The New Deal is Constitutional


There appears to be a very generally entertained notion among both liberals and conservatives, that if the Supreme Court of the United States upholds the recent recovery legislation it will be compelled to invent a complete new set of legal terminology, to tear up familiar constitutional landmarks and to graft new doctrine on an ancient document. It is popularly supposed to require a sort of dialectic earthquake, which will leave huge fissures in constitutional logic. It threatens even to create an unconstitutional habit of thought about constitutional issues. The language of economics and sociology, made up of notoriously vague terms, I assumed to be necessary in order to fill in the gaps in the logical structure. Such language, it is thought, will make the Constitution look less like a constitution than it did before.

These assumptions have raised a very general question whether constitutional law can survive this major operation on constitutional logic. Grave doubts are expressed b the grave doubters. Logic, they argue, may not be the soul of the law, but is certainly composes a large part of its body. Others are more cheerful. They regard the influx of a new economic terminology and the scrapping of old concepts as inevitable to the march of progress. But both groups are united on one point. They are sure that the Supreme Court in upholding these statutes will be forced to overrule a number of cases, to invent new doctrine and to desert the analogies which have heretofore been regarded as safe anchors to windward.

In view of all these doubts and worries, many of them expressed by learned men, it will be somewhat of a surprise to the logician who investigates the dialectic structure of constitutional law to find that they have little or no foundation in the decided cases. No actual dilemma between logic and expediency faces the Supreme Court if it supports the government. The fact is that the logic of the cases is in favor of the recent legislation, that new doctrine and new terminology are necessary only if the acts are held unconstitutional, and that resort to economics and sociology is required only of those who oppose the legislation. In other words, constitutional logic does not give the safeguards on which conservatives rely, nor does it put in the way of national governmental control the obstacles which the liberals fear.


IN VIEW OF the popular notion to the contrary, it may be of interest to demonstrate this. In doing so we should, at the outset, discard the idea of supporting the acts on some vague notion of self-defense in time of danger, analogous to the powers of the government in time of war. Such a justification might rightly be claimed to be a departure from former constitutional logic. There are of course countries with constitutions whose constitutional law consists of one emergency after another. But with us the notion is reminiscent of “martial law,” which has always been considered an unpleasant and only occasional necessity. Martial law, our jurists insist, is not law at all. By the same token, “emergency” law cannot be constitutional law. Therefore, if these acts are not to depart from established logic, the present depression must assume a subordinate place in our reasoning, appearing only as one of a number of facts to which the ancient and conservative constitutional principles must apply.

The argument by which this can be accomplished is simple, familiar and entirely conventional. It divides itself into two inquiries each of which has only one answer. First: what are the proper subjects for congressional regulation, and second: how far may such regulation go?

In pursuing the first of these questions we immediately find that the power of Congress to regulate interstate commerce is unquestioned. We further find that this power includes the regulation of anything which directly or substantially affects interstate commerce. Thus we find included in the commerce power practically everythingat least everything of sufficient importance to be worth regulating on a a national scale. It will be said that the famous child-labor case prevents congressional regulation of manufacturing. In answer it can be pointed out that the commerce clause, according to that case, of course may not be used as a mere device to force local regulations on state manufacturing. If, however, the regulation of commerce is the main purpose of Congress, the case indicates that manufacturing may be regulated as an incident to the use of the larger power. It is apparent that Mr. Justice Day, in his opinion in the child-labor case, meant to commit the Court to that position. In any event Mr. Justice Taft so interpreted the case later. The child-labor case is thus in favor of present acts. The burden of inventing new doctrine limiting the power to regulate interstate commerce is thrown on those opposing the recovery legislation. This disposes of the first inquiry as to the existence of the power of Congress to regulate.

The second inquiry is equally simple. How far may congressional regulation of interstate commerce go? May it include the regulation of prices, the restriction of production, and the determination of wages and working hours? Familiar principles can be set out holding that such matters are entirely within the domain of private enterprise. But there is but one most significant and important exception. If the business is affected with a public interest, price, production and employment may be regulated. We have only to determine, therefore, whether the present emergency has affected general business transactions and trade in agricultural commodities with a public interest. If it has, our logical inquiry is ended.


IT SEEMS QUITE apparent that changes of great magnitude have occurred in our national credit structure, and that many factors are impeding the normal flow of commodities in interstate commerce. However, a strictly logical inquiry should not go beyond the decisions. We need therefore only take notice of the decision that the Court will regard a congressional finding of fact as having great weight and not to be overthrown without overwhelming evidence to the contrary. Congress has found that the businesses regulated by the present recovery legislation are affected with a public interest because of the acute economic emergency. True, state legislative declarations that certain businesses were affected with a public interest have been on occasion contradicted by the Court. It is scarcely possible to contend, however, that conditions existing when such state legislation was held invalid because the business concerned was not actually affected with a public interest, are comparable to the present emergency. But again we do not need to go beyond the decisions. Mr. Justice Hughes has already taken judicial notice that “a depression such as we are now passing through is a new experience in the present generation.” This cannot rationally be said of conditions in the theatre-ticket business when that regulation was held unconstitutional, or in the packing business in Kansas, or in the regulation of employment agencies a few years ago when times were generally considered prosperous. However, the important point for the logician is that Mr. Justice Hughes, speaking for the majority of the Court, did regard the depression as something which was unparalleled in our time. This was in 1931, when prosperity was just around the corner. Little has happened since that time to indicate that the Supreme Court should recede from this statement.

The principle that an economic emergency affects with a public interest matters ordinarily deemed private, has become hornbook law. Railroad hours and wages, and rentals of apartments in New York City, have been regulated on this basis in minor emergencies incidental to far more prosperous timesand at a time when no court had said that the country was going through an experience new to the present generation.

We have therefore proved our case to be within the strict limits of constitutional logic. Congress can regulate interstate commerce and anything which affects it. It can carry that regulation into the control of prices, wages and production, if the business is affected with a public interest. The Supreme Court has said that public interest in business changes with changing conditions. We have the declaration of Congress that conditions have changed, and judicial notice taken by the court of the factors on which Congress acted.

To find a flaw in this familiar and conventional argument, without inventing new doctrine or going outside constitutional law to emotional or economic terms, is indeed difficult. It is probably true that never before in the history of the country have so many things become affected with a public interest (and therefore subject to regulation) at the same time. The government appears to have undergone a change. Persons who feel that constitutional logic always opposes change therefore talk about the act as unconstitutional. But the doctrine that too many things may not be affected by a public interest at the same time has never been announced in any judicial decision. It must be first invented, and then supported by economic and social theories. It is therefore those who oppose the constitutionality of the act who must stretch the logic of constitutional law to the breaking pointnot those who favor it.


WHEN THEN THIS WORRY over the constitutionality of the recovery legislation found in magazine articles, and in bar-association meetingsthis wonder whether the Supreme Court will be liberal enough to work its way toward national expediency and away from constitutional logic? The reason lies not so much in anything the Court has done as in the habits of though of our serious constitutional thinkers, both conservative and liberal. They are used to assuming that the Constitution necessarily discourages adventure in economic organization. On such an assumption hopeless cases have been hopefully taken to the Supreme Court by person who thought that, because the Court had limited state powers, it would limit national power. Thus may be explained the quixotic efforts to obtain judicial disapproval of the Interstate Commerce Commission, the Federal Trade Commission, the national regulation of stockyards, the national regulation of grain exchanges. In the same way may be explained the present belief that, somehow or other, the decided cases must contain something which logically prevents the present extension of federal power.
So far as members of the bar are concerned, it is not their habit to look up cases when discoursing on constitutional law. If a lawyer’s opinion is asked on a question of real property, for example, he will say nothing about it until his clerks have handed him long memoranda of the cases. If he is asked a constitutional question, however, he is on his feet almost instantly. He assumes that the Constitution opposes change, in spite of every evidence to the contrary, simply because the Constitutional as always been used as the great argumentative refuge for the conservatives.

In the same way liberals and radicals have become so firmly convinced that anything they want is unconstitutional that they entertain the same constitutional doubts as the conservatives. They have been so accustomed to conceive of constitutional logic as an archaic system preventing progress that if they were ever convinced that their programs were constitutional they would begin to question their soundness.

In reality the Supreme Court for a long period of time has been paving the way to declare the present recovery legislation constitutional. The emergency finds it well supplied with the necessary formulas. These formulas have been created largely in the process of curbing state legislatures and extending the power of the national government over interstate commerce. National power cannot be built up, and state power curtailed, without using terms which, when applied to their common meaning, support still further extension of national power. It may be that the members of the Supreme Court did not contemplate anything like the present action of Congress. It is likely that they extended the power of Congress because they considered it much less probable that subversive socialistic theory could prevail on a national scale than in individual states. However that may be, words granting power, when once uttered, are hard to limit, even though accompanied by solemn warnings as to their proper use. It is obvious that the preservation of cherry trees in the early days of this great republic would have been more efficiently promoted by refusing to give George Washington any hatchet at all, than by giving him one with directions as to the objects to which it might properly be applied.

Finally, the assumption that the Supreme Court of the United States will regret that by extending the commerce power and the public-interest concept they have made the present legislation logically possible, is purely gratuitous. True it is, the Court has the reputation of disliking intensely those things which are advocated by radicals. But, it may be pertinently asked, who are the radicals supporting this legislation? Much of the applause seems to be coming from old-line Republicans. Much of the outspoken dissent has issued from radical or liberal sources.

It is interesting to note that one of the most impressive paragraphs which may be used to support the recovery acts comes from Mr. Justice Brewer’s opinion in the case of In re Debsa case in which the power of the federal government was being extended, and where a socialist was being punished. It reads as follows:

Constitutional provisions do not change, but their operation extends to new matters as the modes of business and the habits of life of the people vary with each succeeding generation … Just so is it with the grant to the national government of power over interstate commerce. The Constitution has not changed. The power is the same, but it operates today upon modes of interstate commerce unknown to the fathers, and it will operate with equal force upon any new modes of such commerce which the future may develop.

This article originally ran in the November 13, 1933 issue of the magazine.

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