The Constitution and the New Deal.

• Author: Ely, Jr., James W.
• Position: Book Reviews

* The Constitution and the New Deal By G. Edward White Cambridge, Mass.: Harvard University Press, 2000. Pp. x, 385. $ 47.50 cloth.

The constitutional history of the twentieth century has long been dominated by the narrative of President Franklin D. Roosevelt's Court-packing plan and the so-called constitutional revolution of 1937. This tale is commonly presented as a sort of Victorian melodrama. Briefly stated, the conventional account holds that a dastardly Supreme Court, dominated by justices who were either adherents of outmoded constitutional doctrines or simply handmaidens of the business community, frustrated the efforts of the New Dealers to enact a beneficent program of needed reforms. Eventually this judicial intransigence provoked a constitutional crisis and led to the Court-packing proposal. Politically isolated and under tremendous external pressure to bow to the popular will, the majority of the Court eventually came to accept the huge expansion of governmental authority implicit in the New Deal. The New Deal, then, stood as a watershed in the formation of modern constitutionalism, which viewed constitutional law as just an outgrowth of public policy and saw judges primarily as political actors. Scholars intellectually and emotionally committed to the New Deal and the welfare state fashioned this prevailing account of triumphant New Deal constitutionalism, and they disparaged the justices who in the 1930s resisted fundamental changes in constitutional thinking.

With the disintegration of the New Deal consensus, which dominated the academy until the end of the twentieth century, revisionist scholars have begun to challenge the account of constitutional history espoused by Progressives and New Dealers. Some scholars have stressed the glaring differences between enlarged governmental power under the New Deal and the structure of limited government envisioned by framers of the Constitution. The salient goals of this scholarship have been to highlight the discontinuity between the New Deal and traditional constitutional jurisprudence, and to question the very legitimacy of the New Deal (see Richard A. Epstein, Takings: Private Property and the Power of Eminent Domain [Cambridge, Mass.: Harvard University Press, 1985], p. 281). Other scholars have endeavored to revise the standard account to recognize the complexity of the New Deal era. Barry Cushman, for example, has argued that the doctrinal changes associated with the New Deal...