The Origins of Judicial Activism in the Protection of Minorities

Abstract

During the first third of the twentieth century, the Supreme Court afforded constitutional protection to certain vaguely defined substantive interests that have since been loosely tied together under the label of "substantive due process." Throughout that period, a rich and complex dissenting tradition was carried on first in the opinions of Holmes, then Brandeis and, still later, Stone. That dissenting tradition-an elaboration of the teachings of Professor James Thayer of Harvard Law School-placed the majoritarian lawmaking process at the center of constitutional theory. Judicial review was suspect insofar as it invalidated outcomes of this presumptively legitimate process.