The Origins of Judicial Activism in the Protection of Minorities, 91 YALE L.J. 1287 (1982)
During the first third of the twentieth century, the Supreme Court afforded
constitutional protection to certain vaguely defined substantive interests
that have since been loosely tied together under the label of "substantive
due process." Throughout that period, a rich and complex
dissenting tradition was carried on first in the opinions of Holmes, then
Brandeis and, still later, Stone. That dissenting tradition-an elaboration
of the teachings of Professor James Thayer of Harvard Law
School-placed the majoritarian lawmaking process at the center of constitutional theory. Judicial review was suspect insofar as it invalidated
outcomes of this presumptively legitimate process.
Date of Authorship for this Version
Cover, Robert M., "The Origins of Judicial Activism in the Protection of Minorities" (1982). Faculty Scholarship Series. Paper 2704.