For some time I’ve been writing a book on the legal history of the New Deal, told from the perspective of the elite lawyers who staffed its agencies. Penetrating, quick-witted, ambitious, and clever, they are fascinating guides to some of the most interesting legal and political terrain of the United States in the 1930s. After only a few months in their papers, I knew that their lawyering within the federal bureaucracy was a great, largely unwritten chapter in American legal history, but I could also see the limitations of a tale told exclusively from their point of view. New Deal lawyers, like everyone else, had interests and ideals inclining them to discount what others felt acutely. And they took much of their legal and political world for granted, without pausing to tell the rest of us how it came to be. Existing scholarship provided at best a general view of the lay of the land and neglected many features. The more I investigated their “givens,” the better I understood the New Deal lawyers. But I also I wondered how I could share what I had learned without lengthy digressions from a narrative constructed around their actions.
The answer, I decided, was to give the New Deal lawyers’ givens their own book.
Tocqueville’s Nightmare is the result. “Freund and Frankfurter” shows that, long before the New Deal, reformers opted for an Anglo-American rather than a Continental approach to constraining the state. Two chapters on Charles Evans Hughes describe how a great American jurist revised legal doctrine to accommodate an administrative state. “New York, 1938” shows that the solution Hughes developed ultimately addressed the fears of politicians and lawyers threatened by the new bureaucracies. Finally, “Pound and Frank” explains how Roscoe Pound, the greatest legal scholar of his generation, legitimated a transparently partisan assault on the New Deal and provoked a counterattack from Jerome Frank and other legal realists newly installed in the federal administrative state.
The book does two things. First, it models for legal historians one way to combine legal and political history. It assumes that lawyers, judges, law professors, and others created administrative agencies on terrain contested by party politicians and other wielders of official power. The resulting politics explain why Ernst Freund wanted administrators tied down by bright-line rules and Felix Frankfurter them free to exercise their discretion. It explains why Hughes, as governor of New York, created the nation’s most powerful public utility commission and why, as Chief Justice of the United States, he refused to free regulatory commissions from any judicial oversight. It explains why a coalition of politicians and lawyers tried to write strict review of agencies’ decisions into New York’s constitution in 1938 and push a bill intended to hamstring the New Deal’s agencies through to a presidential veto in 1940.
Second,
Tocqueville’s Nightmare challenges the claim, common in recent public debate, that in the first decades of the twentieth century “progressives” or “liberals” who little regarded the freedom of the ostensible beneficiaries of their reforms sent the Constitution into exile. I found, instead, broad support for agencies that promised to replace a broken political order, clear-eyed appreciation of the dangers they posed, and the masterful revision of legal doctrine to permit the one and prevent the other. I’ll develop the book’s two contributions in
future posts.
