Twenty-five years, in constitutional law, is a long enough span that at its end a generation is apt to confront the problems created by its solutions to the tasks it inherited at the beginning. In the years before Mr. Justice Douglas took his seat on the Supreme Court in 1939, the attention of the whole nation had been held by an epic of constitutional history—the decision whether American government had the constitutional power to cope with the economic and social crisis of a breakdown in the private economy. In 1937, the Supreme Court had unlocked the federal arsenal. The previous year, in the very course of striking down the first AAA, the Court had given its blessing to a broad, Hamiltonian reading of the spending power, and it had repulsed an attack on the TVA. It looked as if with the opening page of the 301st volume of its Reports, the Court was turning over a new leaf: the commerce clause was held to support regulation of labor relations in industrial production; and an ingenious use of taxes, credits, and payments permitted the nation to place its financial credit rather than that of near-bankrupt and mutually competitive states behind unemployment and retirement benefits through the Social Security Act. The Federal government was not again to be held to lack the tools for an economic task.
Justice Douglas on Freedom in the Welfare State: Constitutional Rights in the Public Sector [Part 1],
39 Wash. L. Rev.
Available at: https://digitalcommons.law.uw.edu/wlr/vol39/iss1/4