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Published: 26 February 1998

336 Pages

6-1/8 x 9-1/4 inches

ISBN: 9780195120431

Also Available As:


Bookseller Code (04)


Rethinking the New Deal Court

The Structure of a Constitutional Revolution

Barry Cushman

"Barry Cushman's excellent book is meant to, and does, provoke fundamental rethinking of the Supreme Court's famous 'switch in time' from opposing to supporting the social legislation of the New Deal era. Cushman shows that the switch came about from a long-prepared revolution from within, a build-up of tiny incremental erosions of the 'weblike, interconnected structure' of the Court's commerce clause and due process jurisprudence. For many decades the Court had upheld very stringent regulations of business, even direct regulations of wages and prices and federal regulations of local business, but only if the business was classified as 'public' or 'affected with a public interest'. By gradual degrees dissenters within the Court and reformers outside it had picked away at this basic public-private distinction. When the distinction collapsed in the Nebbia case of 1934, so that any business could be called 'public' for some purposes, the whole grand edifice of 'laissez-faire constitutionalism' collapsed with it. A meticulous craftsman, Cushman builds a convincing case for his revisionist thesis. His book is a smooth blend of intellectual and political history; he is equally at home with the nuances of legal doctrine on the Court and the political battles going on outside it. He brings out of the large unruly mass of constitutional cases decided between 1870 and 1937 a strong, clear story, powerful in its simplicity and very persuasive. After this book no one will be able to talk about the 'Constitutional Revolution of the New Deal' in quite the same way again."--Robert W. Gordon, Yale Law School

"Barry Cushman has produced an exhaustive and enlightening Reconstruction of substantive due process and commerce clause jurisprudence during the Hughes and Stone courts that draws into question the common understanding of this period of our constitutional history. Those who favor a political history of the Court should consider Cushman's work as a cautionary tale. Doctrine may explain more of the details of the Supreme Court's fight with the New Deal than many would like to think."--John Henry Schlegel, SUNY at Buffalo Law School

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