The Constitution and the New Deal (review)

The Constitution and the New Deal. By G. Edward White (Cambridge, Mass., Harvard University Press, 2000) 385pp. $45.00

The historiography of modern American constitutionalism places great emphasis on the events of 1937--President Franklin D. Roosevelt's Court-packing plan, the Court's "switch in time that saved nine," and the subsequent transformation of constitutional doctrine. As White notes, revisionist scholars have been building a challenge to the prevailing view of 1937 for about a decade. White's book consolidates the revisionist view of 1937. Relying on a careful reading of the Supreme Court's opinions, White offers a comprehensive overview of the way in which the constitutional jurisprudence that prevailed in the first decades of the twentieth century was replaced by a different jurisprudence that prevailed after the New Deal.

White does not deny--how could he?--that constitutional law after the New Deal was quite different from constitutional law before it, but he emphasizes the piecemeal way in which components of the new constitutional law came into existence. White stresses, in particular, the facts that some components of the new constitutional law were completed well before 1937 and that the outlines of others could be seen in scholarship, as well as in certain decisions, before that year.

White's argument develops along two fronts. The first involves demonstrating that important components of what is now considered the New Deal constitutional order were in place before 1937. White leads with his strongest card in two chapters about the role of the executive in foreign relations. He demonstrates that the constitutional theory endorsing executive predominance in foreign affairs, understood today as the product of the New Deal transformation of the national government, had become the conventional wisdom before 1932. Other chapters show how the essentials of agency decision making had been accepted as constitutional before the New Deal, and how the Court and academic commentators endorsed some elements of the modern law of civil liberties after World War I.

White's second large argument deals with the overall structure of judicial review. White distinguishes between an approach to judicial review that he calls guardian review--in which the courts attempt to define the boundaries of concepts like "public" and "private" in order to determine whether legislation is constitutional--and an approach that he calls bifurcated review--in which the courts rubber-stamp social and economic legislation and develop substantive standards for determining whether other laws violate civil liberties. According to White, the Supreme Court's official theory remained guardian review through the early New Deal years. White shows how the cases now viewed as part of the New Deal transformation actually employed guardian review. Prodded by academics, the Court came to reconceptualize constitutional adjudication as bifurcated review only after reflecting upon several years of experience with cases after 1937.

White should have given more prominence to Duncan Kennedy's unpublished, but widely circulated, essay "The Rise and Fall of Classical Legal Thought" (1975), which develops an idea similar to White's concept of guardian review. Some of White's arguments, particularly in the chapter on the American Law Institute and its project to "restate" the common law, seem a bit forced. In general, however, White's arguments are clear and compelling.

White's work fits nicely with recent work on the construction of successive political regimes in U.S. history. Against the idea associated with Ackerman that regimes come into existence at critical constitutional moments, White's work supports arguments made by Skowronek and Orren that regimes are constructed incrementally and that some components of a new regime are consolidated before it has come into existence. ¹

 

Mark Tushnet
Georgetown University Law Center

Notes

1. See Bruce Ackerman, We the People: Transformations (Cambridge, 1998); Karen Orren and Stephen Skowronek, "Regimes and Regime Building in American Government: A Review of Literature on the 1940s," Political Science Quarterly, CXIII (1998), 698-702.

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