The New Deal: the Available Instruments of Governmental Power
| DOI | 10.1177/106591294900200404 |
| Date | 01 December 1949 |
| Author | R.G. Tugwell |
| Published date | 01 December 1949 |
| Subject Matter | Articles |
545
THE
NEW
DEAL:
THE
AVAILABLE
INSTRUMENTS
OF
GOVERNMENTAL
POWER
R.
G.
TUGWELL
University
of
Chicago
I
HERE
WAS,
among
Americans
in
the
third
decade
of
the
twen-
tieth
century,
a
curious
dual
feeling
about
government -
rever-
ence
mixed
with
contempt.
What
was
revered
was
something
abstract,
something
never
in
being;
what
was
treated
with
contempt
was
the
representation
of
that
abstraction.
This
confusion
was
shared
by
the
progressives;
perhaps
it
was
even
more
characteristic
of
them
than
of
others.
The
principles
of
public
affairs
they
honored
most
by
profession
came
down
to
them
from
two
sources:
French
equalitarianism
which
ended
there
as
here
in
revolution
with
a
middle-class
turn;
and
English
common
law,
with
rules
built
up
rather
than
handed
down.
These
derived
principles
were
not
entirely
consistent
with
each
other;
but
this
was
really
unimpor-
tant
since
neither
was
so
honored
in
observance
as
might
have
been
expected
from
prevalent
professions.
The
fathers
who
had
made
the
American
Constitution
had
acknowledged
the
French
idea
that
men
were
created
free
and
equal;
but
it
had
soon
become
obvious
that
all
men
were
not
going
to
be
treated
as
either
free
or
equal
under
the
institutions
to
be
set
up.
(The
pursuit
of
happiness
was
mentioned
too,
but
the Puritan
in,
fluence
modified
the
meaning
of
that
word
out
of
all
recognition.)
These
same
founding
fathers,
those
who
were
lawyers,
had
of
course
been
Eng-
lish-trained,
and
that
meant
that
they
had
been
trained
to
the
common
law;
but
in
the
social
system
of
the
eighteenth
century,
which
had
in-
cluded
aristocrats
and
country
gentlemen,
workers
and
yeomen,
the
com-
mon
law
had
been
a
method,
not
a
code.
Indeed
codification
could
be
-and
often
was-a
serious
limitation
on
evolutionary
development.
Growth
had
been
hampered
or
distorted
by
too
frequent
reference
to
frozen
principle.
A
mind
like
Hamilton’s,
for
instance,
logical,
orderly,
powerful
in
generalization,
had
tended
always
to
reduce
procedure
to
code,
and
sometimes
too
soon
or
too
rigidly.
There
could
be
too
much
order,
too
definite
a
system
of
principle,
too
rigid
a
code.
All
this
might
have
been
disputed;
indeed
many
intellectuals
had
to
dispute
it
if
their
work
was
to
stand
on
the
credit
side
of
humanity’s
books.
Yet
they
could
not
deny
that
freedom,
equality
of
opportunity,
human
liberty,
and
even
546
the
pursuit
of
happiness
were
thought
of
in
the
democratic
system
as
closely
associated
with
the
common
law
and
its
slow,
pragmatic,
change,
ful
growth.’
Piepowder
courts
and
their
modern
counterparts
had
not
produced
text-book
lucidity
and
regularity
of
evolution;
but
they
had
yielded
rec,
ords
which
had
assayed
in
the
crucible
of
time
rather
high
in
justice.
The
processes
closely
held
among
the
people,
at
the
grassroots,
as
we
said,
were
seemingly
inconsistent,
and
especially
so
in
transition
times,
as
we
passed
from
one
level
of
accepted
custom
to
a
different
one;
but
their
virtue
was
just
that-that
they
could
be
inconsistent,
bravely
so,
without
necessity
for
other
explanation
than
assurance
of
common
judg-
ment,
and
could
yield
to
the
pressure
of
change.
What
was
able
to
bend
often
escaped
breaking.
The
magistrate
who
did
not
know
his
precedents
too
well,
the
jury
which
displeased
the
learned
judge,
the
arbitrator
whose
sense
of
equity
was
wholly
untechnical-these
were
characteristic
and
saving
instruments
of
flexibility.
The
reverence
of
many
Americans
for
the
Constitution
was
almost
an
hysteria.
Yet
those
who
were
most
affected
by
this
disease
frequently
held
its
most
important
provisions
in
obvious
contempt.
They
had
no
inten,
tion
of
being
governed
by
them
and
would
say
so
freely.
Where
was
the
real
allegiance?
These
people
seemed
to
exhibit
that
duality
mentioned
above.
The
idea
of
the
Constitution
was
sacred,
but
no
part
of
its
actual
requirements
needed
to
be
met
in
practice.
Nor
was
this
expected
to
make
doubtful
the
genuineness
of
the
patriotic
sentiment.
The
members
of
many
a
lynching
party
were
present
as
the
self-chosen
representatives
of
good
government,
of
law
and
order.
More
important
was
the
accident
that
our
Constitution
had
been
adopted
before
the
principles
of
laissez
faire
had
been
thorougly
estab-
lished
and
widely
disseminated.2
Our
dominant
class,
the
business
men,
1
There
have
been
in
American
history
an
unusual
number
of
exceptions
to
the
code-making
preference
so
common
among
powerful
thinkers.
The
philosophers,
Peirce,
James,
Dewey,
at
least
two
of
our
economists,
Patten
and
Veblen,
and,
among
jurists,
certainly
Marshall
and
Taney
in
an
earlier
time
and
latterly
Holmes,
Stone
and
Cardozo,
represent
what
might
almost
be
called
an
American
school.
No
one
can
deny,
however,
that
Royce
and
others
in
philosophy,
Walker,
Clark,
Ely
and
Seligman
in
economics,
Giddings
and
Ward
in
sociology,
and
the
justices
of
the
Supreme
Court
who
have
been
in
the
majority
for
several
generations,
represent
a
kind
of
thought
which
com-
mands
wider
approval.
Instrumentalists,
if
they
may
be
called
that,
following
Mr.
Dewey,
have
always
been
few,
and
consequently
overborne,
and
mostly
honored
after
events
have
proven
their
case
in
other
ways.
This
is
a
tragic
loss;
but
nothing
can
be
done
about
it.
The
advice
of
people
with
this
sort
of
thinking
equipment
has
never
been
sought
in
our
national
affairs.
Henry
and
Brooks
Adams
testified
copiously
to
that.
After
Mr.
Hoover
had
displayed
his
intellectual
affilia-
tion
with
men
of abstract
principle
it
was
pardonable
to
feel
that
it
never
would.
Mr.
Roosevelt
was
to
have
his
lapses;
but
on
the
whole
he
would
be
more
respectful
to
facts
and
less
stuffed
with
stereotypes
than
any
other
leader
America
ever
had.
No
greater
compliment
could
be
paid
him
in
this
regard
than
to
suggest
that
he
might
have
written
Marshall’s
observation
in
McCulloch
v.
Maryland
(4
Wheaton
316,
1819):
"This
provision
is
made
in
a
constitution
intended
to
endure
for
ages
to
come,
and,
con-
sequently,
to
be
adapted
to
the
various
crises
of
human
affairs.
To
have
prescribed
the
means
by
which
government
should,
in
all
future
times,
execute
its
powers
would
have
been
to
change
entirely
the
character
of
the
instrument
and
to
give
it
the
properties
of
a
legal
code."
2
It
will
be
recalled
that
Smith’s
Wealth
of
Nations
was
published
in
the
year
in
which
the
Declaration
of
Independence
was
issued.
From
1776
to
1787
was
not
long
enough
to
convert
American
mer-
cantilists
into
convinced
believers
in
free
enterprise.
547
had
been
acting
for
nearly
a
hundred
and
fifty
years,
with
the
consent
of
the
Supreme
Court,
as
though
this
were
not
true.
Infrequently
Justices
had
protested,
as
when
Holmes
had
cried
out
that
the
Constitution
did
not
&dquo;enact
Mr.
Herbert
Spencer’s
Social
Statics.&dquo;
These
had
usually
been
unregarded
dissents
from
majority
opinion,
but
in
time
they
had
had
their
influence.
They
had
set
signals
along
the
way.
It
had
proved
to
be
easier
for
a
minority
to
become
a
majority
than
for
a
majority
to
grow
out
of
nothing.
What
Holmes
had
gone
on
to
say
had
been
that
the Constitution
embodied
no
economic
theory,
meaning
that
any
theory
held
by
the
peo-
ple
in
general,
and
expressed
through
legislative
acts,
could
find
scope
and
justification
there-or
could
do
so
if
the
judges
would
see
it
his
way.
That
had
been
true
of
the
change
from
mercantilism,
which
had
been
in
the
minds
of
the
framers,
to
the
laissez
faire
in
which
Taney,
who
had
ac-
corded
with
his
age,
had
acquiesced.
Would
it
sufhce
for
a
new
transi-
tion
to
national
regulation
again?
The
dissenting
opinion
of
Holmes
just
referred
to
was
by
1933
as
well
known
to
American
political
scientists
as
the
Gettysburg
address
was
to
American
school
children:
This
case
is
decided
upon
an
economic
theory
which
a
large
part
of
the
country
does
not
entertain.
If
it
were
a
question
whether
I
agreed
with
that
theory,
I
should
desire
to
study
it
further
and
long
before
making
up
my
mind.
But
I
do
not
conceive
that
to
be
my
duty,
because
I
strongly
believe
that
my
agreement
or
disagreement
has
nothing
to
do
with
the
right
of
a
majority
to
embody
their
opinions
in
law.
It
is
settled
by
various
decisions
of
this
court
that
state
constitutions
and
state
laws
may
regulate
life
in
many
ways
which
we
as
legislators
might
think
as
injudicious,
or,
if
you
like,
as
tyrannical
as
this,
and
which
equally
with
this
interfere
with
the
liberty
to
contract.
Sunday
laws
and
usury
laws
are
ancient
examples.... The
Fourteenth
Amendment
does
not
enact
Mr.
Herbert
Spencer’s
Social
Statics....
But
a
Constitution
is
not
in-
tended
to
embody
a
particular
economic
theory,
whether
of
paternalism
and
the
or-
ganic
relation
of
the
citizen
to
the
state
or
of
laissez
f aire.
It
is
made
for
people
of
fundamentally
differing
views,
and
the
accident
of
our
finding
certain
opinions
natural
and
familiar
or
novel
and
even
shocking
ought
not
to
conclude
our
judgment
upon
the
question
whether
statutes
embodying
them
conflict
with
the
Constitution
of
the
United
States.’
This
passage
could
be
and
has
been
used
as
the
text
for
several
dis,
courses,
as,
for
instance,
Holmes’
devotion
to
pragmatic
logic,
his
clear
feeling
of
judicial
subordination
to
majority
will,
and
so
on.
What
was
not
sufficiently
remarked
was
his
repudiation
of
a
concordance
of
ortho-
dox
theory
to
explain
the
Constitution.
It
is
a
matter
of
regret
that
run-
ning
with
this
there
was
not
a
perception
on
the
part
of
this
great
gentle-
man
that
in
handing
these
liberties
to
state
legislatures,
he
was
excluding
the
national
legislature
from
them.
His
concept
of
liberalism
was,
in
this
respect,
the
same
as
Mr.
Justice
Brandeis’,
although
it
had
a
different
root.
When
in
the
Slaughterhouse
Cases
the
Supreme
Court
had,4
as
Dean
3
Lochner
v.
New
York,
198
U.
S.
45
(1905).
4
16
Wallace
36
(1873).
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