The New Deal Lawyers

Belknap, Michal R.

doi:10.2307/1901273

Cited by 2 publications

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“…80 The full story of the New Deal and the Court-and especially the "constitutional revolution" that so fundamentally altered the inherited "Lochner era" and interwar doctrines of contract, police-power, and separation-ofpowers law-has been told many times (albeit in divergent interpretive versions) by eminent scholars, and there is little purpose in reviewing that aspect of the property-rights issue here. 81 In addition, however, to the Court's responses to those questions, largely raised by congressional legislation and actions of the Executive, there was another dimension of judicial response to which I do want to give brief notice. This was the way in which the Justices sought to work out what might be termed a "generic" emergency-power doctrine that would be applicable generally, at least in peacetime, and that could be a reliable and consistent check against abuse of property rights.…”

Section: The New Deal and After: A Transformed Constitutional Ordermentioning

confidence: 99%

Property Rights versus "Public Necessity": A Perspective on Emergency Powers and the Supreme Court

Scheiber

2003

J Supreme Court History

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Chief Justice Earl Warren once wrote that a free government is continuously “on trial for its life.”1 And never are the foundations of constitutional liberties more fragile than in periods of emergency, when government invokes extraordinary powers. Invariably, emergency powers involve the immediate curtailment of some rights; at their extreme in martial law, they can warrant an entire suspension of normal civilian governmental functions, as well as full suspension of due‐process guarantees.2 Once the constitutional fabric has been stretched to accommodate urgent public necessity in such situations, moreover, restoration to its earlier condition is not automatic or inevitable. On the contrary, as Justice Robert Jackson presciently warned, once the Supreme Court validates as constitutional the abridgement of essential rights during an emergency—and especially when the Court does so in relation to “the vague, undefined and undefinable ‘war power’”—any principle that is thus articulated to justify such emergency action “then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”3

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Section: The New Deal and After: A Transformed Constitutional Ordermentioning

confidence: 99%

Property Rights versus "Public Necessity": A Perspective on Emergency Powers and the Supreme Court

Scheiber

2003

J Supreme Court History

View full text Add to dashboard Cite

show abstract

Section: The New Deal and After: A Transformed Constitutional Ordermentioning

confidence: 99%

Property Rights versus “Public Necessity”: A Perspective on Emergency Powers and the Supreme Court

Scheiber¹

2003

Journal of Supreme Court History

View full text Add to dashboard Cite

Chief Justice Earl Warren once wrote that a free government is continuously "on trial for its life." 1 And never are the foundations of constitutional liberties more fragile than in periods of emergency, when government invokes extraordinary powers. Invariably, emergency powers involve the immediate curtailment of some rights; at their extreme in martial law, they can warrant an entire suspension of normal civilian governmental functions, as well as full suspension of dueprocess guarantees. 2 Once the constitutional fabric has been stretched to accommodate urgent public necessity in such situations, moreover, restoration to its earlier condition is not automatic or inevitable. On the contrary, as Justice Robert Jackson presciently warned, once the Supreme Court validates as constitutional the abridgement of essential rights during an emergency-and especially when the Court does so in relation to "the vague, undefined and undefinable 'war power"'-any principle that is thus articulated to justify such emergency action "then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need." 3

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The New Deal Lawyers

Cited by 2 publications

References 0 publications

Property Rights versus "Public Necessity": A Perspective on Emergency Powers and the Supreme Court

Property Rights versus "Public Necessity": A Perspective on Emergency Powers and the Supreme Court

Property Rights versus “Public Necessity”: A Perspective on Emergency Powers and the Supreme Court

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