The Constitution and the New Deal
by G. Edward White
Harvard University Press * 2000 * 385 pages * $47.50
Myths about U.S. history abound, and perhaps no era of our history has spawned more than the New Deal. The economic myths are well known: That the economic collapse was due to an innate flaw in the free-market system; that the Hoover administration adopted an unyielding laissez-faire policy that allowed the crisis to deepen; that FDR's energetic, visionary programs "primed the pump" and rescued the economy, and so on. But there are also legal myths surrounding the New Deal, and in his elegant The Constitution and the New Deal, G. Edward White exposes them to exacting, scholarly scrutiny. The result is a book that serious students of the Constitution will want to read with care.
White, professor of law and history at the University of Virginia, writes in his introduction, "The conventional account of early twentieth-century constitutional history begins by identifying the New Deal as the source of a new era of constitutional law and constitutional interpretation, in which the Constitution was adapted to facilitate a new realm of American governance." The conventional account, moreover, has been crafted by writers who idolized FDR and big government so as to cast developments as the triumph of a "modern" approach to the Constitution. The antiquated view of the Supreme Court's role as a protector of liberty and property was rejected by enlightened justices who could see that the legislative and executive branches needed to be given virtually unfettered power to regulate economic behavior. The Court's role was to be limited to the defense of "fundamental" rights such as those in the First Amendment. Most students of constitutional law are treated to a virtual morality play as professors and textbooks present the cases as the clash between evil old property rights and good, modern state regulation.
White is not a partisan of the older approach to the Constitution, exemplified in such cases as Lochner v. New York and Adkins v. Children's Hospital (striking down maximum-hour and minimum-wage legislation respectively). Nor is he a partisan of the "modern" approach. He is simply reexamining history and finds much amiss in the "triumphalist narrative" that has become widely accepted.
Lochner is usually scoffed at these days, with professors pointing out Justice Holmes's dissenting line, "The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics," and leaving the impression that there was nothing to the majority opinion except an illegitimate exercise of judicial power, substituting the personal philosophy of the justices for the wisdom and compassion of the legislature. …