The period between 1937 and 1980 was one of dramatic change in the development of the American Constitution. This period marks one of the most active in revising the constitutional text: the nation successfully amended the Constitution five times, and two other amendments fell only a few states short of adoption. However, the most substantial transformations in the development of the Constitution came not from these amendments, but from the Supreme Court's approach to interpreting the existing text. The year 1937 marked a clear shift away from the constitutional jurisprudence of the late nineteenth and early twentieth centuries on issues of economic regulation. Moreover, the Court under the leadership of Chief Justice Earl Warren ( 1891–1974 ), who presided from 1953 to 1969, issued a number of rulings expanding the civil rights and liberties of disadvantaged groups. Meanwhile, the Court expanded the regulatory powers of Congress and the civil rights of individuals as it struggled to find the appropriate degree of unilateral presidential power. Although the development of the Constitution during this period trended in a politically liberal direction, some developments during the 1970s led to modest conservative revisions.
The year 1937 was a watershed for the US Supreme Court. This transformation grew primarily out of the conflict between Democratic president Franklin Delano Roosevelt ( 1882–1945 1895 ), in which the Court ruled that Congress could not suppress manufacturing monopolies, and Hammer v. Dagenhart, 247 U.S. 251 ( 1918 ), in which the Court ruled that Congress could not ban the products of child labor. To the conservative Supreme Court majority of the early 1930s, activities like manufacturing and labor were purely intrastate economic activities and thus outside the scope of Congress's power to regulate interstate commerce, as enumerated in Article I, Section 8, of the Constitution. Likewise, beginning with Lochner v. New York, 198 U.S. 45 ( 1905 ), the Court held that the Fifth and Fourteenth Amendments’ due process clauses contained broad, implicit property rights, such as the right to make contracts, and legislative attempts to regulate the hours and wages of workers violated these rights.
These constitutional doctrines presented a considerable obstacle to the objectives of the New Deal. Unwilling to abandon these constitutional principles, the Court's conservatives struck down a number of economic regulations proposed by Roosevelt and passed by the Democratic Congress. However, many of these rulings were closely divided. For instance, Carter v. Carter Coal Co., 298 U.S. 238 ( 1936 ), and Railroad Retirement Board v. Alton Railroad Co., 295 U.S. 330 ( 1935 ), ruled provisions of the New Deal unconstitutional by five-to-four votes. These cases revealed two ideological voting blocs on the Supreme Court. Four justices—Pierce Butler ( 1866–1939 ), James Clark McReynolds ( 1862–1946 ), George Sutherland ( 1862–1942 ), and Willis Van Devanter ( 1859–1941 )—were hardline conservatives. On the other side, three justices—Louis Brandeis ( 1856–1941 ), Benjamin Cardozo ( 1870–1938 ), and Harlan Fiske Stone ( 1872–1946 )—were more supportive of the New Deal. The remaining two justices were split. Chief Justice Charles Evans Hughes ( 1862–1948 ) often sympathized with the Court's liberals; however, Justice Owen Roberts ( 1875–1955 ) sided with the conservatives, giving them a five-vote majority.
Roosevelt's battle with the Court lasted his entire first term in office. Robert A. Dahl ( 1957 ) noted that President Roosevelt had particularly bad luck during his first term in office when it came to his influence over the Court: while the average president at that time could expect to appoint two of his own Supreme Court nominees per presidential term, there were no vacancies on the Court during Roosevelt's first four years in office. However, in 1937, at the onset of his second turn, Roosevelt's luck turned around. Having been reelected by an even larger margin with even greater Democratic majorities in Congress, Roosevelt hoped he could use his political capital to change the direction of the Court. In 1937, the president proposed the Judicial Procedures Reform Bill, which would expand the size of the Court to create six new vacancies, thereby allowing Roosevelt to appoint a majority of his own choosing. In spite of the president's popularity, his proposed expansion of the Court faced significant political opposition.
Although Roosevelt's Court-packing plan never came to be, change did come to the Court in 1937. In West Coast Hotel v. Parrish, 300 U.S. 379 ( 1937 ), Justice Roberts joined the chief justice and the Court's liberals to uphold the constitutionality of minimum-wage laws, which previously in Adkins v. Children's Hospital, 261 U.S. 525 ( 1923 ), were considered to violate property rights. Two weeks after the Parrish decision, Roberts and the chief justice continued to side with the liberals in National Labor Relations Board v. Jones & Laughlin Steel Corporation, 301 U.S. 1 ( 1937 ), which upheld Congress's ability to regulate labor disputes as a legitimate exercise of its interstate commerce power.
There exists significant debate as to whether Roosevelt's Court-packing plan, and the desire to preserve a nine-member Supreme Court, motivated Roberts's apparent switch. Some, including Supreme Court Justice Felix Frankfurter ( 1882–1965 ), who began serving on the Court alongside Roberts in 1939, have gone so far as to argue that Roberts's jurisprudential position did not significantly change in 1937 ( Frankfurter 1955 ). However, Daniel E. Ho and Kevin M. Quinn's ( 2010 ) analysis of Supreme Court voting patterns suggests that Roberts did abruptly (and temporarily) alter his behavior. Ultimately, Roosevelt won four presidential elections and had a considerable impact on the composition of the Court. By the end of his second term in office, he had replaced three of the Court's four hardline conservatives, and by the time of Roosevelt's death, just months into his fourth term, he had appointed eight of the Court's nine sitting justices. The only justice not appointed by Roosevelt who sat on the Court at the beginning of 1945, coincidentally, was Justice Owen Roberts. Roosevelt also appointed more than 180 lower federal court judges.
Jones & Laughlin Steel clearly changed the direction of the Court's commerce clause jurisprudence. Prior to 1937, the Court relied on a constitutional test, established in E.C. Knight, which considered activities that indirectly affected interstate commerce to be outside the scope of federal legislative power. The Court in Jones & Laughlin Steel, however, argued that intrastate activities that have “a close and substantial relation to interstate commerce” (301 U.S. at 37) may be regulated under the commerce clause.
The Court applied this standard in United States v. Darby Lumber Co., 312 U.S. 100 ( 1941 ), to uphold the Fair Labor Standards Act of 1938. Among the many provisions in this law was a regulation of child labor, something which the Court earlier ruled to be outside the scope of Congress's constitutional powers in Hammer v. Dagenhart ( 1918 ) and Bailey v. Drexel Furniture Co., 259 U.S. 20 ( 1922
Shortly afterward, the Court upheld the Agricultural Adjustment Act in Wickard v. Filburn, 317 U.S. 111 ( 1942 ). In an effort to stabilize the price of wheat in the national market, the law placed limits on the amount of wheat that farmers could grow. Roscoe Filburn, an Ohio farmer, exceeded these limits, but argued that the excess was used for his own private, on-farm consumption, and thus did not enter the territory of interstate commerce subject to congressional regulation. The Court rejected this argument and instead asserted that private, noncommercial consumption could still have a substantial effect on the interstate demand for wheat. As such, the Court, which only six years earlier was willing to strike down a variety of clearly economic activity if it was arguably an intrastate activity, was now willing to uphold regulations on personal consumption if Congress determined it could have a detrimental effect on the national economy.
With Congress's commerce power established to be far-reaching, very little could be argued to be outside its scope. Two decades after Filburn, the commerce clause was invoked to legitimize not only economic regulation, but also social policy. In 1964, Congress passed and President Lyndon Johnson ( 1908–1973 ) signed the Civil Rights Act, which prohibited racial discrimination by private businesses that served the general public. Congress was in a tricky spot finding the authority to enact the legislation, since the Court had interpreted the Fourteenth Amendment narrowly in the Civil Rights Cases, 109 U.S. 3 ( 1883 ), and struck down a similar civil rights law passed in 1875. As such, Congress could not rely upon the provision of the Constitution intended to protect the rights of freed slaves to justify its authority to pass the Civil Rights Act.
Instead, Congress argued that racial discrimination was substantially related to interstate commerce. In a pair of cases, the Supreme Court agreed. In one case, Heart of Atlanta Motel Inc. v. United States, 379 U.S. 241 ( 1964 ), the connection to interstate commerce was apparent: the plaintiff was engaged in the interstate travel industry. The link to interstate commerce was less obvious in its companion case, Katzenbach v. McClung, 379 U.S. 294 ( 1964 ). There, the plaintiff was a local restaurant, serving local patrons and buying from local providers. However, the Court, following the standard articulated in Carolene Products, deferred to Congress's judgment that racial discrimination in local restaurants may indirectly but substantially affect the interstate economy.
After Wickard, Heart of Atlanta Motel, and McClung, it appeared that Congress's power under the commerce clause had no limits other than the electoral process itself. However, hints of change appeared in the 1970s. Elected in 1968, President Richard Nixon ( 1913–1994 ), a Republican opposed to the broad federal authority, appointed four justices to the Supreme Court. All four Nixon appointees joined the Court's majority in National League of Cities v. Usery, 426 U.S. 833 ( 1976 ), the first ruling since 1936 to strike down a piece of federal legislation for being outside the scope of the commerce power. In that case, the Court ruled that the Congress could not regulate the wages and working hours of state employees because the Tenth Amendment insulated state functions from federal regulation. Thus, while national power remained broad throughout this era, Usery served as a beacon of hope for conservatives who wanted to restore constitutional limits.
While the scope of congressional power clearly grew between 1937 and 1980, the development of presidential power during this period was more nuanced. Prior to 1937, the Court was more deferential to the president, at least on matters of foreign policy, than it was to Congress. For instance, in United States v. Curtiss-Wright Export Corp., 299 U.S. 304 ( 1936 ), Justice Sutherland, one of the Court's conservative opponents to the New Deal, argued that the president was the “sole organ of the federal government in the field of international relations” (299 U.S. at 320) and, as such, had considerable leeway to act unilaterally.
Throughout the twentieth century, the United States continued to be a major player in world affairs, solidifying the American president as a key international figure. As such, constitutional development sought both to define the limits and preserve the integrity of the institution. A number of major political and international events shaped this development.
First, Roosevelt became the first president ever to serve more than two terms in office. Though there had been an informal precedent that presidents should step down after eight years in office, the economic and military crises of the 1930s and 1940s compelled Roosevelt to break with tradition. As Roosevelt was running for his fourth term in 1944, his Republican opponent, Thomas Dewey ( 1902–1971 ), publicly supported a constitutional amendment that would limit future presidents to two terms in office. Dewey argued that “four terms, or sixteen years, is the most dangerous threat to our freedom ever proposed” ( Jordan 2011, 290
Shortly thereafter, a perfect storm of domestic and international turmoil created a conflict that led the Supreme Court to further define the limits of presidential power. While the United States was involved in the Korean War, at home the United Steel Workers of America were threatening to go on strike. Worried that a steel strike would interfere with America's military efforts abroad, but not wanting to betray his supporters in organized labor by invoking the Taft-Hartley Act to break up the strike, President Harry Truman ( 1884–1972 ) unilaterally ordered the seizure of the steel industry. In Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 ( 1952 ), the Supreme Court ruled that this action was unconstitutional. In an influential concurring opinion, Justice Robert Jackson ( 1892–1954 ) divided executive-legislative relations into three categories to define the limits of unilateral presidential power. According to Jackson, presidential action is most likely to be found constitutional when “the President acts pursuant to an express or implied authorization of Congress” (343 U.S. at 635), and it is least likely to be found constitutional when “the president takes measures incompatible withthe expressed or implied will of Congress” (343 U.S. at 637). However, Jackson recognized that, in between these two categories, there lies a gray area in which “the President acts in absence of either a congressional grant or denial of authority” (343 U.S. at 637), where unilateral executive action may be constitutional. Thus, while Truman's behavior was found to go beyond constitutional limits, the Court in Youngstown Sheet & Tube also affirmed broad areas of presidential power.
In 1963, the nation suffered a great tragedy when President John F. Kennedy ( 1917–1963 ) was assassinated. Recognizing the institutional importance of the modern presidency, Congress proposed a constitutional amendment to better define succession to the presidency. This amendment affirmed that, in the event that the president leaves office or dies, the vice president becomes president, not “acting president” —a precedent that was informally established when Vice President John Tyler ( 1790–1862 ) assumed the presidency after President William Henry Harrison's death in 1841. It also outlined procedures for filling vice presidential vacancies and for temporarily removing the president when he is unable to discharge his powers and duties. This proposal was approved by Congress in 1965 and became the Twenty-Fifth Amendment in 1967.
However, it is important to note that these efforts by the Court and the amendment process to more clearly define presidential power occurred in the context of a political environment demanding a stronger presidency. In the 1930s and 1940s, the Democratic majority in Congress voted to delegate unprecedented levels of power to the Roosevelt administration—first to combat the Great Depression, then to fight World War II. After Roosevelt's presidency, the president's allies continued to control Congress, thereby minimizing political conflicts that might emerge out of the unilateral exercise of presidential power. As such, critics of the modern presidency, like Arthur M. Schlesinger Jr. ( 1973 ), argued that presidential power had expanded far beyond what the Framers of the Constitution intended. Regardless, political pressures outside the judicial arena had driven it there. Thus, the legal battles over the limits of executive power can fairly be seen as a structuring, rather than a slowing, of the rising modern presidency.
The battle over the limits of presidential power reached a turning point during the Nixon administration. Historically, presidents had typically been of the same political party as their contemporaneous majorities in Congress. Nixon's presidency began the socalled era of divided government, in which the majority of one or both houses of Congress is not controlled by the president's party. This, combined with the controversy over the ongoing Vietnam War, factored into Congress passing the War Powers Resolution of 1973 over Nixon's veto. With this law, Congress sought to change the constitutional assumption that its silence on matters of foreign policy should be interpreted as tacit support for the president's military actions. Nixon raised several constitutional objections to the law, but there has yet to be an opportunity to challenge it in court, although every president since Nixon has challenged the validity of the law in practice.
The Watergate scandal also brought forth new definitions of the limits of executive power. During the investigation, it came to light that Nixon had taped conversations in the Oval Office. The tapes were subpoenaed, but Nixon claimed executive privilege—a custom that correspondences within the executive branch not be subject to review by the other branches of government. In United States v. Nixon, 418 U.S. 683 ( 1974 ), the Court, for the first time, agreed that the Constitution implicitly protected executive privilege, but it also argued that the privilege was not absolute and could not impede the functions of other branches, such as the judiciary's criminal investigation. As such, Nixon was asked to turn over the tapes, which incriminated him in the scandal and forced him to resign. Thus, the Court case might have been a net institutional victory for the presidency, but it was a loss for the sitting president.
The middle of the twentieth century was a historic period in the expansion of individual constitutional rights. While the Court shied away from the broad interpretation of property rights of the pre-1937 era, individual rights and civil liberties were elevated. In Carolene Products, the Court made it clear that economic regulations would be held only to a rational basis review. However, in footnote 4 of that decision, the Court held legislatures to a higher standard for laws that (1) appear to contradict specific limitations outlined in the Bill of Rights, (2) restrict political processes, and (3) are prejudiced against “discrete and insular minorities.” This formed the basis of strict scrutiny—a standard of review far more stringent than rational basis—for civil rights and civil liberties cases.
The bulk of the expansion of rights occurred during the 1950s and 1960s under the leadership of Chief Justice Earl Warren. During his tenure ( 1953–1969 ), the Court handed down landmark decisions in the areas of racial civil rights and voting rights, as well as the rights of the accused, free speech, religious freedoms, and reproductive rights. For instance, Brown v. Board of Education, 347 U.S. 483 ( 1954 ), held that racial segregation in public schools was unconstitutional; South Carolina v. Katzenbach, 383 U.S. 301 ( 1966 ), held that the federal government could prevent racial discrimination in elections as provided by the Voting Rights Act; Miranda v. Arizona, 384 U.S. 436 ( 1966 ), held that criminal suspects must be informed of their Fifth and Sixth Amendment rights before questioning; Yates v. United States, 354 U.S. 298 ( 1957 ), held that politically subversive speech was protected by the First Amendment; Engel v. Vitale, 370 U.S. 421 ( 1962 ), held that government officials could not constitutionally institute prayer in public schools; and Griswold v. Connecticut, 381 U.S. 479 ( 1965 ), held that the Constitution implies a right to privacy and that right extends to sexual privacy.
As the rights of traditionally underprivileged groups were finding new constitutional protections, women's groups turned to the constitution to combat gender discrimination. In 1972, Congress voted to propose the Equal Rights Amendment (ERA), which declared, “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” Though many state legislatures rapidly voted to ratify the ERA, it remained three states shy of the necessary thirtyeight states when the congressionally imposed ratification deadline was reached in 1979. However, a number of key Supreme Court decisions utilized the Fourteenth Amendment to expand women's rights and gender equality. For instance, in Roe v. Wade, 410 U.S. 113 ( 1973 ), and Doe v. Bolton, 410 U.S. 179 ( 1973 ), the Court ruled that the right to privacy, implied by the Fourteenth Amendment, includes the decision to terminate a pregnancy. Moreover, in Craig v. Boren, 429 U.S. 190 ( 1976 ), the Court ruled that cases involving gender discrimination should be subject to a new intermediate level of scrutiny. This fell short of applying strict scrutiny to women's rights, as many liberals hoped the Court would, but made it much harder to argue that gender-based classifications in law were constitutionally permissible than it had been under rational basis review.
Voting rights also saw new levels of constitutional protections. Not only did the Court read the Fifteenth Amendment broadly enough to uphold the far-reaching Voting Rights Act of 1965, but the Constitution was amended three times to expand the right to vote. In 1960, Congress proposed what would become the Twenty-Third Amendment, ratified in 1961, which gave residents of the District of Columbia the right to vote in presidential elections. In 1962, Congress voted to propose an amendment prohibiting poll taxes for federal elections. Poll taxes were widely used as a tool of racial discrimination in the Jim Crow South, and the support for a constitutional amendment to ban it grew out of the larger civil rights movement of the 1960s. It became the Twenty-Fourth Amendment in 1964. Finally, in 1971, Congress proposed and the states ratified the Twenty-Sixth Amendment, which nationalized the minimum voting age at eighteen years. The rationale at the time was that eighteen-year-olds should be allowed to vote if they were being drafted to fight in Vietnam.
However, this expansion of civil rights and liberties was, in many ways, a bottom-up rather than a top-down phenomenon. Charles R. Epp ( 1998 ) largely credits the mobilization of legal advocates, rather than judges, with the success of the mid-twentieth century “rights revolution.” Additionally, Gerald N. Rosenberg ( 2008 ) has famously argued that the Court can do little on its own to produce social change, particularly in the area of civil rights. For example, Rosenberg contends that it was not rulings like Brown v. Board of Education that toppled Jim Crow but rather the Civil Rights Act, which was the product of a broader social movement that occurred independently of any legal victories. Although others, such as Michael W. McCann ( 1992 ) and Matthew E. K. Hall ( 2011 ), have argued that Rosenberg unfairly downplays the role of the judiciary in effecting change, the fact remains that the Warren Court was at the very least making its landmark decisions concurrent with a widespread social and political movement that placed greater importance on civil rights and individual liberties.
Although the Warren Court saw an unprecedented expansion of individual rights and liberties, the period closed with some backtracking on this trend. President Nixon, an opponent of many of the Warren Court's decisions, appointed four more conservatively inclined justices to the Supreme Court, notably Warren E. Burger ( 1907–1995 ) and William Rehnquist ( 1924–2005 ), both of whom later became chief justices. First Burger and then Rehnquist led the Court for a total of thirty-six years ( 1969–2005 ). In response to the Nixon appointments, Justice William Brennan ( 1906–1997 ), one of the Court's more liberal justices, argued that rights advocates ought to bypass the more conservative Supreme Court and send their claims to state supreme courts ( Brennan 1977 ). At the close of this era, Justice Hans Linde of the Oregon Supreme Court picked up this challenge in an important journal article ( Linde 1980 ). In subsequent decades, as the US Supreme Court became more conservative or circumspect in its rights decisions, nearly twenty liberal state supreme courts would use the Brennan-Linde doctrine of adequate and independent state grounds to raise the federal floor of rights protections in their states.
SEE ALSO American Constitutional Development from 1868 to 1937 ; American Constitutional Development Since 1980 ; Great Society ; New Deal ; Warren, Earl .
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Epp, Charles R. The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective. Chicago: University of Chicago Press, 1998.
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Linde, Hans A. “First Things First: Rediscovering the States’ Bills of Rights.” University of Baltimore Law Review 9, no. 3 (1980): 379–96.
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Rosenberg, Gerald N. The Hollow Hope: Can Courts Bring about Social Change? 2nd ed. Chicago: University of Chicago Press, 2008.
Schlesinger, Arthur M., Jr. The Imperial Presidency. Boston: Houghton Mifflin Company, 2004. Originally published 1973.
Michael F. Salamone
School of Politics, Philosophy, and Public Affairs Washington State University