Even as unemployment rates soared during the Great Depression, FDR’s relief and social security programs faced attacks in Congress and the courts on the legitimacy of federal aid to the growing population of poor. In response, New Dealers pointed to a long tradition—dating back to 1790 and now largely forgotten—of federal aid to victims of disaster. In The Sympathetic State, Michele Landis Dauber recovers this crucial aspect of American history, tracing the roots of the modern American welfare state beyond the New Deal and the Progressive Era back to the earliest days of the republic when relief was forthcoming for the victims of wars, fires, floods, hurricanes, and earthquakes.
Drawing on a variety of materials, including newspapers, legal briefs, political speeches, the art and literature of the time, and letters from thousands of ordinary Americans, Dauber shows that while this long history of government disaster relief has faded from our memory today, it was extremely well known to advocates for an expanded role for the national government in the 1930s, including the Social Security Act. Making this connection required framing the Great Depression as a disaster afflicting citizens though no fault of their own. Dauber argues that the disaster paradigm, though successful in defending the New Deal, would ultimately come back to haunt advocates for social welfare. By not making a more radical case for relief, proponents of the New Deal helped create the weak, uniquely American welfare state we have today—one torn between the desire to come to the aid of those suffering and the deeply rooted suspicion that those in need are responsible for their own deprivation.
– THE UNIVERSITY OF CHICAGO PRESS
The following is an excerpt from The Sympathetic State, a new book by Michele Landis Dauber, professor of law, Bernard D. Bergreen Faculty Scholar, and professor (by courtesy) of sociology. It will be published by University of Chicago Press by the end of 2012.
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FROM CHAPTER FIVE:
In November 1935, Harvard Law Professor Felix Frankfurter wrote to his longtime friend Jerome Frank, who was then special counsel to the Public Works Administration. In that role, Frank was directing the defense of a federal program that aided the construction of municipal power plants that would compete with private utilities. Southern power companies, like the South Carolina giant Duke Power, sued to stop the program, arguing that the federal government lacked the authority under the Constitution to spend money for the construction of the plants. Frankfurter, who had recommended Frank for his first government job back in 1933, warned Frank against portraying the New Deal as a radical innovation. Doing so would require the courts to adopt a wholly new perspective on the limits of national power in order to uphold the administration’s program. Instead, Frankfurter advised Frank to seek precedents that would establish the New Deal’s public works program as firmly in line with traditional conceptions of federal authority.
Frankfurter was particularly worried that his friend’s well-known commitment to legal realism would lead him astray. He thought that Frank might well decide to disregard precedent in favor of a direct appeal to necessity. “Nothing,” he urged, “seems to be more important than to avoid arguments of novelty and of potentially far-reaching implications.” On the contrary, Frank should try to “employ familiar concepts, expressed in very familiar, simple, unarousing language,” and abandon any effort to vindicate any realist philosophy or “expose the bunk of old arguments.” Frankfurter admonished him to abandon his “romantic” idealism and to focus his energy on “the simple-minded effort to square a present case with past formulations.”
Frank bristled at Frankfurter’s input, though not for the reason that we might expect given what we know of both men. Frank’s Law and the Modern Mind was one of the founding manifestos of the Legal Realist movement. It was Frank, after all, who was supposed to have suggested that judicial decisions hinged on what judges had for breakfast. Frank was irritated at Frankfurter’s insistence that he abandon his theory of the judicial process in order to win his case. But Frank was annoyed with Frankfurter not because he disagreed with his tactical advice. He was angry because he felt that his friend was making such an obvious point that Frank felt his intelligence and legal skills were being insulted.
Clearly wounded, Frank snapped that “my strategy has been exactly that suggested by you, namely, to assert on behalf of the government no more power than is necessary to justify the precise action heretofore taken by it. You ought to know that I do not believe in trying to vindicate abstract principles and that to me the important thing is to win particular cases.” Furthermore, Frank tartly noted that he, unlike his friend the professor, had been practicing law for 21 years and that his strategy was always to “take the homeliest illustrations in the simplest possible English and to bring the facts of the case within the sanction of the least controverted precedents.” This, to Frank, was not contrary to legal realism; it was the very essence of it. Because judges prefer to portray their decisions as flowing from precedent, “it is essential to use the particular kind of jargon and articulate one’s ideas in terms of the particular kind of precedential language that, so far as one can conjecture, will be most pleasing to the particular tribunal to which the argument is addressed.” Frank knew enough not to argue in court that law was all “bunk” and he resented deeply the suggestion that he would be so naïve. Back and forth they went. Over half a dozen letters that winter, the two men bickered over the strength of Frank’s commitment to building traditional legal arguments based on precedent despite his famous academic writing.
If this argument strikes a discordant note today, it is because in our standard historical understanding the New Deal brought about a tectonic shift in the constitutional landscape, a shift instigated in part by the cadre of Legal Realists, including Frank and Thurman Arnold, who became key legal strategists within the government and whose disdain for precedent and formalism drove the New Deal’s constitutional revolution. Yet as the argument between Frank and the more conventional Frankfurter shows, even dedicated Realists took as an absolute imperative that they had to portray the New Deal programs as entirely continuous with the past. In the case of the spending programs, anyway, this was not a task they saw as particularly arduous. As Arnold advised Assistant Attorney General Robert Jackson in September 1936 regarding the government’s brief in the Social Security cases, the administration should avoid the suggestion that the Act was in any way going to extend the power of the federal government and should instead emphasize its conformity with past practices. In Arnold’s view, the case for the constitutionality of the program was conclusive based on legal precedent. “There are no cases,” he wrote, “which have to be overruled to sustain the constitutionality of the Act.”
Frank and Frankfurter, Arnold and Jackson, and others such as Alger Hiss at the Agricultural Adjustment Administration and Alexander Holtzoff, Thomas Eliot, and Barbara Armstrong at the Committee for Economic Security were prominent members of a dense network of more anonymous government lawyers that drafted and defended the social welfare programs of the 1930s, including unemployment insurance, old-age benefits, mortgage assistance, farm subsidies, public works programs, and others. These lawyers were spread across a wide range of government departments and agencies in Washington and elsewhere in the country, with centers of gravity at the Justice, Agriculture, and Treasury departments. They were bound together by a constant flow of memoranda, briefs, and meetings from which they formed a loose consensus about how best to draft legislation and to beat back the multitude of court challenges to the New Deal. SL