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The Shift From and Back to the Constitution

The New Deal era marked a significant change in Constitutional interpretation. Politicians, academics and judges decided that the original meaning of the Constitution stood in the way of modern politics. Professor Gary Lawson outlines the scholarship and ideas behind this movement, how it affected judicial decisions, and then how the pendulum slowly swung back toward originalist Constitutional interpretation. https://youtube.com/watch?v=pWHNakurB8U


The New Deal involved a mammoth expansion of federal power, involved a mammoth transformation of the way in which government was structured. The forms by which government power was exercised, the role of administrative agencies, that impossible to square in any sensible way with the Constitution of 1788. Now there were some New Deal scholars who tried, who really did attempt on originalist terms to explain well, that original Constitution is wide enough, flexible enough to accommodate what we're doing now. There were others who just admitted, we can't do that. We're going to do it anyway. It's a fella named James Landis. Maybe the most important figure in American Administrative Law, was the dean of Harvard Law School, was a member of the Securities and Exchange Commission, was one of the principal architects of the New Deal administrative institutions. And he gave some speeches in 1936, collected in a book published in 1938 called” The Administrative Process,” and you read this book, it's just drips with venom for the Constitution of 1788, for this separation of power structure that somehow we have come to worship. All of this is getting in the way, says Landis, of smart people being able to do what everybody knows is a good idea. So to heck with this Constitution, gives way to the exigencies of modern government, so you start having very, very, very prominent people very openly saying, if you have to choose between modern government and the Constitution, easy call - go with modern government, stuff the Constitution. Now, relatively few judges were openly willing to cast what they were doing in that light. By the time you get to the 1960s, you will find judges, particularly Justices on the Supreme Court who were more open about that sort of thing, who were prepared to say things like, "Well, yes, that's kind of what the Constitution said, but times have changed." There are actually decisions that say exactly that, the times have changed. Why the shift? That's not a question I'm equipped to answer. I do think it's observable that happened. As we translate into modern times, for every revolution there's a counter-revolution and then a counter-revolution after that. It would've been possible in the 1960s and 1970s to proclaim that originalism, as a normative matter as a prescription for how cases should be decided, was effectively dead. It was effectively dead in the legal academy. You could count on one hand the academics who would advocate that as a method. You could count on one hand the number of judicial decisions of the Supreme Court that invoked that as a method of reasoning. For some reason, starting in the mid 1970s and then accelerating into the 1980s, that started to shift. You started to see at least in limited areas, mostly involving separation of powers, Supreme Court decisions that actually referred to the text of the Constitution of 1788 and tried to do what it said.

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