Historical Revisionism and Constitutional Change: Understanding the New Deal Court

Abstract

Now into the fray comes Professor G. Edward White, one of the nation's preeminent legal historians and the author of several important books about the intersection of law and history. Perhaps none of his books is more important, however, than his most recent work, The Constitution and the New Deal, an elegant and masterful study of the transformation of the constitutional jurisprudence of the United States Supreme Court during the first half of the twentieth century. Primarily adapted from several law review articles the author published in leading law reviews throughout the past decade, this book re-examines the strands of early twentiethcentury constitutional jurisprudence. Not only does it reinforce Cushman's conclusions about the pace of jurisprudential change, it also approaches the issue of reconciling the New Deal and the Supreme Court as a problem of historiography. White offers a revised historical account of early twentieth-century constitutional thought that analyzes the broad contours of change in historical context. Rather than focus on doctrinal intricacies, the book makes selective use of academic commentary from the subject period and representative Supreme Court decisions to illustrate the arc of constitutional development in several areas, including a few often neglected by scholars of this era. In essence a study of intellectual constitutional history, it also provides extensive criticism of traditional historiography and posits that much of the contemporary misunderstanding about the role of the Supreme Court during the New Deal emanates from flawedhistorical methods and modernist assumptions about the judicial behavior of early twentieth-century Supreme Court Justices. To this end, White seeks to recapture the constitutional jurisprudential debates of this era and to advance a more complicated and richly nuanced account of transformative constitutional events. From this perspective, the New Deal and the Court-packing plan recede in importance as catalysts of constitutional change and instead become historical episodes stripped of their mythical importance, which White attributes to the indiscriminate use of political abels and behavioralist presuppositions of generations of scholars. In many respects, White succeeds in attaining his ambitious objective and has written a compelling revisionist history of one of the more controversial and misunderstood periods of American constitutional history. This Book Review corresponds to White's method of complicating and revising the conventional perspective. After an introductory discussion of the concept of revolution, Part I will address the conventional account of the constitutional revolution of 1937 and the factors White attributes to its enduring position of distorted significance. Part II will examine and respond to White's treatment of three areas of constitutional jurisprudence complicating the conventional account: foreign relations, administrative law, and free speech. With much precision and careful analysis, White illuminates the developments of these areas of law and, for the most part, effectively supports his revised narrative of early twentieth-century constitutional change. Finally, in Part III, this Book Review will examine the heart of White?s effort, namely his alternative explanation for the transformation in early twentiethcentury constitutional jurisprudence, particularly his emphasis on the ascendancy of modernism and the connection between the Supreme Court's internal intellectual climate and developments in both private and public law jurisprudence. To this end, White offers a detailed and shrewd account of the relationship between the formalism/realism debate in common law and the notion of constitutional adaptivity in political economy constitutional law. As I will discuss below, White's analysis overlooks, at certain points, factors that would ven more fully develop his already in-depth treatment of this period of constitutional change. Nevertheless, he generally succeeds in providing a reasoned, subtle, and persuasive revision of the change in constitutional jurisprudence of the early twentieth century.