With this article, Barry Cushman continues the project begun in earlier writings, leading ultimately to a thoroughgoing reconsideration of the legal history of the New Deal. The present work, perhaps the most important to appear so far, brings Cushman's evolving argument up against the most stable – if not altogether the most convincing – element of the traditional history of the New Deal Court. The "Constitutional Revolution of 1937" is now open for reconsideration or, more precisely, the famous "switch in time" that realigned the Supreme Court with the demands of the Roosevelt administration. Cushman argues powerfully – by and large quite successfully – that the long-accepted narrative of events in the Supreme Court's 1936 Term is inadequate and misleading. He urges us to discard, on grounds of insufficient evidence, the concept of a Court radically altering its position in response to the results of the 1936 election and the announcement of Roosevelt's plan to expand the membership of the Court. He offers for our consideration the outline of an internalist approach to the history of the doctrinal shift, in which the Supreme Court's rejection of much of the First New Deal is seen as a response to the poor draftsmanship and poor litigation strategy of the administration in the creation and defense of its program. And, as though these were insufficient achievements for a short article, Cushman goes further, presenting a larger historiographic claim about the deficiencies in contemporary constitutional history.
Against the odds – given the scope of the challenges relative to the scale of the article – Cushman has attained a remarkable success. Though in a number of respects his arguments are far from conclusive, he has pointedly asked the essential questions and showed the deficiencies of the enormous body of existing literature. Taken together with other work already published, this article shows the force of the argument that Cushman's book will present; already, I believe, it is impossible for writers to consider the great constitutional episode of the New Deal era without meeting directly the issues Cushman has raised. Fortunately for me, I run not presently working in New Deal history, and so this Commentary does not require me either to defend my own approaches against Cushman's trenchant criticisms or to enlist in his army of revision. As a proclaimed noncombatant, my vantage point combines the luxury of relative ignorance with the responsibility of substantial impartiality. I am convinced by much of Cushman's specific argument in derogation of the received wisdom, though I feel bound to voice a few doubts at places where I think his case overargued. I share altogether his belief that the internalist legal history of the New Deal has been unjustifiably ignored at the cost of flat misunderstanding of the developments. On the largest questions of interpretation raised by his article, I find myself tom between the instincts of the internalist historian that Cushman adroitly describes and the Realist premises that he strongly argues led to the historiographic errors in the first place. The following three Parts take up in tum those elements of this profoundly stimulating article.
Law | Legal History
Toward a New Deal Legal History,
Va. L. Rev.
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