ABOUT THIS BOOK
In a powerful new narrative, G. Edward White challenges the reigning understanding of twentieth-century Supreme Court decisions, particularly in the New Deal period. He does this by rejecting such misleading characterizations as "liberal," "conservative," and "reactionary," and by reexamining several key topics in constitutional law.
Through a close reading of sources and analysis of the minds and sensibilities of a wide array of justices, including Holmes, Brandeis, Sutherland, Butler, Van Devanter, and McReynolds, White rediscovers the world of early-twentieth-century constitutional law and jurisprudence. He provides a counter-story to that of the triumphalist New Dealers. The deep conflicts over constitutional ideas that took place in the first half of the twentieth century are sensitively recovered, and the morality play of good liberals vs. mossbacks is replaced. This is the only thoroughly researched and fully realized history of the constitutional thought and practice of all the Supreme Court justices during the turbulent period that made America modern.
Well-crafted point-of-view books, especially those that challenge conventional understandings, are often a pleasure to read. By focusing on facts, interpretations, and logical arguments inconsistent with the prevailing wisdom, such books chip away at long entrenched views and create room for doubt that did not previously exist…they frequently initiate serious reconsideration of settled things. Such a book is G. Edward White’s latest effort, The Constitution and the New Deal. In this volume the distinguished University of Virginia legal historian offers a frontal attack on conventional understandings of the New Deal and its effect on American jurisprudence… White’s volume is well-argued and well-documented. It provides a coherent and often compelling argument, one that reflects considerable scholarly thought over a significant period of time… White’s argument encourages a creative rethinking of an historical account previously considered settled.
-- Thomas G. Walker Law and Politics Book Review
White’s expressed intent is to complicate conventional historical narratives on American jurisprudence and constitutional law by noting the starting premises, if not biases, of those earlier narratives. He explores the role of the legal elite—who believed that ordinary rules did not apply to them—in interpreting the constitution during the New Deal era… This is a worthy book not only for readers interested in constitutional history but for those interested in the cultural complexities of the U.S.
-- Vernon Ford Booklist
White is powerfully persuasive as he traverses the constitutional landscape of the past century. This major contribution to the literature of constitutional jurisprudence deserves a broad readership.
-- R. J. Steamer Choice
A revisionist analysis of early 20th-century constitutional law and culture concerning New Deal ‘constitutional revolution’ and Court-packing narratives. Emphasizing U.S. Supreme Court political economy cases from the 1920s through the 1940s…White’s broader, alternate picture of New Deal constitutional jurisprudence is a worthy challenge to conventional historical and jurisprudential interpretations of the New Deal.
-- Steven Puro Library Journal
At last American constitutional history has emerged from the long shadow of the Court-packing plan. With enormous subtlety and unfaltering intelligence, White shows us that the twentieth-century transformation of federalism and individual rights was part of a larger and more fundamental shift in thinking about law and justice in America.
-- Daniel Ernst, Georgetown University Law Center
For almost sixty years, constitutional scholars pictured the New Deal as High Noon, in which pioneers of a radically expanded role for national government faced reactionary defenders of laissez-faire and ‘substantive due process’ on the Supreme Court in a dramatic showdown—and won. In this important and provocative book White supports a band of revisionists who have exposed this story as a myth—too simple, too dramatic, too sudden, too inattentive to the subtleties of changes in constitutional law—and significantly adds to their work with original chapters on the evolving law of foreign relations. He also shows how and why scholars of the post-New Deal era came to construct the myth of High Noon, and to canonize Holmes and Brandeis as its heroes. This book, backed by White’s great authority as a historian of constitutional thought, will either change a lot of minds or start a lot of arguments. It will probably do both.
-- Robert W. Gordon, Yale Law School
A genuinely interesting book, likely to be reviewed and discussed, especially as it is one of the first of the major synthetic efforts bringing together the new understandings.
-- Sanford Levinson, author of Written in Stone
White executes a brilliant strategy for demonstrating the persuasiveness of his new paradigm. He offers a new understanding of early-twentieth-century legal development that explains change across a wide spectrum of topics in a consistent fashion. White’s explanation, which has substantial power, constitutes a major intellectual accomplishment.
-- William E. Nelson, author of The Fourteenth Amendment
TABLE OF CONTENTS
I. Complicating the Conventional Account
1. The Conventional Account
2. The Transformation of the Constitutional Jurisprudence of Foreign Relations: The Orthodox Regime under Stress
3. The Triumph of Executive Discretion in Foreign Relations
4. The Emergence of Agency Government and the Creation of Administrative Law
5. The Emergence of Free Speech
II. The Constitutional Revolution as Jurisprudential Crisis
6. The Restatement Project and the Crisis of Early Twentieth-Century Jurisprudence
7. The Constitutional Revolution as a Crisis in Adaptivity
III. The Creation of Triumphalist Narratives
8. The Myths of Substantive Due Process
9. The Canonization and Demonization of Judges
10. Cabining the New Deal in Time