New Deal

AuthorHarry N. Scheiber

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During the New Deal years, from 1933 to the end of WORLD WAR II, the nation experienced an era of protracted economic crisis and social dislocation, a dramatic change in national political alignments, and then mobilization for total war. A society contending with changes and emergencies of this order, especially with an enormously popular reformist President in office, cannot easily avoid profound challenges to its constitutional order; and so it was for America in this era. Every major aspect of political controversy in this period found expression of varying kinds in constitutional discourse and conflict, and these constitutional battles both reflected and actively intensified the bitter ideological polarization that bedeviled the nation's politics.

When the New Deal era came to a close just after the war, the constitutional as well as political landscape of the country had been transformed. With respect both to governmental institutions and policies and to formal constitutional doctrine, things as they had stood in 1933 had been largely swept away. The transformations of governance and politics in the New Deal era brought far-reaching reform of constitutional law, accomplished without benefit of formal constitutional amendment on any question except the repeal of PROHIBITION. The new constitutional order that emerged, moreover, would stand firmly for half a century as the basic framework of the modern welfare, regulatory, and national-security state. In most particulars, the new order proved durable enough to survive determined efforts by neoconservatives in the 1980s to overturn some of the most important New Deal doctrines and reforms.

President FRANKLIN D. ROOSEVELT at the outset of his presidency characteristically struck a pose that seemed to dismiss offhandedly the need for worries about constitutional difficulties. "Our Constitution is so simple and practical," he declared in his first inaugural address in 1933, "that it is possible always to meet extraordinary needs by changes in emphasis and arrangement without loss of essential form." But what changes in "emphasis" and "arrangement" he had in mind! Even the legislative programs and executive actions of the "First Hundred Days" posed a broad challenge to prevailing doctrines in constitutional law, especially regarding the protection of vested economic

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rights against government's hand and the proper limits of the national government's authority in the federal system. Nor did the challenge recede or soften significantly in the years immediately following, as Roosevelt and his party generated a prolix legislative and administrative record that would repeatedly inspire bitter constitutional controversies.

Virtually every element of the New Deal administration's policies, especially their idealistic nuances and implications, bore the imprint of Roosevelt's own thinking. The direction and extraordinary scope of the New Deal's challenge to the traditional role and perogatives of the states, for example, were signaled early by Rooselvelt when he was governor of New York: "In our business life and in our social contracts," he declared in 1929, "we are little controlled by the methods and practices employed by our forefathers." Why, then, he asked, be "content ? to accept and continue to use the local machinery of government which was first devised generations or even centuries ago?" This kind of iconoclasm and willingness to experiment with governmental structures structures was soon to be directed against the states. Impatience with antiquated institutional legacies was linked with Roosevelt's robust "Old Progressive" faith in bringing enterprise to bear on social and economic problems. Hence, the President readily endorsed the regional approach (exemplified by the TENNESEE VALLEY AUTHORITY ACT OF 1933) to problems that trascended state lines. Similarly, he was sypathetic to a national planning approach (as was espoused by his National Resource Planning Board and the agricultural price-support and production-controll efforts); and he also fostered the system of direct federal grant-in-aid support to city governments for public housing, airports, and other projects in ways that dramaically enhanced municipal autonomy within the states.

Perhaps of greatest long-run importance to governmental practice was Roosevelt's own proclivity to devolve on appointive agencies and their expert staffs the responsibility for defining the "public interest" in the course of setting regulatory policies?a preference shared by the New Deal majorities in Congress as they crafted the design of new regulatory agencies. Roosevelt regularly pressed on Congress and the public the urgency of the social and economic programs he was proposing?both the programs of the "Hundred Days," designed to break the terrible spiral of despair, and those of the ensuing years, designed to effect enduring reforms, including a systematic (and, to many, a radical) redistribution of income and wealth. The argument for urgent action, for room to experiment, and for administration...

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