Abstract
The “old” activism that flowered in the Lochner era is dissected and analyzed. A number of cases are briefly discussed, but the focus is on the ideas that underlay the judicial decisions. The retreat of the old activism during the New Deal is examined, while giving ample attention to the seedling of Warren Court activism, the famous footnote four from the Caroline Products case. As with the old activism, the decisions of the Warren Court are surveyed, but again with an emphasis on ideas regarding judicial philosophy. The marriage between activist judicial philosophy and liberal policy preferences that dominated the legal academy is duly noted.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Preview
Unable to display preview. Download preview PDF.
Notes
See John V. Orth, Due Process of Law: A Brief History (Lawrence: University Press of Kansas, 2003).
See Mark Tushnet, “The Warren Court as History: An Interpretation,” in Mark Tushnet, ed., The Warren Court in Political and Historical Perspective (Charlottesville: University of Virginia Press, 1993), chap. 1.
Laura Kalman, The Strange Career of Legal Liberalism (New Haven, CT: Yale University Press, 1996), 46.
Vincent Blasi, ed., The Burger Court: The Constitutional Counter-Revolution that Wasn’t (New Haven, CT: Yale University Press, 1983).
Earl Maltz, The Chief Justiceship of Warren Burger, 1969–1986 (Columbia: University of South Carolina Press, 2000).
Frank Michelman, “Constitutional Welfare Rights and a Theory of Justice,” in Norman Daniels, ed., Reading Rawls: Critical Studies on Rawls’ A Theory of Justice (New York: Basic Books, 1975).
John Rawls, A Theory of Justice (New York: Columbia University Press, 1971).
Ronald Dworkin, Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1977), 149.
Ronald Dworkin, A Matter of Principle (Cambridge, MA: Harvard University Press, 1985).
In general, see Freedom’s Law: The Moral Reading of the American Constitution (Cambridge, MA: Harvard University Press, 1996).
Lawrence Tribe, American Constitutional Law (Mineola, NY: Foundation Press, 1978). Quoted in Kalman, p. 62.
Copyright information
© 2015 Jerold Waltman
About this chapter
Cite this chapter
Waltman, J. (2015). How We Got Here, Part 1: From the Old Activism to the Warren Court. In: Principled Judicial Restraint: A Case Against Activism. Palgrave Pivot, New York. https://doi.org/10.1057/9781137486967_2
Download citation
DOI: https://doi.org/10.1057/9781137486967_2
Publisher Name: Palgrave Pivot, New York
Print ISBN: 978-1-349-69647-5
Online ISBN: 978-1-137-48696-7
eBook Packages: Palgrave Political Science CollectionPolitical Science and International Studies (R0)