State Constitutional Law in the New Deal Period

Publication Year


Journal Article

The Great Depression and the advent of the New Deal stimulated one of the most important constitutional transformations in American history.  The "constitutional revolution" of 1937 remade federal constitutional law in areas ranging from federalism and separation of powers to individual rights and state police powers. Remarkably little work has bee done on the history of the development of state constitutional law and the politics of the exercise of judicial review in the states. This article examines the exercise of judicial review by high courts in a sample of states between 1925 and 1945. This was a period of remarkable conflict and change at the federal level, but state-level judicial review shows little evidence of the type of struggle that roiled national politics.  There was far more continuity and stability in state constitutional law, even as state governments also struggled to deal with economic crisis and liberal Democrats rose to power in state capitals. State courts were not simply deferential to the work of the state legislatures, but the judicial veto raised few insuperable obstacles to reform at the state level. The struggles surrounding the Hughes Court appear increasingly idiosyncratic when placed in a broader context.

Rutgers Law Journal