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Harvard Blackletter Law Journal



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A new progressive movement in the law profoundly affected the American judicial climate of the 1930s and 1940s. The jurisprudence of American Legal Realism, which sprang from the progressive American sociological jurisprudence, boasted the adherence of some of America's most influential legal minds. Legal Realism, which complemented the New Deal reform legislation emerging in the 1930s, advocated judicial deference to legislative and administrative channels on matters of social and economic policy. Judicial activism, which had been used as a tool for the protection of economic rights since the late nineteenth century, was seen as inimical to progressive social reform and, thus, was discouraged by Legal Realists, who saw the Supreme Court consistently strike down progressive reform measures through the mid-1930s. After the New Deal constitutional revolution of 1937, the Supreme Court began to practice restraint, and the ideology of Legal Realism rose to prominence.

At the same time, the political climate of the 1930s and 1940s was, to say the very least, inhospitable to Black demands on Congress and state legislatures for racial justice. Throughout most of the American South, Blacks were prevented, through both legal and extra-legal means, from exercising their right to vote. And in Northern states, where attempts to quiet the Black franchise were not as overt, Black numbers were not great enough to influence state and national legislative politics significantly. Furthermore, many "progressive" White legislators were unwilling or unable to pass laws that restored Black civil rights. In addition, this lack of Black political efficacy was mirrored in the general reluctance of presidential administrations to use the power of the federal government to protect the civil rights of Blacks.

Charles Hamilton Houston, the chief architect of the legal assault on Jim Crow laws, sought a new method for pursuing Black equality before the law. Heavily influenced by sociological jurisprudence, but recognizing the inadequacy of Legal Realism and its philosophy of deference to the legislature for racial justice, Houston developed the philosophy of "social engineering." This jurisprudence borrowed from sociological jurisprudence-an antecedent of Legal Realism-but prompted jurists to challenge statutes and state actions that denied full citizenship rights to Americans who were Black. Houston's encouragement of judicial activism is significant both for its incompatibility with Legal Realism and because judicial activism had been used for over a century to diminish the constitutional status of Blacks in America-first to deny Blacks their constitutional existence and, later, to remove the teeth from the very laws and amendments meant to reaffirm that existence. This Article argues that Houston's reliance on judicial activism, despite its past abuses by those opposed to his cause, signaled the beginning of the end of the liberal consensus on the principle of judicial restraint. Charles Hamilton Houston's wielding of the double-edged sword of judicial activism was antecedent to the Warren Court activism that brought about many of the civil rights gains of the second half of the twentieth century.



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