Deaths Greatly Exaggerated

Abstract

In 1940, in the inaugural issue of its Bill of Rights Review, the American Bar Association's Bill of Rights Committee expressed its conviction "that a distinct field of law-that of civil rights-[was] emerging." From the standpoint of lawyers, judges, and scholars looking forward from that moment, the contours of the new field were largely unknown. In large part, that uncertainty was due to the Supreme Court's dismantling of the dominant doctrinal framework governing the relationship between individuals and the state in the 1930s. James Henretta alternately labels what emerged out of the 1930s "welfare-state liberalism," "New Deal Statism," and the "Servile State." Like many historians and legal scholars, Henretta implies that the basic contours of the modem American state were set by the end of the New Deal's constitutional revolution. He also suggests that the post-1937 American state is largely characterized by centralized, large-scale bureaucratic regulation with little room for individual rights. A look beyond the late 1930s, and beyond Hughes's tenure as chief justice, casts doubt on both of these conclusions. The New Deal revolution initiated a period of experimentation with the relationship between individuals and their governments that ended only with the Supreme Court's decision in Brown v. Board of Education in 1954. No coherent model of individual rights existed during the 1940s, as legal doctrine provided no definitive answer. If one thing was clear, it was that the future of American liberalism, and the future of constitutionally protected individual rights, was anything but clear.