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.
|Elihu Vedder, "Good Administration" (Carol Highsmith, LC)|
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.