New Deal Settlement

Crapgame: Then make a deal.
Big Joe: What kind of a deal?
Crapgame: A DEAL deal!
--Kelly's Heroes

In a previous post, we observed that rate of decline in protection of liberty by the judicial branch has been increasing since FDR was able to pack the Supreme Court to his liking. This period marks what is sometimes called the New Deal Settlement.

Prior to the New Deal Settlement, the high court frequently limited Congressional authority related to, for example, the Commerce clause or the Necessary and Proper clause, on constitutional grounds. Primary tools for doing so included the Fifth and Fourteenth Amendments. For instance, the Due Process and Equal Protection clauses were employed to prohibit arbitrary restrictions on liberty and equality under the law.

Under the New Deal Settlement, the high court stopped enforcing these limits. New tools of judicial sophistry, such as the rational basis test, were developed to justify nearly all infringements on liberty that other branches saw fit to bring.

Based on recent rulings such as the gay marriage case, some observers wonder whether terms of the New Deal Settlement may be weakening.

Proponents of liberty certainly hope so.