The Legacy of Anglo-American Textualism

Franklin Delano Roosevelt's court-packing plan of 1937 and the "switch in time that saved nine" animate central questions of law, politics, and history Did Supreme Court Justice Roberts abruptly switch votes in 1937 to avert a showdown with Roosevelt? Scholars disagree vigorously about whether Roberts's transformation was gradual and anticipated or abrupt and unexpected Using newly collected data of votes from 1931-1940 terms, we contribute to the historical understanding of this episode by providing the first quantitative evidence of Roberts's transformation Applying modern measurement methods, we show that Roberts shifted sharply to the left in the 1936 term The shift appears sudden and temporary The duration of Roberts's shift, however, is in many ways irrelevant, as the long-term transformation of the Court is overwhelmingly attributable to Roosevelt's appointees

Did a Switch in Time Save Nine

1. A confirmation process worth celebrating 2. How it works: the nuts and bolts of the confirmation process 3. Public opinion and precedent at confirmation hearings 4. An issue-by-issue look at the hearings 5. The discussion of precedent at the hearings 6. Confirmation conditions 7. The 104th justice 8. Currently contested constitutional questions 9. Our Constitution.

Supreme Court Confirmation Hearings and Constitutional Change

This thesis takes a ‘law in context’ and ‘history of ideas’ approach to examining the emergence, elaboration and evolution of ‘economic and social rights’ as human rights, including how and why they came to be included in the international human rights regime. The central thesis is that economic and social rights have been fundamentally shaped by the economic context and economic theories of the times in which they emerged and were elaborated. I have argued these rights emerged, and were elaborated, in times of economic crises, as part of a (liberal) challenge to liberal legal and economic orthodoxies. This thesis suggests that one important strand of the history of human rights lies in struggles within ‘western’ liberalism over rights, freedom and the role of the state in the economy. Challenging other histories of human rights, the first part of this thesis shows how the phrase ‘human rights’ emerged as part of a challenge to ‘property rights’ and laissez-faire constitutionalism in the United States during the Great Depression, shaped by the theories of the legal realists, institutional economists and later by economic Keynesianism. The second part, drawing on newly discovered archival material, charts an untold story of how these US conceptions profoundly influenced the nature and scope of ‘economic and social rights’ during the drafting of the 1948 Universal Declaration of Human Rights (UDHR) and the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR). The third part shows how economic and social rights were later elaborated by the UN Committee on ESCR, again in the context of economic crisis and again as a challenge to economic (neo)liberalism, this time shaped by heterodox economist, Amartya Sen. However, some of the key theoretical insights that shaped these rights during the Great Depression have been lost, in ways that circumscribe their power to challenge economic (neo)liberalism and the ‘constitutionalisation’ of austerity in our own Great Recession.

Human rights from the Great Depression to the Great Recession: the United States, economic liberalism and the shaping of economic and social rights in international law

This article surveys the debate between “progressives” and “revisionists” about the Constitution and constitutional interpretation during the late nineteenth and early twentieth centuries. Contemporary revisionist scholarship assumes that its victory over progressive scholarship is complete. The article suggests otherwise. First, it summarizes the revisionists’ achievements. Second, in an attempt to improve the quality of the debate, it maintains that “revisionist” and “progressive” legal historians undermine their cases by using words like “progressive,” “Gilded Age,” and “Jacksonian,” and that “revisionist” is not an enlightening term, either. Third, it contends that revisionists have made straw men out of the progressives, whose diversity and contributions they ignore, and that they have shown a lack of empathy for the circumstances facing the progressives. At considerable risk, progressives called attention to the relevance of political calculation, economic self-interest, and biography to understanding the Constitution, constitutional interpretation, and judicial power. The article also observes that revisionists have not yet won the day and that there are still “progressive” holdouts in the legal academy and history departments. Finally, it argues that like the work of “revisionists,” the scholarship of the “progressives”—particularly if we rechristen both—still has something to teach us and that it is time to abandon the familiar dialectic of thesis and antithesis and turn to synthesis.

https://www.cambridge.org/core/services/aop-cambridge-core/content/view/631828156E061DC790D1BBADAF3FC0CB/S0738248018000421a.pdf/div-class-title-in-defense-of-progressive-legal-historiography-div.pdf

Laura Kalman

Papers

The Constitution, the Supreme Court, and the New Deal