April 25, 1938 – The New Deal Constitution’s Birthday

April 10th, 2013

I previously noted the fact that two seminal New Deal cases were decided on the same day, April 25, 1938. At the American Enterprise Institute, Michael Greve has marked this day as the birthday of the New Deal Constitution.

The New Deal Constitution—the Upside-Down Constitution under which we live—was ratified on April 25, 1938. On that day, President Roosevelt’s Supreme Court handed down back-to-back decisions in United States v. Carolene Products and in Erie Railroad v. Tompkins. . . .

Carolene Products announced that federal legislation would henceforth be subject to “rational basis” review—that is, none at all. (The exception, the Court said in a famous footnote, are statutes that threaten to trample on “discrete and insular” minorities or “specific” Bill of Rights protections.) Erie Railroad famously declared that contrary to what everyone had thought for well over a century, “there is no federal general common law.” Henceforth, federal courts would decide “diversity” cases among parties from different states under the law of the state in which they sit—meaning, to all intents, the plaintiff’s home state. If our exotic tort law doctrines and the “litigation explosion” seem puzzling, puzzle no more: they are the (quite probably, intended) consequence of Erie.

AEI is hosting a brilliant event with some top-notch speakers on April 25. Check it out.