The Origins of Judicial Activism in the Protection of Minorities

Abstract

During the first third of the twentieth century, the Supreme Court affordedconstitutional protection to certain vaguely defined substantive intereststhat have since been loosely tied together under the label of "substantivedue process." Throughout that period, a rich and complexdissenting tradition was carried on first in the opinions of Holmes, thenBrandeis and, still later, Stone. That dissenting tradition-an elaborationof the teachings of Professor James Thayer of Harvard LawSchool-placed the majoritarian lawmaking process at the center of constitutional theory. Judicial review was suspect insofar as it invalidatedoutcomes of this presumptively legitimate process.

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