Copyright (c) 1998 Brooklyn Law School
Brooklyn Law Review
ARTICLE: THE SUPREME COURT AND NEW CONSTITUTIONAL ERAS *
* (c) 1998 Stephen C. Halpern & Charles M. Lamb. All Rights Reserved.
64 Brooklyn L. Rev. 1183
Stephen C. Halpern + & Charles M. Lamb ++
The United States Supreme Court has changed its constitutional doctrines in fundamental ways over the course of American history. 1 The Court's jurisprudence on civil rights and civil liberties, for example, has been very different since the Great Depression than it was in prior decades. 2 Although constitutional scholars analyze vital doctrinal changes that have emerged over the past two hundred years, they may not fully understand why and how these changes occurred. The purpose of this Article is to examine that question by exploring the concept of constitutional eras in the United States and the process by which transitions occur from one constitutional era to another. In pursuing that objective, we stand on the shoulders of an eminent constitutional scholar of the 1950s and 1960s: Robert G. McCloskey of Harvard University.
McCloskey first discussed the notion of constitutional eras in his 1960 classic, The American Supreme Court, 3 but he did not fully elaborate on the factors and processes associated with the movement from one constitutional era to the next. 4 We first examine McCloskey's work, filling in gaps in his thinking and drawing generalizations from his observations. Then we press beyond McCloskey, suggesting clarifications, refinements, and additions that lead to a model of the process by which the nation and the Supreme Court move to a new constitutional era. Our model emphasizes that transitions to new constitutional eras are linked to durable restructurings of three kinds of power-governmental, constitutional, and political. Those restructurings typically have followed ...
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