Law, politics, and the New Deal(s).

• Author: Kalman, Laura
• Position: Moments of Change: Transformation in American Constitutionalism

1. INTRODUCTION

   The metaphor of fatigue permeates the debate over the constitutional history of the New Deal. Prior to the publication of Bruce Ackerman's We the People: Transformations, the disagreement pitted "internalist" law professors, such as Barry Cushman and Richard Friedman,(1) against "externalist" historians, such as William E. Leuchtenburg and myself.(2) Now comes Ackerman, who, picking up on the metaphor of fatigue used by some of the participants,(3) urges us to drop "the old and tired debate."(4)

   In Part II of this paper, I explore the dispute between internalists, who point to doctrinal, intellectual causes in explaining constitutional change during the New Deal, and externalists, who stress political reasons. I do so to locate Ackerman's place within the controversy. In stressing the controversy's unimportance, Ackerman scolds both internalists and externalists for assuming "that the conflict between the Old Court and the New Deal" in 1935 and 1936, which set the stage for Roosevelt's effort to pack the Court in 1937, was "a waste of time."(5) He claims that in resisting the "First New Deal," Roosevelt's legislative program of 1933, the Old Court was acting as it should: serving "as the conservative branch, leading a principled challenge to a rising movement of revolutionary reform."(6) Ackerman thus legitimates the Court's role in a representative democracy and safely distances law from politics. But I contend that he also participates in the debate in spite of himself. Ironically, given his celebration of the prudential value of the Old Court, Ackerman largely makes the case for the externalists.

   In Part III, I query Ackerman's insistence that we should challenge the "basic premises" of the internalist/externalist controversy. Though old, the debate is neither tired nor unimportant. It yields important insights into political and intellectual history; Ackerman trivializes it when he says it focuses on the subjective motivations of Justices. In fact, the controversy between the externalists and internalists involves the legal academy's most enduring concern (and, as I suggest in Part V, one of the leitmotifs of the Ackerman corpus): the relationship between law and politics. Further, one strength of Ackerman's work is that it points the way towards a manner in which we may usefully draw on both internalist and externalist accounts.

   In Part IV, I focus more closely on the history Ackerman advances in support of his attempt to establish a "New Deal" for New Deal constitutional historiography. I argue that in celebrating the prudentialism of the Old Court, his account overemphasizes its role in bringing about social change of which Ackerman approves. Pace Ackerman, we can neither glorify Roosevelt's legislative program of 1935, the "Second New Deal," nor give all the credit for its passage to the Old Court. Nor does Ackerman consider the impact of the Court-packing episode on politics. Whatever its connection to the Court's "switch in time," the Court-packing plan helped close off Congress and the executive branch as routes for reform. Roosevelt's attempt to respond to the Old Court's resistance by packing it with additional Justices proved a political disaster, which helped end the push for social change in the executive and legislative branches for a quarter-century, beginning in 1938. Consequently, the reformist programs of the next era were carried out under the auspices of the judiciary, which created growing concern that American society was court-centered. That anxiety led to the resurrection of the "countermajoritarian dilemma," which has long consumed Ackerman and other constitutional theorists.

   In Part V, I turn to the theoretical underpinnings of Ackerman's project. I maintain that Ackerman's externalist approach to Court-packing is in tension with his own jurisprudential internalism, which reflects his own roots in the legal process school. That is, despite his externalist approach to New Deal constitutional change, Ackerman is generally suspicious of court-centrism; wary of the idea that judging is a political act; and hostile to the claim that in an important sense, law is politics. I argue that his proposals for reclaiming the Constitution in the future reflect his attempt to separate law from politics and link him to both internalists and to the legal process school. Ultimately, his narrative and proposals are best understood as an outgrowth of his intellectual roots in the legal process tradition. In Part VI, I discuss my reaction to his proposals and speculate on some possible reasons for Ackerman's allegiances.

2. ACKERMAN AND THE REIGNING NARRATIVES

   In We the People: Transformations, Ackerman continues the attack on "the Bicentennial myth" of American history as one republic that he began in We the People: Foundations.(7) "While all lawyers recognize that the 1930s mark the definitive constitutional triumph of activist national government," he explains, in the absence of formal Article V amendment of the Constitution, "they tell themselves a story which denies that anything deeply creative was going on."(8) Embracing "the myth of rediscovery as a convenient legal fiction,"(9) lawyers maintain that "It]he founders of the welfare state in America were not Roosevelt and his Democrats but Marshall and other Federalists who built the constitutional foundations of national power" and whose relevance the New Dealers rediscovered after 1937.(10) In the words of Morton Horwitz, the legal community thus transformed the New Deal from "constitutional revolution" to "constitutional restoration."(11)

   Ackerman's assault on the "Bicentennial myth" deserves to carry the day.(12) And I think it has.(13) At least, Ackerman has received aid from surprising quarters. I follow Lawrence Lessig :in aligning myself with "the odd alliance" of Ackerman and Richard Epstein.(14) As Epstein puts it with characteristic pungency, there is only one response to the argument that the New Deal represents a return to the expansive view of the Commerce Clause set out in Gibbons v. Ogden:(15) "No way."(16)

   In Foundations, Ackerman goes beyond challenging the "myth of rediscovery," the reigning popular narrative lawyers have created for "the People." He also targets the "reigning professional narrative."(17) The professional, or scholarly, debate has concentrated on the timing of, and explanation for, the so-called New Deal "constitutional revolution." As Ackerman tells us, because the Court Roosevelt inherited "consisted of three blocs--four conservatives, three liberals, and a two-man center of Charles Evans Hughes and Owen Roberts.... [t]he reigning narrative naturally focuses on the flips and flops of the centrists as they struggled with constitutional perplexities."(18)

   Disagreement then breaks out between internalists, whom Ackerman terms "legalists," and externalists, whom he labels "legal realists," over the explanation for and the timing of the "flips and flops." The externalists/realists are read by Ackerman and others to suggest that Roberts and Hughes changed course abruptly in 1937. They made the "switch in time" and wrought the "constitutional revolution of 1937" because of the threat posed by FDR's Court-packing plan. Politics explained the Court's shift. The internalists/legalists, on the other hand, point to doctrinal changes that began before 1937 and continued thereafter to emphasize the plausible internal and intellectual reasons for the Court's journey. They acknowledge that the shift reflected "dramatic changes in constitutional jurisprudence,"(19) but they see it as more gradual and as more evolutionary than revolutionary.(20)

   Ackerman stresses the importance of turning the spotlight away from the "hidden wellsprings" of "the subjective motivations of the two Justices."(21) His "larger argument," he says, "does not depend on the ineffabilities of private motivation,"(22) but demonstrates "how judicial resistance contributed to the democratic character of the outcome."(23) In the process of making that larger argument, however, Ackerman indicates he will "incorporat[e] the insights of both sides without going to either extreme."(24) I will evaluate Ackerman's larger argument on its own terms in Part IV. At present, I focus on how he enters the internalist-externalist debate despite himself.

   1. The Externalist Case Made by Ackerman: 1935-37

      I read Ackerman to embrace the externalist position. He talks of the "Old Court's early effort to say No to the New Deal"(25) in 1935 and 1936 by waging "continued war on the liberal welfare state"(26) and striking down much of Roosevelt's 1933 legislative program. He emphasizes the loyalty of the majority of Justices to "the Lochnerian tradition," which awarded the market "constitutionally privileged status as a baseline."(27) As he sees it,

      the Justices were confronting a fundamental decision in March of 1937: on the one hand, they could stick to their guns in defense of the Lochnerian Constitution and run the clear and present danger that the People would formally repudiate the Court's traditional role in the separation of powers; on the other hand, they could eliminate the risk of hostile Article Five amendment by unequivocally recognizing the constitutional legitimacy of the New Deal vision of activist government.(28) Two events explained the Court's decision. The first was the "[t]riggering [e]lection of 1936," in which FDR won a landslide victory; the second was Roosevelt's effort to capitalize on his popularity by making an "[u]nconventional [t]hreat" to the Court by proposing to pack it with additional Justices.(29) What happened? According to Ackerman, thanks to the shift of Chief Justice Hughes and Justice Roberts, a majority of the Court embraced "the constitutional legitimacy of the New Deal vision of activist government."(30)

      Ackerman maintains that the 1937 decisions were markedly different from their predecessors. In opinion...