The paper traces the dramatic jurisprudential innovations of the New Deal Revolution, including the articulation of incorporation theory, the abandonment of judicial construction of state common law, and the ascension of textual originalism as the Court's method of constitutional interpretation. I argue that the New Deal Court transcended the political goals of the Roosevelt administration and attempted to restructure the nature of legitimate judicial review in a post-Lochner world. Acting, in effect, as a constitutional convention, the Court not only changed the nature of judicial review, it altered the shape of the Constitution in ways that cut across modern political ideologies. Accepting the New Deal as a legitimate moment of constitutional change justifies the modern scope of the commerce power, but calls into question both the due process and federalism jurisprudence of the Modern Court.
Part II of the paper traces the evolution of individual rights under the Fourteenth Amendment in the period between 1868 and 1937. Although liberty of contract is associated with the Lochner Court, economic rights like labor and trade have their roots in mid-Nineteenth Century common law. There is evidence that the framers of the Fourteenth Amendment anticipated such liberties would be protected under the Privileges or Immunities Clause of the Fourteenth Amendment. Temporarily blocked by the Court's restricted reading of the Privileges or Immunities Clause in the Slaughterhouse Cases, economic liberties eventually surfaced as common law rights protected under the Due Process Clause. Substantive Due Process rights during the Lochner period went beyond economic liberties, however, and included freedom of speech, press and parental autonomy. Under the common law methodology of Lochner and Twining v. New Jersey, the fact that speech and press were listed in the text of the Bill of Rights was irrelevant to their enforcement as fundamental Due Process liberties.
Part III addresses the impact of the New Deal revolution on the protection of individual rights. Lacking a textual amendment, the Court embarked on a revolution of jurisprudence - the construction of a new and more legitimate approach to judicial review. The core principle of this jurisprudential revolution was the embrace of textual originalism. Regardless of its history as a common law right, liberty of contract was nowhere mentioned in the text of the Constitution and, therefore, could not be a legitimate ground for interfering in the political process. Similarly, the Tenth Amendment contained no express restrictions on the powers of Congress, but stood as "a mere truism" regarding the reserved powers of the States. No longer constrained by an unjustifiably broad reading of the Tenth Amendment, the Court returned the commerce power to what it claimed was the original understanding of the Founders. Finally, de-coupling judicial review from the common law methodology of the Nineteenth Century had a number of consequences. At the same time the Court abandoned common law liberty of contract, it also abandoned judicial construction of state common law (Erie v. Tompkins). Moreover, if the error of Lochnerian liberty of contract was its lack of textual foundation, then Lochnarian parental autonomy shared the same error. In order to survive the New Deal Revolution, decisions like Meyer v. Nebraska and Pierce v. Society of Sisters would have to be recharacterized to represent judicial protection of textual rights like religious freedom and equal protection under the law.
In Part IV, I explore the birth and evolution of Incorporation Doctrine. Prior to 1937, there had been no reason to speak of incorporating the "texts" of the First Amendment because liberties like speech and press were protected as fundamental liberties under the common law. The fact they were (or were not) mentioned in the Bill of Rights was irrelevant. The abandonment of common law methodology and the new emphasis on textual originalism required a new justification for the enforcement of individual rights, including those of speech and press. Ultimately, consensus formed around the Preferred Freedoms model in which some, but not all, of the texts of the Bill of Rights were incorporated into the Fourteenth Amendment. This "selective incorporation" approach, however, echoed the selective approach of the Lochner Court and triggered the famous debates between Justices Frankfurter and Black over the original meaning of the Fourteenth Amendment.
In Part V, I explore the implications of viewing the New Deal Revolution as a revolution in jurisprudence. Instead of constitutionalizing some form of Rooseveltian progressivism, the Court self-consciously placed both laissez-faire capitalism and progressive redistributionism within the legitimate reach of the political process. Efforts to define the New Deal Revolution in terms of progressive politics thus is at odds with the original intentions of the New Deal Convention. Finally, the New Deal emphasis on textual originalism conflicts with the modern embrace of non-textual common law rights like privacy and parental autonomy, and with the increasing use of federalism principles as a substantive limit on the otherwise plenary powers of Congress. If one embraces the New Deal as a "constitutional moment," it appears one must reject both non-textual due process liberties and non-textual federalist restraints on federal power.
Kurt T. Lash, The Constitutional Convention of 1937: The Original Meaning of the New Jurisprudential Deal, 70 Fordham L. Rev. 459 (2001).