Constitutional change and the new deal: The internalist/externalist debate

American Historical Review

Volumn 110, Issue 4, 2005, Pages 1094-1115

  Edward White, G ^a,b  

^a Department of Law ^*

^b UNIVERSITY OF VIRGINIA   (United States)

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EID: 33749820720     PISSN: 00028762     EISSN: None     Source Type: Journal    
DOI: 10.1086/ahr.110.4.1094     Document Type: Review

References (151)

1. The terms "internalist" and "externalist," this article suggests, connote a good deal more than the simple claims that judicially induced changes in constitutional law are produced primarily by forces inside or outside the Supreme Court. The term "internalist," long established in philosophy, began to be applied to historiographical debates in legal history in the 1980s. See Lawrence M. Friedman, "Law, Lawyers, and Popular Culture," Yale Law Journal 98 (1989): 1579, 1582;
2. N. E. H. Hull, "The Perils of Empirical Legal Research," Law & Society Review 23 (1989): 915, 916.
3. By 1994, Barry Cushman had applied the term "externalist" to one line of historical work on constitutional change in the 1930s. Cushman, " Rethinking the New Deal Court," Virginia Law Review 80 (1994): 201, 205-206.
4. By the late 1990s, the idea of an internalist/externalist debate was well established. See Laura Kalman, "Law, Politics and the New Deal(s)," Yale Law Journal 108 (1998-1999): 2165, 2170-2178.
5. The height of this approach may have come in the 1950s and early 1960s; see, e.g., Alpheus Thomas Mason, Harlan Fiske Stone: Pillar of the Law (New York, 1956), 314-316, 455-461;
6. Bernard Schwartz, The Supreme Court: Constitutional Revolution in Retrospect (New York, 1957), 17, 19-20;
7. Mario Einaudi, The Roosevelt Revolution (New York, 1959), 220-222;
8. William E. Leuchtenburg, Franklin D. Roosevelt and the New Deal, 1932-1940 (New York, 1963), 143-146, 236-237.
9. But it persisted well beyond that; see Leuchtenburg, The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt (New York, 1995), 132-133.
10. Adkins v. Children's Hospital, 261 U.S. 525, 562 (1923).
11. 94 U.S. 113 (1877).
12. 198 U.S. 45 (1905).
13. Id. at 75-76.
14. See G. Edward White, Justice Oliver Wendell Holmes: Law and the Inner Self (New York, 1993), 364-365.
15. See West Coast Hotel v. Parrish, 300 U.S. 379 (1937).
16. This line of commentary became conventional wisdom by the 1950s, and remains such. See G. Edward White, The Constitution and the New Deal (Cambridge, Mass., 2000), 261-265.
17. Holden v. Hardy, 169 U.S. 366 (1898).
18. Muller v. Oregon, 208 U.S. 412 (1908).
19. Cotting v. Kansas City Stock Yards Co., 183 U.S. 79 (1901).
20. Pipe Line Cases, 234 U.S. 548 (1914).
21. German Alliance Ins. Co. v. Kansas, 233 U.S. 389 (1914).
22. Block v. Hirsh, 256 U.S. 135 (1921).
23. Highland v. Russell Car & Snow Plow Co., 279 U.S. 253 (1929).
24. Chicago Board of Trade v. Olsen, 262 U.S. 1 (1923).
25. See 198 U.S. 72 (Harlan, White, and Day, dissenting).
26. The approach was first announced in a footnote in United States v. Carolene Products Co., 304 U.S. 144 (1938), a case posing a due process challenge to federal legislation prohibiting the sale or distribution of "filled milk," a nondairy substitute for whole milk. The principal category of cases in which the presumption of constitutionality would be departed from, the Carolene Products footnote suggested, included cases in which "legislation appears on its face to be within a specific provision of the Constitution." The Court singled out provisions of the "first ten amendments" that had been "deemed equally specific when held to be embraced within the Fourteenth [Amendment's due process clause]."
27. Id. at 152-153 n. 4.
28. It cited two free speech cases. The Carolene Products approach thus built upon a 1937 case, Palko v. Connecticut, 302 U.S. 319, in which the Court identified a criterion for when a particular provision of the Bill of Rights would be "incorporated" into the due process clause of the Fourteenth Amendment: whether it was "of the very essence of a scheme of ordered liberty" in Anglo-American jurisprudence.
29. Id. at 327. Selective judicial incorporation of Bill of Rights provisions into the Fourteenth Amendment was a form of boundary tracing, although the Court did not identify it as such.
30. See Hague v. CIO, 307 U.S. 496 (1939);
31. Thornhill v. Alabama, 310 U.S. 88 (1940);
32. Cantwell v. Connecticut, 310 U.S. 296 (1940).
33. The principal areas were the commerce clause, congressional delegations of power to federal administrative agencies, and police power legislation regulating economic activity or redistributing economic benefits. After a series of decisions in 1935 and 1936 invalidating federal legislation as an unauthorized use of the commerce power or as excessive delegations of legislative power to the executive, and invalidating a state police power statute as an infringement on "liberty of contract," the Court, between 1937 and 1942, announced a broader definition of Congress's power to regulate interstate commerce, sustained a state minimum wage law against a "liberty of contract" challenge, and abandoned the "non-delegation doctrine" in cases challenging the regulatory authority of federal administrative agencies.
34. William E. Leuchtenburg, "Comment on Laura Kalman's Article," 1092.
35. William E. Leuchtenburg, "Comment on Laura Kalman's Article," Ibid., 1083.
36. William E. Leuchtenburg, "Comment on Laura Kalman's Article," Ibid.
37. Leuchtenburg's reference is to Barry Cushman's Rethinking the New Deal Court: The Structure of a Constitutional Revolution (New York, 1998), which treats Nebbia as representing a pivotal shift in the Court's categorical thinking in police power cases. But although Cushman argues that the Nebbia decision had important ramifications for the Court's constitutional jurisprudence in the 1930s, he treats it as only part of a multifaceted explanation for the "constitutional revolution" of the late 1930s and 1940s, which includes changes in Court personnel.
38. See Barry Cushman's New Deal Court: The Structure of a Constitutional Revolution, ibid., 186-189, 208-211, 219-220, 222-225.
39. 295 U.S. 330 (1935).
40. See Barry Cushman, "Lost Fidelities," William & Mary Law Review 41 (1999): 95, 129-132.
41. The same is true of the majority and dissenting opinions in Great Northern Railway v. Weeks, 97 U.S. 135 (1936), which concerned the validity of a valuation procedure for assessing taxes on a railway company.
42. Leuchtenburg, "Comment," 1084.
43. Panama Refining Co. v. Ryan, 293 U.S. 388 (1935).
44. Nortz v. Baltimore & Ohio R. Co., 294 U.S. 240 (1935);
45. Nortz v. United States, 294 U.S. 317 (1935);
46. Perry v. United States, 294 U.S. 330 (1935).
47. 295 U.S. 495 (1935).
48. 297 U.S. 1 (1936).
49. 298 U.S. 1 (1936).
50. 298 U.S. 238 (1936).
51. 298 U.S. 513 (1936).
52. 298 U.S. 587 (1936).
53. 298 U.S. at 635-636.
54. See Cushman, "Lost Fidelities," 105-107.
55. Leuchtenburg, "Comment," 1084.
56. Several contemporary congressmen, lower court judges, government lawyers, and academic commentators recognized the ways in which Nebbia had "transformed the judicial landscape." For details, see Cushman, "Lost Fidelities," 107-128;
57. Cushman, "Rethinking the New Deal Court," 82-85, 91-92, 99, 134-135, 194-195, 203-204.
58. Leuchtenburg, "Comment," 1085.
59. 247 U.S. 251 (1918).
60. 254 U.S. 443 (1921).
61. 259 U.S. 20 (1922).
62. 261 U.S. 525 (1923).
63. 264 U.S. 504 (1924).
64. 273 U.S. 418 (1928).
65. 277 U.S. 350 (1928).
66. See Cushman, "Lost Fidelities," 107-128.
67. 290 U.S. 570 (1934).
68. See Barry Cushman, "Some Varieties and Vicissitudes of Lochnerism," Boston University Law Review 85 (forthcoming, 2005).
69. Such instances were not all that unusual. The fact that the pre-1937 Court sustained most regulatory legislation brought before it has long been well documented. See, e.g., Charles Warren, "The Progressiveness of the United States Supreme Court," Columbia Law Review 13 (1913): 294;
70. Thomas Reed Powell, "The Judiciality of Minimum-Wage Legislation," Harvard Law Review 37 (1924): 545, 555;
71. Barry Cushman, "The Secret Lives of the Four Horsemen," Virginia Law Review 83 (1997): 559.
72. Leuchtenburg, "Comment," 1086-1089.
73. Leuchtenburg dismisses as "preposterous" the claim that bad drafting accounted for the results in Morehead, Colgate, Great Northern, and Mayflower Farms. "Comment," 1087. As far as I am aware, no internalist has attempted to explain those decisions on the grounds of bad drafting. For discussions of the decisions, see Cushman, Rethinking the New Deal Court, 92-104;
74. Cushman, "Lost Fidelities," 135-141.
75. 307 U.S. 214 (1939).
76. 295 U.S. 555 (1935);
77. Leuchtenburg, "Comment," 1084.
78. Wright v. Vinton Branch Bank, 300 U.S. 440 (1937).
79. Sunshine Anthracite Coal v. Adkins, 310 U.S. 181 (1940).
80. Mulford v. Smith, 307 U.S. 38 (1939).
81. For a detailed treatment of each of the examples discussed in this paragraph, see Barry Cushman, "The Hughes Court and Constitutional Consultation," Journal of Supreme Court History 79 (1998).
82. 297 U.S. 269 (1936).
83. 296 U.S. 404 (1935).
84. Leuchtenburg, "Comment," 1089.
85. Hughes and Roberts adhered to the positions they had taken in Mayflower Farms in United States v. Rock-Royal Cooperative, 307 U.S. 533, 583-587 (1939) (Roberts, J., and Hughes, C. J., dissenting).
86. When the Court overruled Colgate in Madden v. Kentucky, 309 U.S. 83 (1940), Roberts confirmed his allegiance to Colgate in a dissenting opinion. See id. at 93-94 (Roberts, J., dissenting).
87. Hughes concurred only in the result. Id. at 93.
88. And when Alton was effectively overruled in United States v. Lowden, 308 U.S. 225 (1939), the opinion was unanimous only because Roberts suppressed the dissent he had registered in conference. See Harlan Fiske Stone Papers, Box 65, Library of Congress.
89. For a more detailed treatment of those decisions, see Cushman, "Lost Fidelities," 129-141;
90. Cushman, "Some Varieties and Vicissitudes of Lochnerism."
91. Leuchtenburg, "Comment," 1090.
92. See the discussion in G. Edward White, The Marshall Court and Cultural Change, 1815-1835 (New York, 1988), 187-189.
93. See the discussion of law journal commentary on the Court in the 1930s in Cushman, Rethinking the New Deal Court, 82-83, 91-92, 99, 153, 159, 177-180, 183, 184, 189, 192, 196, 200.
94. For one example in 1821, see White, The Marshall Court and Cultural Change, 521-522.
95. For examples from the 1890s into the 1920s, see William G. Ross, A Muted Fury (Princeton, N.J., 1994), 93-103, 163-165, 169-170.
96. For a summary of proposals to curb the Court from the 1890s through the early 1930s, see Cushman, Rethinking the New Deal Court, 12.
97. Leuchtenburg, "Comment," 1090. The only evidence that Leuchtenburg presents is that Van Devanter and McReynolds, on the eve of the 1936 election, may have thought that Roosevelt would be defeated. But since neither Van Devanter nor McReynolds did any significant "switching" of votes in 1937 - the "switch in time" hypothesis focuses on the votes of Roberts and Hughes - demonstrating that they may have been surprised carries no causal weight.
98. See Barry Cushman, "Mr. Dooley and Mr. Gallup: Public Opinion and Constitutional Change in the 1930s," Buffalo Law Review 50 (2002): 7, 15-17.
99. See Cushman, "Mr. Dooley and Mr. Gallup," 19-76.
100. Cushman's survey of polling data before and after the introduction of the Court-packing plan reveals that a majority of those polled tended to support the Court both before and after the introduction of the plan, and to oppose the plan. Cushman, "Mr. Dooley and Mr. Gallup," Ibid., 67-74.
101. The evidence that has surfaced provides no support for the Court-packing hypothesis. The hypothesis assumes a chronological connection between the introduction of the Court-packing plan, the modification by some justices, in response to the plan, of their constitutional objections to social welfare legislation, and the Court's initiation of a "constitutional revolution," generated by its decisions in Parrish, the Wagner Act cases, NLRB v, Jones & Laughlin Steel Corp., 301 U.S. 1 (1937),
102. and the 1937 Social Security Act cases, Steward Machine Co. v. Davis, 301 U.S. 548 (1937),
103. and Helvering v. Davis, 301 U.S. 619 (1937)
104. . In the latter three cases, a majority of justices endorsed a relatively broad view of the federal government's commerce and spending powers in upholding the National Labor Relations Act and the unemployment compensation and old-age pension provisions of the Social Security Act against constitutional challenges. The Parrish case, as noted, had been decided before the Court-packing plan was introduced; the Wagner Act cases were handed down after it had become clear that the bill would not be approved by the House Judiciary Committee and that opponents in the Senate had enough votes to filibuster it; and the decisions in the Social Security cases were handed down after it was obvious that should the bill ever be reported out of committee, opponents would have enough votes to defeat it in the Senate. See Cushman, Rethinking the New Deal Court, 13-23.
105. As evidence that "[c]ontemporary observers did not question what brought about the surprising ruling in Jones & Laughlin," Leuchtenburg offers comments by newspaper columnists in April 1937; a letter by Charles Beard to Irving Brant in 1937, suggesting that the Court's decision in the Social Security cases was a response to the Court-packing message; an April 1937 letter by Edward Corwin reminding his correspondent that the Court-packing plan was introduced before the Social Security cases were decided; and a statement by historian Richard Cortner that Hughes's and Owen Roberts's views on the power of Congress to regulate labor relations may have been affected by the Court-packing plan. See Leuchtenburg, "Comment," 1091. None of those sources offers any direct evidence that the justices were influenced by the plan. Nor does Leuchtenburg consider the views of many contemporary observers who saw the Court's decisions as neither surprising nor revolutionary. See Cushman, Rethinking the New Deal Court, 177-182.
106. For a summary of the evidence showing that the justices were well aware that the Court-packing plan was encountering significant difficulties in Congress, see Cushman, Rethinking the New Deal Court, 13-20. Internalists have argued that those difficulties gave the justices good reason to suppose that the proposal was unlikely to be enacted. They have not claimed, as Leuchtenburg suggests, that "there never was any chance that FDR's proposal would be enacted, and that the justices knew this." "Comment," 1087.
107. For the details, see White, The Constitution and the New Deal, 33-93.
108. White, The Constitution and the New Deal, Ibid., 132-152.
109. See Cushman, Rethinking the New Deal Court, 222-225.
110. 291 U.S. 502 (1934).
111. 317 U.S. 111, 124-125 (1942): "[E]ven if . . . [an] activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce, and this irrespective of whether such effect is what might at some earlier time have been defined as 'direct' or 'indirect.'"
112. See, e.g., Edward Corwin's analysis of the Court's approach to legislation affecting "ordinary commercial transactions" in Constitutional Revolution, Ltd. (1942).
113. 304 U.S. 144 (1938).
114. See sources collected in White, The Constitution and the New Deal, 207-210.
115. "Modern principles of constitutional law [needed to be] decided by men whose social philosophy is modern . . . [The Court has] been endeavoring to elevate into constitutional law a particular economic bias." Testimony of Edward S. Corwin, Hearing before the Senate Committee on the Judiciary, 75 Cong. 168 (1937), reprinted in Richard Loss, ed., Corwin on the Constitution, 3 vols. (Ithaca, N.Y., 1987), 2: 21, 219.
116. The Court-packing plan was designed, Roosevelt said, to "[bring] to the decision of social and economic problems younger men who have had personal experience and contact with modern facts and circumstances," and thereby "save our National Constitution from hardening of the judicial arteries." Franklin D. Roosevelt, "Reorganizing the Federal Judiciary," radio address, March 9, 1937, in Senate Report no. 75-711, Appendix D, 43 (1937).
117. See White, The Constitution and the New Deal, 5-7;
118. Dorothy Ross, The Origins of American Social Science (New York, 1991), 3;
119. Ross, "Introduction," in Dorothy Ross, ed., Modernist Impulses in the Human Sciences, 1870-1930 (Baltimore, Md., 1994), 8;
120. Stephen M. Feldman, American Legal Thought from Premodernism to Postmodernism: An Intellectual Voyage (New York, 2000), 15-28.
121. On the components of modernity, see the sources cited in White, The Constitution and the New Deal, 317.
122. David Brewer, "The Movement of Coercion," Proceedings of the New York State Bar Association 16 (1893): 37.
123. Lochner v. New York, 198 U.S. 45, 75 (1905).
124. Because paragraphs two and three of the Carolene Products footnote - which suggested that there might be opportunity for departure from the presumption of constitutionality when legislation restricted the processes for future political change or was a product of "prejudices against discrete and insular minorities" - subsequently formed a mandate for some decisions on the Warren Court, commentators have sometimes taken the footnote as a charter for aggressive judicial readings of the equal protection clause. In fact, the language of those paragraphs was tentative. Stone indicated that "it was unnecessary to consider" whether legislation blocking the channels of political change was "to be subjected to more exacting judicial scrutiny," and prefaced his comment about legislation affecting "discrete and insular minorities" by saying, "[n]or need we inquire whether . . . a correspondingly more searching judicial inquiry" was necessary in that situation. Moreover, nearly all of Stone's citations to cases in the footnotes were to free speech cases, examples of paragraph one of the footnote, where legislation "appears on its face to be within a specific prohibition of the Constitution." See the dis-discussion in White, The Constitution and the New Deal, 160-163.
125. Laura Kalman, "The Constitution, the Supreme Court, and the New Deal," 1065.
126. Laura Kalman, "The Constitution, the Supreme Court, and the New Deal," Ibid.
127. See William H. Wilson, The City Beautiful Movement (Baltimore, Md., 1989).
128. United Mine Workers v. Coronado Coal Co., 259 U.S. 344 (1922) ("Coronado Coal I");
129. United Leather Workers v. Herkert & Meisel Trunk Co., 265 U.S. 457 (1924);
130. Levering & Garrigues Co. v. Morrin, 289 U.S. 103 (1933).
131. For a portrait of the Court in the 1920s and early 1930s as unsympathetic to organized labor, see Richard Cortner's two volumes The Wagner Act Cases (Knoxville, Tenn., 1964)
132. and The Jones & Laughlin Case (New York, 1970).
133. United States v. E.C. Knight Co., 156 U.S. 1 (1895).
134. Coronado Coal I, 259 U.S. at 413.
135. Day to Taft, Papers of William Howard Taft, Reel 615, Library of Congress, quoted in Barry Cushman, "Formalism and Realism in Commerce Clause Jurisprudence," University of Chicago Law Review 67 (2000): 1089, 1099.
136. McReynolds to Taft, Taft Papers, Reel 615, quoted in Barry Cushman, University of Chicago Law Review, ibid., 1099.
137. Pitney to Taft, Taft Papers, Reel 615, quoted in Barry Cushman, University of Chicago Law Review, ibid.
138. Barry Cushman, University of Chicago Law Review, 1099, n. 62.
139. Panama Refining Co. v. Ryan, 293 U.S. 388 (1935).
140. Harold L. Ickes, The Secret Diary of Harold L. Ickes, 3 vols. (New York, 1953-1954), 1: 273.
141. Lewis J. Paper, Brandeis (Englewood Cliffs, N.J., 1983), 350.
142. Louisville Joint Stock Land Bank v. Radford, 295 U.S. 155 (1935).
143. Norman v. Baltimore & Ohio R. Co., 294 U.S. 240 (1935);
144. Nortz v. United States, 294 U.S. 317 (1935);
145. Perry v. United States, 294 U.S. 330 (1935).
146. For Brandeis's opposition, see Paper, Brandeis, 346;
147. for Stone's, see Mason, Harlan Fiske Stone, 390.
148. For Brandeis, see Paper, Brandeis, 345;
149. for Stone, see Mason, Harlan Fiske Stone, 416-417.
150. United States v. Butler, 297 U.S. 1 (1936).
151. See Mason, Harlan Fiske Stone, 393.