Constitutional Law in 1935–36: The Constitutional Decisions of the Supreme Court of the United States in the October Term, 1935

As was pointed out a year ago in this Review, the Supreme Court was able to deal with the cases involving the New Deal which came before it during its 1934 term without any striking enlargement of judicial power and without the announcement of any novel constitutional doctrine. The N.R.A., the Gold Clauses, the Farm Bankruptcy Act, were dealt with by the familiar processes of deciding whether Congress had actually exercised a power not granted to it by the Constitution, or had exercised a granted power in a forbidden way. The New Deal issues which came to the Court during the 1935 term were quite as far-reaching in significance and were certainly not of a routine variety. They involved, in some cases, constitutional clauses never before interpreted by the Court. Some of the federal laws under attack were obviously exercises of delegated powers, but at the same time, they exercised delegated powers for purposes which were novel and which had been commonly supposed not to be within the reach of federal authority. In dealing with laws of this type, the Court brought forward and established as a working implement of constitutional construction the so-called doctrine of “dual federalism.”