Brandeis, Erie, and the New Deal 'Constitutional Revolution'

Journal of Supreme Court Historical Society, 2001

22 Pages Posted: 9 Dec 2014

Date Written: November 24, 2001

Abstract

This article examines the Supreme Court’s 1938 decision in Erie Railroad Co. v. Tompkins and its relationship to the so-called “New Deal Constitutional Revolution.” Considering both the New Deal and the series of decisions the Supreme Court issued between 1937 and 1943, it argues that Erie was compatible with both. In particular, it addresses three doubts about that compatibility, what it calls the “congressional power” doubt, the “decentralization” doubt, and the Carolene Products/“stricter scrutiny” doubt. Analyzing the first two, it concludes that Erie was fully consistent with the expansion of legislative power and the treatment of state and federal powers that came with the New Deal and its “constitutional revolution.” Analyzing the third and seemingly most serious doubt, it argues that Erie and the Carolene Products/”stricter scrutiny” approach shared three fundamental characteristics that made them not only consistent but mutually reinforcing.

Keywords: Brandeis, Erie v. Tompkins, New Deal “Constitutional Revolution,” Carolene Products

Suggested Citation

Purcell, Edward A., Brandeis, Erie, and the New Deal 'Constitutional Revolution' (November 24, 2001). Journal of Supreme Court Historical Society, 2001 , Available at SSRN: https://ssrn.com/abstract=2530142 or http://dx.doi.org/10.2139/ssrn.2530142

Edward A. Purcell (Contact Author)

New York Law School ( email )

185 West Broadway
New York, NY 10013
United States

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