AS WE MOVE from the nineteenth century to the twentieth, our perspective on the past suffers different distortions, requiring compensating changes in interpretive method. In dealing with Reconstruction, we confronted collective amnesia. The last American who personally participated in the struggle over the Fourteenth Amendment was buried a half-century ago. Even grandchildren who dimly recall childhood stories of Thad Stevens and Andy Johnson are dying out. As a consequence, we had to spend lots of time and energy rediscovering institutional interrelationships that once were intuitively obvious. If the higher lawmaking legacy of the nineteenth century is to survive, each generation must make a similar effort to rediscover the remarkable way Americans organized their debate over the constitutional meaning of the Civil War.
By contrast, the great constitutional struggles of the New Deal are closer to us. Ronald Reagan voted for Franklin Roosevelt in 1936. When he recalled the Democratic landslide of that year, he could effortlessly place it in a sequence that began with Roosevelt’s first victory in 1932 and continued through the Court-packing crisis of 1937 to the consolidation of the welfare state by the early 1940’s. Memories of these scenes returned men like Reagan to their youth, when they began to share in the political struggles of their parents. The lessons they learned served as benchmarks for many later exercises in political judgment.
As in politics, so in law. When the New Deal generation won positions of authority in the courts and the law schools, they took full advantage of their opportunity to warn their successors against repeating the Old Court’s mistakes. These doctrinal teachings were greatly enhanced by the penetration of New Deal premises into American government. The millions of Social Security checks mailed each month attest to the government’s ongoing concern with fair income distribution. The thousands of pages published annually in the Federal Register (founded in 1936) contain countless reminders by a host of alphabet agencies—SEC, NLRB, EPA, OSHA, …—that unregulated capitalism endangers a series of fundamental values, ranging from environmental purity to worker dignity. Each day’s headlines report on the ongoing effort by the national government to sustain general prosperity through the flexible tools of macroeconomic policy made possible by the New Deal’s repudiation of the Gold Standard. Until the Reagan Presidency, no victorious political movement had questioned the propriety of this complex governmental effort to improve upon the invisible hand. To one or another extent, each Administration had built upon the efforts of its predecessors in the three basic areas of activist concern marked out in the Roosevelt years: the pursuit of distributive justice, the correction of market failure, and the assurance of general prosperity.
Little wonder that modern lawyers have little trouble recalling the broad outlines of the great constitutional crisis of the 1930’s. It is only their recollection of the Supreme Court’s retreat before the New Deal that provides the vast statutory superstructure of the activist state with a firm constitutional foundation. It was different before 1932. Each new activist initiative then provoked anxious foreboding: How to evade the entrenched constitutional principles that cast intervention into the “free market” under a dark cloud? The answer, in particular cases, depended upon the complexities of constitutional doctrine and the vagaries of judicial personnel. But there was no mistaking the constitutionally problematic character of the activist enterprise. So far as the judges were concerned, We the People had not authorized state regulation of the marketplace whenever political majorities concluded that this would serve the nation’s general welfare; the Constitution emerging after the Civil War contained fundamental limitations on such dubious enterprises.
These boundaries disintegrated during the New Deal revolution. A complex web of doctrine, woven by two generations of judges in the long period between 1873 and 1932, was swept away in the space of a decade. If the partisans of laissez-faire lost their battle in the legislature, they could no longer hope that the courts might reverse their opponents’ victory. After the New Deal revolution, it became clear to judges that We the People had stripped free market solutions to social problems of their previously privileged position.
Lochner v. New York serves as the paradigm. In 1905, the Court struck down the effort by New York to limit the work week to sixty hours as a violation of freedom of contract.1 By the end of the Roosevelt era, Lochner became the symbol of a repudiated era of laissez-faire jurisprudence. Henceforward, courts would uphold the authority of American government to act against all forms of social or economic exploitation that were condemned by a democratically elected majority.
This turnaround was all the more wrenching in connection with the national government. The Supreme Court had never denied the states a broad (though not unlimited) power to police the economy, but it had taken a different view of Congressional authority. Hammer v. Dagenhart can serve as paradigm. In 1916, Congress had acted against child labor by excluding its products from interstate commerce. But the Court struck down this effort: “[t]he Commerce Clause was not intended to give to Congress a general authority to equalize … conditions.”2 If Congress could not take steps to express the nation’s condemnation of a shocking abuse like child labor, its powers were limited indeed. If the New Deal was to prevail, this vision of limited government could not survive.
And it did not. By the early 1940’s, the New Deal Court was ringing the death knell in unanimous decisions that would have astounded lawyers a decade before. But the bar proved very adaptable. Under the Court’s emphatic tutelage, lawyers learned to look upon the case law of the preceding Republican regime with the peculiar mix of ignorance and contempt reserved for abandoned precedent. Whatever their personal political convictions, they quickly mastered the New Deal language for courtroom use. A half-century later, the New Deal Constitution—far less respectful of the rights of property and contract, far more respectful of national power—had been woven into the very fabric of the modern polity, shaping the expectations of ordinary citizens as well as the daily interactions of the President, Congress, and the Supreme Court.
All this is changing. The meaning of the New Deal revolution is no longer a matter of lived experience. The political stage is dominated by generations for whom other events served as the formative context for political awareness: the war against Hitler, the crusade against Communists, the struggle for civil rights, the agony of Vietnam, the resurgence of the right under Reagan. With the Republican takeover of Congress in 1994, New Deal premises are an object of sharp legislative critique. As usual, these tendencies take hold much more slowly in the courts—though even here, the first expressions of doubt are noticeable.3
It is too soon to say what will come of this rite of generational passage. Perhaps it heralds the ultimate unraveling of New Deal doctrine, bringing an end to the third great constitutional regime in American history. Perhaps it will provoke Americans to reinvigorate and deepen their New Deal commitments to social justice and the general welfare. Or maybe it will lead to something else entirely. Whatever lies in our constitutional future, the New Deal revolution is now becoming “historical and of another age.”4
Which does not mean that it will be unimportant. So long as America remains a dualist democracy, the death of a generation does not consign its constitutional achievements to the junk heap. But if they survive, they can no longer depend on the emphatic certainties of those who were present at the creation. They can flourish only through the engaged efforts by citizens, judges, and scholars to reflect on the meaning of the historical traces left behind.
I approach the New Deal, then, with a different ambition from the preceding case studies. Previously, my challenge was to bridge vast historical distances and see the Federalists and Republicans as they saw themselves—as revolutionary reformers struggling against formidable odds to redeem the will of We the People. Now my problem is different. I will be reflecting on the yawning gap—the unbridgeable distance of mortality—that has begun to separate the Roosevelt revolution from the lived experience of the American people. There is little value in repeating the stories told to us by the New Dealers after they took power in the nation’s courts and classrooms; rather, the challenge is to hold them at a critical distance.
My target will be the standard account of the birth agony of the modern republic. Political scientists regularly refer to the New Deal creation of a “Second American Republic,”5 but lawyers tell a different tale. They do not compare New Deal Democrats to the great regime-makers of previous centuries. They attribute the great constitutional crisis of the 1930’s to a few reactionaries on the Supreme Court who perversely distorted the Constitution’s true meaning. In opposing the New Deal, the Old Court of the early 1930’s had departed from the main line of the constitutional tradition established by John Marshall and the other great nationalizers of the early republic. If only the Justices had not strayed from Marshall’s path, all this unpleasantness could have been avoided!
On this traditional line, there was nothing new about the New Deal—except that it was cursed with some peculiarly reactionary Justices. The founders of the welfare state in America were not Roosevelt and his Democrats but Marshall and other Federalists who built the constitutional foundations of national power. In rediscovering the relevance of the Marshallian tradition after 1937, the New Deal Court was simply reestablishing itself in the main stream of American constitutional law.
Or so we have been taught. In calling this a “myth of rediscovery,” I do not dismiss it as worthless. There is an important truth in the last generation’s teaching. In placing activist government on a secure constitutional foundation, the New Dealers did not destroy all their legal and institutional connections to the past in the manner, say, of the Bolsheviks. As a consequence, the reigning professional narrative is right in pointing to the historical precedents for the New Deal revolution. But it deeply misleads by focusing on only half of the truth. Granted, the New Dealers maintained some important links with the past; they also gained popular consent for a sweeping redefinition of the aims and methods of American government.
I am calling for the same kind of balanced treatment that lawyers automatically accord to the 1780’s or 1860’s. Like the New Dealers, both Federalists and Republicans maintained many traditional elements in their constitutional theory and practice; but this does not prevent lawyers from recognizing the transformative thrust of the original Constitution or the Reconstruction amendments. Why not take a similar stance when dealing with the New Deal? Why pretend that it was Marshall and his friends who did all the really important constitutional work?
The answer returns us, once again, to the hypertextualist view of Article Five. Within this framework, the New Dealers could only lead Americans to a revised political identity by formally amending the Constitution. Since Roosevelt & Co. did not follow this path, hypertextualists are obliged to deny the constitutional creativity of the New Deal without deigning to investigate the facts. If there are no formal amendments, there can be no legitimate change, and that is that.
But, alas, it can’t be so simple—at least for those hypertextualists who are fated to live out their lives as lawyers and judges. In their daily work, they confront an endless array of legal doctrines and structures that presuppose the legitimacy of the New Deal revolution. And as sober professionals, they are not disposed to go on a constitutional rampage against the work of the last half-century. When faced with the yawning gap between hypertextualist theory and real-world practice, many lawyers have embraced the myth of rediscovery as a convenient legal fiction. Perhaps, they may concede, Marshall or Madison look a bit awkward when portrayed as proto–New Dealers; but this is an acceptable price to pay for a myth that allows modern lawyers to vindicate the constitutionality of modern American government. So let’s stop picking nits and get on with the business of constitutional adjudication in today’s America, dominated by the activist regulatory state. Next case.
For obvious reasons, such sentiments don’t appear in print too often. But I have heard them many times in private conversation. My aim is to confront the hypertextualist prejudices that make a descent to legal fiction seem necessary. While Roosevelt and Congress did not accept the preexisting system of higher lawmaking, neither did Madison and the Convention or Bingham and the Convention/Congress. Perhaps, after reviewing the facts, you will be unpersuaded by my claim that the New Deal is fundamentally similar to these earlier great acts of popular sovereignty. But surely the hypertextualist is a bit rash to dismiss my thesis on a priori grounds without deigning to consider the facts?
Now is the time to play a trump card and turn to the place where the hypertextualist might naturally look for support: the Supreme Court. After all, judges are apt to be more formalistic than most folk. Surely the last two hundred years have given them ample opportunity to endorse a hypertextualist reading of Article Five and thereby establish that these oracles of the law are squarely opposed to my thesis?
This is not what we find in the United States Reports. In its leading case on the subject, the Supreme Court does not focus narrowly on the text, but employs the precedent-based reasoning to which this book has been dedicated. More remarkable still, the Court emphasizes the unconventional character of the leading precedents. In short, hypertextualism is built on absolutely nothing of legal substance: neither the philosophy of the Founding, nor the history of the country, nor the law on the books. It is based on our failure to trouble ourselves with the facts and consider the remarkably self-conscious way the New Dealers grappled with, and ultimately transcended, the limits on popular sovereignty established by Article Five.
Coleman v. Miller6 came to the Court at an especially illuminating moment. When it was decided in 1939, Roosevelt had already appointed four committed New Dealers to the Court—Hugo Black, Stanley Reed, Felix Frankfurter, and William O. Douglas. This left only two conservatives—Pierce Butler and James McReynolds—to recall the constitutional principles of the laissez-faire era. The three remaining old-timers—Charles Evans Hughes, Harlan Stone, and Owen Roberts—provided the deciding votes in the case. Each group contributed an opinion: Butler’s dissent was joined by McReynolds; Black’s concurrence gained the assent of his fellow New Dealers Frankfurter and Douglas, as well as Roberts; Chief Justice Hughes provided an “opinion of the Court.”7
The case concerned the validity of a constitutional amendment proposed by Congress in 1924 after the Old Court had repeatedly denied Congress the power to act against the exploitation of child labor. In seeking to override cases like Hammer v. Dagenhart, the proposed amendment did not repudiate the fundamental principle of limited national government. It merely granted Congress the “power to limit, regulate, and prohibit the labor of persons under eighteen years of age.”8
Even this modest proposal was too radical for Americans of the 1920’s. By mid-1927, twenty-six states had rejected the amendment, and only five had ratified.9 The amendment’s fate was sealed—until the electoral tidal wave of the 1930’s. Fourteen legislatures ratified the amendment in 1933 alone, and eight more said yes by 1937.10 When Kansas voted to jump on the bandwagon in January, Republican legislators protested. Kansas was one of the states that had rejected the amendment in the 1920’s, and as the Republicans construed Article Five, this meant the state could not change its mind. They asked the Court to declare that the 1924 proposal had lapsed and that Congress was required to propose it again if it hoped to gain the consent of the People to a ban on child labor.
When the Kansans began their lawsuit in January of 1937, there was nothing odd about their demands. The Court had given no indication that it was abandoning the basic principles elaborated in Hammer. But shortly afterwards, the Court embarked on a massive retreat before the partisans of activist national government. During the spring of 1937, a majority of the Justices upheld the National Labor Relations Act and the Social Security Act in a series of sharply contested opinions. (Chapters 10–12 discuss this switch at much greater length.) Given this “switch in time,” Coleman took on a more ominous meaning. If the Court agreed with the Kansans, it would be casting doubt on its recent conversion to the welfare state. The challenge became more pointed when the New Deal Congress tried once again to abolish child labor by statute in its Fair Labor Standards Act of 1938. Congress had acted as if it were confident that the Court would no longer defend cases like Hammer and would allow statutory action without the need for further constitutional amendment. But if the Court had upheld the Kansans’ complaint, it would be placing this assumption, and hence the Fair Labor Standards Act, under a cloud.
So far as Butler and McReynolds were concerned, this was no reason for dismissing the Kansans’ arguments. Since these two judicial conservatives never recognized the legitimacy of the “switch in time,” the lawsuit raised a live issue: the Republican-era decisions invalidating activist national interventions on such “local matters” as child labor remained good law until Congress and the states managed to enact a valid Article Five amendment. Moreover, the conservatives had little trouble finding that the proposed child labor amendment had lapsed after its massive repudiation in the late 1920’s, and that Article Five required its reapproval by two-thirds of Congress before it could be considered by the states for ratification.
More surprisingly, the seven Justices who endorsed the “switch in time” did not disagree with the conservatives’ contention that the New Dealers were playing fast and loose with Article Five in reviving a proposal that had been so roundly rejected a decade earlier. At the same time, they were completely unwilling to insist that Congress had to restart the Article Five process if it ever hoped to gain regulatory authority over child labor. Since 1937, the Court had been working hard to reassure the nation that the Justices would no longer defend the Republican vision of limited government expressed in cases like Hammer v. Dagenhart.
But after only two years, the Court remained on probation. It was not yet clear whether the switch of 1937 was a strategic maneuver or a serious effort to consolidate the constitutional foundations of activist national government. Doubts would have flared into active political opposition if the Justices began, once again, to join Butler and McReynolds in opinions that cast a constitutional shadow upon the New Deal revolution.
How, then, to avoid both Scylla and Charybdis? Could the majority write an opinion that refrained from a renewed assault on the New Deal without offending its legal conscience by breathing new life into an amendment that had been so roundly repudiated by the states in the 1920’s?
Much to the Court’s credit, this question provoked the deepest judicial inquiry into the law of higher lawmaking in American history. Rather than offending their legal integrity or undermining their “switch in time,” the seven Justices advanced a new approach to Article Five. Speaking for the Court, Chief Justice Hughes declared that the central issues in the Kansans’ case raised “political questions” most appropriately resolved by the political branches, not by judges.
This holding was unprecedented. During the first hundred fifty years of the Republic, the Court had treated Article Five as a standard legal text. Justices differed about its meaning, but nobody doubted that his task was to interpret the text’s commands. In calling Article Five “political,” the Court was not mindlessly repeating some traditional formula. It was declaring that the time had come for lawyers to confront the fact that our higher lawmaking tradition could not be cabined within a neat legalistic understanding of Article Five.
To drive this point home, Hughes dealt with the Kansans’ legalistic complaint by confronting the unconventional pedigree of the Fourteenth Amendment. For the first (and only) time in Supreme Court history, Hughes sketched some of the problems canvassed in Part Two. He pointed out that the white Southern states rejected the Fourteenth Amendment when it was first proposed; that Congress responded by erecting new governments that tendered their assent; that Secretary Seward responded with a proclamation that expressed doubts about these Southern assents; that Congress replied with a joint resolution purporting to overrule the Secretary’s doubts; and that Seward acquiesced in the second proclamation.11
Hughes’s next move was even more significant. He refused to affirm that the Reconstruction Republicans conformed to Article Five in overriding the Southern veto of the Fourteenth Amendment. All the Court is willing to say was this:
This decision by the political departments of the Government as to the validity of the adoption of the Fourteenth Amendment has been accepted.
We think that in accordance with this historic precedent the question of the efficacy of ratifications by state legislatures, in the light of previous rejection or attempted withdrawal, should be regarded as a political question pertaining to the political departments, with the ultimate authority in the Congress in the exercise of its control over the promulgation of the adoption of the amendment….12
Guided by its rediscovery of the unconventional aspect of the Republican past, the Court made short work of its New Deal present. As in the 1860’s, so in the 1930’s, the Court refused to channel the revolutionary shift in opinion expressed by Kansas and its sister states through a legalistic interpretation of the rules of Article Five. Hughes left it to the “political departments” to decide whether the People of Kansas in 1937 could properly change its mind about the child labor amendment.
In writing his opinion, the Chief Justice restricted himself to the narrow questions13 raised by the Kansans’ case. This lawyerly caution only served to provoke New Dealers Black, Frankfurter, and Douglas, as well as Roberts (who had played a key role in the 1937 switch). Writing a special concurrence, Black declared that the entire amendment process was “‘political’ in its entirety … and is not subject to judicial guidance, control or interference at any point.”14
For fifty years, Coleman has been the “leading case” on Article Five, the first place a well-trained lawyer should look in his search for enlightenment. Yet both Hughes and Black repudiate a reading of Article Five that is uninformed by the “historic precedents.” As they dealt with the New Deal struggle over higher law, both emphasize the distinctive processes by which the “political branches” gained public acceptance for new constitutional principles.
I will be building on their insights here. Like Hughes, I will be looking for specific guidance in the precedents from the 1860’s. But like Black, I will not limit my concern to the particular problems that generated the Kansans’ complaints. I will show that the entire New Deal revolution takes on a deeper meaning when set against the “historic precedent” of the 1860’s. With the aid of this precedent, I attempt a systematic challenge to the myth of rediscovery—beginning with the way the New Dealers signaled their constitutional intentions in 1932 and ending with the consolidation of the new regime in the early 1940’s. This comparative exercise will suggest that, time after time, the New Dealers elaborated legitimating techniques that bear an uncanny resemblance to those worked out by Reconstruction Republicans.
But history never repeats itself exactly. When we trace the differences between Reconstruction and the New Deal, we will find that many of them are the product of a single accident of history—John Wilkes Booth’s murder of Abraham Lincoln in Ford’s Theater. Thanks to Booth’s bullet, the Presidency passed from a Republican stalwart to an increasingly conservative critic, forcing the party of revolutionary reform to fall back upon a model of Congressional leadership. Since the New Deal Democrats never had to cope with the consequences of an assassin’s bullet, Roosevelt could use the Presidency in ways that Lincoln contemplated but never executed.
In emphasizing the significance of Presidential leadership, I move beyond the Coleman Court in a second way. While Hughes rightly emphasized the role of the Reconstruction Congress in overcoming Seward’s legal doubts about the Fourteenth Amendment, he ignored the role of Presidential leadership in the proposal and ratification of the Thirteenth Amendment. This fixation on Congress is attributable to Hughes’s narrow focus on the particular issues raised by Coleman. The Kansans’ effort to change their mind on the child labor amendment naturally recalled similar state turnarounds on the Fourteenth Amendment. But nothing about the Kansans’ case invited Hughes to recall the unconventional uses of Presidential authority in the struggle for the Emancipation Amendment. Once we reflect more broadly upon the institutional parallels between the 1860’s and the 1930’s, the importance of the Presidency will become unmistakable.
Begin with signaling: at what point did Reconstruction Republicans and New Deal Democrats place their constitutional agendas at the very center of the political stage?
In both cases, it was with Presidential victories—Lincoln’s in 1860 and Roosevelt’s in 1932. In neither case did these initial triumphs represent a massive endorsement of the ultimate constitutional solutions consolidated a decade later. To the contrary, these signaling elections did not even focus on the proposals that would ultimately win the day. The Republican platform of 1860 disclaimed any intention to assault slavery in the states where it was established. The Democrats did not put the voters on notice of Roosevelt’s intentions for his first Hundred Days. In both 1860 and 1932, the Presidential victories served more to put new constitutional options on the agenda, rather than to legitimate new solutions.
In this sense, they are analogous to the provision in Article Five authorizing two-thirds of the states to call for a new Philadelphia-like convention. Just as such a call would signal the need for fundamental reconsideration, so did the initial elections of Lincoln and Roosevelt. Of course, such signals may lead nowhere—sometimes they do not generate a serious constitutional proposal, let alone the successful consolidation of a new solution.
But after 1860 and 1932, Republicans and Democrats pushed the process into the proposal phase in very similar ways. Both Lincoln and Roosevelt devoted their first term to a remarkable set of constitutional innovations, but neither spent much time on Article Five. The emerging Republican and Democratic visions of a “more perfect Union” were elaborated through a dynamic interaction between President and Congress. Like Lincoln and the wartime Congresses, Roosevelt and the New Deal Congresses sought to mobilize the People behind a wide range of activist initiatives that raised a profound challenge to the constitutional status quo.
As before, this challenge provoked a sharp response from conservatives in other key institutions. In the 1930’s, this did not come from Southerners prepared to fight for their state-centered understanding of the Union; it came from the conservative judiciary prepared to defend the property-centered constitution inherited from the prior era. Fortunately, conservative opposition did not touch off a second civil war—this one between social classes rather than geographic regions. But as in the 1860’s, institutional resistance did dramatize the extent of the New Deal’s departure from prior constitutional norms and tested the seriousness of public commitment to revolutionary reform. When the Supreme Court began to strike down a host of New Deal innovations, the President and Congress could have retreated from their vision of activist national government—just as the Republicans could have retreated from their commitment to emancipation and “equal protection” in the light of Southern resistance during and after the Civil War. Instead, the New Dealers took a course that would have proved politically suicidal in more normal times. They responded by enacting a second round of revolutionary reforms during the Second Hundred Days, escalating the institutional tension between reformist and conservative branches.
Here is where the institutional paths followed by Reconstruction Republicans and New Deal Democrats diverge. After Lincoln is shot, the Republicans lose control of the Presidency as Andrew Johnson becomes the leading exponent of a conservative vision of the Constitution. For analytic purposes, let me bracket this big difference to identify the common threads that continue to connect the unfolding stories.
Begin with the role of triggering elections. Just as Congressional Republicans used their electoral triumph in 1866 to claim a mandate from the People, so did Franklin Roosevelt in 1936. Upon returning to Washington, both Republicans and Democrats faced the same problem. Conservative branches of government, operating on a different constitutional calendar, still blocked revolutionary reform. Given their loss of the Presidency, the Reconstruction Republicans were in a worse position than the New Deal Democrats—since they had not only to confront an unsympathetic Court but an aggressively hostile Andrew Johnson.
Taking this change into account, we can see that both parties dealt with the problem in the same way—by threatening the leading conservative branch with personnel change. The Republicans’ threat of impeachment was functionally equivalent to the Democrats’ threat of court-packing. In each case, it was an effort to shift the constitutional balance without waiting for more elections. More remarkably still, these unconventional threats engendered an identical response. The conservative branches suddenly shifted gear with a “switch in time” that allowed the constitutional revolution to proceed.
The parallels continue into the consolidation phase. Once the conservative branches switched, they escaped permanent institutional damage—both impeachment and court-packing narrowly failed in the Senate. The party of constitutional reform, in turn, continued winning elections. Thus, the Republicans regained control of the Presidency in 1868, and their grip on Congress did not begin to slip until 1874. The Democrats, of course, did even better. This meant that both parties could consolidate their grip on the Supreme Court—though the New Deal Democrats managed to avoid the blatant court-packing of the Grant era. As the last judicial holdover from the old regime retired from the Court in 1941, the stage was set for the final act of juridical consolidation. Just as the Slaughterhouse Cases of 1873 decisively ended all serious legal questions about the validity of the Republican transformation, so did the New Deal Court’s unanimous decisions upholding activist national government in the early 1940’s.
By this point, it would take much more than a few electoral victories by the conservative party to undermine the newly ascendant constitutional regime. It would take a mobilized effort by the American people equal in force, but opposite in direction, to the movement that established the Republican/Democratic regime in the first place.
We can now begin to triangulate our problem by considering the New Deal’s relationship to the Founding. Speaking broadly, the higher lawmaking efforts of the 1930’s broke with the premises of Article Five in two ways.
The first involved a break from the Founding system of authorizing institutions. Article Five rests upon a federalist premise: in order to speak in the name of the People, a movement must gain the assent of both national and state institutions. The New Dealers took a more nation-centered course—using a series of national electoral victories as mandates that ultimately induced all three branches of the national government to recognize that the People had endorsed activist national government. So long, then, as modern lawyers suppose that all successful popular movements must take a federalist path to higher lawmaking authority, they will never surmount this first hurdle to a mature recognition of the New Deal’s constitutional creativity.
But it shouldn’t be too hard to jump over this hurdle. As we have seen, it was the Reconstruction Republicans, not the New Deal Democrats, who first established that We the People could speak through national institutions and demand that the states accept the primacy of American citizenship. If Reconstruction Republicans could use national institutions to legitimate their claims, why not New Deal Democrats—especially when they had gained the sustained consent of majorities in all regions of the country, while the Republicans had a lot more support in the North than in the South?
Which brings us to a second aspect of the New Deal break with Article Five. While the Reconstruction Republicans repudiated the federalist premises of the Founding, they memorialized their revolutionary reforms by placing them in legal packages that resemble Article Five amendments—bearing the numbers XIII and XIV and placing themselves in sober sequence with other amendments of less uncertain pedigree.15 In contrast, when modern lawyers seek to recall the New Deal’s contribution, they do not turn to writings that pose as Article Five amendments but to transformative judicial opinions written in the aftermath of the Court-packing crisis. These great cases mark the decisive institutional moment at which the Supreme Court joined the other branches in rejecting the Republican vision of limited government, symbolized by Hammer v. Dagenhart and Lochner v. New York. Indeed, modern judges are more disturbed by the charge of Lochnering than the charge of ignoring the intentions of the Federalists and Republicans who wrote the formal text. To mark this point, I shall say that the transformative opinions handed down by the New Deal Court function as amendment-analogues that anchor constitutional meanings in the same symbolically potent way achieved by Article Five amendments.
Undoubtedly, this New Deal use of amendment-analogues requires thoughtful reappraisal of some pious platitudes—including the sense in which Americans live under a written constitution. Two centuries after the Founding, this platitude remains valid only on an expanded understanding of the constitutional canon. The corpus of authoritative texts includes not only those formal amendments generated by the procedures of Article Five but also: (a) the amendment-simulacra generated by the Republicans under the nationalistic procedures developed during Reconstruction and (b) the transformative opinions that serve as amendment-analogues under the nationalistic procedures developed by the Democrats during the Great Depression. So long as lawyers continue to accept the text-simulacra generated by the Reconstruction Republicans, they should not lightly reject the amendment-analogues generated by the New Deal Democrats.
Especially when this use of transformative opinions is hardly unprecedented in American constitutional history. As we already saw, the Republican Court’s opinions in the Legal Tender and Slaughterhouse Cases discharged analogous constitutional functions toward the end of Reconstruction; and even before the Civil War, the opinions of the Taney Court had served to codify the constitutional meaning of Jacksonian Democracy.16
Looking beyond the confines of constitutional law, there are countless other cases in which judicial opinions substitute for formal legislative texts. Consider the problem that arises when judges are obliged to coordinate statutory commands and the common law tradition. In this familiar situation, common law courts regularly appeal to common law cases whenever they find a hole in a statutory scheme.17 Indeed, this use of judicial precedents in the absence of statutes is the single most important feature distinguishing Anglo-American legal systems from those dominant in Europe. From this vantage, the New Deal innovation is best seen as another case in which American lawyers, at moments of great crisis, creatively adapt traditional ideas (here, the common law use of cases in the absence of statutes) for new constitutional purposes (here, the use of cases in the absence of formal amendments). While this unconventional adaptation does challenge constitutional theory, this is the kind of challenge that has allowed the American people to sustain a continuous constitutional identity for the past two centuries.
The New Deal revolution, then, broke with Article Five in two different ways: (1) it substituted a model of Presidential leadership of national institutions for a model of assembly leadership based on a dialogue between the nation and the states; (2) it used transformative opinions as amendment-analogues. The next question is whether (1) and (2) are related. My answer is yes: (2) is a surface manifestation of (1). Rather than appearing as an inexplicable formal breach of Article Five, the New Deal Court’s development of transformative opinions was an organic response to the rise of Presidential leadership in higher lawmaking.
A grim thought-experiment makes the point. Suppose that, early in 1935, Roosevelt had met Lincoln’s fate in Ford’s Theatre. While dedicating a WPA project, he is gunned down by a hard-line Republican, convinced that Roosevelt was leading the nation toward Fascism. A stunned America witnesses John Nance Garner take the oath of office as the next President. The ritual is redolent with recollections of Reconstruction. Garner would have been the first Southern politician since Andrew Johnson to gain the White House; and he would have gained it the same way. Like Johnson before him, he owed his vice-presidential nomination to his Party’s desire to “balance” a ticket headed by a progressive Northerner with a more traditional Southerner.18
After a brief period of mourning, Garner’s conservatism becomes manifest. When the Supreme Court declares the National Industrial Recovery Act unconstitutional in the spring of 1935, Garner does not support the New Deal Congress in its second great Hundred Days of creativity—which produced such modern landmarks as the National Labor Relations Act and the Social Security Act. Instead, he seeks to organize an anti–New Deal coalition composed of Republicans and conservative Democrats. Denouncing Social Security and the NLRA as unconstitutional, Garner sends a steady stream of vetoes that rely heavily on Supreme Court precedents. How would the New Dealers in Congress have responded?
In the same way Republicans reacted to President Johnson’s vetoes of the Civil Rights Act and Freedmen’s Bureau Bill. Given the President’s assault, the Republicans had no choice but to propose the Fourteenth Amendment to serve as the platform for an electoral appeal to the People. Like their embattled predecessors, liberal Democrats would not have allowed an “accidental” President to turn the language of constitutional law against their movement. As President Garner, with the aid of the traditionalist Supreme Court, called upon the American people to defend the principles of the traditional constitution, the reform Democrats would have answered with a New Deal amendment to serve as their platform for the decisive electoral struggle that loomed in 1936. And if they had won this struggle, they would have been sorely tempted to take extraordinary actions to assure the assent of three-fourths of the states.19
As we shall see, the New Deal Congress seriously considered coming forward with formal amendments during the constitutional crisis. I will defer a study of these Article Five exercises to a later point, since the Garner/Johnson scenario is enough to suggest the link between the rise of the Presidency and the substitution of transformative opinions for formal amendments.
Roosevelt’s success in keeping control over the Presidency shifted higher lawmaking incentives in two related ways. First, since the New Deal Congress was not in a life-and-death struggle with a conservative President, it lacked an overriding incentive to propose a formal amendment as part of its defense against a Presidential onslaught. It could afford to take its cues from its party leader in the White House. Second, with both President and Congress working together, the appointment of new Justices would be firmly under reformist control. This meant that the New Dealers had a choice unavailable to the Reconstruction Republicans. Instead of pushing forward under Article Five, they could appoint a steady flow of New Dealers to the bench who could uphold revolutionary reforms through a series of landmark judicial opinions. For the moment, the particular choice made by the New Dealers is not important. The crucial point is the underlying institutional change that gave New Deal Democracy a new degree of higher lawmaking freedom.
The “court-packing” issue looked very different to the Republicans after the Civil War. Once Johnson defected from the reform coalition in 1866, he was intent on filling vacancies with solid conservatives who would invalidate the Reconstruction Acts and sabotage the ratification of the Fourteenth Amendment. When the death of Justice John Catron gave Johnson his first chance, the Republicans responded with a remarkable “court-shrinking” statute. Under its terms, Catron’s vacancy simply disappeared, and the size of the court would continue to shrink with every death or resignation until it was reduced to seven seats. The statute not only prevented Johnson from filling the vacancies, but allowed the Republicans to reexpand the size of the Court to nine when Grant won back the White House in 1869. This made it easier for the Court to consolidate the Fourteenth Amendment in the Slaughterhouse Cases.20
This remarkable story helps round out our two models of unconventional change. Under the Reconstruction model of Congressional leadership, the reformers try to shrink the Court to prevent new Presidential appointments from reinforcing conservative constitutionalism. But under the model of Presidential leadership, it is court-packing, not court-shrinking, that becomes a functional tool for translating constitutional politics into constitutional law. Sometimes the ascendant movement actually engages in court-packing—as the Republicans did under Grant. Sometimes it only threatens to expand the bench, and retreats when the Court carries out its own switch in time—as happened during the New Deal. But in both cases, the opinions of the Supreme Court can serve as the functional equivalents of formal amendments—dramatically and authoritatively shifting the terms of doctrinal development for generations to come.
The New Deal’s substitution of transformative opinions for formal amendments was not the result of some inexplicable failure to attend to the terms of Article Five. It was a creative elaboration of higher lawmaking changes initiated much earlier in American history. The struggle over Reconstruction, not the Great Depression, first led Americans to break with the federalist premises of Article Five. The struggle over Reconstruction, not the Great Depression, first led the President, Congress, and Court to develop new higher lawmaking procedures more in keeping with the constitutive will of We the People of the United States. The basic New Deal innovation followed from the Democrats’ greater success in sustaining their control over the Presidency throughout the period of constitutional creativity.
I have been following Chief Justice Hughes in treating Reconstruction as an “historic precedent” for the higher lawmaking activities of the 1930’s. Having come this far, we can reverse field and use our analysis of the 1930’s to enrich our understanding of the 1860’s. If the practice of Presidential leadership is such a central part of twentieth-century constitutional history, why wasn’t this also true in the nineteenth century? In particular, why did Congress, and not the President, emerge as the leading spokesman for constitutional change during the critical years after the war?
Surely it would be a mistake to ignore the role of John Wilkes Booth in this affair. Before the assassination, the constitutional dynamic of the Lincoln Administration was evolving along the Presidentialist lines later developed by Roosevelt. Not only did Lincoln’s victory in 1860 operate as a constitutional signal much like Roosevelt’s in 1932. But Lincoln’s effort to initiate a new era of freedom for blacks was institutionally elaborated in ways similar to Roosevelt’s effort to initiate a new era for working people. Recall that the Thirteenth Amendment was only proposed by the “lame-duck” session of the Thirty-eighth Congress after Lincoln had led the Republican Party to a decisive victory in the elections of 1864. During the heart of Lincoln’s first term, the Republicans proceeded in a very New Dealish way—anxiously aware of the threat to their program raised by the conservatives on the Supreme Court. When Roger Taney’s death in 1863 gave Lincoln a chance to name a Republican as Chief Justice, we can glimpse the beginnings of a strategy more fully developed in the 1930’s. Lincoln nominated Salmon P. Chase chiefly because “… we wish for a Chief Justice who will sustain what has been done in regard to emancipation and the legal tenders.”21
It is hard to say whether Lincoln could have sustained Presidential leadership over Congress during his second term. If so, he would have found himself at the same constitutional crossroads Roosevelt confronted later. On the one hand, he could have pursued the path marked out by Article Five and encouraged the Convention/Congress to propose a “Fourteenth Amendment.” On the other hand, he could have tried to secure the legal substance of the “Fourteenth Amendment” by leading the Senate to appoint a series of strong Republicans to the Court.22 Under this scenario, the Reconstruction Congress would not have enacted the “court-shrinking” statute that its historical counterpart used as an unconventional weapon against Andrew Johnson. It would have kept the Court at its existing size—which, thanks to a statute of 1864, was not nine but ten—and supported Lincoln’s nomination of a series of radical Republicans to the bench.23 Indeed, there was nothing to stop it from expanding the Court yet further—from 10 to 15, say. Certainly, such a step was not as unconventional as many others taken by the Republicans in their struggle for the Fourteenth Amendment.*
Suppose that Lincoln and the Republicans in Congress had taken the second option, and consider how Reconstruction might have worked itself out. Rather than Congress proposing the first sentence of the Fourteenth Amendment guaranteeing Americans national and state citizenship, a reconstituted Lincoln Court might have achieved the same result by a ringing reversal of Dred Scott and a powerful judicial elaboration of the nature of American citizenship in the Republican Union. Rather than a formal amendment’s guarantee of “equal protection” and “due process,” the Lincoln Court might have proclaimed such protections to be essential “privileges and immunities of citizens of the United States.” In short, Reconstruction would have looked a lot like the New Deal, where transformative opinions, not formal amendments, serve as the principal memorials of constitutional meaning.
If Lincoln had taken this course—and his remarks about the Chase appointment suggest that the thought would have crossed his mind—we come to a fascinating question: Would this have been good for the development of American law?
Maybe yes, maybe no. Today’s lawyers would have had to live without the formal text of the Fourteenth Amendment, and the modern Supreme Court could not have pointed to canonical formulae like “equal protection” in cases like Brown v. Board of Education. But we would have legal resources available that are now painfully lacking. When lawyers look back to the late 1860’s, they do not find a sustained effort by the Chase Court to elaborate the Republican ideals that had engendered so much sacrifice from the American people. If my hypothetical Lincoln Court had discharged this transformative function with the eloquence of other great opinions, perhaps its ringing affirmation of equal national citizenship might have served as a better memorial of Reconstruction than the cryptic formulae left behind by the Fourteenth Amendment?
We will never know. All we do know is that John Wilkes Booth deprived Lincoln of his chance to steer Reconstruction to a conclusion, leaving Johnson to generate a fact-pattern that occurs with sufficient frequency to merit a special name: the Vice-Presidential exception. The pattern arises because the Vice Presidency is regularly used as a consolation prize to candidates, regions, and ideologies that fail to capture the Presidential nomination. In his moment of triumph at the party’s convention, the successful Presidential candidate is not in the mood to contemplate his death; but he is mindful of the need to maximize his electoral chances by “balancing the ticket” with a Vice-Presidential nominee who appeals to a different constituency. This means that the death of the President does not bring a devoted supporter of the deceased President to the White House; instead, it typically yields the succession of somebody very different. The Lincoln-Johnson episode provides the most tragic example, but others have proved consequential: McKinley-Roosevelt, Kennedy-Johnson, for example.24 The Vice-Presidential successor may be more reformist or more conservative. But in either event, the system suffers a shock—and the participants have to struggle to reach a new political equilibrium. From this vantage, the Congressional decision to propose the Fourteenth Amendment seems more like a brilliant, but rather desperate, effort to adapt unconventionally to an exceptional situation: Given the assassin’s bullet, and given Johnson’s conservatism, there was a grave danger that the institutional system would spin out of the control of the mobilized majority of Americans. If anybody in Washington was going to stand up for the Republican vision in 1866, it was going to be the Convention/Congress; if the higher lawmaking system was going to register any fundamental constitutional change before the next round of elections, it would take the form of an Article Five simulacrum. To mark this point, I shall say that the Fourteenth Amendment experience, culminating in an amendment-simulacrum, is best viewed as our most dramatic example of the constitutional consequences of the Vice-Presidential exception.
If this is right, the hypertextualist’s worship of Article Five appears in a most peculiar light, as it gives decisive weight to the tragic accidents of American history. After all, Roosevelt was also the object of assassination, only narrowly missing the fatal bullet.25 If his attacker had been a better marksman, and Lincoln’s a worse one, modern hypertextualism would have had a very different spin. It would have urged modern interpreters to focus intently on the text of the New Deal amendments, while casting a skeptical glance at the Chase Court’s invocations of equal protection.
But surely American lawyers owe more to their fellow citizens than such a heavy-handed formalism. Rather than indulge in hypertextualist certainties, we should patiently explore the facts surrounding the New Deal revolution before confidently pronouncing upon any claims about its constitutional creativity. This seems especially important when Roosevelt’s model of Presidential leadership may serve as a more reliable guide to future exercises in constitutional politics. Hopefully, assassins will not regularly strike at the Presidency just as the People are preparing for fateful constitutional decisions. If we are lucky, the model of Congressional leadership, as exemplified by the Fourteenth Amendment, will be a rare event, while our Presidentialist case study of the 1930’s may well serve as the “historic precedent” for future constitutional revolutions.
This provisional conclusion is reinforced by more recent episodes in American history. When Ronald Reagan led his fellow Americans to re-think fundamental elements of their constitutional legacy, he did not put great emphasis on Article Five, but relied far more heavily on precedents inherited from the Roosevelt revolution. To be sure, Reagan invoked the Rooseveltian model to invite a reconsideration of the very New Deal principles that Roosevelt had successfully constitutionalized. Yet this irony only suggests how deeply the “historic precedents” of the New Deal have entrenched themselves into constitutional culture.
So does the fate of the “Republican Revolution” of 1994. The Republicans came into power in Congress with all the familiar flags flying: the Speaker of the House proclaimed himself a “revolutionary,” waving a new social contract with America and demanding that it be fulfilled. If a President had come into power under similar auspices, he would have been a very formidable figure. Yet the ease with which Speaker Gingrich was defeated by a skillful, but not very popular, President Clinton suggests once again how difficult it is for a revolutionary movement to succeed without controlling the Presidency.
I haven’t the slightest idea how the present struggles over the future of America will play themselves out in the decades ahead. But the recent patterns of our politics do provide additional reasons for a serious confrontation with New Deal precedents—not only to define their enduring significance but also to expose the evolving model of Presidential leadership to critical inquiry: What are its dangers? Can it be reformed?
*In fact, such a proposal was made by Senator Charles Drake as part of the debate that ultimately led to the reexpansion of the Court in 1869 (40th Cong., 3d Sess., Congressional Globe, at 1484). Although his proposal was rejected (id. at 1487), nobody seemed scandalized.