Monday, January 16, 2017

"Important Shifts in Constitutional Doctrines"

Mark Tushnet

On July 10, 1939, Frank Hogan, the President of the American Bar Association, spoke at the ABA's annual meeting in San Francisco. He was disturbed by the Supreme Court's recent decisions. The phrase "shifts in constitutional doctrine," he said, was "but a phrase which describes the abolition of stare decisis; the replacing of stability by instability, the substitution of uncertainty for certainty, and of plenary power for limitations upon power."

Noting that "many of the historic dissents of Holmes and Brandeis have now been transferred from the minority to the majority side of the Court," he wondered whether "the day must come when the future chroniclers of our judicial history, in according unstinted praise to the rugged sturdiness of McReynolds and Butler, shown in their courageous efforts to preserve landmark after landmark of the law, will likewise record that their ringing dissents in this day became rules of decision in a later generation."

Is that time (nearly) upon us? I suppose it would be difficult to rehabilitate McReynolds's reputation as a person, though Justice Douglas, among others, had some nice things to say about him as a person (and he was apparently quite nice to the Court's staff, though not his personal staff). And the writing styles of Butler and, especially, McReynolds are uncongenial to modern readers in ways that Holmes's and Brandeis's dissents were not, either to readers in 1939 or to readers today. Still, what about substance?

One thing that Hogan did as ABA President was to name a Committee on the Bill of Rights, which filed an important amicus brief on behalf of the CIO in Hague v. CIO -- perhaps because the ABA's leaders saw in the petty local tyranny of Frank "I Am the Law" Hague the risks of executive excesses that they also feared -- or, as they saw it, experienced -- with Franklin Roosevelt. (Incidentally, the precise context of Hague's "I am the law" statement makes it somewhat less damning than initially appears.)

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