Happy Birthday, New Deal Constitution!

The New Deal Constitution—the Upside-Down Constitution under which we live—was ratified on April 25, 1938. On that day, President Roosevelt’s Supreme Court handed down back-to-back decisions in United States v. Carolene Products and in Erie Railroad v. Tompkins. The American Enterprise Institute will mark the occasion with an event, put together by Richard Epstein and yours truly. The announcement and invite for the event (noon, April 25, at AEI) is here. I’ll moderate an exchange between Richard and Jack Balkin (Yale); the following panel discussion features Randy Barnett (Georgetown), Barry Cushman (Notre Dame), Jeremy Rabkin (GMU), and Suzanna Sherry (Vanderbilt). The event will be livestreamed. Do join—to quote a line that cost a great man his seat on the Supreme Court, it’ll be an intellectual feast. Some preliminary noodling:

Carolene Products announced that federal legislation would henceforth be subject to “rational basis” review—that is, none at all. (The exception, the Court said in a famous footnote, are statutes that threaten to trample on “discrete and insular” minorities or “specific” Bill of Rights protections.) Erie Railroad famously declared that contrary to what everyone had thought for well over a century, “there is no federal general common law.” Henceforth, federal courts would decide “diversity” cases among parties from different states under the law of the state in which they sit—meaning, to all intents, the plaintiff’s home state. If our exotic tort law doctrines and the “litigation explosion” seem puzzling, puzzle no more: they are the (quite probably, intended) consequence of Erie.

To be sure, the list of foundational New Deal decision is longer (West Coast Hotel, U.S. v. Darby, Wickard… take your pick). However, Carolene Products and Erie merit a special place of honor. For instance:

We like to think in grand institutional categories—the role of “the Court,” “the Congress,” etc.  Carolene Products and Erie maintain that veneer, but they deliberately target commercial actors and transactions and expose them to unconstrained interest group politicking. The Founders’ fear that this might be particularly an arena of dangerous factionalism and state parochialism is gone. What takes its place is the faith that boundless “experimentation” on the nation’s commerce is a great idea: more is better (at least so far as the federal courts are concerned). The recognition that the Constitution—the actual Constitution—commits the protection of that commerce to the Supreme Court is missing entirely from contemporary jurisprudence, and from the contemporary debate.

More profoundly, the decisions define the deep structure of the New Deal Constitution; and yet, they seem completely unassailable. We’re allowed to argue over Wickard and even Lochner but not these two war horses: why is that? Among the reasons, methinks, is the failure of conservative-libertarian-originalists to engage that debate. Old-style originalists actually embrace the decisions. Carolene Products stands for judicial restraint, and Erie is the anti-Lochner (pro-state, anti-activist, brutally positivist)—and lo, that’s our Constitution, which one of these days will triumph over the Warren Court. That thinking is no longer very prominent, but the thinking that has replaced it can’t easily get a handle on Carolene Products and Erie, either. All the conservative-libertarian legal campaigns that have gained traction (intellectually, and occasionally in real law) seize on a specific clause—the Commerce Clause, the Second Amendment, the Privileges and Immunities Clause, the Takings Clause. They must mean now what they meant back then, and damn the corruption.

Carolene Products and Erie don’t corrupt the Constitution in that way. They’re not about a clause (or clauses), and you can’t mobilize a clause against them. (E.g., you can try “the Judicial Power” of Article III. That’s a good start on Erie, but it gets you only so far.) They’re about the structure and genius of the Constitution, which they pervert. Any serious debate about the decisions would have to engage them at that level.

The AEI event will be a great start.

Michael S. Greve is a professor at George Mason University School of Law. From 2000 to August, 2012, Professor Greve was the John G. Searle Scholar at the American Enterprise Institute, where he remains a visiting scholar. Before coming to AEI, Professor Greve cofounded and, from 1989 to 2000, directed the Center for Individual Rights, a public interest law firm. He holds a Ph.D. and M.A. in government from Cornell University, and completed his undergraduate studies at the University of Hamburg. Currently, Professor Greve also chairs the board of the Competitive Enterprise Institute and is a frequent contributor to the Liberty Law Blog. Professor Greve has written extensively on many aspects of the American legal system. His publications include numerous law review articles and books, including most recently The Upside-Down Constitution (Harvard University Press, 2012). He has also written The Demise of Environmentalism in American Law (1996); Real Federalism: Why It Matters, How It Could Happen (1999); and Harm-less Lawsuits? What's Wrong With Consumer Class Actions (2005). He is the coeditor, with Richard A. Epstein, of Competition Laws in Conflict: Antitrust Jurisdiction in the Global Economy (2004) and Federal Preemption: States' Powers, National Interests (2007); and, with Michael Zoeller, of Citizenship in America and Europe: Beyond the Nation-State? (2009).

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Comments

  1. David Upham says

    Great piece. Footnote 4 served the progressive anthropology, that dethroned economic liberty in favor of alleged progress. That the majority was interested more in the progressive political project than a coherent jurisprudence is shows, inter alia, by the fact that the first exception to rational-basis review–laws implicating enumerated textual rights–was never applied to enumerated economic or property rights (Contracts Clause, Second Amendment) but was applied with abandon to the First Amendment (the rights of the mind).

  2. Michael J.Z. Mannheimer says

    Surely, you do not seriously contend that “everyone had thought for well over a century [that] `there is [a] federal general common law.’” That’s true only if you exclude Justices Holmes and Field, and their like-minded counterparts in academia, from your definition of “everyone.” It is also interesting that you say “for well over a century” instead of “since the founding.” This suggests that you do realize that the debate over whether there is a general, federal common law was one of the most contentious issues during the first twenty years of the Republic, and that the Jeffersonian Republican position that there was no such thing won out.

  3. says

    Federal common law routinely limits state tort law; consider the role of “implied” (i.e., imagined) preemption in drug and medical device claims, or of the due process clause restraints on punitive damages, both of which were woven entirely out of judicial cloth. The claim that Erie somehow promotes plaintiffs’ interests is belied by the claim — typically made most loudly by defendants — that plaintiffs receive more favorable treatment in state courts, and that plaintiffs deliberately try to avoid federal court.

    So what, exactly, would the content of this federal common law be? Do you have a principled view for that? Or is this just another veneer for dreaming up a way to preclude consumers from obtaining relief for injuries caused by tortfeasors?

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