Constitutional False Positives and the Populist Moment

68 Pages Posted: 2 Mar 2005 Last revised: 6 May 2014

Gerard N. Magliocca

Indiana University Robert H. McKinney School of Law

Date Written: 2006

Abstract

This Article examines how the failure of a broad and robust movement for constitutional change can displace the law in the opposite direction. The possibility of this legal false positive is a crucial missing link that explains why doctrine shifted so dramatically in the 1890s during the Populist Party's doomed attempt to achieve power. With its sharp attack on established principles and impressive popular support, the Populists triggered equally strong resistance from conservatives in the White House and the Supreme Court. That resistance was so intense that it warped the fabric of the law on issues including the role of the Commerce Clause, the meaning of the Fourteenth Amendment, and the incorporation of the Bill of Rights against the States. With this background, many of the great landmarks from this era and the modern interpretive assumptions drawn from them appear in a new light.

Keywords: populism

Suggested Citation

Magliocca, Gerard N., Constitutional False Positives and the Populist Moment (2006). Notre Dame Law Review 81, no. 3 (2006): 821-888. Available at SSRN: https://ssrn.com/abstract=675857

Gerard N. Magliocca (Contact Author)

Indiana University Robert H. McKinney School of Law ( email )

530 West New York Street
Indianapolis, IN 46202
United States
317-278-4792 (Phone)

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