Law, Politics, and the New Deal(s)

Article excerpt

I. INTRODUCTION

The metaphor of fatigue permeates the debate over the constitutional history of the New Deal. Prior to the publication of Bruce Ackerman's We the People: Transformations, the disagreement pitted "internalist" law professors, such as Barry Cushman and Richard Friedman,(1) against "externalist" historians, such as William E. Leuchtenburg and myself.(2) Now comes Ackerman, who, picking up on the metaphor of fatigue used by some of the participants,(3) urges us to drop "the old and tired debate."(4)

In Part II of this paper, I explore the dispute between internalists, who point to doctrinal, intellectual causes in explaining constitutional change during the New Deal, and externalists, who stress political reasons. I do so to locate Ackerman's place within the controversy. In stressing the controversy's unimportance, Ackerman scolds both internalists and externalists for assuming "that the conflict between the Old Court and the New Deal" in 1935 and 1936, which set the stage for Roosevelt's effort to pack the Court in 1937, was "a waste of time."(5) He claims that in resisting the "First New Deal," Roosevelt's legislative program of 1933, the Old Court was acting as it should: serving "as the conservative branch, leading a principled challenge to a rising movement of revolutionary reform."(6) Ackerman thus legitimates the Court's role in a representative democracy and safely distances law from politics. But I contend that he also participates in the debate in spite of himself. Ironically, given his celebration of the prudential value of the Old Court, Ackerman largely makes the case for the externalists.

In Part III, I query Ackerman's insistence that we should challenge the "basic premises" of the internalist/externalist controversy. Though old, the debate is neither tired nor unimportant. It yields important insights into political and intellectual history; Ackerman trivializes it when he says it focuses on the subjective motivations of Justices. In fact, the controversy between the externalists and internalists involves the legal academy's most enduring concern (and, as I suggest in Part V, one of the leitmotifs of the Ackerman corpus): the relationship between law and politics. Further, one strength of Ackerman's work is that it points the way towards a manner in which we may usefully draw on both internalist and externalist accounts.

In Part IV, I focus more closely on the history Ackerman advances in support of his attempt to establish a "New Deal" for New Deal constitutional historiography. I argue that in celebrating the prudentialism of the Old Court, his account overemphasizes its role in bringing about social change of which Ackerman approves. Pace Ackerman, we can neither glorify Roosevelt's legislative program of 1935, the "Second New Deal," nor give all the credit for its passage to the Old Court. Nor does Ackerman consider the impact of the Court-packing episode on politics. Whatever its connection to the Court's "switch in time," the Court-packing plan helped close off Congress and the executive branch as routes for reform. Roosevelt's attempt to respond to the Old Court's resistance by packing it with additional Justices proved a political disaster, which helped end the push for social change in the executive and legislative branches for a quarter-century, beginning in 1938. Consequently, the reformist programs of the next era were carried out under the auspices of the judiciary, which created growing concern that American society was court-centered. That anxiety led to the resurrection of the "countermajoritarian dilemma," which has long consumed Ackerman and other constitutional theorists.

In Part V, I turn to the theoretical underpinnings of Ackerman's project. I maintain that Ackerman's externalist approach to Court-packing is in tension with his own jurisprudential internalism, which reflects his own roots in the legal process school. That is, despite his externalist approach to New Deal constitutional change, Ackerman is generally suspicious of court-centrism; wary of the idea that judging is a political act; and hostile to the claim that in an important sense, law is politics. …