A Fresh Take on the New Deal

The Constitution and the New Deal
G. Edward White

constitutionHistory, they say, is written by the winners.

G. Edward White would agree with that statement. He’d then do his best to persuade you that the winners had gamed the system in making their case.

A faculty member at the University of Virginia School of Law, White would be labeled a revisionist in the History department. In some quarters those are fighting words. And given that the subject covered in this book is the U.S. Constitution and Supreme Court, you can be certain there’d be a regular rhubarb abrewin’ and that the Poli Sci faculty would join in just for fun.

Here’s the way I learned the history of the Supreme Court in the 20th Century: Starting in what my grandfather used to refer to as the Nineteen Aughts, legislation at the state level attempted to address various aspects of a newly industrialized society. Among these were such shocking breakthroughs as 8-hour work days, minimum wages, child labor laws and the like. Many of these advances were challenged in the courts. Some made their way to the Supreme Court and were almost invariably overturned.

This lamentable behavior reached its apex when the Great Depression hit. The New Deal, FDR‘s transformative attempt to try all sorts of things to alleviate the pain,created all sorts of new agencies and laws. And as quickly as challenges took to wend their way to the Supreme Court these governmental experiments were struck down, very often on the grounds that they violated  traditionally understood limits on what the federal government can do. Clearly somebody had to do something to help alleviate this mess and help the President help the people.

The 1932 Supreme Court (essentially the same court as was sitting in 1937)

The 1932 Supreme Court
(essentially the same court as was sitting in 1937)

And so Franklin D, fresh off his huge 1936 victory, proposed to reorganize the federal judiciary and expand the Supreme Court by naming a new Justice for every sitting one over the age of 75. Critics immediately dubbed it the ‘Court Packing‘ scheme. And almost as suddenly the Court began upholding New Deal legislation, the so-called ‘switch in time that saved nine.’

If all that sounds familiar it should. I’ve certainly never heard it taught any other way. And there are scads of books that promulgate the view. Most of them are in my personal library. It’s a very neat good guys/bad guys story that makes everybody invested in it happy. Who could be against 8-hour days and for child labor?

The trouble is, it may not be true. Convincing you of that is White’s goal in this footnote-laden volume.

White’s argument is actually quite elegant. He believes that the widely held version is based on a limited sample of cases and applies an anachronistic framework to analyzing the Court’s behavior. To demonstrate, he takes two areas of the law–foreign policy and administrative or agency law–and looks at developments from the turn of the 20th century to the New Deal, maybe even a little beyond. The evidence is not kind to the conventional narrative.

In his review of the legal arenas he demonstrates that the Court spent decades expanding the power of the national government in the area of international law. And he likewise illustrates the Court’s accommodation of government agencies, like the FTC, which are not allowed for in the letter of the Constitution.

The important thing to note is that some of the same people castigated for being blindly loyal to outmoded ways of thought were not hostile to expanded government at all. That’s because the composition of the Court changes more slowly than that of the other branches. So if a tendency or bias is to emerge it will be demonstrated over time. And that time will be longer than the, at most, couple of years at the center of the conventional narrative. When the time frame is expanded, White essentially says, the evidence grows thin and one is forced, in accepting the conventional approach, to accept one thing in two ways.

G. Edward White

G. Edward White

Around about now the folks who believe in using the courts to get their belief system enacted after they fail to persuade the electorate are  probably working up a head of steam. White, I’m sure they believe, is a Fox News watching Samuel Alito loving of the Tea Party. But Professor White clerked for Earl Warren, the belle of the conventional liberal ball, so that dog won’t hunt. One may have to reconsider the facts, which I think is Prof. White’s hope, too.

I am in no position to gauge the merits of White’s legal interpretations. But I can judge the case he makes and the evidence he presents as a matter of history. And it’s pretty compelling. It’s even understandable, although this is never said. But academic politics are petty. Why risk tenure and the rewards of academic life by disagreeing with an interpretation that says, hey, the good guys won this one?

You’ll have to judge for yourself. I did my undergraduate thesis on a matter closely related to this argument and I wish White’s book had existed then. I’d have felt a bit less lonely. (Though I can’t say I long for an academic career that never was, either. So maybe the outcome wasn’t so bad.)




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