The New Deal and the Burger Court: The Significance of United States v. Chiarella, 57 Texas Law Review 965 (1979)
The current energy crisis, product of a single world market, signifies the destruction of economic and political frontiers behind which American society developed in distinctive ways. What has distinguished American society is the wide scope it affords to individual variations from social norms. The rapidity of economic growth in post-Civil War America was fueled by the immense personal fortunes made possible by this tolerance of individualism. The disparities in income resulting from such fortunes, however, were accepted by the society because the future brought not only more wealth, but also a wider economic gap between the United States and the other nations with which it compared itself. It is the end of that state of affairs that is signified by the global economic interdependence manifested in OPEC's power over the American economy.
The continent-wide free market that provided the context for American economic growth was created and maintained by the Supreme Court's interpretation of the commerce clause. In his book, The Commerce Clause Under Marshall, Taney, and Waite, Felix Frankfurter demonstrated that the commerce clause decisions defining the nature of the American market simultaneously defined the nature of the law that authorized the Court to enforce its reading of the constitutional text. Frankfurter's scholarly work was based on a perception of the judicial function that also shaped his work as a Justice of the Supreme Court. It was this perception of how an individual Justice should exercise the powers inherent in his office that underlay his disagreements with Hugo Black concerning the proper functioning of a Court that had accepted the institutional changes in American government attributable to the New Deal.
Date of Authorship for this Version
Deutsch, Jan Ginter, "The New Deal and the Burger Court: The Significance of United States v. Chiarella" (1979). Faculty Scholarship Series. Paper 1872.