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

3. 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.] NATIONAL REGULATIONSTATE REGULATION pre-switch U.S. v. E.C. Knight (1895) Champion v. Ames (1903) McCray v. U.S. (1904) Shreveport Rate Case (1914) Hammer v. Dagenhart (1918) Stafford v. Wallace (1922) Bailey v. Drexel Furniture (1922) Carter v. Carter Coal (1936) U.S. v. Butler (1936) Slaughterhouse Cases (1873) Munn v. Illinois (1877) Allgeyer v. Louisiana (1897) Jacobson v. Massachusetts (1905) Lochner v. New York (1905) Muller v. Oregon (1908) Burns Baking Company v. Bryan (1924) Home Building & Loan v. Blaisdell (1934) post-switch Steward Machine Co. v. Davis (1937) N.L.R.B. v. Jones & Laughlin (1937) U.S. v. Darby (1941) Wickard v. Filburn (1942) West Coast Hotel v. Parrish (1937) Edwards v. California (1941) [state lost, but strong view of national commerce power prevailed]

4. 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.

5. MEMBERSHIP OF THE U.S. SUPREME COURT 1932-1937 Conservative*SwingLiberal Van DeVanter (R) 1910- 1937 McReynolds (D) 1914-1940 Sutherland (R) 1922-1938 Butler (D) 1922-1939 Hughes, C.J. (R) 1930- 1941 Roberts (R) 1930-1945 Brandeis (R) 1916-1939 Stone (R) 1925-1941 Cardozo (D) 1932-1938 *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)

6. 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.] NATIONAL REGULATIONSTATE REGULATION pre-switch U.S. v. E.C. Knight (1895) Champion v. Ames (1903) McCray v. U.S. (1904) Shreveport Rate Case (1914) Hammer v. Dagenhart (1918) Stafford v. Wallace (1922) Bailey v. Drexel Furniture (1922) Carter v. Carter Coal (1936) U.S. v. Butler (1936) Slaughterhouse Cases (1873) Munn v. Illinois (1877) Allgeyer v. Louisiana (1897) Jacobson v. Massachusetts (1905) Lochner v. New York (1905) Muller v. Oregon (1908) Burns Baking Company v. Bryan (1924) Home Building & Loan v. Blaisdell (1934) post-switch Steward Machine Co. v. Davis (1937) N.L.R.B. v. Jones & Laughlin (1937) U.S. v. Darby (1941) Wickard v. Filburn (1942) West Coast Hotel v. Parrish (1937) Edwards v. California (1941) [state lost, but strong view of national commerce power prevailed]

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

9. 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.