. 3 (1999); Jeffrey Rosen, Translating the Privileges or Immunities Clause, 66 Geo. Wash. L. Rev. 1241 (1998).
69. See Howard Gillman, The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence (1993); Alfred Alvins, Freedom of Choice in Personal Service Occupations: Thirteenth Amendment Limitations on Antidiscrimination Legislation, 49 Cornell L.Q. 228 (1964); Alfred Alvins, The Right to Work and the Fourteenth Amendment: The Original Understanding, 18 Lab. L.J. 15 (1967); Alan Meese, Will, Judgment, and Economic Liberty: Mr. Justice Souter and the Mistranslation of the Due Process Clause, 41 Wm. & Mary L. Rev. 3 (1999); Jeffrey Rosen, Translating the Privileges or Immunities Clause, 66 Geo. Wash. L. Rev. 1241 (1998).
70. See Corfield v. Coryell, 6 F. Cas. 546, 552 (C.C.E.D. Pa. 1823) (No. 3230).
71. See Curtis, No State, supra note 26, at 73; Amar, Bill of Rights, supra note 26, at 178.
72. See Curtis, No State, supra note 26, at 73; Amar, Bill of Rights, supra note 26, at 178.
73. Corfield, 6 F. Cas. at 552.
74. See Richard Sewell, Ballots for Freedom 284 (1976).
75. Civil Rights Act of 1866, ch. 31, § 1, 14 Stat. 27 (1866) (codified at 42 U.S.C. § 1982 (1994)).
76. Cong. Globe, 35th Cong., 2d Sess. 985 (1859) (statement of Rep. Bingham); see also Cong. Globe, 34th Cong., 3d Sess. 140 (1857) (statement of Rep. Bingham) (stating that equality "protects not only life and liberty, but also property, the product of labor. . . . [and] contemplates that no man shall be wrongfully deprived of the fruit of his toil any more than of his life"). Bingham also indicated that the Privileges or Immunities Clause included more than just the Bill of Rights. According to Bingham, "the privileges and immunities of citizens of the United States, as contradistinguished from citizens of a State, are chiefly defined in the first eight amendments to the Constitution of the United States." Cong. Globe, 42 Cong., 1st Sess. app. 84 (1871) (statement of Rep. Bingham) (emphasis added). But see Michael Kent Curtis, Two Textual Adventures: Thoughts on Reading Jeffrey Rosen's Paper, 66 Geo. Wash. L. Rev. 1269, 1284, 1291 (1998) [hereinafter Curtis, Thoughts] (arguing that members of the thirty-ninth Congress expressed a variety of views regarding the right to contract and own property, and that more research needs to be done).
77. See Abraham Lincoln, Second Inaugural Address (Mar. 4, 1865), in Inaugural Addresses of the Presidents of the United States 142 (U.S. Gov't Printing Office 1989).
78. Michael Curtis points out that the Fourteenth Amendment was not just about racial discrimination, but also was intended to respond to the suppression of civil liberties of whites and blacks. See Curtis, Thoughts, supra note 36, at 1275.
79. See The Slaughterhouse Cases, 83 U.S. 36 (1872). Prior to the Slaughterhouse Cases, a lower federal court twice had ruled the Bill of Rights was protected under the Privileges or Immunities Clause. See United States v. Hall, 26 F. Cas. 79, 81-82 (C.C.S.D. Ala. 1871); United States v. Mall, 26 F. Cas. 1147 (C.C.S.D. Ala. 1871).
80. See The Slaughterhouse Cases, 83 U.S. at 97 ("The privileges and immunities designated are those which of right belong to the citizens of all free governments. Clearly among these must be placed the right to pursue a lawful employment in a lawful manner, without other restraint than such as equally affects all persons."); see also id. at 106 ("There is no more sacred right of citizenship than the right to pursue unmolested a lawful employment in a lawful manner. It is nothing more nor less than the sacred right of labor." (internal quotes omitted)).
81. Justice Bradley wrote: But others of the greatest consequence were enumerated, although they were only secured, in express terms, from invasion by the Federal government; such as the right of habeas corpus, the right of trial by jury, of free exercise of religious worship, the right of free speech and a free press, the right peaceably to assemble for the discussion of public measures, the right to be secure against unreasonable searches and seizures, and above all, and including almost all the rest, the right of not being deprived of life, liberty, or property, without due process of law. These, and still others are specified in the original Constitution, or in the early amendments of it, as among the privileges and immunities of citizens of the United States, or, what is still stronger for the force of the argument, the rights of all persons, whether citizens or not. But even if the Constitution were silent, the fundamental privileges and immunities of citizens, as such, would be no less real and no less inviolable than they now are. It was not necessary to say in words that the citizens of the United States should have and exercise all the privileges of citizens; the privilege of buying, selling, and enjoying property; the privilege of engaging in any lawful employment for a livelihood; the privilege of resorting to the laws for redress of injuries, and the like. Their very citizenship conferred these privileges, if they did not possess them before. Id. at 118-19.
82. See James W. Ely, Jr., The Chief Justiceship of Melville W. Fuller, 1888-1910, at 64 (1995); Stanley Morrison, Does the Fourteenth Amendment Incorporate the Bill of Rights?: The Judicial Interpretation, 2 Stan. L. Rev. 140, 172 n.63 (1949); Bryan H. Wildenthal, The Lost Compromise: Reassessing the Early Understanding in Court and Congress on Incorporation of the Bill of Rights in the Fourteenth Amendment, 61 Ohio St. L.J. 1051, 1091-92 (2000). Michael Curtis has tentatively argued against reading economic liberties into the Privileges or Immunities Clause. See Michael Kent Curtis, Resurrecting the Privileges or Immunities Clause and Revising the Slaughterhouse Cases Without Exhuming Lochner: Individual Rights and the Fourteenth Amendment, 38 B.C. L. Rev. 1, 3 (1996) [hereinafter Curtis, Resurrecting the Privileges or Immunities Clause]. First, Curtis argues that many of the framers of the Fourteenth Amendment did not want to totally destroy the independent character of the states, something which would be threatened by economic liberty protections á la Lochner. See id. at 101-02. Secondly, Curtis notes that the Equal Protection Clause most likely was intended to protect against invidious classifications like race, religion and ethnicity, but not against economic classifications. See id. at 82. Third, the Republicans intended to protect suspect classes like African Americans in the South. See id. at 37. Thus, according to Curtis, it would be ironic to interpret the meaning of the Privileges or Immunities Clause in a manner that advantages corporate power over the relatively weak individual. Id. at 99. Fourth, to whatever extent wealth-based classifications were thought inappropriate in 1868, that view was rejected with the passage of the Sixteenth Amendment which made room for the progressive income tax and wealth redistribution. Id. at 92. Finally, the framers of the Fourteenth Amendment likely would have agreed with progressives who later would characterize economic exploitation as a form of slavery. See id. at 99. Acknowledging that these are merely tentative arguments, a brief response nevertheless is in order. First, Curtis seems to downplay the role free contract/free labor played in the passage of the Civil Rights Act and the adoption of the Fourteenth Amendment. As I point out above, there is clear textual and historical support for fundamental economic rights-at least the protection against unreasonable economic classifications. Secondly, there is no more reason to eschew "liberty of contract" for federalism reasons than there is to eschew incorporation of the Bill of Rights. Enforcement of either set of liberties would rework the relationship between the federal governments and the states. Indeed, the greater threat to the states in 1868 would have been protection of liberties like free speech, free press and equal protection. Including economic liberties would not have raised serious state concerns since broad state regulation of the economy remained years in the future. In other words, no one in 1868 would likely have viewed protection of liberty of contract as any more of a reworking of federalism than any other "incorporated" right. In regard to Curtis's attempt to limit equal protection to certain suspect or invidious classifications, certainly race discrimination was a Republican target. But there is no reason to think Republicans would have viewed class warfare-based discrimination as non-invidious. See Rosen, supra note 30, at 1263. At the very least, Republicans believed the Equal Protection Clause would forbid unreasonable discrimination, and judicial review of economic legislation was as fair game as any other area of law used by the southern states to disadvantage blacks and suppress dissent. As far as the "Progressive" impact of the Sixteenth Amendment is concerned, to date no one has undertaken to show that the original intent behind the Sixteenth Amendment was broad enough to invalidate Lochnerian economic rights. There is no textual reason to read the Sixteenth Amendment as changing anything outside the area of taxation. Nor am I aware of any scholarship suggesting that the drafters of the Sixteenth Amendment (or even later members of the New Deal Court) believed its impact extended to liberty of contract. In this regard, the Sixteenth is more like a "superstatute" than a transformative amendment. See Ackerman, Foundations, supra note 5, at 91. Finally, regarding the "slavery" of economic exploitation: It is anachronistic to read later economic concerns as affecting public understanding of privileges or immunities in 1868. In the end, Curtis's arguments seem more pragmatic than historical. Indeed, he is willing to abandon originalist understanding of the Privileges or Immunities Clause if such an approach leads to Lochner. Curtis, Thoughts, supra note 36, at 1290-92.
83. See James W. Ely, Jr., The Chief Justiceship of Melville W. Fuller, 1888-1910, at 64 (1995); Stanley Morrison, Does the Fourteenth Amendment Incorporate the Bill of Rights?: The Judicial Interpretation, 2 Stan. L. Rev. 140, 172 n.63 (1949); Bryan H. Wildenthal, The Lost Compromise: Reassessing the Early Understanding in Court and Congress on Incorporation of the Bill of Rights in the Fourteenth Amendment, 61 Ohio St. L.J. 1051, 1091-92 (2000). Michael Curtis has tentatively argued against reading economic liberties into the Privileges or Immunities Clause. See Michael Kent Curtis, Resurrecting the Privileges or Immunities Clause and Revising the Slaughterhouse Cases Without Exhuming Lochner: Individual Rights and the Fourteenth Amendment, 38 B.C. L. Rev. 1, 3 (1996) [hereinafter Curtis, Resurrecting the Privileges or Immunities Clause]. First, Curtis argues that many of the framers of the Fourteenth Amendment did not want to totally destroy the independent character of the states, something which would be threatened by economic liberty protections á la Lochner. See id. at 101-02. Secondly, Curtis notes that the Equal Protection Clause most likely was intended to protect against invidious classifications like race, religion and ethnicity, but not against economic classifications. See id. at 82. Third, the Republicans intended to protect suspect classes like African Americans in the South. See id. at 37. Thus, according to Curtis, it would be ironic to interpret the meaning of the Privileges or Immunities Clause in a manner that advantages corporate power over the relatively weak individual. Id. at 99. Fourth, to whatever extent wealth-based classifications were thought inappropriate in 1868, that view was rejected with the passage of the Sixteenth Amendment which made room for the progressive income tax and wealth redistribution. Id. at 92. Finally, the framers of the Fourteenth Amendment likely would have agreed with progressives who later would characterize economic exploitation as a form of slavery. See id. at 99. Acknowledging that these are merely tentative arguments, a brief response nevertheless is in order. First, Curtis seems to downplay the role free contract/free labor played in the passage of the Civil Rights Act and the adoption of the Fourteenth Amendment. As I point out above, there is clear textual and historical support for fundamental economic rights-at least the protection against unreasonable economic classifications. Secondly, there is no more reason to eschew "liberty of contract" for federalism reasons than there is to eschew incorporation of the Bill of Rights. Enforcement of either set of liberties would rework the relationship between the federal governments and the states. Indeed, the greater threat to the states in 1868 would have been protection of liberties like free speech, free press and equal protection. Including economic liberties would not have raised serious state concerns since broad state regulation of the economy remained years in the future. In other words, no one in 1868 would likely have viewed protection of liberty of contract as any more of a reworking of federalism than any other "incorporated" right. In regard to Curtis's attempt to limit equal protection to certain suspect or invidious classifications, certainly race discrimination was a Republican target. But there is no reason to think Republicans would have viewed class warfare-based discrimination as non-invidious. See Rosen, supra note 30, at 1263. At the very least, Republicans believed the Equal Protection Clause would forbid unreasonable discrimination, and judicial review of economic legislation was as fair game as any other area of law used by the southern states to disadvantage blacks and suppress dissent. As far as the "Progressive" impact of the Sixteenth Amendment is concerned, to date no one has undertaken to show that the original intent behind the Sixteenth Amendment was broad enough to invalidate Lochnerian economic rights. There is no textual reason to read the Sixteenth Amendment as changing anything outside the area of taxation. Nor am I aware of any scholarship suggesting that the drafters of the Sixteenth Amendment (or even later members of the New Deal Court) believed its impact extended to liberty of contract. In this regard, the Sixteenth is more like a "superstatute" than a transformative amendment. See Ackerman, Foundations, supra note 5, at 91. Finally, regarding the "slavery" of economic exploitation: It is anachronistic to read later economic concerns as affecting public understanding of privileges or immunities in 1868. In the end, Curtis's arguments seem more pragmatic than historical. Indeed, he is willing to abandon originalist understanding of the Privileges or Immunities Clause if such an approach leads to Lochner. Curtis, Thoughts, supra note 36, at 1290-92.
84. See James W. Ely, Jr., The Chief Justiceship of Melville W. Fuller, 1888-1910, at 64 (1995); Stanley Morrison, Does the Fourteenth Amendment Incorporate the Bill of Rights?: The Judicial Interpretation, 2 Stan. L. Rev. 140, 172 n.63 (1949); Bryan H. Wildenthal, The Lost Compromise: Reassessing the Early Understanding in Court and Congress on Incorporation of the Bill of Rights in the Fourteenth Amendment, 61 Ohio St. L.J. 1051, 1091-92 (2000). Michael Curtis has tentatively argued against reading economic liberties into the Privileges or Immunities Clause. See Michael Kent Curtis, Resurrecting the Privileges or Immunities Clause and Revising the Slaughterhouse Cases Without Exhuming Lochner: Individual Rights and the Fourteenth Amendment, 38 B.C. L. Rev. 1, 3 (1996) [hereinafter Curtis, Resurrecting the Privileges or Immunities Clause]. First, Curtis argues that many of the framers of the Fourteenth Amendment did not want to totally destroy the independent character of the states, something which would be threatened by economic liberty protections á la Lochner. See id. at 101-02. Secondly, Curtis notes that the Equal Protection Clause most likely was intended to protect against invidious classifications like race, religion and ethnicity, but not against economic classifications. See id. at 82. Third, the Republicans intended to protect suspect classes like African Americans in the South. See id. at 37. Thus, according to Curtis, it would be ironic to interpret the meaning of the Privileges or Immunities Clause in a manner that advantages corporate power over the relatively weak individual. Id. at 99. Fourth, to whatever extent wealth-based classifications were thought inappropriate in 1868, that view was rejected with the passage of the Sixteenth Amendment which made room for the progressive income tax and wealth redistribution. Id. at 92. Finally, the framers of the Fourteenth Amendment likely would have agreed with progressives who later would characterize economic exploitation as a form of slavery. See id. at 99. Acknowledging that these are merely tentative arguments, a brief response nevertheless is in order. First, Curtis seems to downplay the role free contract/free labor played in the passage of the Civil Rights Act and the adoption of the Fourteenth Amendment. As I point out above, there is clear textual and historical support for fundamental economic rights-at least the protection against unreasonable economic classifications. Secondly, there is no more reason to eschew "liberty of contract" for federalism reasons than there is to eschew incorporation of the Bill of Rights. Enforcement of either set of liberties would rework the relationship between the federal governments and the states. Indeed, the greater threat to the states in 1868 would have been protection of liberties like free speech, free press and equal protection. Including economic liberties would not have raised serious state concerns since broad state regulation of the economy remained years in the future. In other words, no one in 1868 would likely have viewed protection of liberty of contract as any more of a reworking of federalism than any other "incorporated" right. In regard to Curtis's attempt to limit equal protection to certain suspect or invidious classifications, certainly race discrimination was a Republican target. But there is no reason to think Republicans would have viewed class warfare-based discrimination as non-invidious. See Rosen, supra note 30, at 1263. At the very least, Republicans believed the Equal Protection Clause would forbid unreasonable discrimination, and judicial review of economic legislation was as fair game as any other area of law used by the southern states to disadvantage blacks and suppress dissent. As far as the "Progressive" impact of the Sixteenth Amendment is concerned, to date no one has undertaken to show that the original intent behind the Sixteenth Amendment was broad enough to invalidate Lochnerian economic rights. There is no textual reason to read the Sixteenth Amendment as changing anything outside the area of taxation. Nor am I aware of any scholarship suggesting that the drafters of the Sixteenth Amendment (or even later members of the New Deal Court) believed its impact extended to liberty of contract. In this regard, the Sixteenth is more like a "superstatute" than a transformative amendment. See Ackerman, Foundations, supra note 5, at 91. Finally, regarding the "slavery" of economic exploitation: It is anachronistic to read later economic concerns as affecting public understanding of privileges or immunities in 1868. In the end, Curtis's arguments seem more pragmatic than historical. Indeed, he is willing to abandon originalist understanding of the Privileges or Immunities Clause if such an approach leads to Lochner. Curtis, Thoughts, supra note 36, at 1290-92.
85. See James W. Ely, Jr., The Chief Justiceship of Melville W. Fuller, 1888-1910, at 64 (1995); Stanley Morrison, Does the Fourteenth Amendment Incorporate the Bill of Rights?: The Judicial Interpretation, 2 Stan. L. Rev. 140, 172 n.63 (1949); Bryan H. Wildenthal, The Lost Compromise: Reassessing the Early Understanding in Court and Congress on Incorporation of the Bill of Rights in the Fourteenth Amendment, 61 Ohio St. L.J. 1051, 1091-92 (2000). Michael Curtis has tentatively argued against reading economic liberties into the Privileges or Immunities Clause. See Michael Kent Curtis, Resurrecting the Privileges or Immunities Clause and Revising the Slaughterhouse Cases Without Exhuming Lochner: Individual Rights and the Fourteenth Amendment, 38 B.C. L. Rev. 1, 3 (1996) [hereinafter Curtis, Resurrecting the Privileges or Immunities Clause]. First, Curtis argues that many of the framers of the Fourteenth Amendment did not want to totally destroy the independent character of the states, something which would be threatened by economic liberty protections á la Lochner. See id. at 101-02. Secondly, Curtis notes that the Equal Protection Clause most likely was intended to protect against invidious classifications like race, religion and ethnicity, but not against economic classifications. See id. at 82. Third, the Republicans intended to protect suspect classes like African Americans in the South. See id. at 37. Thus, according to Curtis, it would be ironic to interpret the meaning of the Privileges or Immunities Clause in a manner that advantages corporate power over the relatively weak individual. Id. at 99. Fourth, to whatever extent wealth-based classifications were thought inappropriate in 1868, that view was rejected with the passage of the Sixteenth Amendment which made room for the progressive income tax and wealth redistribution. Id. at 92. Finally, the framers of the Fourteenth Amendment likely would have agreed with progressives who later would characterize economic exploitation as a form of slavery. See id. at 99. Acknowledging that these are merely tentative arguments, a brief response nevertheless is in order. First, Curtis seems to downplay the role free contract/free labor played in the passage of the Civil Rights Act and the adoption of the Fourteenth Amendment. As I point out above, there is clear textual and historical support for fundamental economic rights-at least the protection against unreasonable economic classifications. Secondly, there is no more reason to eschew "liberty of contract" for federalism reasons than there is to eschew incorporation of the Bill of Rights. Enforcement of either set of liberties would rework the relationship between the federal governments and the states. Indeed, the greater threat to the states in 1868 would have been protection of liberties like free speech, free press and equal protection. Including economic liberties would not have raised serious state concerns since broad state regulation of the economy remained years in the future. In other words, no one in 1868 would likely have viewed protection of liberty of contract as any more of a reworking of federalism than any other "incorporated" right. In regard to Curtis's attempt to limit equal protection to certain suspect or invidious classifications, certainly race discrimination was a Republican target. But there is no reason to think Republicans would have viewed class warfare-based discrimination as non-invidious. See Rosen, supra note 30, at 1263. At the very least, Republicans believed the Equal Protection Clause would forbid unreasonable discrimination, and judicial review of economic legislation was as fair game as any other area of law used by the southern states to disadvantage blacks and suppress dissent. As far as the "Progressive" impact of the Sixteenth Amendment is concerned, to date no one has undertaken to show that the original intent behind the Sixteenth Amendment was broad enough to invalidate Lochnerian economic rights. There is no textual reason to read the Sixteenth Amendment as changing anything outside the area of taxation. Nor am I aware of any scholarship suggesting that the drafters of the Sixteenth Amendment (or even later members of the New Deal Court) believed its impact extended to liberty of contract. In this regard, the Sixteenth is more like a "superstatute" than a transformative amendment. See Ackerman, Foundations, supra note 5, at 91. Finally, regarding the "slavery" of economic exploitation: It is anachronistic to read later economic concerns as affecting public understanding of privileges or immunities in 1868. In the end, Curtis's arguments seem more pragmatic than historical. Indeed, he is willing to abandon originalist understanding of the Privileges or Immunities Clause if such an approach leads to Lochner. Curtis, Thoughts, supra note 36, at 1290-92.
86. See James W. Ely, Jr., The Chief Justiceship of Melville W. Fuller, 1888-1910, at 64 (1995); Stanley Morrison, Does the Fourteenth Amendment Incorporate the Bill of Rights?: The Judicial Interpretation, 2 Stan. L. Rev. 140, 172 n.63 (1949); Bryan H. Wildenthal, The Lost Compromise: Reassessing the Early Understanding in Court and Congress on Incorporation of the Bill of Rights in the Fourteenth Amendment, 61 Ohio St. L.J. 1051, 1091-92 (2000). Michael Curtis has tentatively argued against reading economic liberties into the Privileges or Immunities Clause. See Michael Kent Curtis, Resurrecting the Privileges or Immunities Clause and Revising the Slaughterhouse Cases Without Exhuming Lochner: Individual Rights and the Fourteenth Amendment, 38 B.C. L. Rev. 1, 3 (1996) [hereinafter Curtis, Resurrecting the Privileges or Immunities Clause]. First, Curtis argues that many of the framers of the Fourteenth Amendment did not want to totally destroy the independent character of the states, something which would be threatened by economic liberty protections á la Lochner. See id. at 101-02. Secondly, Curtis notes that the Equal Protection Clause most likely was intended to protect against invidious classifications like race, religion and ethnicity, but not against economic classifications. See id. at 82. Third, the Republicans intended to protect suspect classes like African Americans in the South. See id. at 37. Thus, according to Curtis, it would be ironic to interpret the meaning of the Privileges or Immunities Clause in a manner that advantages corporate power over the relatively weak individual. Id. at 99. Fourth, to whatever extent wealth-based classifications were thought inappropriate in 1868, that view was rejected with the passage of the Sixteenth Amendment which made room for the progressive income tax and wealth redistribution. Id. at 92. Finally, the framers of the Fourteenth Amendment likely would have agreed with progressives who later would characterize economic exploitation as a form of slavery. See id. at 99. Acknowledging that these are merely tentative arguments, a brief response nevertheless is in order. First, Curtis seems to downplay the role free contract/free labor played in the passage of the Civil Rights Act and the adoption of the Fourteenth Amendment. As I point out above, there is clear textual and historical support for fundamental economic rights-at least the protection against unreasonable economic classifications. Secondly, there is no more reason to eschew "liberty of contract" for federalism reasons than there is to eschew incorporation of the Bill of Rights. Enforcement of either set of liberties would rework the relationship between the federal governments and the states. Indeed, the greater threat to the states in 1868 would have been protection of liberties like free speech, free press and equal protection. Including economic liberties would not have raised serious state concerns since broad state regulation of the economy remained years in the future. In other words, no one in 1868 would likely have viewed protection of liberty of contract as any more of a reworking of federalism than any other "incorporated" right. In regard to Curtis's attempt to limit equal protection to certain suspect or invidious classifications, certainly race discrimination was a Republican target. But there is no reason to think Republicans would have viewed class warfare-based discrimination as non-invidious. See Rosen, supra note 30, at 1263. At the very least, Republicans believed the Equal Protection Clause would forbid unreasonable discrimination, and judicial review of economic legislation was as fair game as any other area of law used by the southern states to disadvantage blacks and suppress dissent. As far as the "Progressive" impact of the Sixteenth Amendment is concerned, to date no one has undertaken to show that the original intent behind the Sixteenth Amendment was broad enough to invalidate Lochnerian economic rights. There is no textual reason to read the Sixteenth Amendment as changing anything outside the area of taxation. Nor am I aware of any scholarship suggesting that the drafters of the Sixteenth Amendment (or even later members of the New Deal Court) believed its impact extended to liberty of contract. In this regard, the Sixteenth is more like a "superstatute" than a transformative amendment. See Ackerman, Foundations, supra note 5, at 91. Finally, regarding the "slavery" of economic exploitation: It is anachronistic to read later economic concerns as affecting public understanding of privileges or immunities in 1868. In the end, Curtis's arguments seem more pragmatic than historical. Indeed, he is willing to abandon originalist understanding of the Privileges or Immunities Clause if such an approach leads to Lochner. Curtis, Thoughts, supra note 36, at 1290-92.
87. See James W. Ely, Jr., The Chief Justiceship of Melville W. Fuller, 1888-1910, at 64 (1995); Stanley Morrison, Does the Fourteenth Amendment Incorporate the Bill of Rights?: The Judicial Interpretation, 2 Stan. L. Rev. 140, 172 n.63 (1949); Bryan H. Wildenthal, The Lost Compromise: Reassessing the Early Understanding in Court and Congress on Incorporation of the Bill of Rights in the Fourteenth Amendment, 61 Ohio St. L.J. 1051, 1091-92 (2000). Michael Curtis has tentatively argued against reading economic liberties into the Privileges or Immunities Clause. See Michael Kent Curtis, Resurrecting the Privileges or Immunities Clause and Revising the Slaughterhouse Cases Without Exhuming Lochner: Individual Rights and the Fourteenth Amendment, 38 B.C. L. Rev. 1, 3 (1996) [hereinafter Curtis, Resurrecting the Privileges or Immunities Clause]. First, Curtis argues that many of the framers of the Fourteenth Amendment did not want to totally destroy the independent character of the states, something which would be threatened by economic liberty protections á la Lochner. See id. at 101-02. Secondly, Curtis notes that the Equal Protection Clause most likely was intended to protect against invidious classifications like race, religion and ethnicity, but not against economic classifications. See id. at 82. Third, the Republicans intended to protect suspect classes like African Americans in the South. See id. at 37. Thus, according to Curtis, it would be ironic to interpret the meaning of the Privileges or Immunities Clause in a manner that advantages corporate power over the relatively weak individual. Id. at 99. Fourth, to whatever extent wealth-based classifications were thought inappropriate in 1868, that view was rejected with the passage of the Sixteenth Amendment which made room for the progressive income tax and wealth redistribution. Id. at 92. Finally, the framers of the Fourteenth Amendment likely would have agreed with progressives who later would characterize economic exploitation as a form of slavery. See id. at 99. Acknowledging that these are merely tentative arguments, a brief response nevertheless is in order. First, Curtis seems to downplay the role free contract/free labor played in the passage of the Civil Rights Act and the adoption of the Fourteenth Amendment. As I point out above, there is clear textual and historical support for fundamental economic rights-at least the protection against unreasonable economic classifications. Secondly, there is no more reason to eschew "liberty of contract" for federalism reasons than there is to eschew incorporation of the Bill of Rights. Enforcement of either set of liberties would rework the relationship between the federal governments and the states. Indeed, the greater threat to the states in 1868 would have been protection of liberties like free speech, free press and equal protection. Including economic liberties would not have raised serious state concerns since broad state regulation of the economy remained years in the future. In other words, no one in 1868 would likely have viewed protection of liberty of contract as any more of a reworking of federalism than any other "incorporated" right. In regard to Curtis's attempt to limit equal protection to certain suspect or invidious classifications, certainly race discrimination was a Republican target. But there is no reason to think Republicans would have viewed class warfare-based discrimination as non-invidious. See Rosen, supra note 30, at 1263. At the very least, Republicans believed the Equal Protection Clause would forbid unreasonable discrimination, and judicial review of economic legislation was as fair game as any other area of law used by the southern states to disadvantage blacks and suppress dissent. As far as the "Progressive" impact of the Sixteenth Amendment is concerned, to date no one has undertaken to show that the original intent behind the Sixteenth Amendment was broad enough to invalidate Lochnerian economic rights. There is no textual reason to read the Sixteenth Amendment as changing anything outside the area of taxation. Nor am I aware of any scholarship suggesting that the drafters of the Sixteenth Amendment (or even later members of the New Deal Court) believed its impact extended to liberty of contract. In this regard, the Sixteenth is more like a "superstatute" than a transformative amendment. See Ackerman, Foundations, supra note 5, at 91. Finally, regarding the "slavery" of economic exploitation: It is anachronistic to read later economic concerns as affecting public understanding of privileges or immunities in 1868. In the end, Curtis's arguments seem more pragmatic than historical. Indeed, he is willing to abandon originalist understanding of the Privileges or Immunities Clause if such an approach leads to Lochner. Curtis, Thoughts, supra note 36, at 1290-92.
88. See James W. Ely, Jr., The Chief Justiceship of Melville W. Fuller, 1888-1910, at 64 (1995); Stanley Morrison, Does the Fourteenth Amendment Incorporate the Bill of Rights?: The Judicial Interpretation, 2 Stan. L. Rev. 140, 172 n.63 (1949); Bryan H. Wildenthal, The Lost Compromise: Reassessing the Early Understanding in Court and Congress on Incorporation of the Bill of Rights in the Fourteenth Amendment, 61 Ohio St. L.J. 1051, 1091-92 (2000). Michael Curtis has tentatively argued against reading economic liberties into the Privileges or Immunities Clause. See Michael Kent Curtis, Resurrecting the Privileges or Immunities Clause and Revising the Slaughterhouse Cases Without Exhuming Lochner: Individual Rights and the Fourteenth Amendment, 38 B.C. L. Rev. 1, 3 (1996) [hereinafter Curtis, Resurrecting the Privileges or Immunities Clause]. First, Curtis argues that many of the framers of the Fourteenth Amendment did not want to totally destroy the independent character of the states, something which would be threatened by economic liberty protections á la Lochner. See id. at 101-02. Secondly, Curtis notes that the Equal Protection Clause most likely was intended to protect against invidious classifications like race, religion and ethnicity, but not against economic classifications. See id. at 82. Third, the Republicans intended to protect suspect classes like African Americans in the South. See id. at 37. Thus, according to Curtis, it would be ironic to interpret the meaning of the Privileges or Immunities Clause in a manner that advantages corporate power over the relatively weak individual. Id. at 99. Fourth, to whatever extent wealth-based classifications were thought inappropriate in 1868, that view was rejected with the passage of the Sixteenth Amendment which made room for the progressive income tax and wealth redistribution. Id. at 92. Finally, the framers of the Fourteenth Amendment likely would have agreed with progressives who later would characterize economic exploitation as a form of slavery. See id. at 99. Acknowledging that these are merely tentative arguments, a brief response nevertheless is in order. First, Curtis seems to downplay the role free contract/free labor played in the passage of the Civil Rights Act and the adoption of the Fourteenth Amendment. As I point out above, there is clear textual and historical support for fundamental economic rights-at least the protection against unreasonable economic classifications. Secondly, there is no more reason to eschew "liberty of contract" for federalism reasons than there is to eschew incorporation of the Bill of Rights. Enforcement of either set of liberties would rework the relationship between the federal governments and the states. Indeed, the greater threat to the states in 1868 would have been protection of liberties like free speech, free press and equal protection. Including economic liberties would not have raised serious state concerns since broad state regulation of the economy remained years in the future. In other words, no one in 1868 would likely have viewed protection of liberty of contract as any more of a reworking of federalism than any other "incorporated" right. In regard to Curtis's attempt to limit equal protection to certain suspect or invidious classifications, certainly race discrimination was a Republican target. But there is no reason to think Republicans would have viewed class warfare-based discrimination as non-invidious. See Rosen, supra note 30, at 1263. At the very least, Republicans believed the Equal Protection Clause would forbid unreasonable discrimination, and judicial review of economic legislation was as fair game as any other area of law used by the southern states to disadvantage blacks and suppress dissent. As far as the "Progressive" impact of the Sixteenth Amendment is concerned, to date no one has undertaken to show that the original intent behind the Sixteenth Amendment was broad enough to invalidate Lochnerian economic rights. There is no textual reason to read the Sixteenth Amendment as changing anything outside the area of taxation. Nor am I aware of any scholarship suggesting that the drafters of the Sixteenth Amendment (or even later members of the New Deal Court) believed its impact extended to liberty of contract. In this regard, the Sixteenth is more like a "superstatute" than a transformative amendment. See Ackerman, Foundations, supra note 5, at 91. Finally, regarding the "slavery" of economic exploitation: It is anachronistic to read later economic concerns as affecting public understanding of privileges or immunities in 1868. In the end, Curtis's arguments seem more pragmatic than historical. Indeed, he is willing to abandon originalist understanding of the Privileges or Immunities Clause if such an approach leads to Lochner. Curtis, Thoughts, supra note 36, at 1290-92.
89. See Bruce Ackerman, Liberating Abstraction, 59 U. Chi. L. Rev. 317, 340 (1992) [hereinafter Ackerman, Liberating Abstraction] ("Freedom of contract is deeply entrenched in the Free Labor and Abolitionist sources of the Reconstruction Amendments, with roots that run as deep as the Enlightenment and Commonwealth ideas that provide the interpretive context for the Founding Bill of Rights.").
90. See Rosen, supra note 30, at 1263.
91. See id. (stating that "Reconstruction-era Republicans repeatedly invoked two different models of impermissible classification - a prohibition on class legislation and an anti-caste principle . . . . [R]egulation in the public interest was permissible, but . . . redistributive regulations, which take property away from A and give it to B, were inherently suspect"); see also Jeffrey Rosen, Class Legislation, Public Choice, and the Structural Constitution, 21 Harv. J.L. & Pub. Pol'y 181, 183 (1997) (citing Gillman, supra note 30, at 33-45).
92. See id. (stating that "Reconstruction-era Republicans repeatedly invoked two different models of impermissible classification - a prohibition on class legislation and an anti-caste principle . . . . [R]egulation in the public interest was permissible, but . . . redistributive regulations, which take property away from A and give it to B, were inherently suspect"); see also Jeffrey Rosen, Class Legislation, Public Choice, and the Structural Constitution, 21 Harv. J.L. & Pub. Pol'y 181, 183 (1997) (citing Gillman, supra note 30, at 33-45).
93. Thomas Cooley, The General Principles of Constitutional Law in the United States of America 231 (1880) (emphasis omitted); see also Allgeyer v. Louisiana, 165 U.S. 578, 591 (1897) ("In the privilege of pursuing an ordinary calling or trade, and of acquiring, holding, and selling property must be embraced the right to make all proper contracts in relation thereto.").
94. See The Slaughterhouse Cases, 83 U.S. 36 (1872).
95. 165 U.S. 578 (1897).
96. Id. at 589. Continuing, Peckham cited Justice Bradley's concurrence in Butchers' Union Company v. Crescent City Company: The right to follow any of the common occupations of life is an inalienable right. It was formulated as such under the phrase "pursuit of happiness" in the Declaration of Independence, which commenced with the fundamental proposition that "all men are created equal, that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty and the pursuit of happiness." This right is a large ingredient in the civil liberty of the citizen. Again, [at 111 U.S. 764] the learned justice said: "I hold that the liberty of pursuit-the right to follow any of the ordinary callings of life-is one of the privileges of a citizen of the United States." And again, [at 111 U.S. 765]: "But if it does not abridge the privileges and immunities of a citizen of the United States to prohibit him from pursuing his chosen calling, and giving to others the exclusive right of pursuing it, it certainly does deprive him (to a certain extent) of his liberty; for it takes from him the freedom of adopting and following the pursuit which he prefers; which, as already intimated, is a material part of the liberty of the citizen." It is true that these remarks were made in regard to questions of monopoly, but they well describe the rights which are covered by the word "liberty" as contained in the fourteenth amendment. Id. at 589-90 (quoting Butchers' Union Co. v. Crescent City Co., 111 U.S. 746, 762, 764, 765 (1883) (Bradley, J., concurring)).
97. See Lochner v. New York, 198 U.S. 45, 53 (1905). The Court stated: The general right to make a contract in relation to his business is part of the liberty of the individual protected by the Fourteenth Amendment of the Federal Constitution. . . . Under that provision no State can deprive any person of life, liberty or property without due process of law. The right to purchase or to sell labor is part of the liberty protected by this amendment, unless there are circumstances which exclude the right. Id. (citation omitted)).
98. 261 U.S. 525 (1923). Felix Frankfurter represented the appellants.
99. 262 U.S. 390 (1923).
100. The school was Lutheran. See id. at 397.
101. See id. at 400. The Court stated: "Plaintiff in error taught this language in school as part of his occupation. His right thus to teach and the right of parents to engage him so to instruct their children, we think, are within the liberty of the Amendment." Id. The Court further stated: The American people have always regarded education and acquisition of knowledge as matters of supreme importance which should be diligently promoted. The Ordinance of 1787 declares, "Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged." Corresponding to the right of control, it is the natural duty of the parent to give his children education suitable to their station in life; and nearly all the States, including Nebraska, enforce this obligation by compulsory laws . . . . Evidently the Legislature has attempted materially to interfere with the calling of modern language teachers, with the opportunities of pupils to acquire knowledge, and with the power of parents to control the education of their own. Id. at 400-01.
102. See id. at 399.
103. Id.
104. Id.
105. See, e.g., Nebbia v. New York, 291 U.S. 502, 547 (1934) (McReynolds, J., dissenting).
106. 268 U.S. 510 (1925). Justice McReynolds wrote the opinion for a unanimous Court.
107. Id. at 534-35.
108. The plaintiffs in Pierce were a Catholic parochial school and a secular military academy. See id. at 531-32.
109. Twining v. New Jersey, 211 U.S. 78, 99 (1908) (Moody, J.).
110. Twining v. New Jersey, 211 U.S. 78 (1908) (rejecting the right against self-incrimination as a fundamental due process right).
111. Id. at 99-100.
112. Id. at 100.
113. See Allgeyer v. Louisiana, 165 U.S. 578 (1897) (protecting liberty of contract); Chicago, Burlington & Quincy R.R. Co. v. City of Chicago, 166 U.S. 226 (1897) (protecting the right to just compensation).
114. See Twining v. New Jersey, 211 U.S. 78 (1908).
115. Adkins v. Children's Hosp., 261 U.S. 525 (1923).
116. Meyer v. Nebraska, 262 U.S. 390 (1923).
117. Gitlow v. New York, 268 U.S. 652, 666 (1925).
118. See Powell v. Alabama, 287 U.S. 45 (1932) (due process requires a fair trial, which in the capital punishment case before the state court, required assistance of counsel); see id. at 67-68 (stating that if some of the first eight Amendments are considered aspects of due process liberty "it is not because those rights are enumerated in the first eight Amendments, but because they are of such a nature that they are included in the conception of due process of law" (quoting Twining, 211 U.S. at 99-100)).
119. 297 U.S. 233 (1936).
120. Id. at 244 ("The word 'liberty' contained in that amendment embraces not only the right of a person to be free from physical restraint, but the right to be free in the enjoyment of all his faculties as well." (citation omitted)).
121. See Palko v. Connecticut, 302 U.S. 319, 326 (1937).
122. Drew Pearson & Robert S. Allen, The Nine Old Men 72 (1937).
123. Jackson, supra note 11, at 180.
124. See Nebbia v. New York, 291 U.S. 502 (1934); The Gold Clause Cases, 294 U.S. 240 (1935).
125. A day known as "Black Monday." See Oxford Companion to the Supreme Court 75 (1992).
126. See Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555 (1935).
127. See Humphrey's Ex'r v. United States, 295 U.S. 602 (1935).
128. See Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935).
129. See United States v. Butler, 297 U.S. 1 (1936).
130. See Carter v. Carter Coal Co., 298 U.S. 238 (1936).
131. See Morehead v. New York ex rel. Tipaldo, 298 U.S. 587 (1936).
132. Jackson, supra note 11, at 70.
133. Roosevelt proposed adding one justice for every Supreme Court justice over age seventy. See Franklin D. Roosevelt, The President Presents a Plan for the Reorganization of the Judicial Bench of the Government (Feb. 5, 1937), in 6 The Public Papers and Addresses of Franklin D. Roosevelt, 1937, at 51-66 (Samuel Rosenman ed., 1941) [hereinafter Roosevelt Public Papers]. For a general discussion of the court packing plan, see Ackerman, Transformations, supra note 5, at 317.
134. Roosevelt proposed adding one justice for every Supreme Court justice over age seventy. See Franklin D. Roosevelt, The President Presents a Plan for the Reorganization of the Judicial Bench of the Government (Feb. 5, 1937), in 6 The Public Papers and Addresses of Franklin D. Roosevelt, 1937, at 51-66 (Samuel Rosenman ed., 1941) [hereinafter Roosevelt Public Papers]. For a general discussion of the court packing plan, see Ackerman, Transformations, supra note 5, at 317.
135. Senators Burton Wheeler and Homer Bone proposed the following amendment: Section 1. In case the Supreme Court renders any judgment holding any Act of Congress or any provision of any such Act unconstitutional, the question with respect to the constitutionality of such Act or provision shall be promptly submitted to the Congress for its action at the earliest practicable date that the Congress is in session . . . ; but no action shall be taken by the Congress upon such question until an election shall have been held at which Members of the House of Representatives are regularly by law to be chosen. If such Act or provision is reenacted by two-thirds of each House of the Congress to which such Members are elected at such election, such Act or provision shall be deemed to be constitutional and effective from the date of such reenactment. S.J. Res. 80, 75th Cong, 1st Sess. (1937). Wheeler later proposed exempting decisions involving the Bill of Rights from his amendment. See Reorganization of the Federal Judiciary: Hearing Before the Committee on the Judiciary, United States Senate, 75th Cong. 485, 500 (1937) (statement of Sen. Wheeler). Presidential advisors Benjamin Cohen and Tommy Corcoran proposed a constitutional amendment which would have allowed Congress to overrule a constitutional decision of the Supreme Court by a two-thirds vote of each house or by a simple majority if an election had intervened. See Benjamin V. Cohen & Thomas G. Corcoran, Memorandum on Constitutional Problems, Cohen Papers, Library of Congress (1937) (on file with the Fordham Law Review); see also William Lasser, Justice Roberts and the Constitutional Revolution of 1937-Was There a "Switch In Time"?, 78 Tex. L. Rev. 1347 (2000) (reviewing Cushman, supra note 5).
136. Senators Burton Wheeler and Homer Bone proposed the following amendment: Section 1. In case the Supreme Court renders any judgment holding any Act of Congress or any provision of any such Act unconstitutional, the question with respect to the constitutionality of such Act or provision shall be promptly submitted to the Congress for its action at the earliest practicable date that the Congress is in session . . . ; but no action shall be taken by the Congress upon such question until an election shall have been held at which Members of the House of Representatives are regularly by law to be chosen. If such Act or provision is reenacted by two-thirds of each House of the Congress to which such Members are elected at such election, such Act or provision shall be deemed to be constitutional and effective from the date of such reenactment. S.J. Res. 80, 75th Cong, 1st Sess. (1937). Wheeler later proposed exempting decisions involving the Bill of Rights from his amendment. See Reorganization of the Federal Judiciary: Hearing Before the Committee on the Judiciary, United States Senate, 75th Cong. 485, 500 (1937) (statement of Sen. Wheeler). Presidential advisors Benjamin Cohen and Tommy Corcoran proposed a constitutional amendment which would have allowed Congress to overrule a constitutional decision of the Supreme Court by a two-thirds vote of each house or by a simple majority if an election had intervened. See Benjamin V. Cohen & Thomas G. Corcoran, Memorandum on Constitutional Problems, Cohen Papers, Library of Congress (1937) (on file with the Fordham Law Review); see also William Lasser, Justice Roberts and the Constitutional Revolution of 1937-Was There a "Switch In Time"?, 78 Tex. L. Rev. 1347 (2000) (reviewing Cushman, supra note 5).
137. Senators Burton Wheeler and Homer Bone proposed the following amendment: Section 1. In case the Supreme Court renders any judgment holding any Act of Congress or any provision of any such Act unconstitutional, the question with respect to the constitutionality of such Act or provision shall be promptly submitted to the Congress for its action at the earliest practicable date that the Congress is in session . . . ; but no action shall be taken by the Congress upon such question until an election shall have been held at which Members of the House of Representatives are regularly by law to be chosen. If such Act or provision is reenacted by two-thirds of each House of the Congress to which such Members are elected at such election, such Act or provision shall be deemed to be constitutional and effective from the date of such reenactment. S.J. Res. 80, 75th Cong, 1st Sess. (1937). Wheeler later proposed exempting decisions involving the Bill of Rights from his amendment. See Reorganization of the Federal Judiciary: Hearing Before the Committee on the Judiciary, United States Senate, 75th Cong. 485, 500 (1937) (statement of Sen. Wheeler). Presidential advisors Benjamin Cohen and Tommy Corcoran proposed a constitutional amendment which would have allowed Congress to overrule a constitutional decision of the Supreme Court by a two-thirds vote of each house or by a simple majority if an election had intervened. See Benjamin V. Cohen & Thomas G. Corcoran, Memorandum on Constitutional Problems, Cohen Papers, Library of Congress (1937) (on file with the Fordham Law Review); see also William Lasser, Justice Roberts and the Constitutional Revolution of 1937-Was There a "Switch In Time"?, 78 Tex. L. Rev. 1347 (2000) (reviewing Cushman, supra note 5).
138. Senators Burton Wheeler and Homer Bone proposed the following amendment: Section 1. In case the Supreme Court renders any judgment holding any Act of Congress or any provision of any such Act unconstitutional, the question with respect to the constitutionality of such Act or provision shall be promptly submitted to the Congress for its action at the earliest practicable date that the Congress is in session . . . ; but no action shall be taken by the Congress upon such question until an election shall have been held at which Members of the House of Representatives are regularly by law to be chosen. If such Act or provision is reenacted by two-thirds of each House of the Congress to which such Members are elected at such election, such Act or provision shall be deemed to be constitutional and effective from the date of such reenactment. S.J. Res. 80, 75th Cong, 1st Sess. (1937). Wheeler later proposed exempting decisions involving the Bill of Rights from his amendment. See Reorganization of the Federal Judiciary: Hearing Before the Committee on the Judiciary, United States Senate, 75th Cong. 485, 500 (1937) (statement of Sen. Wheeler). Presidential advisors Benjamin Cohen and Tommy Corcoran proposed a constitutional amendment which would have allowed Congress to overrule a constitutional decision of the Supreme Court by a two-thirds vote of each house or by a simple majority if an election had intervened. See Benjamin V. Cohen & Thomas G. Corcoran, Memorandum on Constitutional Problems, Cohen Papers, Library of Congress (1937) (on file with the Fordham Law Review); see also William Lasser, Justice Roberts and the Constitutional Revolution of 1937-Was There a "Switch In Time"?, 78 Tex. L. Rev. 1347 (2000) (reviewing Cushman, supra note 5).
139. Senator Henry Ashurst proposed an amendment to enable Congress "to regulate agriculture, commerce, industry, and labor." Ackerman, Transformations, supra note 5, at 338. Senator Edward Costigan proposed amendments which would enable Congress to legislate for the general welfare where states could not effectively do so; to enable Congress "to regulate hours and conditions of labor and to establish minimum wages in any employment and to regulate production, industry, business, trade, and commerce to prevent unfair methods and practices"; and to construe the Due Process Clauses of the Fifth and Fourteenth Amendments "to impose no limitations upon legislation by the Congress or by the several states with respect to any of the subjects referred to in section 1, except as to the methods or the procedure for the enforcement of such legislation." See id. at 339. Senator Williams
140. Senator Wheeler, for example, agreed that "[m]easures violating the human rights guaranteed in the first ten amendments . . . would be excepted, perhaps, in this amendment." Ackerman, Transformations, supra note 5, at 332.
141. The switch is generally regarded as having occurred with the Court's upholding of Washington State's minimum wage law in West Coast Hotel v. Parrish, 300 U.S. 379 (1937).
142. Id. at 391.
143. Some scholars have argued that the New Deal Revolution was less a revolution and more a gradual evolution in doctrine - with roots prior to 1937. See Cushman, supra note 5, at 84, 154 (arguing that Nebbia set the stage for 1937 cases like Parrish). Professor Cushman, for example, maintains that Nebbia signaled the end of judicial obstruction, the Court having abandoned the public/private distinction marking the limits to government regulatory power. See id. Cushman's approach, however, focuses on the doctrinal innovations necessary to uphold critical aspects of the New Deal. This win/loss approach to determining when the revolution occurred downplays the role of judicial doctrine. The members of the Court, however, saw matters quite differently: what counted was the Court's interpretive method. See supra note 85 and accompanying text. The problem was with the Court's methodology, not simply the win-loss record of New Deal programs. This is why cases decided in favor of the New Deal that nevertheless maintained the general pre-New Deal approach to judicial review did not generate much in the way of dissent. See NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937); see also Ackerman, Transformations, supra note 5, at 363 (remarking on the "unrevolutionary" majority opinion in Jones & Laughlin). It was only with the abandonment of Lochnerian methodology that the dissenters came out with their guns blazing-they recognized a revolution in the making. See, e.g., Parrish, 300 U.S. at 400 (Sutherland, J., dissenting). For additional problems with Cushman's internalist perspective, see supra note 6.
144. Some scholars have argued that the New Deal Revolution was less a revolution and more a gradual evolution in doctrine - with roots prior to 1937. See Cushman, supra note 5, at 84, 154 (arguing that Nebbia set the stage for 1937 cases like Parrish). Professor Cushman, for example, maintains that Nebbia signaled the end of judicial obstruction, the Court having abandoned the public/private distinction marking the limits to government regulatory power. See id. Cushman's approach, however, focuses on the doctrinal innovations necessary to uphold critical aspects of the New Deal. This win/loss approach to determining when the revolution occurred downplays the role of judicial doctrine. The members of the Court, however, saw matters quite differently: what counted was the Court's interpretive method. See supra note 85 and accompanying text. The problem was with the Court's methodology, not simply the win-loss record of New Deal programs. This is why cases decided in favor of the New Deal that nevertheless maintained the general pre-New Deal approach to judicial review did not generate much in the way of dissent. See NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937); see also Ackerman, Transformations, supra note 5, at 363 (remarking on the "unrevolutionary" majority opinion in Jones & Laughlin). It was only with the abandonment of Lochnerian methodology that the dissenters came out with their guns blazing-they recognized a revolution in the making. See, e.g., Parrish, 300 U.S. at 400 (Sutherland, J., dissenting). For additional problems with Cushman's internalist perspective, see supra note 6.
145. Roberts did not explain his vote in Jones & Laughlin or Parrish. Following Justice Roberts's death, Justice Frankfurter published a memorandum Roberts had sent to him which purported to explain why Roberts had voted to strike down the program in Tipaldo after having upheld the program in Nebbia. In the memorandum, Roberts explained that no one in Tipaldo had asked whether Adkins should be overruled. Felix Frankfurter, Mr. Justice Roberts, in Of Law and Men 204 (Philip Elman ed., 1956). Such a procedural nicety seems in conflict with Roberts's joining the decision in Erie to strike down almost one hundred years of case law despite not having been asked to do so by either litigant.
146. The Two Hundred and Ninth Press Conference (May 31, 1935), in 4 Roosevelt Public Papers, supra note 86, at 221, 221; see also Self-Government We Must and Shall Maintain-Address at Little Rock, Arkansas (June 10, 1936), in 5 Roosevelt Public Papers, supra note 86, at 195, 200 (stating that the Constitution "is intended to meet and to fit the amazing physical, economic and social requirements that confront us in this modern generation").
147. The Two Hundred and Ninth Press Conference (May 31, 1935), in 4 Roosevelt Public Papers, supra note 86, at 221, 221; see also Self-Government We Must and Shall Maintain-Address at Little Rock, Arkansas (June 10, 1936), in 5 Roosevelt Public Papers, supra note 86, at 195, 200 (stating that the Constitution "is intended to meet and to fit the amazing physical, economic and social requirements that confront us in this modern generation").
148. See Franklin D. Roosevelt, Presidential Address, Mar. 9, 1937, reprinted in Jackson, supra note 11, at 340.
149. See Franklin D. Roosevelt, Presidential Address, Mar. 9, 1937, reprinted in Jackson, supra note 11, at 340.
150. See, e.g., Howard Gillman, The Collapse of Constitutional Originalism and the Rise of the Notion of the "Living Constitution" in the Course of American State-Building, 11 Stud. Am. Pol. Dev. 191 (1997); G. Edward White, The "Constitutional Revolution" as a Crisis in Adaptivity, 48 Hastings L.J. 867 (1997).
151. See, e.g., Howard Gillman, The Collapse of Constitutional Originalism and the Rise of the Notion of the "Living Constitution" in the Course of American State- Building, 11 Stud. Am. Pol. Dev. 191 (1997); G. Edward White, The "Constitutional Revolution" as a Crisis in Adaptivity, 48 Hastings L.J. 867 (1997).
152. See Muller v. Oregon, 208 U.S. 412 (1908). Future-Justice Louis Brandeis filed the brief in Muller. 98. 290 U.S. 398 (1934).
153. See also Whittington, supra note 21, at 291 n.114 (noting Blaisdell's "emergency" doctrine and Hughes's break from original intent).
154. Blaisdell, 290 U.S. at 442-44 (citation omitted). Although Hughes appeared to back away from the changed circumstances argument in Schechter Poultry, he returned to the same theme in Parrish. See infra note 102 and accompanying text. Blaisdell has been described as representing the dawn of "living Constitution" jurisprudence. See Laura Kalman, Law, Politics, and the New Deal(s), 108 Yale L.J. 2165, 2186-87 [hereinafter Kalman, Law, Politics]; see also G. Edward White, The Constitution and the New Deal: A Reassessment 199 (2000). The approach in Blaisdell, however, was rejected by the New Deal Court. See infra Part II.C; see also David A. Pepper, Note, Against Legalism: Rebutting An Anachronistic Account of 1937, 82 Marq. L. Rev. 63, 146 (1998).
155. Blaisdell, 290 U.S. at 442-44 (citation omitted). Although Hughes appeared to back away from the changed circumstances argument in Schechter Poultry, he returned to the same theme in Parrish. See infra note 102 and accompanying text. Blaisdell has been described as representing the dawn of "living Constitution" jurisprudence. See Laura Kalman, Law, Politics, and the New Deal(s), 108 Yale L.J. 2165, 2186-87 [hereinafter Kalman, Law, Politics]; see also G. Edward White, The Constitution and the New Deal: A Reassessment 199 (2000). The approach in Blaisdell, however, was rejected by the New Deal Court. See infra Part II.C; see also David A. Pepper, Note, Against Legalism: Rebutting An Anachronistic Account of 1937, 82 Marq. L. Rev. 63, 146 (1998).
156. Blaisdell, 290 U.S. at 442-44 (citation omitted). Although Hughes appeared to back away from the changed circumstances argument in Schechter Poultry, he returned to the same theme in Parrish. See infra note 102 and accompanying text. Blaisdell has been described as representing the dawn of "living Constitution" jurisprudence. See Laura Kalman, Law, Politics, and the New Deal(s), 108 Yale L.J. 2165, 2186-87 [hereinafter Kalman, Law, Politics]; see also G. Edward White, The Constitution and the New Deal: A Reassessment 199 (2000). The approach in Blaisdell, however, was rejected by the New Deal Court. See infra Part II.C; see also David A. Pepper, Note, Against Legalism: Rebutting An Anachronistic Account of 1937, 82 Marq. L. Rev. 63, 146 (1998).
157. W. Coast Hotel v. Parrish, 300 U.S. 379, 396-97 (1937). According to Hughes: The statement of Mr. Justice Holmes in the Adkins case is pertinent: "This statute does not compel anybody to pay anything. It simply forbids employment at rates below those fixed as the minimum requirement of health and right living. It is safe to assume that women will not be employed at even the lowest wages allowed unless they earn them, or unless the employer's business can sustain the burden. In short the law in its character and operation is like hundreds of so-called police laws that have been upheld." Id. at 396-97 (quoting Adkins v. Children's Hosp., 261 U.S. 525, 570 (1923)). The dissenting opinions of Justice Holmes were regularly referred to throughout this period as representing the appropriate approach to interpreting the Constitution. See, e.g., Wickard v. Filburn, 317 U.S. 111, 122 (1942); United States v. Darby, 312 U.S. 100, 115-16 (1941); Erie R.R. Co. v. Tompkins, 304 U.S. 64, 79-80, 85 (1938); Parrish, 300 U.S. at 396; NLRB v. Jones & Laughlin Steel Co., 301 U.S. 1, 46 (1937); see also Benjamin Cardozo, The Methods of History, Tradition and Sociology, in Selected Writings of Benjamin Nathan Cardozo 138 (Margaret E. Hall ed., Matthew Bender 1967) (1947) ("It is the dissenting opinion of Justice Holmes [in Lochner], which men will turn to in the future as the beginning of an era.").
158. Parrish, 300 U.S. at 399-400.
159. Id. at 401-02 (Sutherland, J., dissenting). Justice Sutherland wrote: It has been pointed out many times, as in the Adkins case, that this judicial duty is one of gravity and delicacy; and that rational doubts must be resolved in favor of the constitutionality of the statute. But whose doubts, and by whom resolved? Undoubtedly it is the duty of a member of the court, in the process of reaching a right conclusion, to give due weight to the opposing views of his associates; but in the end, the question which he must answer is not whether such views seem sound to those who entertain them, but whether they convince him that the statute is constitutional or engender in his mind a rational doubt upon that issue. The oath which he takes as a judge is not a composite oath, but an individual one. And in passing upon the validity of a statute, he discharges a duty imposed upon him, which cannot be consummated justly by an automatic acceptance of the views of others which have neither convinced, nor created a reasonable doubt in, his mind. If upon a question so important he thus surrender his deliberate judgment, he stands forsworn. He cannot subordinate his convictions to that extent and keep faith with his oath or retain his judicial and moral independence. Id. at 401-02.
160. Id. at 402-03. Sutherland's Parrish dissent echoes his earlier dissent from Hughes's opinion in Blaisdell: What a court is to do, therefore, is to declare the law as written, leaving it to the people themselves to make such changes as new circumstances may require. The meaning of the constitution is fixed when it is adopted, and it is not different at any subsequent time when a court has occasion to pass upon it. The whole aim of construction, as applied to a provision of the Constitution, is to discover the meaning, to ascertain and give effect to the intent, of its framers and the people who adopted it. . . . . . . A candid consideration of the history and circumstances which led up to and accompanied the framing and adoption of this clause will demonstrate conclusively that it was framed and adopted with the specific and studied purpose of preventing legislation designed to relieve debtors especially in time of financial distress. Indeed, it is not probable that any other purpose was definitely in the minds of those who composed the framers' convention or the ratifying state conventions which followed, although the restriction has been given a wider application upon principles clearly stated by Chief Justice Marshall in the Dartmouth College Case. Home Bldg. & Loan Ass'n v. Blaisdell, 290 U.S. 398, 452-54 (1934) (Sutherland, J., dissenting) (citation omitted).
161. See Jackson, supra note 11.
162. Justice Van Devanter retired June 2, 1937 and was replaced by Justice Black. Justice Sutherland retired on January 18, 1938 and was replaced by Justice Reed. Justice Butler, due to illness, did not participate in any case heard during the 1939 term; he died on November 16, 1939 and was replaced by Justice Murphy. Justice McReynolds retired February 1, 1941; he was briefly replaced by Justice Byrnes, who himself was replaced by Justice Rutledge in 1943. See generally Oxford Companion to Supreme Court, supra note 78.
163. Palko, Carolene Products and Erie all were decided during the same term in 1937-38.
164. 302 U.S. 319 (1937) (upholding criminal appeals by the prosecution against Fourteenth Amendment challenge).
165. Id. at 323. The court indicated: We have said that in appellant's view the Fourteenth Amendment is to be taken as embodying the prohibitions of the Fifth. His thesis is even broader. Whatever would be a violation of the original bill of rights if done by the federal government is now equally unlawful by force of the Fourteenth Amendment if done by a state. There is no such general rule. Id.
166. Id. at 324-25 (emphasis added). Interestingly, only eleven months earlier in De Jonge, the Court seemed to imply textual inclusion in the Bill of Rights could be construed as evidence against inclusion as a due process right. See De Jonge v. Oregon, 299 U.S. 353, 364 (1937). In De Jonge, the Court wrote: "The very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances." The First Amendment of the Federal Constitution expressly guarantees that right against abridgment by Congress. But explicit mention there does not argue exclusion elsewhere. For the right is one that cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all civil and political institutions - principles which the Fourteenth Amendment embodies in the general terms of its due process clause. Id. at 364 (quoting United States v. Cruikshank, 92 U.S. 542, 552 (1875)).
167. The Court wrote: On the other hand, the due process clause of the Fourteenth Amendment may make it unlawful for a state to abridge by its statutes the freedom of speech which the First Amendment safeguards against encroachment by the Congress, De Jonge. v. Oregon; Herndon v. Lowry; or the like freedom of the press, Grosjean v. Amerian Press Co.; Near v. Minnesota; or the free exercise of religion, Hamilton v. Regents; cf. Grosjean v. American Press Co.; Pierce v. Society of Sisters. Palko, 302 U.S. at 324. (complete citations omitted).
168. See Pierce v. Soc'y of Sisters, 268 U.S. 510, 534-35 (1925) ("Under the doctrine of Meyer v. Nebraska, we think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control." (citation omitted)).
169. See United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938). Between Palko in December 1937 and Carolene Products in April 1938, the Court decided Lovell v. Griffin, 303 U.S. 444 (1938). In Lovell, the Court cited Gitlow and other free speech and free press cases for the proposition that speech and press are protected aspects of liberty under the Due Process Clause. See id. at 450. Unlike Gitlow, however, the Court cited neither Lochner nor Allgeyer - the cases once relied upon by the Court to justify protections of speech and press.
170. 304 U.S. 144 (1938).
171. Id. at 152-53.
172. Id. at 152 n.4.
173. Palko v. Connecticut, 302 U.S. 319, 324-25 (1937).
174. See Carolene Prods., 304 U.S. at 153 n.4 (complete citations omitted). The Court stated: Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious, Pierce v. Society of Sisters, or national, Meyer v. Nebraska, Bartels v. Iowa, Farrington v. Tokushige, or racial minorities, Nixon v. Herndon, Nixon v. Condon; whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry. Id. (complete citations omitted).
175. Adkins v. Children's Hosp., 261 U.S. 525, 568 (1923) (Holmes, J., dissenting).
176. 313 U.S. 236 (1941).
177. Id. at 246-47 (emphasis added) (referring to Tyson & Brother v. Banton, 273 U.S. 418, 446 (1927), and Adkins, 261 U.S. at 570).
178. See Morehead v. New York ex rel. Tipaldo, 298 U.S. 587, 633 (1936) (Stone, J., dissenting).
179. Felix Frankfurter, Mr. Justice Holmes's Constitutional Opinions, in Felix Frankfurter on the Supreme Court: Extrajudicial Essays on the Court and the Constitution 117 (Philip B. Kurland ed., 1970) [hereinafter Frankfurter, Holmes's Constitutional Opinions]; see also Roosevelt's Address Celebrating the 150th Anniversary of the Philadelphia Convention, in 6 Roosevelt Public Papers, supra note 86, at 359, 366 ("Yet nearly every attempt to meet those demands for social and economic betterment has been jeopardized or actually forbidden by those who have sought to read into the Constitution language which the framers refused to write into the Constitution."). Historian Joseph Lash claims that Justice Frankfurter helped write this speech. See Joseph P. Lash, Dealers and Dreamers: A New Look at the New Deal 315 (1988).
180. Felix Frankfurter, Mr. Justice Holmes's Constitutional Opinions, in Felix Frankfurter on the Supreme Court: Extrajudicial Essays on the Court and the Constitution 117 (Philip B. Kurland ed., 1970) [hereinafter Frankfurter, Holmes's Constitutional Opinions]; see also Roosevelt's Address Celebrating the 150th Anniversary of the Philadelphia Convention, in 6 Roosevelt Public Papers, supra note 86, at 359, 366 ("Yet nearly every attempt to meet those demands for social and economic betterment has been jeopardized or actually forbidden by those who have sought to read into the Constitution language which the framers refused to write into the Constitution."). Historian Joseph Lash claims that Justice Frankfurter helped write this speech. See Joseph P. Lash, Dealers and Dreamers: A New Look at the New Deal 315 (1988).
181. Felix Frankfurter, Mr. Justice Holmes's Constitutional Opinions, in Felix Frankfurter on the Supreme Court: Extrajudicial Essays on the Court and the Constitution 117 (Philip B. Kurland ed., 1970) [hereinafter Frankfurter, Holmes's Constitutional Opinions]; see also Roosevelt's Address Celebrating the 150th Anniversary of the Philadelphia Convention, in 6 Roosevelt Public Papers, supra note 86, at 359, 366 ("Yet nearly every attempt to meet those demands for social and economic betterment has been jeopardized or actually forbidden by those who have sought to read into the Constitution language which the framers refused to write into the Constitution."). Historian Joseph Lash claims that Justice Frankfurter helped write this speech. See Joseph P. Lash, Dealers and Dreamers: A New Look at the New Deal 315 (1988).
182. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 639 (1943).
183. For examples of such heightened protection, see Jones v. Opelika, 316 U.S. 584, 597 (1942) (Reed, J.) ("[C]areful as we may and should be to protect the freedoms safeguarded by the Bill of Rights, it is difficult to see in such enactments a shadow of prohibition of the exercise of religion or of abridgement of the freedom of speech or the press. It is prohibition and unjustifiable abridgement which are interdicted, not taxation."); id. at 610 (Stone, J., dissenting) ("[F]reedom of press and religion, explicitly guaranteed by the Constitution, must at least be entitled to the same freedom from burdensome taxation which it has been thought that the more general phraseology of the commerce clause has extended to interstate commerce."); id. at 624 (Black, J., dissenting) ("[C]ertainly our democratic form of government, functioning under the historic Bill of Rights, has a high responsibility to accommodate itself to the religious views of minorities, however unpopular and unorthodox those views may be. The First Amendment does not put the right freely to exercise religion in a subordinate position. We fear, however, that the opinions in these and in the Gobitis case do exactly that."); Schneider v. New Jersey, 308 U.S. 147, 161 (1939) ("[T]his court has characterized the freedom of speech and that of the press as fundamental personal rights and liberties. The phrase is not an empty one and was not lightly used. It reflects the belief of the framers of the Constitution that exercise of the rights lies at the foundation of free government by free men."); see also Murdock v. Penn., 319 U.S. 105, 113 (1943) ("It is a license tax-a flat tax imposed on the exercise of a privilege granted by the Bill of Rights."). The most famous example is from West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943), where Justice Jackson expressly linked Due Process rights to the texts of the Bill of Rights: The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections. . . . The test of legislation which collides with the Fourteenth Amendment, because it also collides with the principles of the First, is much more definite than the test when only the Fourteenth is involved. Much of the vagueness of the due process clause disappears when the specific prohibitions of the First become its standard. The right of a State to regulate, for example, a public utility may well include, so far as the due process test is concerned, power to impose all of the restrictions which a legislature may have a "rational basis" for adopting. But freedoms of speech and of press, of assembly, and of worship may not be infringed on such slender grounds. They are susceptible of restriction only to prevent grave and immediate danger to interests which the State may lawfully protect. It is important to note that while it is the Fourteenth Amendment which bears directly upon the State it is the more specific limiting principles of the First Amendment that finally govern this case. Id. at 638-39.
184. But see Planned Parenthood v. Casey, 505 U.S. 833, 861-62 (1992). For a critique of Casey's analysis of the New Deal, see Ackerman, Transformations, supra note 5, at 400.
185. See supra text accompanying note 102.
186. Jackson, supra note 11, at 70.
187. See NLRB v. Jones & Laughlin Steel Co., 301 U.S. 1, 34 (1937).
188. See supra notes 103-04 and accompanying text.
189. Jackson, supra note 11, at 70.
190. 312 U.S. 100 (1941) (upholding Fair Labor Standards Act's regulation of hours and wages, with Justice Stone writing for a unanimous Court).
191. Id. at 115. Holmes himself also advocated originalism in interpreting the Constitution. See Eisner v. Macomber, 252 U.S. 189, 197 (1920) (Holmes, J., dissenting) ("[T]he Sixteenth Amendment should be read in 'a sense most obvious to the common understanding at the time of its adoption.'" (citation omitted)); see also Hammer v. Daggenhart, 247 U.S. 251 (1918).
192. Hughes retired from the Court in 1941, and his vision of the New Deal Charter retired with him. No New Deal appointee would suggest following his "changed circumstances" rationale for the New Deal Revolution.
193. Darby, 312 U.S. at 124.
194. Bruce Ackerman might describe the Court's use of originalism as evidence of a "partial revolution" or a "revolution on a human scale." See Bruce Ackerman, Revolution on a Human Scale, 108 Yale L.J. 2279, 2282-83 (1999) [hereinafter Ackerman, Human Scale]. By this he means that revolutions rarely are promoted as total breaks with the past (the exceptions being total revolutions like Stalinist Russia). Id. at 2285-86. Generally, revolutionary leaders do not make a total break from the past but attempt instead to ground the revolution in the ideals and legal forms of the past ("revolutions on a human scale"). In this way, Ackerman might try to distinguish the originalist rhetoric of the New Deal Revolution (the myth) from the substance of the New Deal (abandonment of liberty of contract). In the case of the New Deal, however, originalism was not a cover for the New Deal, it was itself part of the substance of the New Deal. It was essential to the task of building a new and acceptable method of judicial review after Lochner. To distinguish this aspect of the revolution would be to leave out what the revolution was all about-the legitimate exercise of judicial review.
195. Darby, 312 U.S. at 124 (complete citations omitted).
196. In Wickard, Jackson repeated the analysis he deployed in his book. See Jackson, supra note 11, at 174 (criticizing the Lochner Court for having abandoned the original vision of John Marshall).
197. Wickard v. Filburn, 317 U.S. 111, 120 (1942) (complete citations omitted).
198. See Ackerman, Foundations, supra note 5, at 62.
199. A number of scholars have argued there are important differences between the New Deal and federal power as originally intended. See, e.g., Ackerman, Foundations, supra note 5, at 62 ("The Founders created the least, not the most, nationalistic regime in our history."); Howard Gillman, More on the Origins of the Fuller Court's Jurisprudence: Reexamining the Scope of Federal Power Over Commerce and Manufacturing in Nineteenth-Century Constitutional Law, 49 Pol. Res. Q. 415 (1996); Stephen M. Griffin, Constitutional Theory Transformed, 108 Yale L.J. 2115, 2117-19 (1999) (discussing and rejecting what he calls the "Restoration Thesis"). The divergence of myth from reality raises important questions, particularly for those who believe the New Deal Court supervised a moment of legitimate constitutional revolution. If Professor Ackerman is correct and the New Deal was a legitimate constitutional moment, then an incorrect understanding of history should not stand in the way of the people's right to expand the delegated powers of government. Elsewhere I have argued that an incorrect understanding of the original meaning of the religion clauses should not undermine the people's right to constitutionalize a "new understanding or original intent" in 1868. An originalist who accepts the New Deal as a constitutional moment, but disagrees with the New Deal Court's analysis of the Founding might acknowledge the New Deal as a constitutional moment, agree with the New Deal Court that original intent should govern, but argue that what controls is the original intent of the people at the time of the New Deal. This would constitute the last speaking of the sovereign on the subject of government power, and it should not be undermined by flawed judicial attempts to ground their decisions in the views of the Founders. The one thing an originalist cannot do, however, is to embrace the substance of the change without the orignalist rationale offered by the New Deal Court. Originalist methodology was not mere window dressing; it was an indispensable aspect of the New Deal. Textual originalism is how the Court managed to accomplish the needed change without damaging the institution of the Court-something no one wanted or thought necessary.
200. A number of scholars have argued there are important differences between the New Deal and federal power as originally intended. See, e.g., Ackerman, Foundations, supra note 5, at 62 ("The Founders created the least, not the most, nationalistic regime in our history."); Howard Gillman, More on the Origins of the Fuller Court's Jurisprudence: Reexamining the Scope of Federal Power Over Commerce and Manufacturing in Nineteenth-Century Constitutional Law, 49 Pol. Res. Q. 415 (1996); Stephen M. Griffin, Constitutional Theory Transformed, 108 Yale L.J. 2115, 2117-19 (1999) (discussing and rejecting what he calls the "Restoration Thesis"). The divergence of myth from reality raises important questions, particularly for those who believe the New Deal Court supervised a moment of legitimate constitutional revolution. If Professor Ackerman is correct and the New Deal was a legitimate constitutional moment, then an incorrect understanding of history should not stand in the way of the people's right to expand the delegated powers of government. Elsewhere I have argued that an incorrect understanding of the original meaning of the religion clauses should not undermine the people's right to constitutionalize a "new understanding or original intent" in 1868. An originalist who accepts the New Deal as a constitutional moment, but disagrees with the New Deal Court's analysis of the Founding might acknowledge the New Deal as a constitutional moment, agree with the New Deal Court that original intent should govern, but argue that what controls is the original intent of the people at the time of the New Deal. This would constitute the last speaking of the sovereign on the subject of government power, and it should not be undermined by flawed judicial attempts to ground their decisions in the views of the Founders. The one thing an originalist cannot do, however, is to embrace the substance of the change without the orignalist rationale offered by the New Deal Court. Originalist methodology was not mere window dressing; it was an indispensable aspect of the New Deal. Textual originalism is how the Court managed to accomplish the needed change without damaging the institution of the Court-something no one wanted or thought necessary.
201. A number of scholars have argued there are important differences between the New Deal and federal power as originally intended. See, e.g., Ackerman, Foundations, supra note 5, at 62 ("The Founders created the least, not the most, nationalistic regime in our history."); Howard Gillman, More on the Origins of the Fuller Court's Jurisprudence: Reexamining the Scope of Federal Power Over Commerce and Manufacturing in Nineteenth-Century Constitutional Law, 49 Pol. Res. Q. 415 (1996); Stephen M. Griffin, Constitutional Theory Transformed, 108 Yale L.J. 2115, 2117-19 (1999) (discussing and rejecting what he calls the "Restoration Thesis"). The divergence of myth from reality raises important questions, particularly for those who believe the New Deal Court supervised a moment of legitimate constitutional revolution. If Professor Ackerman is correct and the New Deal was a legitimate constitutional moment, then an incorrect understanding of history should not stand in the way of the people's right to expand the delegated powers of government. Elsewhere I have argued that an incorrect understanding of the original meaning of the religion clauses should not undermine the people's right to constitutionalize a "new understanding or original intent" in 1868. An originalist who accepts the New Deal as a constitutional moment, but disagrees with the New Deal Court's analysis of the Founding might acknowledge the New Deal as a constitutional moment, agree with the New Deal Court that original intent should govern, but argue that what controls is the original intent of the people at the time of the New Deal. This would constitute the last speaking of the sovereign on the subject of government power, and it should not be undermined by flawed judicial attempts to ground their decisions in the views of the Founders. The one thing an originalist cannot do, however, is to embrace the substance of the change without the orignalist rationale offered by the New Deal Court. Originalist methodology was not mere window dressing; it was an indispensable aspect of the New Deal. Textual originalism is how the Court managed to accomplish the needed change without damaging the institution of the Court-something no one wanted or thought necessary.
202. The year after Wickard, the Court reversed Gobitis and handed down its decisions in Murdock and Barnette, thus ensuring the Court's continued role as primary guardian of textual liberties. See infra notes 206-11 and accompanying text.
203. See Amar, Bill of Rights, supra note 26, at 147; Curtis, No State, supra note 26, at 41; Lash, Free Exercise Clause, supra note 29, at 1138.
204. See Amar, Bill of Rights, supra note 26, at 147; Curtis, No State, supra note 26, at 41; Lash, Free Exercise Clause, supra note 29, at 1138.
205. See Amar, Bill of Rights, supra note 26, at 147; Curtis, No State, supra note 26, at 41; Lash, Free Exercise Clause, supra note 29, at 1138.
206. See Amar, Bill of Rights, supra note 26, at 147 ("[E]ven if the federal Bill of Rights did not, strictly speaking, bind the states of its own legislative force, was it not at least declaratory of certain fundamental common-law rights?").
207. 304 U.S. 64 (1938).
208. Id. at 78 (quoting Baltimore & Ohio R.R. Co. v. Bough, 149 U.S. 368, 401 (1893) (Field, J., dissenting)).
209. Id. at 79.
210. Id. (footnote omitted). Justice Brandeis continued: [T]he authority and only authority is the State, and if that be so, the voice adopted by the State as its own (whether it be of its Legislature or of its Supreme Court) should utter the last word. Thus the doctrine of Swift v. Tyson is, as Mr. Justice Holmes said, "an unconstitutional assumption of powers by the Courts of the United States which no lapse of time or respectable array of opinion should make us hesitate to correct." Id. (citation omitted).
211. Jackson, supra note 11, at 272. Later in his book, Jackson distinguished the Lochner Court's enforcement of civil liberties: There is nothing covert or conflicting in the recent judgments of the Court on social legislation and on legislative repressions of civil rights. The presumption of validity which attaches in general to legislative acts is frankly reversed in the case of interferences with free speech and free assembly, and for a perfectly cogent reason. Ordinarily, legislation whose basis in economic wisdom is uncertain can be redressed by the processes of the ballot box or the pressures of opinion. But when the channels of opinion and of peaceful persuasion are corrupted or clogged, these political correctives can no longer be relied on, and the democratic system is threatened at its most vital point. In that event the Court, by intervening, restores the processes of democratic government; it does not disrupt them. Id. at 284-85. In a footnote, Jackson cited as examples of the Courts enforcement of speech and assembly, Lovell v. Griffin, 303 U.S. 444 (1938), Hague v. C.I.O., 307 U.S. 496 (1939), Schneider v. New Jersey, 308 U.S. 147 (1939), and Thornhill v. Alabama, 310 U.S. 88 (1940). Jackson, supra note 11, at 284 n.48. He then noted "compare, however, Minersville School District v. Gobitis." Id. This notation is surprising given that Jackson's "political process" reasoning seemed to track Frankfurter's political process approach in Gobitis, where the Court's upholding of compelled flag salutes was based on the contention that the place to dissent from such compulsion was at the polls. There was no reason to think the channels of democratic reform had been clogged. See Minersville Sch. Dist. v. Gobitis, 310 U.S. 586, 599 (1940). In his opinion in Barnette, which reversed Gobitis, Jackson abandoned the "political process" reasoning of his earlier book, and instead embraced the textualist justification for substantive enforcement of the First Amendment. See discussion infra Part III.C.
212. Jackson, supra note 11, at 272. Later in his book, Jackson distinguished the Lochner Court's enforcement of civil liberties: There is nothing covert or conflicting in the recent judgments of the Court on social legislation and on legislative repressions of civil rights. The presumption of validity which attaches in general to legislative acts is frankly reversed in the case of interferences with free speech and free assembly, and for a perfectly cogent reason. Ordinarily, legislation whose basis in economic wisdom is uncertain can be redressed by the processes of the ballot box or the pressures of opinion. But when the channels of opinion and of peaceful persuasion are corrupted or clogged, these political correctives can no longer be relied on, and the democratic system is threatened at its most vital point. In that event the Court, by intervening, restores the processes of democratic government; it does not disrupt them. Id. at 284-85. In a footnote, Jackson cited as examples of the Courts enforcement of speech and assembly, Lovell v. Griffin, 303 U.S. 444 (1938), Hague v. C.I.O., 307 U.S. 496 (1939), Schneider v. New Jersey, 308 U.S. 147 (1939), and Thornhill v. Alabama, 310 U.S. 88 (1940). Jackson, supra note 11, at 284 n.48. He then noted "compare, however, Minersville School District v. Gobitis." Id. This notation is surprising given that Jackson's "political process" reasoning seemed to track Frankfurter's political process approach in Gobitis, where the Court's upholding of compelled flag salutes was based on the contention that the place to dissent from such compulsion was at the polls. There was no reason to think the channels of democratic reform had been clogged. See Minersville Sch. Dist. v. Gobitis, 310 U.S. 586, 599 (1940). In his opinion in Barnette, which reversed Gobitis, Jackson abandoned the "political process" reasoning of his earlier book, and instead embraced the textualist justification for substantive enforcement of the First Amendment. See discussion infra Part III.C.
213. Jackson, supra note 11, at 272-73 (footnote omitted).
214. Some scholars have argued that Erie mischaracterized the original meaning of Swift v. Tyson. See, e.g., Ely, Irrepressible Myth, supra note 12; Jack Goldsmith & Steven Walt, Erie and the Irrelevance of Legal Positivism, 84 Va. L. Rev. 673 (1998). Even if this is the case, what the Court was rejecting was the common law methodology that had come to be associated with Swift.
215. Some scholars have argued that Erie mischaracterized the original meaning of Swift v. Tyson. See, e.g., Ely, Irrepressible Myth, supra note 12; Jack Goldsmith & Steven Walt, Erie and the Irrelevance of Legal Positivism, 84 Va. L. Rev. 673 (1998). Even if this is the case, what the Court was rejecting was the common law methodology that had come to be associated with Swift.
216. At least not unless those rights directly interfered with the government's new power to regulate commerce. For an example of where the two conflicted, see infra notes 170-76 and accompanying text, discussing Prince v. Massachusetts.
217. Felix Frankfurter, Can the Supreme Court Guarantee Toleration?, in Frankfurter on the Supreme Court, supra note 123, at 174, 176.
218. See supra notes 58-60, 70 and accompanying text.
219. Palko v. Connecticut, 302 U.S. 319, 324 (1937).
220. United States v. Carolene Prods. Co., 304 U.S. 144, 153 n.4 (1938). Stone made the same characterization of Pierce in his Gobitis dissent. See Minersville Sch. Dist. v. Gobitis, 310 U.S. 586, 603 (1940) (Stone, J., dissenting).
221. Gobitis, 310 U.S. at 599.
222. The compulsory attendance law in Pierce was enacted in the context of a broad assault on Roman Catholic education. See Lash, Free Exercise Clause, supra note 29, at 1149-53.
223. The law was applied to a Lutheran school teaching the German language not long after World War I.
224. Gobitis, 310 U.S. at 599-60.
225. Id. at 599.
226. Id. at 607.
227. Id. at 603.
228. Id. at 606.
229. Id. at 606-07. Justice Stone wrote: For this reason it would seem that legislation which operates to repress the religious freedom of small minorities, which is admittedly within the scope of the protection of the Bill of Rights, must at least be subject to the same judicial scrutiny as legislation which we have recently held to infringe the constitutional liberty of religious and racial minorities. Id. at 607.
230. 319 U.S. 624 (1943).
231. In fact, only Frankfurter in dissent mentioned these cases. He cited Pierce for the proposition that the students were not forced to go to public schools; and he used the case as part of a slippery slope argument. See id. at 656, 661 ("And what of the larger issue of claiming immunity from obedience to a general civil regulation that has a reasonable relation to a public purpose within the general competence of the state?" (citation omitted)). Justice Jackson also pointedly ignored Meyer and Pierce in his book The Struggle for Judicial Supremacy. See Jackson, supra note 11, at 71.
232. See Barnette, 319 U.S. at 639.
233. There are other less dramatic silences as well. For example, in Cantwell v. Connecticut, 310 U.S. 296, 303 (1940), Justice Roberts cited Schneider, a post-New Deal free speech case, in support of his contention that all of the First Amendment is protected under the Due Process Clause. The pre-New Deal cases of Meyer and Pierce are not mentioned, despite Justice Cardozo's characterization in Palko (three years earlier) that these cases represented the Court's protection of religious liberty. See supra note 155 and accompanying text.
234. 321 U.S. 158 (1944).
235. Id. at 170.
236. Id. at 164.
237. Id. at 164 n.8 ("The due process claim, as made and perhaps necessarily, extends no further than that to freedom of religion, since in the circumstances all that is comprehended in the former is included in the latter.").
238. Id at 166-67 (citing the state's power to enact child labor laws and concluding: "It is sufficient to show what indeed appellant hardly disputes, that the state has a wide range of power for limiting parental freedom and authority in things affecting the child's welfare; and that this includes, to some extent, matters of conscience and religious conviction.").
239. See United States v. Carolene Prods. Co. 304 U.S. 144, 153-54 (1938).
240. Prince, 321 U.S. at 173 (Murphy, J., dissenting). Murphy continued: We are concerned solely with the reasonableness of this particular prohibition of religious activity by children. In dealing with the validity of statutes which directly or indirectly infringe religious freedom and the right of parents to encourage their children in the practice of a religious belief, we are not aided by any strong presumption of the constitutionality of such legislation. United States v. Carolene Products Co., 304 U.S. 144, 152 note 4. On the contrary, the human freedoms enumerated in the First Amendment and carried over into the Fourteenth Amendment are to be presumed to be invulnerable and any attempt to sweep away those freedoms is prima facie invalid. Id.
241. In his dissent in Poe v. Ullman, Justice Harlan cites Pierce and Meyer- as well as Allgeyer (!) for the proposition that liberty means more than the rights listed in the text (he skips Lochner). Poe v. Ullman, 367 U.S. 497, 543-44 (1961) (Harlan, J., dissenting). Harlan concedes that this is not the post-New Deal understanding of Pierce: I consider this so, even though today those decisions would probably have gone by reference to the concepts of freedom of expression and conscience assured against state action by the Fourteenth Amendment, concepts that are derived from the explicit guarantees of the First Amendment against federal encroachment upon freedom of speech and belief. See West Virginia State Board of Education v. Barnette; Prince v. Commonwealth of Massachusetts. For it is the purposes of those guarantees and not their text, the reasons for their statement by the Framers and not the statement itself, see Palko v. Connecticut; United States v. Carolene Products Co., which have led to their present status in the compendious notion of "liberty" embraced in the Fourteenth Amendment. Each new claim to Constitutional protection must be considered against a background of Constitutional purposes, as they have been rationally perceived and historically developed. Id. at 544 (complete citations omitted).
242. Pierce and Meyer appear again in 1965 - in Justice Douglas's opinion in Griswold-only now they were described in Lochnerian terms as protecting the non-textual right of parents to control the education of their children. Griswold v. Connecticut, 381 U.S. 479, 482 (1965). Douglas, for example, cited the two cases as protecting non-textual, "penumbral" rights. See id. at 484. He wrote: The right to educate a child in a school of the parents' choice-whether public or private or parochial-is also not mentioned. Nor is the right to study any particular subject or any foreign language. Yet the First Amendment has been construed to include certain of those rights. By Pierce v. Society of Sisters . . . the right to educate one's children as one chooses is made applicable to the States by the force of the First and Fourteenth Amendments. By Meyer v. Nebraska . . . the same dignity is given the right to study the German language in a private school. Id. at 482 (citations omitted). Justice Goldberg cited Meyer as representing rights beyond the first eight amendments protected under the Ninth Amendment, in this case rights of marital and family privacy. Id. at 488. Justice White noted that these rights were protected under the Fourteenth Amendment. Id. at 502.
243. See, e.g., Laurence Tribe, American Constitutional Law 1318 (2d ed. 1988).
244. The pervasive view that the Court as an institution was not the problem can be seen by the negative response to Roosevelt's "Horse and Buggy" speech, which was delivered in the aftermath of the Schechter Poultry decision, and the criticism of his proposal to pack the Court. See Leuchtenburg, Supreme Court Reborn, supra note 6, at 157-61 (describing the impact of the court packing plan); William E. Leuchtenburg, When the People Spoke, What Did They Say?: The Election of 1936 and the Ackerman Thesis, 108 Yale L.J. 2077, 2081 (1999) (discussing the response to the "Horse and Buggy" speech).
245. The pervasive view that the Court as an institution was not the problem can be seen by the negative response to Roosevelt's "Horse and Buggy" speech, which was delivered in the aftermath of the Schechter Poultry decision, and the criticism of his proposal to pack the Court. See Leuchtenburg, Supreme Court Reborn, supra note 6, at 157-61 (describing the impact of the court packing plan); William E. Leuchtenburg, When the People Spoke, What Did They Say?: The Election of 1936 and the Ackerman Thesis, 108 Yale L.J. 2077, 2081 (1999) (discussing the response to the "Horse and Buggy" speech).
246. At least, what theory prevented total incorporation of the first eight amendments?
247. Jackson, supra note 11, at 71; accord Ex parte Milligan, 71 U.S. 2 (1866); Powell v. Alabama, 287 U.S. 45 (1932); Nixon v. Herndon, 273 U.S. 536 (1927); Near v. Minnesota, 283 U.S. 697 (1931); Fiske v. Kansas, 274 U.S. 380 (1927).
248. Jackson, supra note 11, at 71; accord Ex parte Milligan, 71 U.S. 2 (1866); Powell v. Alabama, 287 U.S. 45 (1932); Nixon v. Herndon, 273 U.S. 536 (1927); Near v. Minnesota, 283 U.S. 697 (1931); Fiske v. Kansas, 274 U.S. 380 (1927).
249. Jackson, supra note 11, at 284-85; see also Ely, supra note 26, at 73-134.
250. Jackson, supra note 11, at 284-85; see also Ely, supra note 26, at 73-134.
251. United States v. Carolene Prods. Co., 304 U.S. 144, 153 n.4 (1938).
252. Id.
253. Id.
254. It is during this same period that discrimination against out-of-state commerce emerges as a key factor in dormant commerce clause jurisprudence. See S.C. State Highway Dep't v. Barnwell Bros., Inc., 303 U.S. 177, 189 (1938).
255. See Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942) (striking down, on equal protection grounds, a sterilization statute). Skinner represented how firmly a majority of the Court was opposed to recognizing non-textual due process rights. Given the context in which the decision was announced-the United States was at war with Nazi Germany - there could not have been a more tempting moment to announce that liberty included freedom from coerced eugenic experiments. Instead, the Court ignored the plaintiff's due process claims and, on its own initiative, based its decision on equal protection. See id. at 538. Indeed, Justice Douglas, for the majority, and Justice Stone, in his concurrence, presumed the constitutionality of Buck v. Bell, 274 U.S. 200, 207-08 (1927), which recognized the constitutionality of sterilizing feeble-minded individuals. Justice Stone's concurrence in Skinner argued the case should have been decided on the basis of procedural due process, the plaintiff not having been provided a hearing. See Skinner, 316 U.S. at 544. He wrote: There are limits to the extent to which the presumption of constitutionality can be pressed, especially where the liberty of the person is concerned (see United States v. Carolene Products Co., 304 U.S. 144, 152, n.4) and where the presumption is resorted to only to dispense with a procedure which the ordinary dictates of prudence would seem to demand for the protection of the individual from arbitrary action. Id. In his concurrence, Justice Jackson agreed with the majority and Justice Stone that both equal protection and procedural due process had been violated. Jackson concurred, however, in order to express his view that even if the proper procedure had been provided, "[t]here are limits to the extent to which a legislatively represented majority may conduct biological experiments at the expense of the dignity and personality and natural powers of a minority." Id. at 546. His concurrence foreshadowed his defense of individual liberty against the tyranny of the majority in Barnette but did not follow the textual limitations he traced in Barnette. See infra text accompanying note 211. Jackson's concurrence stood as a kind of halfway point between his embrace of political process in his book, The Struggle for Judicial Supremacy, and his ultimate adoption of the textual Preferred Freedoms model in Murdock and Barnette. Finally, Skinner reflected the options available to the Court under the Equal Protection Clause, even as due process was limited to textual rights. Equal protection also had to be reformulated during the New Deal; aspects of Lochner, after all, were based on equal protection considerations as well as substantive due process. Both Justice Stone's Footnote Four, and Justice Frankfurter's political process model suggested limiting equal protection to classifications which threaten the proper functioning of the political process. This would allow the Court to continue enforcing non-textual freedoms like the right to vote under the rubric of equal protection. Just as a majority of the Court moved away from the political process limitation for due process, Skinner may indicate a similar move was occurring under equal protection doctrine. However, coming as it did in the midst of a war against Nazi Germany, and given the flux of judicial thinking during this period, it is hard to see Skinner as representing a stable consensus regarding the post-Lochner theory of equal protection.
256. Jackson, supra note 11, at 284-85.
257. 308 U.S. 147 (1939).
258. Id. at 161. In another 1939 case, Coleman v. Miller, 307 U.S. 433, 450 (1939), the Supreme Court ruled that determining the validity of a proposed constitutional amendment was a "political question," resolvable by the political branches, and not the Court.
259. 310 U.S. 296 (1940). In Cantwell, Justice Roberts wrote for a unanimous court, "[t]he fundamental concept of liberty embodied in [the Fourteenth] Amendment embraces the liberties guaranteed by the First Amendment." Id. at 303. Interestingly, he cited Schneider, a 1939 case, as support and made no mention of the many pre-1937 cases which upheld the right to free speech and press. See id. In Cantwell, the Court ruled that a city had imposed a prior restraint on Jehovah's Witnesses' ability to disseminate their religious views. See id. The channels of persuasion having been closed, the case came within the reach of the political process model.
260. Minersville Sch. Dist. v. Gobitis, 310 U.S. 586 (1940).
261. Id. at 595.
262. But see Employment Div. v. Smith, 494 U.S. 872, 879 (1990) (citing Minersville Sch. Dist. v. Gobitis, 310 U.S. 586 (1940)).
263. In the 1925 case, Gitlow v. New York, 268 U.S. 652 (1925), the Court interpreted the Fourteenth Amendment to include the right of free speech but deferred to the political process and legislative determinations regarding the danger of certain forms of speech. The Court wrote: By enacting the present statute the State has determined, through its legislative body, that utterances advocating the overthrow of organized government by force, violence and unlawful means, are so inimical to the general welfare and involve such danger of substantive evil that they may be penalized in the exercise of its police power. That determination must be given great weight. . . . We cannot hold that the present statute is an arbitrary or unreasonable exercise of the police power of the State . . . . Id. at 668-70. Both Gitlow in 1925 and Whitney v. California, 274 U.S. 357, in 1927 were decided under the same "reasonableness" standard as liberty of contract. Thus, the political process model may have been closer to pre-1937 First Amendment jurisprudence than the substantive protection ultimately adopted in Barnette. 197. Gobitis, 310 U.S. at 594 ("The religious liberty which the Constitution protects has never excluded legislation of general scope not directed against doctrinal loyalties of particular sects."). In dissent, Stone argued there was reason to suspect discrimination: For this reason it would seem that legislation which operates to repress the religious freedom of small minorities, which is admittedly within the scope of the protection of the Bill of Rights, must at least be subject to the same judicial scrutiny as legislation which we have recently held to infringe the constitutional liberty of religious and racial minorities. Id. at 607.
264. Id. at 599. Frankfurter developed this point further in his Barnette dissent: When Mr. Justice Holmes, speaking for this Court, wrote that "it must be remembered that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts," . . . he went to the very essence of our constitutional system and the democratic conception of our society. He did not mean that for only some phases of civil government this Court was not to supplant legislatures and sit in judgment upon the right or wrong of a challenged measure. He was stating the comprehensive judicial duty and role of this Court in our constitutional scheme whenever legislation is sought to be nullified on any ground, namely, that responsibility for legislation lies with legislatures, answerable as they are directly to the people, and this Court's only and very narrow function is to determine whether within the broad grant of authority vested in legislatures they have exercised a judgment for which reasonable justification can be offered. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 649 (1943) (Frankfurter, J., dissenting) (citation omitted).
265. Frankfurter is generally associated with the Legal Process school of H.L.A. Hart and Alexander Bickel. See Kalman, Law, Politics, supra note 100, at 2208.
266. Frankfurter, Holmes's Constitutional Opinions, supra note 123, at 116-18 (quoting Roscoe Pound, The Theory of Judicial Decision, 36 Harv. L. Rev. 641, 651 (1923)).
267. Frankfurter, Holmes's Constitutional Opinions, supra note 123, at 116-18 (quoting Roscoe Pound, The Theory of Judicial Decision, 36 Harv. L. Rev. 641, 651 (1923)).
268. Some scholars have argued that interpretation of a text necessarily leads to some form of originalism. See, e.g., Barnett, Originalism, supra note 21.
269. Jones v. Opelika, 316 U.S. 584, 608 (1942) (Stone, C.J., dissenting).
270. Id. at 624.
271. Id. at 623-24.
272. 319 U.S. 105 (1943).
273. Id. at 113-15 (emphasis added).
274. See discussion infra Part III.C.
275. 319 U.S. 624 (1943). Professor Bruce Ackerman has suggested that the New Deal expansion of government power into previously "private areas" like property and contract autonomy justified not only textual incorporation, but also judicial protection of non-textual rights like privacy. See Ackerman, Liberating Abstraction, supra note 43; Bruce Ackerman, Beyond Carolene Products, 98 Harv. L. Rev. 713 (1985) [hereinafter Ackerman, Carolene Products]. Some aspects of Jackson's opinion can be read this way, particularly where he noted the need to "transplant these rights to a soil in which the laissez-faire concept or principle of non-interference has withered at least as to economic affairs, and social advancements are increasingly sought through closer integration of society and through expanded and strengthened governmental controls." Barnette, 319 U.S. at 640. Jackson had also previously signaled his willingness to enforce non-textual rights in his Skinner concurrence. See supra note 188 (discussing the significance of Skinner). Other aspects of Jackson's opinion, however, cannot be read so expansively. Jackson insisted that the problems associated with the vague contours of the Due Process Clause disappear when limited to the specific provisions of the Bill of Rights. This would have been disingenuous in the extreme if Jackson believed legitimate judicial review included no such limitation. In the end, Jackson's opinion in Barnette was only one of many in which the Court identified textualism as the fundamental core of legitimate due process review. Any reading of the New Deal which leaves the door open to non-textual substantive due process rights must somehow explain the Court's recharacterization of Meyer and Pierce as Bill of Rights cases, the refusal to adopt total incorporation, and the abandonment of federal common law in Erie. Above all, such an approach conflicts with the Court's consistent embrace of textualism as the fundamental core of due process rights.
276. 319 U.S. 624 (1943). Professor Bruce Ackerman has suggested that the New Deal expansion of government power into previously "private areas" like property and contract autonomy justified not only textual incorporation, but also judicial protection of non-textual rights like privacy. See Ackerman, Liberating Abstraction, supra note 43; Bruce Ackerman, Beyond Carolene Products, 98 Harv. L. Rev. 713 (1985) [hereinafter Ackerman, Carolene Products]. Some aspects of Jackson's opinion can be read this way, particularly where he noted the need to "transplant these rights to a soil in which the laissez-faire concept or principle of non-interference has withered at least as to economic affairs, and social advancements are increasingly sought through closer integration of society and through expanded and strengthened governmental controls." Barnette, 319 U.S. at 640. Jackson had also previously signaled his willingness to enforce non-textual rights in his Skinner concurrence. See supra note 188 (discussing the significance of Skinner). Other aspects of Jackson's opinion, however, cannot be read so expansively. Jackson insisted that the problems associated with the vague contours of the Due Process Clause disappear when limited to the specific provisions of the Bill of Rights. This would have been disingenuous in the extreme if Jackson believed legitimate judicial review included no such limitation. In the end, Jackson's opinion in Barnette was only one of many in which the Court identified textualism as the fundamental core of legitimate due process review. Any reading of the New Deal which leaves the door open to non-textual substantive due process rights must somehow explain the Court's recharacterization of Meyer and Pierce as Bill of Rights cases, the refusal to adopt total incorporation, and the abandonment of federal common law in Erie. Above all, such an approach conflicts with the Court's consistent embrace of textualism as the fundamental core of due process rights.
277. See Jackson, supra note 11, at 284-85.
278. Barnette, 319 U.S. at 639-40.
279. Id. at 639-40.
280. Id. at 639.
281. Id. at 638 (emphasis added).
282. See Barron v. Baltimore, 32 U.S. 242, 243 (1833).
283. For general discussions regarding the federalist nature of the original Bill of Rights, see Amar, Bill of Rights, supra note 26; Steven D. Smith, Foreordained Failure: The Quest for a Constitutional Principle of Religious Freedom (1995); Lash, Power and Religion, supra note 29.
284. For general discussions regarding the federalist nature of the original Bill of Rights, see Amar, Bill of Rights, supra note 26; Steven D. Smith, Foreordained Failure: The Quest for a Constitutional Principle of Religious Freedom (1995); Lash, Power and Religion, supra note 29.
285. For general discussions regarding the federalist nature of the original Bill of Rights, see Amar, Bill of Rights, supra note 26; Steven D. Smith, Foreordained Failure: The Quest for a Constitutional Principle of Religious Freedom (1995); Lash, Power and Religion, supra note 29.
286. Sudden total incorporation in the midst of Roosevelt's battles with the Court might well have been viewed as tantamount to institutional suicide.
287. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 666 (1943) (Frankfurter, J., dissenting).
288. See, e.g., id. at 646-71 (Frankfurter, J., dissenting); Minersville Sch. Dist. v. Gobitis, 310 U.S. 586 (1940).
289. According to Frankfurter's concurrence in Adamson: Indeed, the suggestion that the Fourteenth Amendment incorporates the first eight Amendments as such is not unambiguously urged. Even the boldest innovator would shrink from suggesting to more than half the States that they may no longer initiate prosecutions without indictment by grand jury, or that thereafter all the States of the Union must furnish a jury of twelve for every case involving a claim above twenty dollars. . . . It seems pretty late in the day to suggest that a phrase so laden with historic meaning should be given an improvised content consisting of some but not all of the provisions of the first eight Amendments, selected on an undefined basis, with improvisation of content for the provisions so selected. Adamson v. California, 332 U.S. 46, 64-65, 67 (1947) (Frankfurter, J., concurring).
290. Justice Frankfurter further stated in Barnette: There is no warrant in the constitutional basis of this Court's authority for attributing different roles to it depending upon the nature of the challenge to the legislation. Our power does not vary according to the particular provision of the Bill of Rights which is invoked. The right not to have property taken without just compensation has, so far as the scope of judicial power is concerned, the same constitutional dignity as the right to be protected against unreasonable searches and seizures, and the latter has no less claim than freedom of the press or freedom of speech or religious freedom. In no instance is this Court the primary protector of the particular liberty that is invoked. This Court has recognized, what hardly could be denied, that all the provisions of the first ten Amendments are "specific" prohibitions, United States v. Carolene Products Co., 304 U.S. 144, 152, n.4. But each specific Amendment, in so far as embraced within the Fourteenth Amendment, must be equally respected, and the function of this Court does not differ in passing on the constitutionality of legislation challenged under different Amendments. When Mr. Justice Holmes, speaking for this Court, wrote that "it must be remembered that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts," Missouri, K. & T. Ry. Co. v. May, 194 U.S. 267, 270, he went to the very essence of our constitutional system and the democratic conception of our society. He did not mean that for only some phases of civil government this Court was not to supplant legislatures and sit in judgment upon the right or wrong of a challenged measure. He was stating the comprehensive judicial duty and role of this Court in our constitutional scheme whenever legislation is sought to be nullified on any ground, namely, that responsibility for legislation lies with legislatures, answerable as they are directly to the people, and this Court's only and very narrow function is to determine whether within the broad grant of authority vested in legislatures they have exercised a judgment for which reasonable justification can be offered. Barnette, 319 U.S. at 648-49 (Frankfurter, J., dissenting).
291. Adamson, 332 U.S. at 65 (Frankfurter, J., concurring).
292. See supra notes 26, 62-65 and accompanying text.
293. The Preferred Freedoms Doctrine, for example, provided neither a textual nor a historical reason for "preferring" the right to counsel over the right against double jeopardy.
294. I am not aware of any explanation for Black's decision not to join Footnote Four.
295. Jones v. Opelika, 316 U.S. 584, 623-24 (1942) (Black, Douglas, Murphy, JJ., dissenting).
296. See Adamson, 332 U.S. at 68-92 (Black, J., dissenting).
297. Id. at 71-72.
298. Id. at 70.
299. Id. at 72.
300. Id. at 75.
301. Id.
302. Id. at 70.
303. See id. at 92-123 (app. by Black, J.).
304. See supra note 49 and accompanying text.
305. A related issue is the extent to which the Court could accomplish by way of the Equal Protection Clause what had been rejected under the Due Process Clause. Some scholars have argued that non-textual "privileges or immunities" may have been intended to receive some degree of equal protection. See, e.g., Amar, Bill of Rights, supra note 26, at 171-74; John Harrison, Reconstructing the Privileges or Immunities Clause, 101 Yale L.J. 1385, 1387-88, 1392, 1396 (1992). Lochnerian liberty of contract itself contained an equal protection component. In fact, most due process rights can be described in equal protection terms. Non-textual liberties that could be described as involving equal protection concerns include abortion, assisted suicide, sexual orientation and disability. See, e.g., Romer v. Evans, 517 U.S. 620 (1996) (state constitutional amendment banning homosexual anti-discrimination laws violates the equal protection clause); Planned Parenthood v. Casey, 505 U.S. 833 (1992) (plurality arguing that access to abortion facilitates women's equal participation in the marketplace); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) (striking down ordinance requiring special use permit as applied against a home for the mentally retarded); Quill v. Vacco, 80 F.3d 716 (2d Cir. 1996), rev'd, 521 U.S. 793 (1997) (circuit court striking down ban on assisted suicide as violation of equal protection). The laws struck down in Romer and Cleburne failed to satisfy the lowest level of judicial scrutiny, "rational basis review." The rejection of Lochner would have included a rejection of this aspect of equal protection - thus the Court's suggestion in Carolene Products that equal protection would focus on political process considerations and protection of "discreet and insular minorities." See United States v. Carolene Prods. Co., 304 U.S. 144, 153 n.4 (1938); see also supra note 188 (discussing Skinner v. Oklahoma). 236. Justice Black's critique of Twining as opening the door to Lochner II was prophetic.
306. A related issue is the extent to which the Court could accomplish by way of the Equal Protection Clause what had been rejected under the Due Process Clause. Some scholars have argued that non-textual "privileges or immunities" may have been intended to receive some degree of equal protection. See, e.g., Amar, Bill of Rights, supra note 26, at 171-74; John Harrison, Reconstructing the Privileges or Immunities Clause, 101 Yale L.J. 1385, 1387-88, 1392, 1396 (1992). Lochnerian liberty of contract itself contained an equal protection component. In fact, most due process rights can be described in equal protection terms. Non-textual liberties that could be described as involving equal protection concerns include abortion, assisted suicide, sexual orientation and disability. See, e.g., Romer v. Evans, 517 U.S. 620 (1996) (state constitutional amendment banning homosexual anti-discrimination laws violates the equal protection clause); Planned Parenthood v. Casey, 505 U.S. 833 (1992) (plurality arguing that access to abortion facilitates women's equal participation in the marketplace); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) (striking down ordinance requiring special use permit as applied against a home for the mentally retarded); Quill v. Vacco, 80 F.3d 716 (2d Cir. 1996), rev'd, 521 U.S. 793 (1997) (circuit court striking down ban on assisted suicide as violation of equal protection). The laws struck down in Romer and Cleburne failed to satisfy the lowest level of judicial scrutiny, "rational basis review." The rejection of Lochner would have included a rejection of this aspect of equal protection - thus the Court's suggestion in Carolene Products that equal protection would focus on political process considerations and protection of "discreet and insular minorities." See United States v. Carolene Prods. Co., 304 U.S. 144, 153 n.4 (1938); see also supra note 188 (discussing Skinner v. Oklahoma). 236. Justice Black's critique of Twining as opening the door to Lochner II was prophetic.
307. Adamson v. California, 332 U.S. 46, 70 (1947) (Black, J., dissenting).
308. See Fairman, Fourteenth Amendment, supra note 28, at 171.
309. See Amar, Bill of Rights, supra note 26, at 174-75; see also Adamson, 332 U.S. at 62 (Frankfurter, J., concurring). Bruce Ackerman also would not limit incorporation to the specific provisions of the Bill of Rights, arguing that such narrow adherence to the text would be hyper-formalistic and would introduce a kind of mechanical jurisprudence generally derided by the legal academy. See Ackerman, Carolene Products, supra note 208, at 744. The point of the inquiry, of course, is to determine whether what Ackerman derides as a "mechanical jurisprudence" is what the Court had in mind.
310. Akhil Amar criticizes Justice Black's jot-for-jot incorporation approach as unduly restrictive, since it would exclude both important textual freedoms like the writ of habeas corpus and other non-textual liberties. See Amar, Bill of Rights, supra note 26, at 174-75. I believe that Black's theory leaves room for the incorporation of textual liberties like habeas corpus, but not non-textual liberties.
311. One reason why there is no New Deal amendment is because the New Deal Revolution did not involve a change in the text. Instead, it involved a change in the Court's approach to texts already in place. That may seem like a distinction without a difference, but there is a crucial difference between the two: the New Deal did not change the idea of enumerated power, nor did it add a power not already granted (as would, for example, judicial allowance for "laws respecting an establishment of religion"). U.S. Const, amend. I. The Court's refusal to defer on other rights continued to rely on texts already embedded in the Constitution. Finally, even though the New Deal seemed to amend the potential reach of the Privileges or Immunities Clause, it did so by linking that clause to other texts in the Constitution. It simply placed a rule of construction on the Clause limiting judicial interpretation to norms contained within the four corners of the Constitution.
312. Given the general consensus that some kind of constitutional reform was necessary, it seems likely that some kind of amendment would have been adopted had the Court not initiated the "switch in time." See Ackerman, Transformations, supra note 5, at 345-46, 348. On the other hand, the Court's revolution in jurisprudence tracks the general criticism at the time that the problem was the Court and not the Constitution.
313. See Jackson, supra note 11, at 180 ("[T]he immediate difficulty was with the Justices, not the Court or the Constitution.").
314. While some of the amendments proposed by New Deal Democrats would have restructured the nature of judicial review, others were limited to specific regulatory powers. See supra notes 87-88 and accompanying text.
315. Lochner v. New York, 198 U.S. 45, 75 (1905) (Holmes, J., dissenting).
316. But see Cass R. Sunstein, The Partial Constitution 138-39 (1993) (arguing that the "New Deal Constitution" enacted a constitutional right to minimum welfare entitlements). For a discussion regarding the substantial gap between the broad rights talk of the 1936 campaign and the actual programs enacted by the later New Deal, see William E. Forbath, Constitutional Change and the Politics of History, 108 Yale L.J. 1917, 1928 (1999) (describing how "social citizenship" legislation was thwarted by Southern Dixiecrats). Forbath concludes "[w]e have enshrined the vast expansion of national governmental power, but not the purpose for which it was expanded." Id. at 1929. Bruce Ackerman, although generally declining to adopt any particular interpretive conclusions, nevertheless appears to believe the New Deal constitutionalized some form of Rooseveltian Social Welfare agenda. For example, he cites the Reagan revolution as an example of a failed constitutional moment; a failed attempt by President Reagan to "earn [the] authority from the People to repudiate Darby and replace it with the laissez-faire vision expressed by Lochner and Hammer." Ackerman, Transformations, supra note 5, at 376-77. This assumes, of course, that embracing some form of laissez-faire requires a constitutional amendment after the New Deal. The evidence, however, does not support any kind of constitutionalization of positive welfare rights or a constitutional requirement that the federal government "be all that it can be." The New Deal Revolution involved an interpretive methodology that had the effect of expanding the discretion of the legislature in areas not impinging on textual rights. There was no constitutional mandate controlling how Congress utilized its discretion. Ackerman also apparently believes that Reagan's opposition to Roe was an attempt to change the Constitution, just as Roosevelt led popular opposition to the pre-New Deal Constitution. See Ackerman, Transformations, supra note 5, at 402. The more plausible account is that Reagan was attempting to enforce the New Deal Court's embrace of textual originalism. A good argument can be made that it was the Roe Court, if any, that had illegitimately altered the shape of the New Deal Constitution.
317. But see Cass R. Sunstein, The Partial Constitution 138-39 (1993) (arguing that the "New Deal Constitution" enacted a constitutional right to minimum welfare entitlements). For a discussion regarding the substantial gap between the broad rights talk of the 1936 campaign and the actual programs enacted by the later New Deal, see William E. Forbath, Constitutional Change and the Politics of History, 108 Yale L.J. 1917, 1928 (1999) (describing how "social citizenship" legislation was thwarted by Southern Dixiecrats). Forbath concludes "[w]e have enshrined the vast expansion of national governmental power, but not the purpose for which it was expanded." Id. at 1929. Bruce Ackerman, although generally declining to adopt any particular interpretive conclusions, nevertheless appears to believe the New Deal constitutionalized some form of Rooseveltian Social Welfare agenda. For example, he cites the Reagan revolution as an example of a failed constitutional moment; a failed attempt by President Reagan to "earn [the] authority from the People to repudiate Darby and replace it with the laissez-faire vision expressed by Lochner and Hammer." Ackerman, Transformations, supra note 5, at 376-77. This assumes, of course, that embracing some form of laissez-faire requires a constitutional amendment after the New Deal. The evidence, however, does not support any kind of constitutionalization of positive welfare rights or a constitutional requirement that the federal government "be all that it can be." The New Deal Revolution involved an interpretive methodology that had the effect of expanding the discretion of the legislature in areas not impinging on textual rights. There was no constitutional mandate controlling how Congress utilized its discretion. Ackerman also apparently believes that Reagan's opposition to Roe was an attempt to change the Constitution, just as Roosevelt led popular opposition to the pre-New Deal Constitution. See Ackerman, Transformations, supra note 5, at 402. The more plausible account is that Reagan was attempting to enforce the New Deal Court's embrace of textual originalism. A good argument can be made that it was the Roe Court, if any, that had illegitimately altered the shape of the New Deal Constitution.
318. But see Cass R. Sunstein, The Partial Constitution 138-39 (1993) (arguing that the "New Deal Constitution" enacted a constitutional right to minimum welfare entitlements). For a discussion regarding the substantial gap between the broad rights talk of the 1936 campaign and the actual programs enacted by the later New Deal, see William E. Forbath, Constitutional Change and the Politics of History, 108 Yale L.J. 1917, 1928 (1999) (describing how "social citizenship" legislation was thwarted by Southern Dixiecrats). Forbath concludes "[w]e have enshrined the vast expansion of national governmental power, but not the purpose for which it was expanded." Id. at 1929. Bruce Ackerman, although generally declining to adopt any particular interpretive conclusions, nevertheless appears to believe the New Deal constitutionalized some form of Rooseveltian Social Welfare agenda. For example, he cites the Reagan revolution as an example of a failed constitutional moment; a failed attempt by President Reagan to "earn [the] authority from the People to repudiate Darby and replace it with the laissez-faire vision expressed by Lochner and Hammer." Ackerman, Transformations, supra note 5, at 376-77. This assumes, of course, that embracing some form of laissez-faire requires a constitutional amendment after the New Deal. The evidence, however, does not support any kind of constitutionalization of positive welfare rights or a constitutional requirement that the federal government "be all that it can be." The New Deal Revolution involved an interpretive methodology that had the effect of expanding the discretion of the legislature in areas not impinging on textual rights. There was no constitutional mandate controlling how Congress utilized its discretion. Ackerman also apparently believes that Reagan's opposition to Roe was an attempt to change the Constitution, just as Roosevelt led popular opposition to the pre-New Deal Constitution. See Ackerman, Transformations, supra note 5, at 402. The more plausible account is that Reagan was attempting to enforce the New Deal Court's embrace of textual originalism. A good argument can be made that it was the Roe Court, if any, that had illegitimately altered the shape of the New Deal Constitution.
319. But see Cass R. Sunstein, The Partial Constitution 138-39 (1993) (arguing that the "New Deal Constitution" enacted a constitutional right to minimum welfare entitlements). For a discussion regarding the substantial gap between the broad rights talk of the 1936 campaign and the actual programs enacted by the later New Deal, see William E. Forbath, Constitutional Change and the Politics of History, 108 Yale L.J. 1917, 1928 (1999) (describing how "social citizenship" legislation was thwarted by Southern Dixiecrats). Forbath concludes "[w]e have enshrined the vast expansion of national governmental power, but not the purpose for which it was expanded." Id. at 1929. Bruce Ackerman, although generally declining to adopt any particular interpretive conclusions, nevertheless appears to believe the New Deal constitutionalized some form of Rooseveltian Social Welfare agenda. For example, he cites the Reagan revolution as an example of a failed constitutional moment; a failed attempt by President Reagan to "earn [the] authority from the People to repudiate Darby and replace it with the laissez-faire vision expressed by Lochner and Hammer." Ackerman, Transformations, supra note 5, at 376-77. This assumes, of course, that embracing some form of laissez-faire requires a constitutional amendment after the New Deal. The evidence, however, does not support any kind of constitutionalization of positive welfare rights or a constitutional requirement that the federal government "be all that it can be." The New Deal Revolution involved an interpretive methodology that had the effect of expanding the discretion of the legislature in areas not impinging on textual rights. There was no constitutional mandate controlling how Congress utilized its discretion. Ackerman also apparently believes that Reagan's opposition to Roe was an attempt to change the Constitution, just as Roosevelt led popular opposition to the pre-New Deal Constitution. See Ackerman, Transformations, supra note 5, at 402. The more plausible account is that Reagan was attempting to enforce the New Deal Court's embrace of textual originalism. A good argument can be made that it was the Roe Court, if any, that had illegitimately altered the shape of the New Deal Constitution.
320. See Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938); see also Swift v. Tyson, 41 U.S. 1 (1842).
321. See Coleman v. Miller, 307 U.S. 433 (1939).
322. See Wickard v. Filburn, 317 U.S. 111 (1942); United States v. Darby, 312 U.S. 100 (1941); United States v. Carolene Prods. Co., 304 U.S. 144 (1938).
323. See W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943); Palko v. Connecticut, 302 U.S. 319 (1937).
324. See Troxel v. Granville, 530 U.S. 57 (2000) (regarding parental rights); Planned Parenthood v. Casey, 505 U.S. 833 (1992) (regarding abortion).
325. See, e.g., United States v. Morrison, 529 U.S. 598 (2000); Printz v. United States, 521 U.S. 898 (1997); United States v. Lopez, 514 U.S. 549 (1995); New York v. United States, 505 U.S. 144 (1992). One might also include the expansive reading of the Eleventh Amendment in Seminole Tribe v. Florida, 517 U.S. 44 (1996).
326. See, e.g., Troxel, 530 U.S. at 65-66.
327. See, e.g., John E. Nowak & Ronald D. Rotunda, Constitutional Law 389 (1991) ("[T]here was no real break in the use of a subjective test for finding individual rights and liberties following the 1937 renouncement of substantive due process as a control over economic and social welfare legislation."); Tribe, supra note 179, at 1318- 19.
328. See, e.g., John E. Nowak & Ronald D. Rotunda, Constitutional Law 389 (1991) ("[T]here was no real break in the use of a subjective test for finding individual rights and liberties following the 1937 renouncement of substantive due process as a control over economic and social welfare legislation."); Tribe, supra note 179, at 1318-19.
329. See Casey, 505 U.S. at 848; see also Washington v. Glucksberg, 521 U.S. 702, 761-62 (1997) (Souter, J., concurring); Nowak & Rotunda, supra note 254, at 389.
330. See Casey, 505 U.S. at 848; see also Washington v. Glucksberg, 521 U.S. 702, 761-62 (1997) (Souter, J., concurring); Nowak & Rotunda, supra note 254, at 389.
331. See Foe v. Ullman, 367 U.S. 497, 544 (1961) (Harlan, J., dissenting); supra notes 178-79 and accompanying text.
332. See Adkins v. Children's Hosp., 261 U.S. 525, 568 (1923) (Holmes, J., dissenting).
333. See Franklin D. Roosevelt, The Constitution of the United States Was a Layman's Document, Not a Lawyer's Contract, Address on Constitution Day (Sept. 17, 1937), in 6 Roosevelt Public Papers, supra note 86, at 366 ("Yet nearly every attempt to meet those demands for social and economic betterment has been jeopardized or actually forbidden by those who have sought to read into the Constitution language which the framers refused to write into the Constitution.").
334. See Palko v. Connecticut, 302 U.S. 319, 324-25 (1937) ("In these and other situations immunities that are valid as against the federal government by force of the specific pledges of particular amendments have been found to be implicit in the concept of ordered liberty . . . .").
335. See United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938) ("There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten Amendments, which are deemed equally specific when held to be embraced within the Fourteenth.").
336. See W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 666 (1943) (Frankfurter, J., dissenting) ("Before a duly enacted law can be judicially nullified, it must be forbidden by some explicit restriction upon political authority in the Constitution.").
337. See id. at 639 ("Much of the vagueness of the due process clause disappears when the specific provisions of the First [Amendment] become its standard.").
338. Adamson v. California, 332 U.S. 46, 75 (1947) (Black, J., dissenting). Justice Black wrote: And I further contend that the "natural law" formula which the Court uses to reach its conclusion in this case should be abandoned as an incongruous excrescence on our Constitution. I believe that formula to be itself a violation of our Constitution, in that it subtly conveys to courts, at the expense of legislatures, ultimate power over public policies in fields where no specific provision of the Constitution limits legislative power. Id. 264. Ackerman acknowledges the tension between the non-textual right of privacy and the "specifics" language of Carolene Products Footnote Four but raises the possibility that non-textual rights may be a preferable way to synthesize the Constitution's protection of liberty under the Founding, Reconstruction and New Deal constitutions. Ackerman, Foundations, supra note 5, at 129-30. Ackerman does not, however, expressly resolve the issue. Id. at 159 ("[M]y aim here has been to begin a story, not to end it."). In We the People: Transformations, Ackerman suggests that the Reagan and Bush Administrations' attempt to overrule Roe was a failed "constitutional moment." Ackerman, Transformations, supra note 5, at 398-99. Ackerman thus both grants the right to privacy constitutional status and implies that the legitimacy of Roe and the right to privacy is intimately connected to the constitutional status of the New Deal. Id. at 402. Ackerman has not expressly repudiated the option of embracing the New Deal and Footnote Four, while rejecting the concept of non-textual fundamental liberties, though he may do so in the future. See id. at 403 ("My next volume . . . will try to clarify the judicial challenges that lie ahead.").
339. Adamson v. California, 332 U.S. 46, 75 (1947) (Black, J., dissenting). Justice Black wrote: And I further contend that the "natural law" formula which the Court uses to reach its conclusion in this case should be abandoned as an incongruous excrescence on our Constitution. I believe that formula to be itself a violation of our Constitution, in that it subtly conveys to courts, at the expense of legislatures, ultimate power over public policies in fields where no specific provision of the Constitution limits legislative power. Id. 264. Ackerman acknowledges the tension between the non-textual right of privacy and the "specifics" language of Carolene Products Footnote Four but raises the possibility that non-textual rights may be a preferable way to synthesize the Constitution's protection of liberty under the Founding, Reconstruction and New Deal constitutions. Ackerman, Foundations, supra note 5, at 129-30. Ackerman does not, however, expressly resolve the issue. Id. at 159 ("[M]y aim here has been to begin a story, not to end it."). In We the People: Transformations, Ackerman suggests that the Reagan and Bush Administrations' attempt to overrule Roe was a failed "constitutional moment." Ackerman, Transformations, supra note 5, at 398-99. Ackerman thus both grants the right to privacy constitutional status and implies that the legitimacy of Roe and the right to privacy is intimately connected to the constitutional status of the New Deal. Id. at 402. Ackerman has not expressly repudiated the option of embracing the New Deal and Footnote Four, while rejecting the concept of non-textual fundamental liberties, though he may do so in the future. See id. at 403 ("My next volume . . . will try to clarify the judicial challenges that lie ahead.").
340. Adamson v. California, 332 U.S. 46, 75 (1947) (Black, J., dissenting). Justice Black wrote: And I further contend that the "natural law" formula which the Court uses to reach its conclusion in this case should be abandoned as an incongruous excrescence on our Constitution. I believe that formula to be itself a violation of our Constitution, in that it subtly conveys to courts, at the expense of legislatures, ultimate power over public policies in fields where no specific provision of the Constitution limits legislative power. Id. 264. Ackerman acknowledges the tension between the non-textual right of privacy and the "specifics" language of Carolene Products Footnote Four but raises the possibility that non-textual rights may be a preferable way to synthesize the Constitution's protection of liberty under the Founding, Reconstruction and New Deal constitutions. Ackerman, Foundations, supra note 5, at 129-30. Ackerman does not, however, expressly resolve the issue. Id. at 159 ("[M]y aim here has been to begin a story, not to end it."). In We the People: Transformations, Ackerman suggests that the Reagan and Bush Administrations' attempt to overrule Roe was a failed "constitutional moment." Ackerman, Transformations, supra note 5, at 398-99. Ackerman thus both grants the right to privacy constitutional status and implies that the legitimacy of Roe and the right to privacy is intimately connected to the constitutional status of the New Deal. Id. at 402. Ackerman has not expressly repudiated the option of embracing the New Deal and Footnote Four, while rejecting the concept of non-textual fundamental liberties, though he may do so in the future. See id. at 403 ("My next volume . . . will try to clarify the judicial challenges that lie ahead.").
341. But see Seminole Tribe v. Florida, 517 U.S. 44 (1996).
342. United States v. Darby, 312 U.S. 100, 124 (1941). There may still be limits on the commerce power even absent Tenth Amendment considerations. John Marshall, for example, indicated that Congress should not be allowed to use its enumerated powers as a pretext to regulate matters not entrusted to the national government. See McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 423 (1819); infra note 278 (discussing the distinction between the New Deal Court's reading of Marshall and the actual views of Marshall); cf. Seminole Tribe, 517 U.S. at 72-73 ("[T]he Eleventh Amendment prevents congressional authorization of suits by private parties against unconsenting States.").
343. 134 U.S. 1 (1890).
344. See, e.g., Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356 (2001) (striking down portion of the Americans with Disabilities Act applicable to the states).
345. One way to view the Court's moves in regard to the commerce power is to read that clause at a high level of abstraction. See Ackerman, Liberating Abstraction, supra note 43, at 318. Another way, of course, is to see the Court as reading the Tenth Amendment at the lowest and most specific level of abstraction. This approach is more in keeping with the Court's moves regarding the Due Process Clause.
346. Some scholars have tentatively suggested that state and federal power to regulate the economy might have been in place prior to the New Deal due to the combined impact of the "progressive" amendments of the first decades of the twentieth century. For example, twentieth century amendments like the Sixteenth (progressive income tax), Seventeenth (election of Senators) and Nineteenth (women's vote) collectively contain themes of nationalism and economic redistribution - major themes of the New Deal. See Amar, Bill of Rights, supra note 26, at 300; see also Curtis, Resurrecting the Privileges or Immunities Clause, supra note 42, at 97. Although Professor Amar expressly declines to take a position, he suggests that these amendments in themselves might justify the Court's expansion of government power to enact economic and social welfare legislation.
347. Some scholars have tentatively suggested that state and federal power to regulate the economy might have been in place prior to the New Deal due to the combined impact of the "progressive" amendments of the first decades of the twentieth century. For example, twentieth century amendments like the Sixteenth (progressive income tax), Seventeenth (election of Senators) and Nineteenth (women's vote) collectively contain themes of nationalism and economic redistribution - major themes of the New Deal. See Amar, Bill of Rights, supra note 26, at 300; see also Curtis, Resurrecting the Privileges or Immunities Clause, supra note 42, at 97. Although Professor Amar expressly declines to take a position, he suggests that these amendments in themselves might justify the Court's expansion of government power to enact economic and social welfare legislation.
348. Amar, Bill of Rights, supra note 26, at 300. Not having investigated the public understanding of the intended scope of these amendments, I simply note that not even the most ardent supporters of the New Deal appointed to the Court suggested the revolution could be accomplished by way of the Sixteenth, Seventeenth or Nineteenth Amendments.
349. Chief Justice Rehnquist and Justice Scalia generally fall into this camp. See United States v. Morrison, 529 U.S. 598 (2000) (limiting the reach of the commerce power); Planned Parenthood v. Casey, 505 U.S. 833 (1992) (rejecting the asserted due process right to abortion). Justice Thomas has been the most vocal opponent of New Deal regulatory power. See Morrison, 529 U.S. at 627 (Thomas, J., concurring) (rejecting New Deal expansion of the commerce power). He is also generally suspicious of non-textual substantive due process rights. See Casey, 505 U.S. at 953 (joining Rehnquist's and Scalia's dissents). But see Troxel v. Granville, 530 U.S. 57 (2000) (Rehnquist and Thomas voting in favor of parental rights).
350. Justices Souter, Ginsberg and Breyer fit this type. See Troxel, 530 U.S. 57 (Souter, Ginsberg and Breyer voting in support of due process parental rights); Morrison, 529 U.S. at 628, 655 (Souter, Ginsberg and Breyer, JJ., dissenting); Printz v. United States, 521 U.S. 898, 939 (1997) (Souter, Ginsberg and Breyer, JJ., dissenting); Casey, 505 U.S. at 843 (Souter joining the plurality). Academic commentary generally reflects the same breakdown. See, e.g., Ackerman, Transformations, supra note 5 at 390, 402 (implying that Republican efforts to roll back New Deal commerce power and opposition to abortion rights are both in conflict with the New Deal Constitution).
351. Some scholars appear to realize this. See 8 History of the Supreme Court of the United States: Troubled Beginnings of the Modern State, 1888-1910, at 12 (Owen M. Fiss ed., 1993) (suggesting the Lochner Court shares some affinity with the current Court's enforcement of privacy rights, and that the Lochner Court, in significant respects, has been unfairly maligned).
352. See Reynolds v. United States, 98 U.S. 145 (1878); Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833); McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819); see also Eisner v. Macomber, 252 U.S. 189, 219-20 (1920) (Holmes, J., dissenting) ("[T]he Sixteenth Amendment should be read in 'a sense most obvious to the common understanding at the time of its adoption.'" (citation omitted)).
353. As Frankfurter described it, this would throw the Court back on a mere "subjective test." See Adamson v. California, 332 U.S. 46, 65 (1947) (Frankfurter, J., concurring).
354. Or, as Ackerman might put it, it would have moved us away from a dualist constitution and towards more of a monist parliamentarian system of government. See Ackerman, Foundations, supra note 5, at 13-17.
355. Textual originalism is not "strict constructionism," if by that is meant an interpretive method which restricts both the courts and the legislature. The textual originalism of the New Deal opened the door to the modern welfare state, and the rejection of the political process model preserved "judicial activism" on behalf of "preferred" textual rights. This is not a theory of limited government and judicial pacifism.
356. The Court embraced what it believed was Marshall's view of the commerce power. See supra notes 138-40 and accompanying text. The implication is that Marshall's view best represents the view of the Founders. Putting aside the issue of whether one can equate Marshall's interpretations with the Founders' intent, there is some question whether Marshall would have permitted the power of government to extend as far as did the New Deal Court. For example, Marshall's opinion in McCulloch contained a paragraph never quoted by the New Deal Court indicating that Congress could not use its enumerated powers as a pretext to regulate matters not delegated to the national government. See McCulloch, 17 U.S. at 423. Marshall wrote: [O]r should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not entrusted to the government; it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land. Id. If there is a distinction between the New Deal view of original intent, and actual original intent, which should control? If the New Deal Court truly embraced originalism, then shouldn't the true views of the Founders trump the erroneous views of later Courts? If the New Deal Revolution was in fact a revolution in jurisprudence, then I believe the actual original intent should control. Enforcing the pretext paragraph does not necessarily call into question the basic structure of New Deal legislation, though it might limit the extension of the commerce power to commercial activities. See, e.g., United States v. Morrison, 529 U.S. 598 (2000); United States v. Lopez, 514 U.S. 549 (1995).
357. See Adamson v. California, 332 U.S. 46 (1947)
358. See Richard L. Aynes, The Bill of Rights, The Fourteenth Amendment, and the Seven Deadly Sins of Legal Scholarship, 8 Wm. & Mary Bill Rts. J. 407, 433 (2000) (asserting that from the debate between Professor Fairman and Justice Black "came a better appreciation for the [Fourteenth] Amendment than perhaps had ever existed since its ratification"). In his article, Aynes notes how Fairman's antipathy to incorporation was due in part to his New Deal Philosophy - and opposition to Lochner. Id. at 424.
359. See Richard L. Aynes, Charles Fairman, Felix Frankfurter, and the Fourteenth Amendment, 70 Chi.-Kent L. Rev. 1197 (1995).
360. Fairman, Fourteenth Amendment, supra note 28.
361. See Crosskey, supra note 26; Morrison, supra note 42; see also Fairman, Reply, supra note 28. For more recent efforts, see Berger, Fourteenth Amendment, supra note 28; Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment 134 (1977); Curtis, No State, supra note 26; Raoul Berger, Incorporation of the Bill of Rights: A Reply to Michael Curtis' Response, 44 Ohio St. L.J. 1 (1983); Berger, Nine-Lived Cat, supra note 28; Michael Kent Curtis, Further Adventures of the Nine Lived Cat: A Response to Mr. Berger on Incorporation of the Bill of Rights, 43 Ohio St. L.J. 89 (1982); Michael Kent Curtis, Still Further Adventures of the Nine-Lived Cat: A Rebuttal to Raoul Berger's Reply on Application of the Bill of Rights to the States, 62 N.C. L. Rev. 517 (1984); Michael Kent Curtis, The Bill of Rights as a Limitation on State Authority: A Reply to Professor Berger, 16 Wake Forest L. Rev. 45 (1980); Michael Kent Curtis, The Fourteenth Amendment and the Bill of Rights, 14 Conn. L. Rev. 237 (1982). The most recent work is Akhil Amar's, The Bill of Rights. Amar, Bill of Rights, supra note 26; see also John Raeburn Green, The Bill of Rights, the Fourteenth Amendment and the Supreme Court, 46 Mich. L. Rev. 869 (1948) (supporting Justice Black's theory of incorporation).
362. See Crosskey, supra note 26; Morrison, supra note 42; see also Fairman, Reply, supra note 28. For more recent efforts, see Berger, Fourteenth Amendment, supra note 28; Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment 134 (1977); Curtis, No State, supra note 26; Raoul Berger, Incorporation of the Bill of Rights: A Reply to Michael Curtis' Response, 44 Ohio St. L.J. 1 (1983); Berger, Nine-Lived Cat, supra note 28; Michael Kent Curtis, Further Adventures of the Nine Lived Cat: A Response to Mr. Berger on Incorporation of the Bill of Rights, 43 Ohio St. L.J. 89 (1982); Michael Kent Curtis, Still Further Adventures of the Nine-Lived Cat: A Rebuttal to Raoul Berger's Reply on Application of the Bill of Rights to the States, 62 N.C. L. Rev. 517 (1984); Michael Kent Curtis, The Bill of Rights as a Limitation on State Authority: A Reply to Professor Berger, 16 Wake Forest L. Rev. 45 (1980); Michael Kent Curtis, The Fourteenth Amendment and the Bill of Rights, 14 Conn. L. Rev. 237 (1982). The most recent work is Akhil Amar's, The Bill of Rights. Amar, Bill of Rights, supra note 26; see also John Raeburn Green, The Bill of Rights, the Fourteenth Amendment and the Supreme Court, 46 Mich. L. Rev. 869 (1948) (supporting Justice Black's theory of incorporation).
363. See Crosskey, supra note 26; Morrison, supra note 42; see also Fairman, Reply, supra note 28. For more recent efforts, see Berger, Fourteenth Amendment, supra note 28; Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment 134 (1977); Curtis, No State, supra note 26; Raoul Berger, Incorporation of the Bill of Rights: A Reply to Michael Curtis' Response, 44 Ohio St. L.J. 1 (1983); Berger, Nine-Lived Cat, supra note 28; Michael Kent Curtis, Further Adventures of the Nine Lived Cat: A Response to Mr. Berger on Incorporation of the Bill of Rights, 43 Ohio St. L.J. 89 (1982); Michael Kent Curtis, Still Further Adventures of the Nine-Lived Cat: A Rebuttal to Raoul Berger's Reply on Application of the Bill of Rights to the States, 62 N.C. L. Rev. 517 (1984); Michael Kent Curtis, The Bill of Rights as a Limitation on State Authority: A Reply to Professor Berger, 16 Wake Forest L. Rev. 45 (1980); Michael Kent Curtis, The Fourteenth Amendment and the Bill of Rights, 14 Conn. L. Rev. 237 (1982). The most recent work is Akhil Amar's, The Bill of Rights. Amar, Bill of Rights, supra note 26; see also John Raeburn Green, The Bill of Rights, the Fourteenth Amendment and the Supreme Court, 46 Mich. L. Rev. 869 (1948) (supporting Justice Black's theory of incorporation).
364. See Crosskey, supra note 26; Morrison, supra note 42; see also Fairman, Reply, supra note 28. For more recent efforts, see Berger, Fourteenth Amendment, supra note 28; Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment 134 (1977); Curtis, No State, supra note 26; Raoul Berger, Incorporation of the Bill of Rights: A Reply to Michael Curtis' Response, 44 Ohio St. L.J. 1 (1983); Berger, Nine-Lived Cat, supra note 28; Michael Kent Curtis, Further Adventures of the Nine Lived Cat: A Response to Mr. Berger on Incorporation of the Bill of Rights, 43 Ohio St. L.J. 89 (1982); Michael Kent Curtis, Still Further Adventures of the Nine-Lived Cat: A Rebuttal to Raoul Berger's Reply on Application of the Bill of Rights to the States, 62 N.C. L. Rev. 517 (1984); Michael Kent Curtis, The Bill of Rights as a Limitation on State Authority: A Reply to Professor Berger, 16 Wake Forest L. Rev. 45 (1980); Michael Kent Curtis, The Fourteenth Amendment and the Bill of Rights, 14 Conn. L. Rev. 237 (1982). The most recent work is Akhil Amar's, The Bill of Rights. Amar, Bill of Rights, supra note 26; see also John Raeburn Green, The Bill of Rights, the Fourteenth Amendment and the Supreme Court, 46 Mich. L. Rev. 869 (1948) (supporting Justice Black's theory of incorporation).
365. See Crosskey, supra note 26; Morrison, supra note 42; see also Fairman, Reply, supra note 28. For more recent efforts, see Berger, Fourteenth Amendment, supra note 28; Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment 134 (1977); Curtis, No State, supra note 26; Raoul Berger, Incorporation of the Bill of Rights: A Reply to Michael Curtis' Response, 44 Ohio St. L.J. 1 (1983); Berger, Nine-Lived Cat, supra note 28; Michael Kent Curtis, Further Adventures of the Nine Lived Cat: A Response to Mr. Berger on Incorporation of the Bill of Rights, 43 Ohio St. L.J. 89 (1982); Michael Kent Curtis, Still Further Adventures of the Nine-Lived Cat: A Rebuttal to Raoul Berger's Reply on Application of the Bill of Rights to the States, 62 N.C. L. Rev. 517 (1984); Michael Kent Curtis, The Bill of Rights as a Limitation on State Authority: A Reply to Professor Berger, 16 Wake Forest L. Rev. 45 (1980); Michael Kent Curtis, The Fourteenth Amendment and the Bill of Rights, 14 Conn. L. Rev. 237 (1982). The most recent work is Akhil Amar's, The Bill of Rights. Amar, Bill of Rights, supra note 26; see also John Raeburn Green, The Bill of Rights, the Fourteenth Amendment and the Supreme Court, 46 Mich. L. Rev. 869 (1948) (supporting Justice Black's theory of incorporation).
366. See Crosskey, supra note 26; Morrison, supra note 42; see also Fairman, Reply, supra note 28. For more recent efforts, see Berger, Fourteenth Amendment, supra note 28; Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment 134 (1977); Curtis, No State, supra note 26; Raoul Berger, Incorporation of the Bill of Rights: A Reply to Michael Curtis' Response, 44 Ohio St. L.J. 1 (1983); Berger, Nine-Lived Cat, supra note 28; Michael Kent Curtis, Further Adventures of the Nine Lived Cat: A Response to Mr. Berger on Incorporation of the Bill of Rights, 43 Ohio St. L.J. 89 (1982); Michael Kent Curtis, Still Further Adventures of the Nine-Lived Cat: A Rebuttal to Raoul Berger's Reply on Application of the Bill of Rights to the States, 62 N.C. L. Rev. 517 (1984); Michael Kent Curtis, The Bill of Rights as a Limitation on State Authority: A Reply to Professor Berger, 16 Wake Forest L. Rev. 45 (1980); Michael Kent Curtis, The Fourteenth Amendment and the Bill of Rights, 14 Conn. L. Rev. 237 (1982). The most recent work is Akhil Amar's, The Bill of Rights. Amar, Bill of Rights, supra note 26; see also John Raeburn Green, The Bill of Rights, the Fourteenth Amendment and the Supreme Court, 46 Mich. L. Rev. 869 (1948) (supporting Justice Black's theory of incorporation).
367. See Crosskey, supra note 26; Morrison, supra note 42; see also Fairman, Reply, supra note 28. For more recent efforts, see Berger, Fourteenth Amendment, supra note 28; Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment 134 (1977); Curtis, No State, supra note 26; Raoul Berger, Incorporation of the Bill of Rights: A Reply to Michael Curtis' Response, 44 Ohio St. L.J. 1 (1983); Berger, Nine-Lived Cat, supra note 28; Michael Kent Curtis, Further Adventures of the Nine Lived Cat: A Response to Mr. Berger on Incorporation of the Bill of Rights, 43 Ohio St. L.J. 89 (1982); Michael Kent Curtis, Still Further Adventures of the Nine-Lived Cat: A Rebuttal to Raoul Berger's Reply on Application of the Bill of Rights to the States, 62 N.C. L. Rev. 517 (1984); Michael Kent Curtis, The Bill of Rights as a Limitation on State Authority: A Reply to Professor Berger, 16 Wake Forest L. Rev. 45 (1980); Michael Kent Curtis, The Fourteenth Amendment and the Bill of Rights, 14 Conn. L. Rev. 237 (1982). The most recent work is Akhil Amar's, The Bill of Rights. Amar, Bill of Rights, supra note 26; see also John Raeburn Green, The Bill of Rights, the Fourteenth Amendment and the Supreme Court, 46 Mich. L. Rev. 869 (1948) (supporting Justice Black's theory of incorporation).
368. See Crosskey, supra note 26; Morrison, supra note 42; see also Fairman, Reply, supra note 28. For more recent efforts, see Berger, Fourteenth Amendment, supra note 28; Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment 134 (1977); Curtis, No State, supra note 26; Raoul Berger, Incorporation of the Bill of Rights: A Reply to Michael Curtis' Response, 44 Ohio St. L.J. 1 (1983); Berger, Nine-Lived Cat, supra note 28; Michael Kent Curtis, Further Adventures of the Nine Lived Cat: A Response to Mr. Berger on Incorporation of the Bill of Rights, 43 Ohio St. L.J. 89 (1982); Michael Kent Curtis, Still Further Adventures of the Nine-Lived Cat: A Rebuttal to Raoul Berger's Reply on Application of the Bill of Rights to the States, 62 N.C. L. Rev. 517 (1984); Michael Kent Curtis, The Bill of Rights as a Limitation on State Authority: A Reply to Professor Berger, 16 Wake Forest L. Rev. 45 (1980); Michael Kent Curtis, The Fourteenth Amendment and the Bill of Rights, 14 Conn. L. Rev. 237 (1982). The most recent work is Akhil Amar's, The Bill of Rights. Amar, Bill of Rights, supra note 26; see also John Raeburn Green, The Bill of Rights, the Fourteenth Amendment and the Supreme Court, 46 Mich. L. Rev. 869 (1948) (supporting Justice Black's theory of incorporation).
369. See Crosskey, supra note 26; Morrison, supra note 42; see also Fairman, Reply, supra note 28. For more recent efforts, see Berger, Fourteenth Amendment, supra note 28; Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment 134 (1977); Curtis, No State, supra note 26; Raoul Berger, Incorporation of the Bill of Rights: A Reply to Michael Curtis' Response, 44 Ohio St. L.J. 1 (1983); Berger, Nine-Lived Cat, supra note 28; Michael Kent Curtis, Further Adventures of the Nine Lived Cat: A Response to Mr. Berger on Incorporation of the Bill of Rights, 43 Ohio St. L.J. 89 (1982); Michael Kent Curtis, Still Further Adventures of the Nine-Lived Cat: A Rebuttal to Raoul Berger's Reply on Application of the Bill of Rights to the States, 62 N.C. L. Rev. 517 (1984); Michael Kent Curtis, The Bill of Rights as a Limitation on State Authority: A Reply to Professor Berger, 16 Wake Forest L. Rev. 45 (1980); Michael Kent Curtis, The Fourteenth Amendment and the Bill of Rights, 14 Conn. L. Rev. 237 (1982). The most recent work is Akhil Amar's, The Bill of Rights. Amar, Bill of Rights, supra note 26; see also John Raeburn Green, The Bill of Rights, the Fourteenth Amendment and the Supreme Court, 46 Mich. L. Rev. 869 (1948) (supporting Justice Black's theory of incorporation).
370. See Crosskey, supra note 26; Morrison, supra note 42; see also Fairman, Reply, supra note 28. For more recent efforts, see Berger, Fourteenth Amendment, supra note 28; Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment 134 (1977); Curtis, No State, supra note 26; Raoul Berger, Incorporation of the Bill of Rights: A Reply to Michael Curtis' Response, 44 Ohio St. L.J. 1 (1983); Berger, Nine-Lived Cat, supra note 28; Michael Kent Curtis, Further Adventures of the Nine Lived Cat: A Response to Mr. Berger on Incorporation of the Bill of Rights, 43 Ohio St. L.J. 89 (1982); Michael Kent Curtis, Still Further Adventures of the Nine-Lived Cat: A Rebuttal to Raoul Berger's Reply on Application of the Bill of Rights to the States, 62 N.C. L. Rev. 517 (1984); Michael Kent Curtis, The Bill of Rights as a Limitation on State Authority: A Reply to Professor Berger, 16 Wake Forest L. Rev. 45 (1980); Michael Kent Curtis, The Fourteenth Amendment and the Bill of Rights, 14 Conn. L. Rev. 237 (1982). The most recent work is Akhil Amar's, The Bill of Rights. Amar, Bill of Rights, supra note 26; see also John Raeburn Green, The Bill of Rights, the Fourteenth Amendment and the Supreme Court, 46 Mich. L. Rev. 869 (1948) (supporting Justice Black's theory of incorporation).
371. See Crosskey, supra note 26; Morrison, supra note 42; see also Fairman, Reply, supra note 28. For more recent efforts, see Berger, Fourteenth Amendment, supra note 28; Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment 134 (1977); Curtis, No State, supra note 26; Raoul Berger, Incorporation of the Bill of Rights: A Reply to Michael Curtis' Response, 44 Ohio St. L.J. 1 (1983); Berger, Nine-Lived Cat, supra note 28; Michael Kent Curtis, Further Adventures of the Nine Lived Cat: A Response to Mr. Berger on Incorporation of the Bill of Rights, 43 Ohio St. L.J. 89 (1982); Michael Kent Curtis, Still Further Adventures of the Nine-Lived Cat: A Rebuttal to Raoul Berger's Reply on Application of the Bill of Rights to the States, 62 N.C. L. Rev. 517 (1984); Michael Kent Curtis, The Bill of Rights as a Limitation on State Authority: A Reply to Professor Berger, 16 Wake Forest L. Rev. 45 (1980); Michael Kent Curtis, The Fourteenth Amendment and the Bill of Rights, 14 Conn. L. Rev. 237 (1982). The most recent work is Akhil Amar's, The Bill of Rights. Amar, Bill of Rights, supra note 26; see also John Raeburn Green, The Bill of Rights, the Fourteenth Amendment and the Supreme Court, 46 Mich. L. Rev. 869 (1948) (supporting Justice Black's theory of incorporation).
372. See Crosskey, supra note 26; Morrison, supra note 42; see also Fairman, Reply, supra note 28. For more recent efforts, see Berger, Fourteenth Amendment, supra note 28; Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment 134 (1977); Curtis, No State, supra note 26; Raoul Berger, Incorporation of the Bill of Rights: A Reply to Michael Curtis' Response, 44 Ohio St. L.J. 1 (1983); Berger, Nine-Lived Cat, supra note 28; Michael Kent Curtis, Further Adventures of the Nine Lived Cat: A Response to Mr. Berger on
373. See Crosskey, supra note 26; Morrison, supra note 42; see also Fairman, Reply, supra note 28. For more recent efforts, see Berger, Fourteenth Amendment, supra note 28; Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment 134 (1977); Curtis, No State, supra note 26; Raoul Berger, Incorporation of the Bill of Rights: A Reply to Michael Curtis' Response, 44 Ohio St. L.J. 1 (1983); Berger, Nine-Lived Cat, supra note 28; Michael Kent Curtis, Further Adventures of the Nine Lived Cat: A Response to Mr. Berger on Incorporation of the Bill of Rights, 43 Ohio St. L.J. 89 (1982); Michael Kent Curtis, Still Further Adventures of the Nine-Lived Cat: A Rebuttal to Raoul Berger's Reply on Application of the Bill of Rights to the States, 62 N.C. L. Rev. 517 (1984); Michael Kent Curtis, The Bill of Rights as a Limitation on State Authority: A Reply to Professor Berger, 16 Wake Forest L. Rev. 45 (1980); Michael Kent Curtis, The Fourteenth Amendment and the Bill of Rights, 14 Conn. L. Rev. 237 (1982). The most recent work is Akhil Amar's, The Bill of Rights. Amar, Bill of Rights, supra note 26; see also John Raeburn Green, The Bill of Rights, the Fourteenth Amendment and the Supreme Court, 46 Mich. L. Rev. 869 (1948) (supporting Justice Black's theory of incorporation).
374. See Crosskey, supra note 26; Morrison, supra note 42; see also Fairman, Reply, supra note 28. For more recent efforts, see Berger, Fourteenth Amendment, supra note 28; Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment 134 (1977); Curtis, No State, supra note 26; Raoul Berger, Incorporation of the Bill of Rights: A Reply to Michael Curtis' Response, 44 Ohio St. L.J. 1 (1983); Berger, Nine-Lived Cat, supra note 28; Michael Kent Curtis, Further Adventures of the Nine Lived Cat: A Response to Mr. Berger on Incorporation of the Bill of Rights, 43 Ohio St. L.J. 89 (1982); Michael Kent Curtis, Still Further Adventures of the Nine-Lived Cat: A Rebuttal to Raoul Berger's Reply on Application of the Bill of Rights to the States, 62 N.C. L. Rev. 517 (1984); Michael Kent Curtis, The Bill of Rights as a Limitation on State Authority: A Reply to Professor Berger, 16 Wake Forest L. Rev. 45 (1980); Michael Kent Curtis, The Fourteenth Amendment and the Bill of Rights, 14 Conn. L. Rev. 237 (1982). The most recent work is Akhil Amar's, The Bill of Rights. Amar, Bill of Rights, supra note 26; see also John Raeburn Green, The Bill of Rights, the Fourteenth Amendment and the Supreme Court, 46 Mich. L. Rev. 869 (1948) (supporting Justice Black's theory of incorporation).
375. See Crosskey, supra note 26; Morrison, supra note 42; see also Fairman, Reply, supra note 28. For more recent efforts, see Berger, Fourteenth Amendment, supra note 28; Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment 134 (1977); Curtis, No State, supra note 26; Raoul Berger, Incorporation of the Bill of Rights: A Reply to Michael Curtis' Response, 44 Ohio St. L.J. 1 (1983); Berger, Nine-Lived Cat, supra note 28; Michael Kent Curtis, Further Adventures of the Nine Lived Cat: A Response to Mr. Berger on Incorporation of the Bill of Rights, 43 Ohio St. L.J. 89 (1982); Michael Kent Curtis, Still Further Adventures of the Nine-Lived Cat: A Rebuttal to Raoul Berger's Reply on Application of the Bill of Rights to the States, 62 N.C. L. Rev. 517 (1984); Michael Kent Curtis, The Bill of Rights as a Limitation on State Authority: A Reply to Professor Berger, 16 Wake Forest L. Rev. 45 (1980); Michael Kent Curtis, The Fourteenth Amendment and the Bill of Rights, 14 Conn. L. Rev. 237 (1982). The most recent work is Akhil Amar's, The Bill of Rights. Amar, Bill of Rights, supra note 26; see also John Raeburn Green, The Bill of Rights, the Fourteenth Amendment and the Supreme Court, 46 Mich. L. Rev. 869 (1948) (supporting Justice Black's theory of incorporation).
376. Opponents of originalism stress the failure to find support for that methodology in the writings of the "original" Founders. See Leonard W. Levy, Judgments: Essays on American Constitutional History 17-18 (1972); Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution 3-22 (1996); Powell, supra note 21, at 902-03; Suzanna Sherry, The Founders' Unwritten Constitution, 54 U. Chi. L. Rev. 1127, 1176-77 (1987). Original intent as a central focus of interpretation clearly has a more recent vintage. There was little reason to embrace originalism in a time when judges discovered law and did not make it. When the law was a brooding omnipresence waiting for an ever-clearer explication under the common law, it made perfect sense to range beyond both text and original intent in framing the scope of "liberty." With the advent of the twentieth century, it became ever more difficult to justify the use of such wide-ranging judicial tools. 285. See Bork, supra note 21; Edwin Meese, III, Interpreting the Constitution, in Interpreting the Constitution: The Debate over Original Intent 13 (Jack N. Rakove ed., 1990).
377. Opponents of originalism stress the failure to find support for that methodology in the writings of the "original" Founders. See Leonard W. Levy, Judgments: Essays on American Constitutional History 17-18 (1972); Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution 3-22 (1996); Powell, supra note 21, at 902-03; Suzanna Sherry, The Founders' Unwritten Constitution, 54 U. Chi. L. Rev. 1127, 1176-77 (1987). Original intent as a central focus of interpretation clearly has a more recent vintage. There was little reason to embrace originalism in a time when judges discovered law and did not make it. When the law was a brooding omnipresence waiting for an ever-clearer explication under the common law, it made perfect sense to range beyond both text and original intent in framing the scope of "liberty." With the advent of the twentieth century, it became ever more difficult to justify the use of such wide-ranging judicial tools. 285. See Bork, supra note 21; Edwin Meese, III, Interpreting the Constitution, in Interpreting the Constitution: The Debate over Original Intent 13 (Jack N. Rakove ed., 1990).
378. Opponents of originalism stress the failure to find support for that methodology in the writings of the "original" Founders. See Leonard W. Levy, Judgments: Essays on American Constitutional History 17-18 (1972); Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution 3-22 (1996); Powell, supra note 21, at 902-03; Suzanna Sherry, The Founders' Unwritten Constitution, 54 U. Chi. L. Rev. 1127, 1176-77 (1987). Original intent as a central focus of interpretation clearly has a more recent vintage. There was little reason to embrace originalism in a time when judges discovered law and did not make it. When the law was a brooding omnipresence waiting for an ever-clearer explication under the common law, it made perfect sense to range beyond both text and original intent in framing the scope of "liberty." With the advent of the twentieth century, it became ever more difficult to justify the use of such wide-ranging judicial tools. 285. See Bork, supra note 21; Edwin Meese, III, Interpreting the Constitution, in Interpreting the Constitution: The Debate over Original Intent 13 (Jack N. Rakove ed., 1990).
379. Opponents of originalism stress the failure to find support for that methodology in the writings of the "original" Founders. See Leonard W. Levy, Judgments: Essays on American Constitutional History 17-18 (1972); Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution 3-22 (1996); Powell, supra note 21, at 902-03; Suzanna Sherry, The Founders' Unwritten Constitution, 54 U. Chi. L. Rev. 1127, 1176-77 (1987). Original intent as a central focus of interpretation clearly has a more recent vintage. There was little reason to embrace originalism in a time when judges discovered law and did not make it. When the law was a brooding omnipresence waiting for an ever-clearer explication under the common law, it made perfect sense to range beyond both text and original intent in framing the scope of "liberty." With the advent of the twentieth century, it became ever more difficult to justify the use of such wide-ranging judicial tools. 285. See Bork, supra note 21; Edwin Meese, III, Interpreting the Constitution, in Interpreting the Constitution: The Debate over Original Intent 13 (Jack N. Rakove ed., 1990).
380. Opponents of originalism stress the failure to find support for that methodology in the writings of the "original" Founders. See Leonard W. Levy, Judgments: Essays on American Constitutional History 17-18 (1972); Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution 3-22 (1996); Powell, supra note 21, at 902-03; Suzanna Sherry, The Founders' Unwritten Constitution, 54 U. Chi. L. Rev. 1127, 1176-77 (1987). Original intent as a central focus of interpretation clearly has a more recent vintage. There was little reason to embrace originalism in a time when judges discovered law and did not make it. When the law was a brooding omnipresence waiting for an ever-clearer explication under the common law, it made perfect sense to range beyond both text and original intent in framing the scope of "liberty." With the advent of the twentieth century, it became ever more difficult to justify the use of such wide-ranging judicial tools. 285. See Bork, supra note 21; Edwin Meese, III, Interpreting the Constitution, in Interpreting the Constitution: The Debate over Original Intent 13 (Jack N. Rakove ed., 1990).
381. Opponents of originalism stress the failure to find support for that methodology in the writings of the "original" Founders. See Leonard W. Levy, Judgments: Essays on American Constitutional History 17-18 (1972); Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution 3-22 (1996); Powell, supra note 21, at 902-03; Suzanna Sherry, The Founders' Unwritten Constitution, 54 U. Chi. L. Rev. 1127, 1176-77 (1987). Original intent as a central focus of interpretation clearly has a more recent vintage. There was little reason to embrace originalism in a time when judges discovered law and did not make it. When the law was a brooding omnipresence waiting for an ever-clearer explication under the common law, it made perfect sense to range beyond both text and original intent in framing the scope of "liberty." With the advent of the twentieth century, it became ever more difficult to justify the use of such wide-ranging judicial tools. 285. See Bork, supra note 21; Edwin Meese, III, Interpreting the Constitution, in Interpreting the Constitution: The Debate over Original Intent 13 (Jack N. Rakove ed., 1990).
382. And, perhaps, Justice Holmes. See Eisner v. Macomber, 252 U.S. 189, 219-20 (1920) (Holmes, J., dissenting).
383. Bruce Ackerman makes an argument along these lines when he describes the Court as having manufactured a "Myth of Rediscovery" which, since 1937, has become part of our professional narrative regarding the New Deal. See Ackerman, Foundations, supra note 5, at 47; Ackerman, Transformations, supra note 5, at 259; Hannah Arendt, On Revolution 183-84 (Greenwood Press 1982) (1963).
384. Bruce Ackerman makes an argument along these lines when he describes the Court as having manufactured a "Myth of Rediscovery" which, since 1937, has become part of our professional narrative regarding the New Deal. See Ackerman, Foundations, supra note 5, at 47; Ackerman, Transformations, supra note 5, at 259; Hannah Arendt, On Revolution 183-84 (Greenwood Press 1982) (1963).
385. Bruce Ackerman makes an argument along these lines when he describes the Court as having manufactured a "Myth of Rediscovery" which, since 1937, has become part of our professional narrative regarding the New Deal. See Ackerman, Foundations, supra note 5, at 47; Ackerman, Transformations, supra note 5, at 259; Hannah Arendt, On Revolution 183-84 (Greenwood Press 1982) (1963).
386. Most recently Ackerman has described the New Deal as a "revolution on a human scale" in which the revolutionary leaders do not make a total and violent break with the past but attempt instead to ground the revolution in the ideals and legal forms of the past. See Ackerman, Human Scale, supra note 136.
387. Ackerman, Transformations, supra note 5, at 259.
388. Pearson & Allen, supra note 75, at 70-71; Jackson, supra note 11, at 53; see also Franklin D. Roosevelt, Address of President Franklin D. Roosevelt (Mar. 9 1937), in Jackson, supra note 11, at 340. Roosevelt stated: And remember one thing more. Even if an amendment were passed, and even if in the years to come it were to be ratified, its meaning would depend upon the kind of Justices who would be sitting on the Supreme Court bench. An amendment like the rest of the Constitution is what the Justices say it is rather than what its framers or you might hope it is. Id. at 350.
389. Pearson & Allen, supra note 75, at 70-71; Jackson, supra note 11, at 53; see also Franklin D. Roosevelt, Address of President Franklin D. Roosevelt (Mar. 9 1937), in Jackson, supra note 11, at 340. Roosevelt stated: And remember one thing more. Even if an amendment were passed, and even if in the years to come it were to be ratified, its meaning would depend upon the kind of Justices who would be sitting on the Supreme Court bench. An amendment like the rest of the Constitution is what the Justices say it is rather than what its framers or you might hope it is. Id. at 350.
390. Pearson & Allen, supra note 75, at 70-71; Jackson, supra note 11, at 53; see also Franklin D. Roosevelt, Address of President Franklin D. Roosevelt (Mar. 9 1937), in Jackson, supra note 11, at 340. Roosevelt stated: And remember one thing more. Even if an amendment were passed, and even if in the years to come it were to be ratified, its meaning would depend upon the kind of Justices who would be sitting on the Supreme Court bench. An amendment like the rest of the Constitution is what the Justices say it is rather than what its framers or you might hope it is. Id. at 350.
391. The instrumentalist account of the New Deal fits with the standard externalist account, in vogue for so many years, that the Court had bowed to political pressure, thus making their opinions nothing more than window dressing. For the reasons given above, I think this approach cannot be reconciled either with what the justices actually said they were doing or with what they actually did. Internalist accounts which view the Revolution in terms of evolutionary development of doctrine similarly fail to engage either the debates of the New Deal Court, or what the Court actually did. Internalists generally minimize the revolutionary aspects of the New Deal and focus on pre-New Deal indicators of a gradual shift in jurisprudence. See, e.g., Cushman, supra note 5, at 154 (arguing that the real "revolution" occurred in Nebbia).
392. Both Marbury and the New Deal Revolution involved a Court under attack from the executive branch. Both took place in a political context which included threats of impeachment for Supreme Court justices and congressional efforts to limit the jurisdiction of the Supreme Court. Both involved critical moments in time where the wrong move by the Court would likely have seriously damaged its future role as an independent branch of government. Both involved creative judicial actions which saved the day. Both actions involved a denial of judicial power in a manner that had the effect both establishing and preserving the basis for judicial review in the future. Both used dicta to establish the power of judicial review.
393. Some Fourteenth Amendment legal historians either ignore or dismiss the relevance of the New Deal to understanding the modern scope of Fourteenth Amendment liberty. See supra note 92 and accompanying text. This approach, of course, requires ignoring or downplaying the economic rights aspect of the Fourteenth Amendment. Scholarship regarding the meaning of the New Deal Revolution generally accepts the legitimacy of the incorporation project without questioning the original meaning of the Fourteenth Amendment. See, e.g., Ackerman, Liberating Abstraction, supra note 43, at 331. The New Deal Court's focus on textual rights allowed it to distinguish non-textual Lochnerian contract rights. But reading the "texts" of the Bill of Rights into the Due Process Clause requires an additional theory of the Fourteenth Amendment-a theory conspicuously missing from the Court's jurisprudence in 1937. This is why defining post-Lochner individual liberties triggered the first serious judicial debates regarding the meaning of the Fourteenth Amendment since Reconstruction. See supra Part II. This is also why a modern understanding of the post-Lochner Constitution requires a comprehensive account of both Reconstruction and the New Deal.
394. See, e.g., Ackerman, Foundations, supra note 5; Amar, Bill of Rights, supra note 26; Gordon Wood, The Creation of the American Republic (1969) [hereinafter Wood, Creation]; Gordon Wood, The Radicalism of the American Revolution (1993). also have explored the original meaning of the First Amendment. See Lash, Power and Religion, supra note 29.
395. See, e.g., Ackerman, Foundations, supra note 5; Amar, Bill of Rights, supra note 26; Gordon Wood, The Creation of the American Republic (1969) [hereinafter Wood, Creation]; Gordon Wood, The Radicalism of the American Revolution (1993). also have explored the original meaning of the First Amendment. See Lash, Power and Religion, supra note 29.
396. See, e.g., Ackerman, Foundations, supra note 5; Amar, Bill of Rights, supra note 26; Gordon Wood, The Creation of the American Republic (1969) [hereinafter Wood, Creation]; Gordon Wood, The Radicalism of the American Revolution (1993). also have explored the original meaning of the First Amendment. See Lash, Power and Religion, supra note 29.
397. See, e.g., Ackerman, Foundations, supra note 5; Amar, Bill of Rights, supra note 26; Gordon Wood, The Creation of the American Republic (1969) [hereinafter Wood, Creation]; Gordon Wood, The Radicalism of the American Revolution (1993). also have explored the original meaning of the First Amendment. See Lash, Power and Religion, supra note 29.
398. See, e.g., Ackerman, Foundations, supra note 5; Amar, Bill of Rights, supra note 26; Gordon Wood, The Creation of the American Republic (1969) [hereinafter Wood, Creation]; Gordon Wood, The Radicalism of the American Revolution (1993). also have explored the original meaning of the First Amendment. See Lash, Power and Religion, supra note 29.
399. See, e.g., Amar, Bill of Rights, supra note 26; Curtis, No State, supra note 26; Aynes, Misreading John Bingham, supra note 26; Harrison, supra note 235; see also Lash, Free Exercise Clause, supra note 29.
400. See, e.g., Amar, Bill of Rights, supra note 26; Curtis, No State, supra note 26; Aynes, Misreading John Bingham, supra note 26; Harrison, supra note 235; see also Lash, Free Exercise Clause, supra note 29.
401. See, e.g., Amar, Bill of Rights, supra note 26; Curtis, No State, supra note 26; Aynes, Misreading John Bingham, supra note 26; Harrison, supra note 235; see also Lash, Free Exercise Clause, supra note 29.
402. See, e.g., Amar, Bill of Rights, supra note 26; Curtis, No State, supra note 26; Aynes, Misreading John Bingham, supra note 26; Harrison, supra note 235; see also Lash, Free Exercise Clause, supra note 29.
403. See, e.g., Amar, Bill of Rights, supra note 26; Curtis, No State, supra note 26; Aynes, Misreading John Bingham, supra note 26; Harrison, supra note 235; see also Lash, Free Exercise Clause, supra note 29.
404. See, e.g., Ackerman, Foundations, supra note 5; Ackerman, Transformations, supra note 5; Cushman, supra note 5.
405. See, e.g., Ackerman, Foundations, supra note 5; Ackerman, Transformations, supra note 5; Cushman, supra note 5.
406. See, e.g., Ackerman, Foundations, supra note 5; Ackerman, Transformations, supra note 5; Cushman, supra note 5.
407. Fourteenth Amendment scholars generally decline to address economic rights, much less the New Deal. See, e.g., supra note 42 (critiquing Michael Curtis's interpretation of the Fourteenth Amendment). New Deal scholars generally avoid the debate regarding the original meaning of the Fourteenth Amendment. See supra note 293. The lack of a comprehensive theory is probably explainable both as a matter of focus and an implicit judgment of irrelevance.
408. Report of Proceedings in Congress, Wednesday, February 21, 1787, in Documents Illustrative of the Formation of the Union of the American States, H.R. Doc. No. 69-398, at 46 (1927).
409. Submission of the Constitution to the states violated prior rules for amendment by ignoring the requirement of unanimous consent by the states for any amendments. See Ackerman, Transformations, supra note 5, at 51.
410. Delaware instructed its delegates to not agree to any proposal that violated the equal voting power it enjoyed under the Articles. See Ackerman, Transformations, supra note 5, at 35. This was violated not only by the method of ratification, but also by basing representation in the House on population.
411. If only to avoid a second such open-ended convention, Madison agreed to propose a Bill of Rights in the First Congress. See Kurt T. Lash, Rejecting Conventional Wisdom: Federalist Ambivalence in the Framing and Implementation of Article V, 38 Am. J. Legal Hist. 197, 221 (1994) [hereinafter Lash, Rejecting Conventional Wisdom].
412. All legislation required unanimous consent by the states, as did amending the Articles. This prevented Congress from responding to trade wars and the fiscal needs of a new country heavily in debt.
413. See Kalman, Law, Politics, supra note 100, at 2193-95.
414. Bruce Ackerman has argued that judicial opinions following fundamental moments of constitutional change go through "phases." In "Phase 1," the intended revolution in the constitutional status quo meets resistance when it is first interpreted by the Supreme Court. Justices educated under the prior regime resist the broader implications of the law and interpret it in an unduly restrictive manner. Ackerman calls this phase one of "particularistic synthesis." See Ackerman, Foundations, supra note 5, at 98. It is only later, in "Phase 2," that justices, now having professional experience in the new regime, gain the critical distance necessary to see the revolution for what it was and fully synthesize the new constitutional rules into previous constitutional moments. Ackerman refers to this second phase of judicial interpretation as "comprehensive synthesis." Id. Whatever the merits of this approach in understanding prior moments of constitutional change (it does seem to explain the Slaughterhouse Cases), it is hard to see how it can account for what occurred under the New Deal Court. In this case, what Ackerman would call "particularistic" and "comprehensive" opinions were both written by justices educated in the same generation. Indeed, some of the broadest interpretations of the Revolution are found in the intitial opinions written by Chief Justice Hughes (the Changed Circumstances Doctrine), and Felix Frankfurter (the political process model). See supra Parts II.B, III.A. and accompanying text. It also seems anachronistic to credit opinions like Barnette with integrating the New Deal with the Fourteenth Amendment, when there was no consensus at that time regarding the meaning of the Fourteenth Amendment. See supra Parts III.B-E; cf. Ackerman, Liberating Abstraction, supra note 43, at 328-30 (discussing the significance of Barnette). Finally, even if the above objections could be overcome, there is a more fundamental reason why Ackerman's Phase 1 and 2 synthesis theory is inapplicable to the New Deal. Unlike prior moments, where the Court initially resisted the radical intentions of the reformers, in this case the Supreme Court itself was the reformer. The Court was not struggling to make sense of the Revolution - it was drafting the Revolution.
415. Bruce Ackerman has argued that judicial opinions following fundamental moments of constitutional change go through "phases." In "Phase 1," the intended revolution in the constitutional status quo meets resistance when it is first interpreted by the Supreme Court. Justices educated under the prior regime resist the broader implications of the law and interpret it in an unduly restrictive manner. Ackerman calls this phase one of "particularistic synthesis." See Ackerman, Foundations, supra note 5, at 98. It is only later, in "Phase 2," that justices, now having professional experience in the new regime, gain the critical distance necessary to see the revolution for what it was and fully synthesize the new constitutional rules into previous constitutional moments. Ackerman refers to this second phase of judicial interpretation as "comprehensive synthesis." Id. Whatever the merits of this approach in understanding prior moments of constitutional change (it does seem to explain the Slaughterhouse Cases), it is hard to see how it can account for what occurred under the New Deal Court. In this case, what Ackerman would call "particularistic" and "comprehensive" opinions were both written by justices educated in the same generation. Indeed, some of the broadest interpretations of the Revolution are found in the intitial opinions written by Chief Justice Hughes (the Changed Circumstances Doctrine), and Felix Frankfurter (the political process model). See supra Parts II.B, III.A. and accompanying text. It also seems anachronistic to credit opinions like Barnette with integrating the New Deal with the Fourteenth Amendment, when there was no consensus at that time regarding the meaning of the Fourteenth Amendment. See supra Parts III.B-E; cf. Ackerman, Liberating Abstraction, supra note 43, at 328-30 (discussing the significance of Barnette). Finally, even if the above objections could be overcome, there is a more fundamental reason why Ackerman's Phase 1 and 2 synthesis theory is inapplicable to the New Deal. Unlike prior moments, where the Court initially resisted the radical intentions of the reformers, in this case the Supreme Court itself was the reformer. The Court was not struggling to make sense of the Revolution - it was drafting the Revolution.
416. For a recent collection of modern arguments regarding the status of the New Deal, see Symposium, Moments of Change, supra note 6.
417. See Russell L. Caplan, Constitutional Brinkmanship: Amending the Constitution by National Convention (1988).
418. Ackerman, Foundations, supra note 5, at 195 (discussing the relationship between conventions and "acting outside the rules"); see also Wood, Creation, supra note 294, at 309.
419. Ackerman, Foundations, supra note 5, at 195 (discussing the relationship between conventions and "acting outside the rules"); see also Wood, Creation, supra note 294, at 309.
420. Gary Jeffrey Jacobsohn, Apple of Gold: Constitutionalism in Israel and the United States (1993).
421. Id.
422. See Lash, Rejecting Conventional Wisdom, supra note 301, at 228-29.