A “switch in time” beyond the nine: historical memory and the constitutional revolution of the 1930s

• Pages: 3-34
• Published date: 31 December 2010
• DOI: https://doi.org/10.1108/S1059-4337(2010)0000053004
• Date: 31 December 2010
• Author: John W. Wertheimer

A ‘‘SWITCH IN TIME’’ BEYOND

THE NINE: HISTORICAL MEMORY

AND THE CONSTITUTIONAL

REVOLUTION OF THE 1930S

John W. Wertheimer

ABSTRACT

This chapter explores the ‘‘Constitutional Revolution’’ of the 1930s, as it

played out beyond the walls of the U.S. Supreme Court. It argues that a

radically revised historical memory of the Constitution accompanied the

ascent New Deal liberalism. Prior core values associated with the

Constitution’s history, such as federalism and the sanctity of private

property, were dramatically downgraded, while the civil liberties

embodied in the Bill of Rights dramatically rose. By so redefining their

historical memory of the Constitution, Americans could enjoy the active

government that most desired while still celebrating the constitutional

traditions of individual freedom and limited government.

The complaint that American courts are home to over-reaching judicial

activists became such a staple of late-twentieth-century conservative thought

that many Americans forgot how central the very same complaint was

to early-twentieth-century liberals. For the first third of the century,

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ISSN: 1059-4337/doi:10.1108/S1059-4337(2010)0000053004

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progressives railed against judicial power, which they viewed as a

formidable, antidemocratic obstacle to positive social change. In the late

1930s, a ‘‘Constitutional Revolution’’ occurred. The activist gavel fell from

conservative hands, soon to be taken up by liberals.

For years, scholars have debated the timing and causes of the U.S.

Supreme Court’s dramatic shifts in constitutional jurisprudence during the

presidency of Franklin D. Roosevelt. ‘‘Externalist’’ scholars concentrate on

the spring of 1937 and emphasize the impact of FDR’s ‘‘Court-packing

plan’’ (e.g., Murphy, 1972;Leuchtenburg, 1995). ‘‘Internalists’’ see more

gradual, though still transformative, doctrinal change, and emphasize

internal legal factors, such as developments in legislative drafting, lawyering,

and commerce clause doctrine (e.g., Cushman, 1998;White, 2000).

In contrast to both schools of thought, this essay asks how the crisis,

broadly construed, played out beyond the Supreme Court, among the

lawyers, scholars, artists, and others who together comprised America’s

interwar legal culture. It argues that historical memory of the U.S.

Constitution was central both to the crisis and to its resolution. For

decades prior to the Great Depression, it argues, Americans of all political

stripes had believed that serious tensions existed between the decentralizing

impulses of America constitutionalism and the centralizing tendencies of

modern industrial life. Underlying this belief was a broadly shared historical

memory of the Constitution’s central meaning. Liberals and conservatives

disagreed on much, but they agreed that the Constitution’s historical essence

involved protecting private property and limiting the reach of the national

government. Their disagreement focused on how to resolve the tension

between an eighteenth-century founding instrument and twentieth-century

state-building impulses. Liberals believed that old constitutional constraints

should give way; conservatives believed that modern statist demands must

yield. The Great Depression and the New Deal intensified these long-

standing debates, producing the gravest constitutional crisis since the era of

the Civil War.

During FDR’s second term, these culture-wide tensions resolved with

surprising speed. The liberal vision of a large and active central government

prevailed. No longer would the Constitution significantly obstruct economic

and social regulation. The liberals’ triumph, however, did not destroy all

judicial constraints on government, as some liberals had suggested and all

conservatives had feared. Instead, Americans radically revised their

historical memory of the Constitution. Prior core values associated with

the Constitution’s history, such as federalism and the sanctity of private

property, were dramatically downgraded, while the civil liberties embodied

JOHN W. WERTHEIMER4

in the Bill of Rights – above all, the First Amendment’s freedoms of

expression – dramatically rose. By redefining the Constitution’s historical

meaning in this Bill-of-Rights-centered way, Americans could enjoy the

active government that a majority of voters desired while still celebrating

the traditions of individual freedom and limited government bequeathed

by the Founders. So popular was this revised historical memory of the

Constitution that within a few years, scarcely any echo remained of the

grave interwar constitutional crisis.

THE ‘‘OLD’’ CONSTITUTION

Although most Americans in most periods have avowed reverence for the

Constitution, the meanings ascribed to that instrument have shifted over

time (Kammen, 1986). Between World War I and World War II, American

historical memory concerning the Constitution changed dramatically.

At the outset of this period, the First Amendment and the Bill of Rights

played but a marginal role in the Constitutional memory. Late-nineteenth-

century school primers and other explications of the Constitution had little

to say about these subjects. Brinton Coxe of the Philadelphia bar found it

possible in 1893 to write An Essay on Judicial Power and Unconstitutional

Legislation and say nothing about First Amendment liberties of expression.

Articles of Confederation and Constitution of the United States (1891), based

on the constitutional law lecture notes of the University of Virginia’s James

H. Gilmore, discussed the first ten amendments without reverence – and

without using the term ‘‘Bill of Rights.’’ The three volumes of Fred A.

Baker’s The Fundamental Law of American Constitutions (1916) were silent

on free speech and dealt but cursorily with ‘‘the first ten amendments’’ –

indeed, the term ‘‘Bill of Rights’’ in Baker’s index refers to the English one.

Similarly, a World War I-era constitutional law text asserted something that

no World War II-era text would assert: that the supposed ‘‘necessity’’ of

adding the Constitution’s first ten amendments ‘‘does not now seem so

apparent as it did when they were adopted’’ (Fenton, 1914, p. 251). The

First Amendment and the Bill of Rights did not yet occupy a ‘‘privileged

position’’ within America’s constitutional memory.

The protection of property rights, however, did occupy a central position

in American constitutional memory. Reduced to their final analysis,

constitutional scholar Fred Baker wrote in 1916, the rights of ‘‘life, liberty

and property’’ boiled down to ‘‘the right to acquire yand enjoy property’’

(p. 674). Conservatives approvingly noted that ‘‘the sanctity of property’’

Historical Memory and the Constitutional Revolution of the 1930s 5