Customer Reviews

The Constitution and the New Deal

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Any book by Ted White at UVA is deserving of the most careful examination--he is one of our leading constitutional/legal historians and students of the legal process. In this challenging volume, White argues that much of the conventional interpretation of the New Deal and its impact upon the development of constitutional law has been mistaken. In short, White argues that many of the developments in constitutional law that we associate with the New Deal and Court Packing (including "the switch in time that saved nine") actually had been in the works for years before, and Court Packing was more a product of on-going changes of long duration than a cause of them.

The 376 pages of text and notes that White masses to support his argument are, I think, some of his best writing--and that is saying a lot. Particularly, the chapters on administrative agencies and the development of administrative law; free speech; the ALI and restatements; substantive due process"; and the "canonization and demonization of judges" reflect White at his best: incisive in analysis, reflecting total command of the pertinent literature, skillfully argued and well developed.

The problem I encountered was that I nonetheless found his central thesis unpersuasive. This is despite the fact that a group centered at UVA, including Charles McCurdy and Barry Cushman ("Rethinking the New Deal Court"), have written outstanding revisionist material seeking to reorient our view toward the New Deal and the development of constitutonal law reaching back to the late 19th century (McCurdy on Justice Field, e.g.). But White has some problems in selling his thesis: (a) he tends to equate the New Deal too much with Court Packing; (b) he dismisses behavioralist explanations for judicial behavior despite his apparent lack of knowledge about the solid work that political scientists have done in this area since the late 1940's; (c) he tends to utilize ambiguous terms like "essentialist" without offering definitions; and (d) he has a tendency to set up "straw men" and knock them while avoiding more critical issues. The central argument also shifts at points: the New Deal had no effect, then perhaps some effect, and then was one of several forces effecting changes.

Nonetheless, this book does what good revisionist writing seeks to accomplish: it forces one to re-examine fundamental premises and either defend them or accept the new contentions. In any regard, the individual chapters are worthy of serious attention even if you ignore White's central thesis. A book well worth reading if one is interested in this period and the development of constitutional law.

"In his rewarding book, "The Constitution and the New Deal," G. Edward White takes a penetrating look at the conventional account of New Deal constitutionalism and concludes that it needs to be substantially revamped. He maintains that the transformation of constitutional law in the twentieth century was part of a more basic shift in thinking about the nature of law and that it cannot be explained in terms of a single dramatic event such as the Court-packing plan. He emphasizes that doctrinal change was gradual and that it started long before the political victory of the New Deal."

"White has unquestionably offered a far more nuanced and compelling examination of the relationship between New Deal and constitutional development than that provided by standard accounts. He has moved beyond the tired narrative of "good" liberals victorious over "bad" conservatives. His work raises a number of issues well worth exploring."

"White's thoughtful volume is a vast improvement over much of the existing literature on the constitutional dimensions of the New Deal era. It deserves a large audience. Still, one might suggest that in his well-founded desire to stamp out the myths associated with the New Deal, White unduly downplays the New Deal as a significant turning point in constitutional history. The New Deal may not have brought about a complete change in constitutional theories, and some of the legal doctrines it produced may have been long in gestation and only coincidentally to have come to a head in the 1930s. The fact remains, however, that for better or worse it was responsible for bringing these issues to a head and did so in a way that has shaped all subsequent constitutional discourse."

-From "The Independent Review," Spring 2002

I was not going to review this book, since I doubt my qualifications, but since there is no review posted I will tell you what I thought of the book. The author takes up very interesting topics, such as, e.g., the expansion of the president's power in foreign affairs--powered by Justice Sutherland--and the "canonization" of Supreme Court Justices Holmes and Brandeis and the "demonization" of Justices Van Devanter, Sutherland, Butler and McReynolds. Some of his discussion was hard to follow. He throws around terms like, for instance, "essentialist." I guess my study of philosophy and jurisprudence is too far in the past and I wish he had done a better job explaining terms such as that. I enjoyed about 75% of the book, and am now interested in any rejoinder to the book's claims that may have come out since it was published.