THE CONSTITUTIONAL REVOLUTION AS A CRISIS IN ADAPTIVITY

The conventional explanation for the emergence of the ''constitutional revolution'' of the late 1930s, in which a number of doctrinal transf ormations took place in the constitutional jurisprudence of the Suprem e Court, has been related to external events in American political cul ture such as the abortive ''Courtpacking'' plan introduced by Franklin Roosevelt in early 1937. According to the conventional explanation, w hich has retained a presumptive historiographical validity for nearly 50 years, Supreme Court constitutional doctrines changed in response t o political pressures on the justices related to the triumph of the Ne w Deal philosophy of governance. Revisionist work in this decade has v irtually demolished the conventional explanation, both in general and specific terms. Generally, the work has shown that a simple behavioris t model of constitutional doctrine, in which some decisions are identi fied as consistent with a ''progressive'' and others with a ''reaction ary'' political agenda, cannot explain the corpus of constitutional do ctrine developed by the Supreme Court in the period between 1920 and t he 1940s. Specifically, that work has shown that some transformative d ecisions of the Court preceded the 1936 election and the Court-packing plan, some decisions did not occur until many years after those event s, and other doctrinal transformations had largely been completed befo re the Court-packing plan was even conceived. This Article continues t he revisionist project by advancing an alternative characterization of the ''constitutional revolution.'' It argues that the fundamental cha nges that took place in Commerce Clause, Contracts Clause, and Due Pro cess Clause doctrines between the 1920s and the 1940s were a response to a jurisprudential crisis involving the nature of constitutional int erpretation and the role of Supreme Court justices as constitutional i nterpreters. The principal manifestation of that crisis was a debate o ver the meaning of adaptivity in constitutional interpretation, focusi ng on whether the ''meaning'' of the Constitution could fundamentally change with time and whether judges could articulate a changed meaning in the course of their interpretations. Since a ''yes'' answer to bot h of those debated issues eventually came to be jurisitic orthodoxy by the 1940s, the adaptivity debate and its significance has been lost t o contemporary constitutional scholars. This Article seeks to recover the adaptivity debate and the jurisprudential crisis that spawned it. It also sketches the causal relationship between the adaptivity debate and the ''constitutional revolution,'' thereby seeking to advance an alternative explanation for the dramatic doctrinal changes that took p lace in the New Deal years.