Reexamining the "Constitutional Revolution of 1937": Evolution, Revolution, or Restoration and the "Fall" of Economic Due Process

The familiar story of President Roosevelt’s triumphant victory over the Supreme Court in the Spring of 1937 has become legend. In this story, the threat posed by the President’s “courtpacking” plan caused the Supreme Court to capitulate to his political will and reverse the principal tenets of its prior constitutional doctrine. The traditional account has been widely accepted for decades, despite serious doubts about its accuracy. In the 1990s, revisionist legal scholars began to publish new theories of the “revolution” rooted in the development of constitutional doctrine. These theories posited that the dramatic legal transformations of the New Deal era were the result of gradual changes in legal doctrine, not a sudden reversal in response to political pressure. Further, some theories place the crucial shift in constitutional law not in the Spring of 1937, but three years earlier in the case of Nebbia v. New York, 1934. In Nebbia, the Court abandoned a judicial doctrine that spelled the end of economic due process in the federal courts. This opened the door for state supreme courts to fashion independent decisions on economic due process issues based on their state’s constitutions. This dissertation is designed to use state economic due process decisions of the era as a unique prism for “revisiting” the story of the New Deal “constitutional revolution.” These decisions will be examined within the confines of revisionist legal theory to determine whether these state court decisions support an “evolutionary” explanation of the New Deal “revolution.” The “evolutionary” concept proposed in this study recognizes the dramatic legal transformations of the New Deal era as the product of gradual changes in judicial thinking and broadly embraces the evolving legal development in the state courts of the era as part of the New Deal “transformation.”