39 Hastings L. J. 1 (1987-1988)
Next Century of Our Constitution: Rethinking Our Duty to the Poor, The; Edelman, Peter B.

handle is hein.journals/hastlj39 and id is 15 raw text is: Essays

The Next Century of Our Constitution:
Rethinking Our Duty to the Poor
by
PETER B. EDELMAN*
As we celebrate two centuries of American constitutional history, a
concurrent milestone is the half century that has passed since the
Supreme Court's switch in time finally validated regulatory legislation
to protect workers in a variety of ways.1 Scholars and activists on the
right have certainly noticed this concurrent anniversary, and have called
for a return to an early twentieth century reading of the Constitution
under which constitutional property and contract protection would be
read as invalidating much of the modern regulatory apparatus.2 Such
* Professor of Law, Georgetown University Law Center; A.B. 1958, Harvard College;
LL.B. 1961, Harvard Law School.
Research for this Essay was supported by grants from the Project on the Federal Social
Role and the Georgetown University Law Center.
I am especially grateful to Paul Brest and Frank Michelman, who provided detailed and
constructive comments on an earlier draft, and to Mike Seidman, without whose cheerful and
generous willingness to read successive drafts and discuss issues at length I could not have
proceeded. I also received useful advice and criticism from Bruce Ackerman, Julius Cham-
bers, David Filvaroff, Justice Arthur J. Goldberg, Steven Goldberg, Colin Greer, Thomas
Krattenmaker, Girardeau Spann, Laurence Tribe, Mark Tushnet, and Franklin Zimring.
James Rogers provided valuable research assistance.
1. West Coast Hotel v. Parrish, 300 U.S. 379 (1937).
2. Eg., R. EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT
DOMAIN (1985); B. SIEGAN, ECONOMIC LIBERTIES AND THE CONSTITUTION (1980). Seeing
what these scholars propose to use judicial activism to do is almost enough (but not quite) to
turn a liberal activist into an advocate of judicial restraint. Their constitutional axe would
cut a wide swath, including in its path most if not all of the transfer payment programs which
this Essay argues are inadequate. E.g., R. EPSTEIN, supra, at 306-29. It should be noted,
though, that while the substantive views of the left and right judicial activists are in polar
opposition, they share a curious parallelism of position as to the court's institutional role
which perhaps ought to give pause to both. See Newest JudicialActivists Come From the Right,
N.Y. Times, Feb. 8, 1987, at E24, col. 4. Other activists of the right are arguing that the Court
also erred 50 years ago in interpreting the spending power to strengthen Congress' leverage
over the states. A recent report from a Task Force chaired by Assistant Attorney General

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