Myths about U.S. history abound, and perhaps no era of our history has spawned more than the New Deal. The economic myths are well known: That the economic collapse was due to an innate flaw in the free-market system; that the Hoover administration adopted an unyielding laissez-faire policy that allowed the crisis to deepen; that FDR’s energetic, visionary programs “primed the pump” and rescued the economy, and so on. But there are also legal myths surrounding the New Deal, and in his elegant The Constitution and the New Deal, G. Edward White exposes them to exacting, scholarly scrutiny. The result is a book that serious students of the Constitution will want to read with care.
White, professor of law and history at the University of Virginia, writes in his introduction, “The conventional account of early twentieth-century constitutional history begins by identifying the New Deal as the source of a new era of constitutional law and constitutional interpretation, in which the Constitution was adapted to facilitate a new realm of American governance.” The conventional account, moreover, has been crafted by writers who idolized FDR and big government so as to cast developments as the triumph of a “modern” approach to the Constitution. The antiquated view of the Supreme Court’s role as a protector of liberty and property was rejected by enlightened justices who could see that the legislative and executive branches needed to be given virtually unfettered power to regulate economic behavior. The Court’s role was to be limited to the defense of “fundamental” rights such as those in the First Amendment. Most students of constitutional law are treated to a virtual morality play as professors and textbooks present the cases as the clash between evil old property rights and good, modern state regulation.
White is not a partisan of the older approach to the Constitution, exemplified in such cases as Lochner v. New York and Adkins v. Children’s Hospital (striking down maximum-hour and minimum-wage legislation respectively). Nor is he a partisan of the “modern” approach. He is simply re-examining history and finds much amiss in the “triumphalist narrative” that has become widely accepted.
Lochner is usually scoffed at these days, with professors pointing out Justice Holmes’s dissenting line, “The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics,” and leaving the impression that there was nothing to the majority opinion except an illegitimate exercise of judicial power, substituting the personal philosophy of the justices for the wisdom and compassion of the legislature. White cautions that the “guardian” view was not illegitimate or absurd:
When courts used the Due Process Clauses to strike down redistributive legislation . . . they were thought of as doing so to prevent legislative tyranny or corruption. One example of such tyranny or corruption was legislation that violated the “anti-class” principle by failing to demonstrate that it was an appropriately “general” use of the police powers, as distinguished from an inappropriately “partial” one. That type of legislation amounted to the favoring of one class or interest above another or, more baldly, the taking of property from one class of citizens and giving it to another.
The old school of constitutional interpretation regarded it as important to guard against legislation that took liberty or property from A and gave it to B. It isn’t White’s aim to argue the merits of that view—which squares very well with everything we know about the intentions of those who wrote the Constitution—but he does show that the guardian view was neither illegitimate nor risible.
Another crucial case White examines to show the change in attitude toward the Constitution is Home Building and Loan v. Blaisdell. The Minnesota legislature had enacted a statute to prevent mortgage foreclosures. The trouble with that bit of vicarious generosity was that there is a constitutional provision reading, “No state shall impair the obligation of contracts.” That is not ambiguous language, and White points out that among the framers, “There was widespread agreement that the Constitution should curb the opportunities of state legislatures to interfere with private contractual arrangements.”
In his majority opinion, Chief Justice Hughes blathered away about the “growing appreciation of public needs” to talk his way around the clear meaning of the Contracts Clause. White observes that the case is important because it was a victory for the “living Constitution” theory: “Upholding the Minnesota statute challenged in Blaisdell could only mean that the Contracts Clause . . . did not mean in 1934 what it had meant for the past 150 years.” The “living Constitution” approach, of course, is the intellectual cover for instances where the justices want to ignore things that are in the Constitution or to smuggle in things that are not.
This lovely volume is worth reading if you are among those who can’t abide the sanctification of the New Deal.