FDR responded to the Court’s 1935-36 decions with a plan to “pack” the Court by expanding its membership. The chapter recounts the development and eventual rejection of the Court-packing plan. As the plan was under consideration, several developments contributed to its failure: Overruling earlier decisions, the Court upheld a Washington minimum wage statute, Congress adopted a more generous pension program for Supreme Court justices, and Justice Willis Van Devanter announced his retirement. Meanwhile the Court continued to hand down relatively routine decisions that showed that administration’s attacks were not yet affecting its jurisprudence.

This chapter examines the Court’s “new approach and philosophy” in decisions upholding state power to regulate local economic activity against challenges based upon due process and the dormant commerce ckause.

This chapter surveys the legal history of the term "due process of law," from Magna Carta, the Statutes of Edward III, and the Petition of Right to the writings of William Blackstone and the opinions of antebellum state-level court cases. It argues that there was no concept of "substantive due process" in the antebellum period. It refutes arguments that due process prohibited class legislation, limited states to reasonable exercises of the police powers, or underwent a change in meaning as a result of abolitionist constitutional thinkers.