Hastings Law Journal


G. Edward White


The conventional explanation for the emergence of the "constitutional revolution" of the late 1930s, in which a number of doctrinal transformations took place in the constitutional jurisprudence of the Supreme Court, has been related to external events in American political culture such as the abortive "Courtpacking" plan introduced by Franklin Roosevelt in early 1937. According to the conventional explanation, which has retained a presumptive historiographical validity for nearly 50 years, Supreme Court constitutional doctrines changed in response to political pressures on the justices related to the triumph of the New Deal philosophy of governance.

Revisionist work in this decade has virtually demolished the conventional explanation, both in general and specific terms. Generally, the work has shown that a simple behaviorist model of constitutional doctrine, in which some decisions are identified as consistent with a "progressive" and others with a "reactionary" political agenda, cannot explain the corpus of constitutional doctrine developed by the Supreme Court in the period between 1920 and the 1940s. Specifically, that work has shown that some transformative decisions of the Court preceded the 1936 election and the Court-packing plan, some decisions did not occur until many years after those events, and other doctrinal transformations had largely been completed before the Court-packing plan was even conceived.

This Article continues the revisionist project by advancing an alternative characterization of the "constitutional revolution." It argues that the fundamental changes that took place in Commerce Clause, Contracts Clause, and Due Process Clause doctrines between the 1920s and the 1940s were a response to a jurisprudential crisis involving the nature of constitutional interpretation and the role of Supreme Court justices as constitutional interpreters. The principal manifestation of that crisis was a debate over the meaning of adaptivity in constitutional interpretation, focusing on whether the "meaning" of the Constitution could fundamentally change with time and whether judges could articulate a changed meaning in the course of their interpretations. Since a "yes" answer to both of those debated issues eventually came to be jurisitic orthodoxy by the 1940s, the adaptivity debate and its significance has been lost to contemporary constitutional scholars. This Article seeks to recover the adaptivity debate and the jurisprudential crisis that spawned it. It also sketches the causal relationship between the adaptivity debate and the "constitutional revolution," thereby seeking to advance an alternative explanation for the dramatic doctrinal changes that took place in the New Deal years.

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