Arguably, the US Constitution under which we live was created not in a sweltering Philadelphia summer in 1787, but in 1938 by then-president Franklin D. Roosevelt’s Supreme Court. On April 25 of that year, the justices handed down back-to-back decisions in United States v. Carolene Products and Erie Railroad v. Tompkins. Carolene Products declared any federal economic legislation constitutional. Erie Railroad wrought a massive expansion of state power over US commerce. The decisions not only marked the triumph of democratic politics over the founders’ fear of faction, but they are also the rock-bottom foundation of contemporary law and mainstream conservative jurisprudence. Carolene Products and Erie Railroad are the flipside of Lochner v. New York: according to many originalists, they are as indelibly right as Lochner was wrong, and for the same reasons.
Can we or should we revisit these questions three-quarters of a century later? EPPC senior fellow Henry Olsen joined top legal scholars for a discussion of the ramifications of the Carolene Products and Erie Railroad cases on their 75th anniversary.
Audio part 1:
Audio part 2:
Watch the full video here: