Vol. 11 No. 3 (March 2001) pp. 128-130.
THE CONSTITUTION AND THE NEW DEAL by G. Edward White. Cambridge, MA: Harvard University Press, 2000. 385
pp. Cloth $45.00.
Reviewed by Thomas G. Walker, Department of Political Science, Emory University.
Well-crafted point-of-view books, especially those that challenge conventional understandings, are often a pleasure
to read. By focusing on facts, interpretations, and logical arguments inconsistent with the prevailing wisdom,
such books chip away at long entrenched views and create room for doubt that did not previously exist. Contrarian
works may not succeed in producing significant change, but they frequently initiate serious reconsideration of
settled things. Such a book is G. Edward White's latest effort, THE CONSTITUTION AND THE NEW DEAL. In this volume
the distinguished University of Virginia legal historian offers a frontal attack on conventional understandings
of the New Deal and its effect on American jurisprudence. The book is the culmination of an argument White has
been
developing in lectures and papers for more than a decade.
The conventional view holds the New Deal period as a true constitutional revolution, equivalent perhaps to the
Founding and the post-Civil War era. Unlike the two earlier periods of change, however, the New Deal revolution
occurred without formal ratification of new constitutional provisions, but rather through a radical shift in constitutional
interpretation.
Although the conventional story appears in several different forms, each of its variations focuses on the period
beginning with Franklin Roosevelt's election in 1932 and extends through 1942. These years encompass a new political
majority taking control of the legislative and executive branches, a clash between the president and the judiciary
over appropriate constitutional interpretations, the judiciary's capitulation in the wake of Roosevelt's Court-packing
plan, and a final set of constitutional rulings solidifying the new jurisprudential order. This period is associated
with significant constitutional change leading to the growth of the executive
branch (especially in the area of foreign affairs), the emergence of federal administrative agencies, the expanded
role of the government in regulating the economy, and increased protections for free speech and other civil rights.
Also affected was the perception of the judiciary's proper role. Prior to the New Deal the judiciary was seen as
guardian of the Constitution, ensuring that government activities of all kinds squared with the principles of the
federal charter. Following the New Deal era, the judiciary's function changed to one of "bifurcated review,"
allowing great deference to the political branches in regulating economic matters and applying heightened scrutiny
to government encroachments on civil liberties. According to the standard interpretation of this era, the judiciary
initially clung to its traditional guardian role in the face of large political
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majorities and the forces of modernity pressuring for change. It was Roosevelt's Court-packing plan that served
as the crucial event that brought the Court into line with the new political order.
White's analysis of the intellectual, political, and legal history of the twentieth century leads him to reject
this conventional interpretation of the New Deal. In doing so, White is also rejecting (in whole or in part) the
efforts of a virtual "Who's Who" of twentieth century constitutional scholars (Edward Corwin, Robert
Jackson, Carl Swisher, Robert McCloskey, Louis Henkin, Kenneth Culp Davis, Alpheus Mason, Bernard Schwartz, William
Leuchtenburg, Walter Murphy, William Swindler, Cass Sunstein, Bruce Ackerman, Laura Kalman, and others). According
to White, the conventional account was based in part on misinterpretations of history and in part on the academy's
general investment in the values of the New Deal.
White argues that the conventional story cannot withstand a more thorough historical analysis. He is especially
critical of the emphasis placed on the importance of the Court-packing plan as the fatal blow to the entrenched
jurisprudence. Throughout the book, White refers to the traditional view of the Court-packing plan as a "tale."
Rather than finding the changes in twentieth century jurisprudence causally tied to Roosevelt's proposals for the
judiciary, White writes that the New Deal was simply the midpoint in a jurisprudential crisis that was well underway
by the 1920's and was not fully resolved until after the Second World War.
After offering a critical analysis of the standard account, White examines three areas of constitutional change
often ascribed to the New Deal: the growth of presidential authority over foreign affairs, the emergence of administrative
agencies, and the elevation of freedom of speech. In each case he finds a lack of sufficient evidence to establish
a causal link between the constitutional modifications and the Court-packing plan (or any other New Deal event).
For the most part, White determines that the seeds of change were planted long before the New Deal years and that
the final realization of the jurisprudential reforms was not accomplished until long after the critical New Deal
decade.
White is at his best when he analyzes the history of intellectual movements. Several chapters of this volume trace
the evolution of the changing concept of the Constitution. Prior to the twentieth century the Constitution was
generally seen as the embodiment of universal, fixed principles. These dogmas were not designed to change with
time or events. This attitude underscored much of the opposition to New Deal legislative experimentation. The role
of the judge was to serve as a guardian of the Constitution by imposing a barrier to legislative and executive
actions inconsistent with fixed principles. In the early twentieth century this
traditional conceptualization of the Constitution was challenged by the view that the Constitution was a "living"
document, one capable of responding to changing conditions. This alternative view emphasized the adaptability of
the Constitution and conceptualized judges as human decision-makers who interpret the Constitution taking into
account the needs of the times. The "living Constitution" movement grew to considerable strength prior
to the New Deal and provided a constitutional defense of the actions taken by government in response to the nation's
economic crisis. Therefore, the intellectual foundation for the constitutional acceptance
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of New Deal programs had already been laid before the Court-packing plan was devised.
When the Constitution was viewed as a set of fixed principles, the role of the judge was seen as applying those
permanent doctrines to current disputes. The judge's source of authority (and object of the judge's allegiance)
was the Constitution itself. White argues, however, that once the Constitution was conceptualized as a living document
with principles bendable in response to contemporary needs, the perceived role of the judge forever changed. If
the Constitution was to respond to external demands (for example, to an economic depression), it was necessary
for the judge to become the architect of that adaptability. No longer did the judge look to the law alone as an
interpretive guide, but to external factors as well. As a consequence, the judge became little more than another
political decision-
maker, one who would be evaluated in large measure by the impact of his or her rulings on public policy. This quickly
led to judges being characterized as "liberals" or "conservatives," a phenomenon that did not
exist prior to the twentieth century. Placing political labels on judges resulted in their canonization or demonization
depending upon the public policy goals that were advanced by their rulings. Conceptualizing judges in this way
also gave birth to the study of judicial behavior.
In the end, White dismisses the notion that the Court-packing plan caused a new jurisprudence. Rather he concludes
that the Court-packing plan was an effect of the jurisprudential and intellectual changes that were already fully
developing at the time Roosevelt announced his proposal for the judiciary. The New Deal itself was nothing more
than a particularized moment in time that coincided with the triumph of modernist conceptions of law and judging.
White's volume is well-argued and well-documented. It provides a coherent and often compelling argument, one that
reflects considerable scholarly thought over a significant period of time. Does White succeed in tearing down the
conventional story and replacing it with his own interpretation of the New Deal? Probably not, but replacing the
traditional view was not White's goal. On the book's first page the author proposes only to "complicate"
the conventional account with new historical interpretations. That goal is well met. Whether the reader ultimately
concludes that the conventional story is the correct one or adopts the author's revisionism is less important than
the fact that White's argument encourages a creative rethinking of an historical account previously considered
settled.
Copyright 2001 by the author, Thomas G. Walker.