THE CONSTITUTION IN CRISIS TIMES, 1918-1969 by Paul L. Murphy

THE CONSTITUTION IN CRISIS TIMES, 1918-1969

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KIRKUS REVIEW

The most recent addition to the ""New American Nation Series"" (edited by Morris and Commager), Murphy's politico-constitutional history lacks the pathbreaking interpretative brilliance of, say, a Milton Konvitz (Expanding Liberties, 1966; etc.); nonetheless is makes a substantial contribution toward understanding the Supreme Court's movement from judicial restraint or passivity, which characterized the Court prior to and after World War I, to the activist ""preferred freedoms"" position assumed by the Warren Court in the late '50's and '60's -- a fifty-year period of ""constitutional revolution."" Furthermore, Murphy's survey comes at an opportune time, when historical perspective on the judiciary is clearly needed as the new conservative Nixon/Burger majority, now assured with Justice Black's retirement, emerges, Murphy, a University of Minnesota professor and contributor to scholarly publications, analyzes the controversial landmark cases (from Schenck to Brown, Roth, Miranda) against the backdrop of prefiguring political developments (the Red Scare of the '20's, the onset of Fascism and World War II, the civil rights and labor movements, the Cold War). His basic thesis is that the Depression and the New Deal which it spawned forced the High Court to abandon (slowly but inevitably) its traditional emphasis on property rights for a pragmatic, legally ""realistic"" approach which transformed the Court into ""a constructive instrument for social change"" and protector of individual freedoms as embodied in the First Amendment. There are places where Murphy's review of the case law is weak -e.g., he slights the importance of the many precedential Jehovah's Witnesses' decisions and those on associational privacy which together immeasurably strengthened and solidified the preferred freedoms concept. In the final analysis, however, Murphy, like the Warren Court (where his heart really is), is not content with stare deeisis and this might produce mild protest from some constitutional historians.

Pub Date: Jan. 5th, 1971
Publisher: Harper & Row