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The Judiciary & the Welfare State 1900-1942

The Judiciary & the Welfare State 1900-1942. Economic Regulation. Sources of Federal Power. Commerce Clause Tax Power Spending Power Implied Powers Necessary & Proper Clause [Art. I, §8, ¶18] Treaty Power. Sources of State Power. Sovereignty Reserved Powers

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The Judiciary & the Welfare State 1900-1942

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  1. The Judiciary & the Welfare State 1900-1942 Economic Regulation

  2. Sources of Federal Power • Commerce Clause • Tax Power • Spending Power • Implied Powers • Necessary & Proper Clause [Art. I, §8, ¶18] • Treaty Power

  3. Sources of State Power • Sovereignty • Reserved Powers • “Powers not delegated . . . are reserved to the States respectively, or to the people.” [10th Amendment]

  4. MEMBERSHIP OF THE U.S. SUPREME COURT1932-1936 *The fearsome foursome of substantive due process–a remarkably consistent voting bloc: Willis Van DeVanter (Republican, Wyoming, Chair of Republican National Committee, Taft) James C. McReynolds (Democrat, Tennessee, U.S. Attorney General, Wilson) George Sutherland (Republican, Utah, state senator, Harding) Pierce Butler (Democrat, Minnesota, railroad attorney, Harding)

  5. THE SUPREME COURT'S RESPONSE TO ECONOMIC REGULATIONBEFORE AND AFTER THE SWITCH IN TIME THAT SAVED NINE[Cases won by the government, i.e., where regulation was sustained, are printed in bold blue type.]

  6. Dual Federalism • The Constitution is a compact among sovereign states, which having ceded a portion of their sovereignty to the national government, have retained the rest. • To the powers of the national government and of the states are mutually exclusive, conflicting, and antagonistic. What belongs to the nation is forbidden to the states and vice versa. • The layer cake metaphor for federalism. • Narrow interpretation enumerated powers including Necessary and Proper. • Broad interpretation of the Tenth Amendment. • 1835-1864 (Taney Court), 1895-1937. • Modest revival in 1970s and 1990s.

  7. Rise & Fall of the Warren Court 1953 - 1969

  8. Preferred Freedoms • All constitutional rights are not equal. • Rights of speech, press, association, and assembly are so fundamental to democratic processes that any legislation infringing them must be accorded strict scrutiny [judicial activism]. • Preference for the individual over the government when government action intrudes on fundamental rights. • Particular solicitude toward (a) individual political rights, (b) the processes of democratic government, or (c) the well-being of persistent minorities. • Fundamental rights don't include the economic rights, which were the darlings of the Lochner Court.

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