The fiscal powers and the 1930s: entrenchment.

• Author: Harrison, John (British inventor)
• Position: Fidelity, Economic Liberty, and 1937

Most constitutional theory is normative and looks to the past. Theorists usually adopt the viewpoint of a contemporary actor, typically a judge on a court with final decisional authority, and ask about the relevance of past events to the judge's decision.(1) For example, in one standard form of the argument over originalism, the question is whether the judge today should treat as conclusive an application of the constitutional text that generally was accepted at the time of adoption.(2) Deeper questions arise when one looks beyond the context of judicial decision, abandons the standard suppositions concerning judicial authority, and asks why people today should care about events that took place long before any of us were born.

Although expressions of opinion on the foregoing issues are in no danger of running out, there is a surprising shortage of thinking about how constitutions work, rather than how they ought to work. Theory that discusses what makes some constitutional arrangements effective and others ineffective is relatively scarce. This Essay uses as its test instrument a forward-looking perspective that considers not how we are bound by the past, but rather how we may bind the future. An attempt to answer that question should provide some insight into the actual operations of constitutions in general and the American constitutional system in particular. In order not to stray too far from the topic of this symposium, I will bring this perspective to bear on the most important change in the practice of American government that took place during the 1930s: the dramatic expansion of federal spending. That thunder still reverberates through our constitutional politics.(3)

To some extent, any change in legal rules binds the future in any system where the rules are followed as such and formally changing them is costly. Constitutional rules are often said to be entrenched, however, in the sense that it is more difficult to change them than to alter ordinary laws, because the process of constitutional amendment is more difficult than the process of statutory change.(4) The options available to would-be constitution-makers thus depend on the available mechanisms of entrenchment.

One aspect of this question occupies much of Bruce Ackerman's second volume of We the People.(5) Ackerman provides a detailed account of the Roosevelt Administration's decision to support the Court-packing plan rather than an Article V amendment, and discusses the eventual use of transformative Supreme Court appointments instead of an amendment.(6) Ackerman is much concerned with the fact that although both court-packing and nonpacking transformative appointments are instruments of constitutional change, it is not so clear that they are instruments of constitutional entrenchment.(7) For example, suppose that Reagan and Bush had created a majority of Justices who believed that Wickard v. Filburn(8) and United States v. Darby(9) and maybe even NLRB v. Jones & Laughlin Steel Corp.(10) were decided wrongly under the Constitution as it stood in 1933. Would this majority have been required to overrule those cases on the grounds that no subsequent amendment vindicated expanded federal regulatory power? Ackerman says no because he believes that something more than a shift in judicial personnel took place under Roosevelt, but he confesses that the case is harder to make than it would be had the more familiar technique of Article V entrenchment been employed.(11)

Although Ackerman is worried about the entrenching effects of the constitutional changes that took place during the Roosevelt Administration, especially as compared to the effects of changes that were considered but not adopted, the New Dealers do not seem to have been so concerned.(12) Their immediate problem involved freeing themselves from the chains of the past, and they seem to have given little thought to imposing chains on the future.(13) Maybe they would have been against doing so, believing with Thomas Jefferson that the earth belongs to the living and that each generation should be able to make its own destiny.(14) Maybe they would have thought entrenchment unnecessary because the country had finally emerged into modernity and no one would ever want to turn back.

On the other hand, if the New Dealers had thought about it, maybe they would have wanted to protect against the possibility of another Justice McReynolds, who, after all, was appointed by a liberal President, just as Justice Brennan was appointed by a conservative. In seeking entrenchment, the Democrats would have been following the Reconstruction Republicans, a group who clearly regarded the Fourteenth Amendment as a guard against future backsliding. Section 1 was designed not only to underwrite the Civil Rights Act of 1866, but also to prevent its repeal by a future Democratic Congress.(15) More to the point, Section 2 was designed to prevent the election of such a Congress.(16)

As the observation about Reconstruction suggests, entrenchment in order to preserve current political advantage is only one reason for adopting a higher-order legal rule, and perhaps not the most desirable. Entrenching maneuvers are doubtful as a matter of political morality because they represent attempts by people in the present to control people in the future. Somewhat less troublesome are entrenchments that attempt to make binding deals that secure political agreement. The classic American example of that kind of constitutional rule is equal state suffrage in the Senate, the "great compromise" that was thought necessary to secure participation by the smaller states in the new Union.(17) That deal is placed into the deepest trench the Constitution has, a limitation on the amendment power itself. Least troublesome of all, but still problematic, is the use of constitutional rules as self-binding mechanisms through which people in their lucid moments seek to limit their options at times of greater stress.(18)

For present purposes, however, this Essay assumes that the Roosevelt Administration would have sought to change constitutional norms in order both to fill in the old trench and dig a new one. Though the Roosevelt Administration was mainly concerned with the problem of federal regulatory power, I will take the federal government's spending power as my basis for speculation; the spending power is at least as much the foundation of the modern state as the federal government's regulatory power.(19) Certainly the availability of that power was a main plank of the New Deal because it underlay federal unemployment compensation and old-age pensions.(20)

Suppose, then, that President Roosevelt and his coadjutors had wanted to establish firmly the principle on which Congress acted when it passed the Social Security Act(21) and which the Supreme Court endorsed in dictum in United States v. Butler:(22) that Congress may spend tax revenue so as to advance the national interest in general.(23)...