The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt.

• Author: White, G. Edward

The constitutional history of the New Deal period, which can roughly be defined as spanning the years from the early 1930s through the Second World War, appears to be moving closer to the forefront of our contemporary consciousness. It is now not uncommon for commentators on current constitutional law issues to enlist "the New Deal" as a symbol, either of the bright and shining "moment" in which the American constitutional system adapted to modernity(1) or of the willful and misguided creation of that alleged source of many of our present ills, the welfare state.(2)

When a period from the past begins to take on a particular resonance with the present, a "new history" of that period almost invariably emerges. I suspect that a new history of the New Deal is in the process of being formed, and I believe that an important focal point of that history will be the series of Supreme Court constitutional law decisions that William Leuchtenburg(3) characterizes as a "constitutional revolution" during which the Court experienced a "rebirth." One might surmise from the title and subtitle of Leuchtenburg's book, in fact, that it is part of that new history.

I have concluded, however, for reasons that will occupy me for the bulk of this review, that Leuchtenburg has done something quite different in The Supreme Court Reborn. Rather than offering a new constitutional history of the New Deal period, he offers a conventional, traditionalist view, one that arguably fails even to attempt, let alone to accomplish, the task of any new history, that of cabining a historical era in time. The most interesting and perhaps telling feature of Leuchtenburg's account of the "constitutional revolution" of the 1930s is one of his implicit starting assumptions. He assumes that in order for us to appreciate the magnitude of that revolution, he need only describe it, not explain it. He assumes, in other words, that we will grasp his interpretation of the constitutional history of the New Deal merely from being exposed to the details he provides.

To understand why Leuchtenburg -- widely viewed as an experienced and skilled practitioner of archival narrative history and as an unimpeachably credentialed "expert" on the subjects he discusses in The Supreme Court Reborn(4) -- felt that his readers would grasp the meaning of the New Deal constitutional revolution from such details, it is necessary to take two excursions away from those details, one into the realm of writing history generally and the other, at greater length, into what I call the inferential structure of Leuchtenburg's historical narrative in The Supreme Court Reborn. I conclude by summarizing the ways in which I find Leuchtenburg's history conventional and at the same time unsatisfying, and by proposing some lines of questioning that need to be undertaken before the constitutional developments of the New Deal period can adequately be cabined in time.

1. THE IMPULSE TO "DO HISTORY"

   In the late nineteenth and twentieth centuries there have been periods in which the American legal profession has treated the historical analysis of legal subjects and issues as an important mission of legal scholarship, and periods in which it has treated such analysis as distinctly marginal to the enterprise. One might compare the years from 1870 through the early 1920s with the years between the 1930s and the 1960s. During the former period, Harvard's Christopher Columbus Langdell, whose model of a law faculty was eventually to dominate the profession, assembled a faculty of "expounders, systematizers, and historians."(5) During the latter period, by contrast, only a handful of law schools had legal historians on their faculties, relatively few pieces of historical scholarship appeared in law reviews, and many in the profession regarded "doing history" as an antiquarian or obscurantist exercise.(6)

   One could, in fact, trace a connection over the course of the twentieth century between the legal academy's enthusiasm for contemporary issues of law and policy and its lack of interest in doing history. When legal academics were engaged by and saw themselves as important contributors to issues of public policy -- during the periods of administrative regulation in the 1930s and 1940s and constitutional reform in the 1950s and 1960s, for example -- legal history appeared to them less meaningful and consequently more obscurantist. Alternatively, when legal academics found themselves disaffected with the orientation of contemporary policymaking, systemic and theoretical approaches to law and policy came into vogue. This occurred in the 1970s and 1980s(7) and also, to a degree, in the years between World War I and the decade of the 1930s. In the 1920s, for example, several members of elite law school faculties became invested in the American Law Institute's (ALI) efforts to systematize the principles of common law in its Restatement of the Law project, and those participants were united in their confidence that they could do a far better job of "law reform" than official policymakers, such as state legislators.(8)

   History, which offers explanations for why the currently dominant attitudes and practices of policymaking remain in place even when they seem dysfunctional, can be seen as a systemic scholarly methodology. It also can be seen as a subversive enterprise. A sense of disquiet about the orientation of contemporary policymaking can spur historical research, and the findings can contribute to that disquiet. Through temporal comparison, historical studies frequently suggest that governing assumptions about "the way things are," which lead us to endorse certain practices or policies, are not universal, but rather time bound, contingent, and even fortuitous. The New Deal as a historical subject furnishes a suggestive example.

   The New Deal arguably ended, in the sense of its political, economic, and legal upheavals, over fifty years ago. It left in place, however, a governmental apparatus, at both the federal and state levels, of hitherto unprecedented magnitude in American life. Over the course of the past fifty years changes in the political and economic climate of American society -- renewed prosperity and the realignment of the party affiliations of various constituent groups being only two examples -- have altered the context of New Deal practices and policies. Moreover, after the Second World War both the doctrinal orientation of constitutional law and the Court's self-fashioned role as an overseer of at least a significant component of legislative activity -- activity affecting civil rights and civil liberties -- have represented discernible changes from the New Deal period. Finally, on the level of popular culture, a succession of political slogans designed to identify the Democratic party with a legacy from the 1930s -- Fair Deal, New Frontier, Great Society -- also can be seen as signifying the implicit assignment of the "New Deal" to a particular period in time.

   Thus in one sense the New Deal unmistakably has receded into the past. But it also has retained a continuity with the present in at least one major respect. The significant political, economic, and legal changes of the past fifty years have not been paralleled by a comparable change in the arguably "revolutionary" relationship between the "public" and "private" spheres of American life that the New Deal established. Prior to the 1930s government had, by any account, a minimalist presence, a reflection of its meager regulatory and distributive capacities. Since the New Deal, government at both the state and federal levels has become an increasingly prominent and ubiquitous force.

   The increased presence of government in American life has arguably been less revolutionary than the accompanying change in conceptions about what government represents and about what portions of American society are appropriate subjects of governmental action. Prior to the New Deal, theories of governance assumed the existence of a substantial "private" sphere of American life, a vast, general domain that government could invade only for specially conferred "public" purposes. Since the New Deal, we take the government to have general regulatory powers limited only by special freedoms conferred on individuals or groups. The New Deal thus represents a sea change in conceptions of the appropriate boundaries for the "public" and "private" sectors of American life, and that change in conceptions remains with us still.

   This change in the conception of government and of the relationship between governmental powers and private freedoms has had, in my judgment, a decisive effect on the overwhelming majority of historians who have chosen to write on the New Deal. Whatever historical subjects the members of this group of historians have chosen to address, two common messages -- one explicit and the other implicit -- have emanated from their accounts. They have argued explicitly, in monograph after monograph and in Leuchtenburg's synthetic works, that the governing apparatus of American society ushered in by the New Deal bore no resemblance to any governing apparatus that had existed previously.(9) In addition, they have argued implicitly, indeed taken for granted, that the New Deal governing apparatus is still our apparatus; that the world of affirmative government created in the New Deal is still our world. Thus the conventional history of the New Deal has created an unmistakable inference: as contemporary Americans we remain "connected" to the New Deal and to the events and ideas that made affirmative government necessary and desirable in America.

   I find that this inference imposes a limitation on our ability to fashion a history of the New Deal that satisfies a central requirement of any work of historical scholarship that aspires to professional stature and a decent shelf life. The requirement is that the history confine its subject to a distinctive period in...