What we remember as the New Deal was an exploding circus of many parts, including strands of progressivism that preceded the New Deal. My initial move this evening will be to draw us back to the things that were distinctly and characteristically of the New Deal.

Under the laws of the United States, in April 1934, Mr. Jacob Maged, of Jersey City, became the most unlikely of public enemies. The hapless Maged, an immigrant, was 49, and running his own tailor shop and dry cleaning establishment. He had been warned once by inspectors from the government, but the second time, in April 1934, the authorities decided to make an example of him. Maged was prosecuted and sentenced to jail for three months, leaving a wife and four daughters to struggle with the business and pay his $100 fine. And his crime? Knowingly, deliberately, Maged had pressed a suit for 35 cents instead of the 40 cents mandated under the National Recovery Act (NRA).

Maged, with his broken English, could not believe that anyone could "tell me how to run my business"--or that he could become a criminal by charging less than the other stores. He was not what we would call today a highly "credentialed" man. He could not charge high fees for billable hours. As one reporter put it, in an account of the case, Maged apparently grasped the point that the key to making a living lay in his own human capital. "His observation had led him to believe that the only reason one man gets more business than another is that he gives more value for the money." For acting on that maxim under the regime of the NRA, Maged was converted into a public villain (or in Gen. Hugh Johnson's official term, a "chiseler"). Mr. Abraham Traube, the president of the Cleaners and Dyers Board of Trade, and a director of the code authority for that industry, explained the case to the press: "We think that this is the only way to enforce the NRA. If we did the same thing in New York City we would soon get the whole industry in line." Jacob Maged could become a criminal only under a rare set of laws, in which people in the business of dry cleaning could use the powers of law to impose penalties on their own competitors, who dared to lower their prices.

Pressing pants, or drilling for oil--there was no difference. What was reflected here was the experiment of the New Deal with corporatism. The case of Jacob Maged I found in a collection of letters compiled by Senator William Borah, in 1934, when he began to look into the problems of small businesses under the National Recovery Administration (NRA). Borah's inquiry brought forth a torrent of letters from businessmen throughout the country, and they make, altogether, a fetching, pathetic collection. The letters can be found today in a container among the Borah papers in the Library of Congress. One businessman was willing to take the time to lay out, over several single-spaced pages, the economics of the ice business in St. Louis. Taken together, these documents may form a kind of "people's history" of the New Deal. And what they seem to describe is a government making war on the most ordinary people, like Jacob Maged.

The story jars us today, it may strike us as bizarre, precisely because it did not become routine. It did not become part of a practice woven into our daily lives, mainly because it was resisted by The Supreme Court. Many of us have been able to preserve a benign memory of the New Deal precisely because these parts of the record of the New Deal have been screened from our memories--in large part because they have been screened from the accounts shaped for us by the historians. For many years I was quite content to be a preserver of those benign memories, and I haven't come to this problem driven by some animus against Franklin Roosevelt. In fact, quite the opposite. About a year ago, at the invitation of Herman Belz, I spoke on this subject to the Historical Society of the Supreme Court, and Chief Justice Rehnquist was kind enough to introduce me and the subject. I was rather surprised by the way in which the audience was affected by the merest scrap of personal biography I had mentioned in passing. I noted that my first memories were recorded in the apartment where we lived with my grandparents in wartime Chicago, where there was, on the wall in the kitchen, a large picture of Franklin Roosevelt. This was a strong, Democratic household. Apparently the audience attached some significance to the fact that all of my sympathies were on the side of Roosevelt and that there was little drawing me to those conservative judges who had resisted Roosevelt--apart from the force of their opinions, which I would come to appreciate in later years. But since people do attach some significance to details of a personal nature that I never thought worth mentioning, I might sharpen the account by adding this: For some curious reason, at the age of 16, my main interests were baseball, girls, and Franklin Roosevelt. I read everything I could about FDR and the New Deal, even to the point of finding records with his speeches. And the reason was that my interest in politics had been awakened with the second campaign of my idol, Adlai Stevenson. When he lost yet again, I was drawn to the most compelling figure among Democrats, the last Democratic president, who was both glamorous and successful. And so, I hope you would appreciate then that if I found myself tendering my respect, in later years, to the likes of George Sutherland or James McReynolds, it was not because there was anything particularly attractive in McReynolds or his colleagues. I was drawn entirely by the force of their arguments, and by the experience of simply looking again--looking with a clear head--at the details of the cases.

With the National Recovery Act we would encounter the experiment of the New Deal in forms of corporatism. Even Huey Long would later complain that, in arrangements of this kind, the New Deal had produced schemes containing "every fault of socialism ... without one of its virtues." In viewing these arrangements again we discover that the evil contained here, in the schemes of corporatism, ran well beyond the Constitution. What was contained here fitted the classic understanding of corruption as it comes down to us from Aristotle in the Politics. The corruption, or perversion of political power, meant the transmutation in the nature of the thing. Politics was corrupted most distinctly when political power, which should be public in its ends and methods, served the private interests of rulers or let the whole be governed by the interests of a part. With the NRA, and other, novel forms of regulation under the New Deal, the Congress would transfer its legislative power to the Executive, who would then delegate it in turn to councils--say, in the coal business, or the manufacture of clothing. We would have, then, councils composed of businessmen and unions, which would be authorized then to exercise the monopoly powers of law in enforcing codes of "fairness" in pricing. Which is to say, they would be armed now with the powers of law to forbid their own competitors to undercut them. (In the coal industry, for example, the decisive power was in the hands of organizations representing two-thirds of the producers, and one half of the miners, who were then exercising the authority to enact their interests at the expense of the smaller firms and other workers.) And since they were not responsible to any electorate, they would come under no obligation to give an account, or render a justification, to the public that was bound to be affected, in the most palpable way, by their decisions.

As Justice Scalia said recently, in one of his telling phrases--and in an important reminder of John Locke--the constitution gives the Congress the power to make laws, not the power to make legislators. The vice of delegating authority lay in part in this perverse scheme of vesting the authority of the whole in clusters of interests groups or factions in a host of separate fields. But that did not exhaust the problem. There was another dimension that involved the loss of that discipline that forms a distinct part of the American Constitution. And what is curious here is that, with so many deep-dish thinkers drawn to Washington from Harvard and other places, the one who sniffed out this problem more surely than anyone else was Huey Long. With a broad, hazy grant of authority, the President would be free to put into force an array of very precise regulations, but these were regulations utterly detached from any broader, governing principles. As Long remarked, "If you had a bill here saying that women should not work longer than six hours a day, you might not be in favor of that, but you would know what you were voting for." And "if you had a bill here saying that children should not be employed in industry, you might not be in favor of it, but you would at least know what you were voting for." But his point was that it was quite unlikely that any of these measures could have been passed by Congress, precisely because Congress could not simply propound details, detached from any larger scheme of justification. As soon as a measure of this kind was proposed, the question would arise, Why six hours? Why not more? What is the principle here? Why would that measure be applied only to one industry? Why would it not soon be applied to me--or to my business? In other words, once a measure was brought forth in the legislative arena, what would kick in here would be precisely that discipline of politics that Madison anticipated in the Federalist #10. Interests would be set off against other, contending interests, or there would be a need to find the ground, or the principle, by which these interests could be reconciled--or there could be an incentive to back away, not to legislate. But that was precisely the kind of constitutional discipline that could be evaded entirely if the President were free to pluck regulations out of the air, isolating different industries in different places. And so, as Long remarked on the floor of the Senate,

The field of policy could be segmented in this way, and the Executive might never come under any compulsion to justify the policy in more general terms, for industries that have not yet been brought under these controls. Take, as a notable case in point, the famous "hot oil" case (Panama Refining Co. v. Ryan). Under the National Recovery Act, the Congress had delegated to the President the authority to prohibit the transportation in interstate commerce of petroleum and petroleum produced or withdrawn from storage in violation of the quotas that may be prescribed in any state, as the states sought to regulate the supply of oil for the purpose of keeping up prices. Now if the Congress had sought actually to bar the shipment of "hot oil," it would have been necessary to define the nature of the commodity whose presence in the market caused an "injury" to commerce. The law would be placed, after all, in a singularly awkward state, if it declared that an excess production of "product X is so deleterious that it may be banned from the market"--but then turned about and confessed that

As bizarre as that may sound, the problem is not rendered more tractable or intelligible when the definition of "product X" is narrowed to the commodity of oil. For there is nothing intrinsically injurious about oil. What the legislators took as injurious was an "excess" or surplus production that would drive down the price of oil. But if anyone truly knew what that figure was--the point at which additional production would drive down prices and produce effects that were injurious in the broader marketplace--then that figure could have been legislated. There would have been no rationale for leaving that figure to be filled in differently, in the separate states, according to the reckonings, the intuitions, or the vagaries of the local politicians.

In the nature of things, different states would stipulate different figures--some could calculate the proper quota at 5000 barrels at day, another at 10,000 barrels a day. In one state, the 6,000th barrel of oil could be contraband, illegal, a barrel whose presence in the market would be counted a crime. But in another state, that barrel would be quite "innocent," and its presence in the market would be regarded as legitimate. And yet, the President would put himself in this curious, untenable position: He would have to ban the 6,000th barrel of oil produced in state A--declare it, with conviction, to be offensive, infamous, unacceptable--while at the same time raising no impediment to the shipment of the 6,000th barrel of oil produced in a state with a larger quota. The products, in other words, are intrinsically the same, but the production and shipment of one is made criminal, while the other remains innocent. But all of the hard questions are avoided as Congress simply delegates its authority without getting clear on the nature of the wrong that it means to forbid.

Huey Long sensed the matter quite accurately then when he observed that the Congress had empowered the President "to perform monstrosities which would never come within hailing distance of being incorporated in a law passed through the Congress of the United States." To bring back again Justice Scalia, the Congress has the authority to make laws, not legislators--and Huey Long helped remind us of the deeper reasons of why that is the case.

Several years ago I was at a gathering of colleagues in the Connecticut Valley who study constitutional law, and one colleague, counting on the sure laugh, cited again that line, often quoted, from Justice Owen Roberts in the case of United States v. Butler (1936). That was the case in which the Court struck down the Agricultural Adjustment Administration, as a centerpiece of the New Deal. In the course of writing for the Court, Roberts offered his now famous observation that, when an act of Congress is challenged on constitutional grounds, "the judicial branch of the government has only one duty--to lay the article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former."

That passage has been much derided for its innocence, or for its reflection of a mechanistic jurisprudence. And as it was invoked again, on this occasion, it inspired the usual round of derisive mirth. But of course the derision inspired by the line was meant to spill over to affect the jurisprudence in which that sentence was immured: To laugh at Roberts's line in the Butler case was to confirm again our recognition that there was something laughable, or preposterous, about the decision that contained that line. And the deeper implication was that there was something unserious, something laughably wrong, with the jurisprudence that resisted the New Deal. After the chuckling subsided, I asked my friend whether he would in fact reach today a decision in the Butler case different from the decision that Roberts and his colleagues explained in that case. He replied, in what seemed to be an instant reflex, that there was no serious question--that he would certainly reject that decision, as he would reject all of the other decisions that resisted the New Deal. The conversation moved on, and as it turned onto other paths, I took advantage of one phase in the discussion to pose this problem to my friends and colleagues. I asked them to imagine a scheme of regulation, in our current politics, that took this form:

The reactions to this policy would not be so hard to fathom or to anticipate with some precision. First, the argument would be made that, through the guise of taxing, Congress would be legislating in a field in which it bore no clear authority to legislate. But as Justice Story used to teach, it is one of the axioms of the law that what may not be done directly may not be done indirectly: If the federal government could not legislate directly on the matter of abortion, then it could not legislate by indirection, through the manipulation of taxes. Nor may the government supply to itself the authority withheld by the Constitution merely by resorting to the brazen device of assigning and removing burdensome taxes--by inducing its citizens to buy back their own freedom.

But if these lines of principle are clear to us today, they should have been equally clear when they were inspired in the 1930s in the cases arising from the New Deal. For what I had described here, in the scheme of regulation on abortion, was simply another version of the scheme that the Court had encountered when it struck down the Agricultural Adjustment Act (AAA). And the reasons that I set forth, in recounting the constitutional defects in this scheme, were essentially the reasons put forth by Justice Roberts that day, in United States v. Butler.

If we take the scheme as I have described it here, and translate it back into the terms of the AAA, we merely fill in the same form with the problems of agriculture. The aim of the policy was to prop up the income of farmers. In the Butler case, the government would impose a tax on the processors of cotton at the Hoosac Mills, in North Adams, Massachusetts--a tax of about 4 cents a pound--and transfer that increment to farmers. If the processors accepted the price favored by the government, the government would rescind the tax of about 4 cents a pound, and the processors would be free in turn to lower the prices to their wholesalers and customers. At the same time the government would offer 4 cents a pound to the farmers as an inducment to cut back on production. As Justice Roberts observed, it was "a scheme for purchasing with federal funds submission to federal regulation" of a subject that might be quite beyond the reach of the federal government. Roberts could offer then some hypotheticals of his own, which were quite precise and quite devastating in their aptness:

Perhaps we do not see the matter in our own day as it was seen in the 1930s, when judges were more alert to this form of "class legislation." And so it may be necessary to clothe the case, as I did, in the more familiar terms of a case on abortion. When we do that--when the case is wrapped in forms that are more familiar to our own day--the scheme of regulation proclaims itself instantly as bizarre. It is not the jurisprudence or the reasoning of Roberts that seems strange or unrecognizable. But rather, it is the scheme of the New Deal that seems now strange, out of place, something not drawn from the world we inhabit.

Now as the saying goes I "front-loaded" the talk with these issues because it struck me that the casting of the problem, Was the New Deal Constitutional?, that this question was already affected by that filtering I had mentioned earlier. When the question is posed, we think of measuring the constitutionality of the New Deal that we remember--the parts that have lingered, or left a continuing legacy with the expansion of the Commerce Clause and the power of the federal government to reach private industries. But we probably block from the problem the parts of the New Deal that the Court put away, or the parts that were rejected politically, and which never came back. We may forget, then, some of the most distinctive parts of the New Deal--the parts that put the novelty or the "New" in the New Deal--precisely these schemes of corporatism and the regulations described by Huey Long. And once we describe them anew, or remind ourselves of what they were about, the question is not so much, Was the New Deal Constitutional?, but rather, Why would anyone have thought that any of this would be constitutional? And the fact that some of these schemes simply proved politically untenable, may alert us to the fact that there were other sources at work, apart from the courts, in rejecting schemes that were dubious in a constitutional order. That may also alert us to the fact that the question of constitutionality may be separate from the question of the power of the courts. There may be places in which the acts of the government, under Roosevelt, could raise the gravest questions of constitutionality, but where it would be quite unwholesome if the courts intervened to provide a remedy. What I have in mind here most notably are the kinds of problems that arose in the field of foreign and military policy, as for example with the cases arising out of the recognition of the Soviet Union.

In those cases, the Roosevelt Administration agreed to accept the validity of certain Russian decrees as they bore on Russian companies that still had assets held in the United States, in New York. In U.S. v. Belmont (1937) the assets belonged to the Petrograd Metalworks, and in U.S. v. Pink (1942), the First Russian Insurance Company. There were dissents in these cases by Justice Stone, who reminded us that the public policy of New York, and even the Constitution of the United States, still cast up certain barriers against the confiscation of property without compensation. These were the kinds of takings that would come under the "takings clause" of the Fifth Amendment if they were carried through by governments in the United States; and it was the sort of issue to which the Court could be counted on to be quite sensitive in matters of domestic law. But in foreign affairs, Justice Sutherland and his colleagues were willing to accord to the Executive a much wider range of action, and a source of authority that ran beyond the Constitution itself. As Justice Sutherland had remarked in the Curtiss-Wright case, the powers exercised in foreign affairs--and exercised almost exclusively by the Executive--were older than the Constitution, in the way that the Republic itself was older than the Constitution. And while the laws of New York could indeed cast up a certain prejudice against the confiscation of property, Sutherland pointed out, in a notable phrase, that as far as foreign affairs are concerned, "the State of New York does not exist." And here, Sutherland's position was simply drawn from that axiom that Alexander Hamilton had articulated in the Federalist #80, that "plain proposition," as he called it, "that the peace of the WHOLE ought not to be left at the disposal of a PART." The recognition of a foreign government--or the withdrawal of recognition--may go hand in hand with an overarching military strategy, as we would be reminded again during the Second World War, when matters of strategy hinged on the nice question of whether we preserved diplomatic relations with the Vichy government under Admiral Darlan and its administration of Morocco and Algeria. These are matters that the policies of New York State should not be able to disrupt, even if the New Yorkers happen to be right.

But for the same reason, these are decisions that judges should not be able to take from the hands of the military or the Commander-in-Chief. In my book on Sutherland, I imagined a slightly different case in which we were recognizing the Nazi regime in Germany in the late 1930s, and the courts were asked to carry out the expropriation of assets held by German Jews exiled in New York. My suspicion is that we might have discovered under those circumstances that, politically, New York had not ceased to exist in foreign affairs. But Sutherland and his colleagues needed no further instruction to appreciate that this confiscation of property would have been challenged on constitutional grounds if it had arisen under domestic law. Yet, if anything was clear, in the project of republican government, these kinds of decisions in foreign affairs, involving the peril safety of the nation, had to be lodged, entirely, in the hands of officers who bore a direct responsibility to the electorate, those people whose lives were at stake in these decisions.

But I was a bit surprised recently when my friend Jeremy Rabkin at Cornell insisted to me, nevertheless, that he had serious reservations about the constitutionality of these moves. What he suggested here, quite plausibly, is that we might have encountered, in these decisions, an instance of that problem we would face with the mandates imposed on private businesses to carry out public obligations. The owner of property on a shore in California is compelled to make a slice of it available for the public--or private business is ordered, by public law, to provide health coverage, or other benefits, for its employees. In another day, these cases would have been seen to come under the Takings Clause of the Constitution, and the judges have begun to bring them under the Fifth Amendment. As Chief Justice Chase once reasoned, if the Fifth Amendment bars the legislature from taking property for public use without compensation, the principle cannot be circumvented if the legislature takes the property, not for public use, but private use, by assigning the property to other people.

In that vein, Jeremy Rabkin would argue that the national government might have a considerable stake in establishing relations with the Soviet Union, but the costs should not have been imposed on these private citizens. If their property was to be taken, at the orders of the national government, then the national government might have been obliged to pay compensation. Or so at least a court might have held, and the President and the Congress could have decided whether they were sufficiently persuaded that they would engage their powers over the purse to pay the bill. But the deeper point that might be made here is this: One could argue, with Jeremy Rabkin, that this move on the part of the Roosevelt Administration violated the Constitution, and yet still hold with Sutherland that this was not a matter in which unelected judges could rightly intervene. But then we are reminded here that it is indeed possible to raise questions about the constitutionality of these various acts of the Roosevelt Administration without implying that we would enlarge the powers of the courts in countering those acts and providing a remedy in all instances.

At this moment, of course, Harvey Mansfield might simply remind us of the lessons taught by Machiavelli: namely, that modern government reduces finally to esecuzioni, to acts of execution carried out by someone in executive authority--and we may cover over that brute fact by referring to the ruler as an Executive. With that fiction we import the notion that he is merely executing the laws established by others; still, we recognize that in moments of emergency, the pretenses will be dropped, and the Constitution will be revealed as so much of a pious pretense. By this construction, modern government is the Executive, and all of the discussion about the constitutionality of the New Deal reduces to a judgment on the statecraft of Franklin Roosevelt, and whether--when we take everything together, the faults and the virtues-we were simply better off in having him than not having him.

That construction may not be bizarre, and it may cut to the bone. For me, the problem would have to be complicated by the recognition that, as I am, I could not be constituted as anything but a friend of the Executive power, as it was flexed by Franklin Roosevelt. A colleague of mine, Gordie Levin, rather stunned an audience in Amherst in the 1980s by remarking that, but for the projection of American power in the world, beginning around 1940, there was probably not a country in the world that would today be free. Were it not for the use of the executive power by FDR, to sustain rearmament and support the British, even before we were in the war, I take seriously the possibility that my family and I might not be alive today. I would have to be the last one, then, to strike postures of dubiety about the Executive power.

Yet, no one is thought to have been more vigorous in the exercise of the powers of the executive than Lincoln, and Lincoln was remarkably fastidious in instructing his generals on the limits of the authority they could exercise, as his agents. In a letter to Orville Browning, in September 1861, Lincoln explained his decision to countermand the move of General Fremont's proclamation on the liberation of slaves, and the distinctions he offered should have been luminous enough for anyone. As Lincoln observed,

The same was true, he thought, about the confiscation of slaves; it could not fall to generals "to fix their permanent future condition. That must be settled according to laws, made by law-makers." Browning spoke of this measure as possibly necessary, however, to save the government. But Lincoln retorted that, "on the contrary it is itself the surrender of the government":

We may not be enemies of the Executive power, but if we take seriously the notion of constitutional government, we understand that a government characterized by self-control is no more of a weak government than a person with self-control is a weak person. We may be friends of the Executive power and partisans of Franklin Roosevelt, and yet it is altogether too facile or glib to assume that it was necessary for the government to free itself from the discipline of the Constitution in order to cope with the Depression. The reach of the national government, and powers of the Executive were already quite substantial, and quite adequate to their ends. And so it cannot be an idle matter to consider whether powers were being exercised on grounds that were finally implausible or indefensible. In that vein, it must be sobering to consider that the first, dramatic moves of the Roosevelt Administration, in dealing with the runs on the banks by closing the banks, were based on a measure left over from wartime in 1917. This was the Trading with the Enemy Act, a measure that provided authority to the President in dealing with the shipment of gold outside the country. The war had ended 15 years earlier, the conditions that brought forth the act were not present, and if we take seriously the lessons taught by Lincoln, we should understand this act surely could not have provided a ground of authority to a central government in barring people from access to their own savings. I am not saying that a rationale for that power might not be provided; I am merely pointing out that nothing like a rationale could have been provided in this act. (On the other hand, their property wasn't confiscated; the panic was arrested, within five days the funds were flowing again, and two weeks later, in March 1933, the stock market rose by 15 per cent. Could the notion of "necessity" be broadened from military necessity to expand the powers of the Executive? It may be that Mansfield's rendering of Machiavelli may provide the most plausible case, after all, for FDR.)

It is curious that the resistance to the New Deal is usually ascribed to the so-called "Four Horsemen," those four, supposedly cantankerous judges--McReynolds, Van Devanter, Sutherland, and Butler. But what is strangely overlooked is that the most signficant decisions, in resisting the New Deal, were carried through by a unanimous Court. The judgment of the Court was not offset by a single dissenting vote in the celebrated Schechter case. There was not a single dissent in Louisville Bank v. Radford (1934), which struck down the Frazier-Lemke Act, to relieve the debts of farmers. Nor was there a dissent in Humphrey's Executor v. United States, which restrained the power of the President to remove members of the independent regulatory commissions. Some of these decisions, overturning the most radical legislation of the period, were joined by the judges who would stand in the pantheon of liberal jurisprudence: Justice Brandeis wrote for a unanimous Court in Louisville Bank v. Radford (1934); and there the judges declared unconstitutional an act of legislation that sought to prevent the foreclosure of farms, in effect, by dispossessing the creditors. In Panama Refining Co. v. Ryan (1935), the so-called "hot oil" case, only the loss of Justice Cardozo's vote broke the unanimity of the judges.

Over the years we would hear often of "the switch in time that saved nine"--the supposed turning of the Court toward an accommodation with the New Deal, beginning in 1937. And yet, what has been screened in the popular histories is the fact that the main decisions in resisting the New Deal were never dislodged. For the most part, the resistance of the judges held. The two notable moves, in the switch in time, came in 1937, with West Coast Hotel v. Parrish, and National Labor Relations Board v. Jones & Laughlin Steel Corp. The West Coast Hotel case upheld a law mandating minimum wages, and it overturned a rather luminous opinion written by George Sutherland in 1923, in the case of Adkins v. Children's Hospital. The Jones & Laughlin case marked a willingness of the Court to accept an expansion of the federal government under the Commerce Clause, in protecting unions, and in regulating the conditions of employment and compensation. In universities across the country today, a certain havoc is being inflicted through the use of Title IX, in threatening litigation over women--challenging and overturning decisions on tenure, forcing the retirement of accomplished professors. None of this would have been possible except for the beachhead that was established in 1937, in extending the reach of the federal government to employment in private corporations.

The decisions on minimum wage have had a more fleeting significance. The gestures toward raising the minimum wage will bring their casualties in different seasons, and the measure will be repealed, in effect, by time and the drift of inflation. Yet, that decision opened the federal government to the recurring experience of wage-price controls, and the decision that the Court had swept away--that decision explained by George Sutherland--had offered the most compelling explanation of why controls of that kind were in principle wrong, wrong at the root. We would be launched then into a stream of empiricist adventures without a terminus, as conservative economists would keep assembling the data to show why controls on rents and wages don't work; and liberals would be free to argue, in return, that they have never been applied before with the kind of subtlety that can be brought to the project in a place like Berkeley, California. But Sutherland could have spared us these misadventures if his opinion had been preserved, for he explained, as I say, what was in principle wrong with these schemes even if, on occasion, they should happen to "work."

The Adkins case in 1923 involved a policy, passed by Congress, for the District of Columbia, mandating a schedule of minimum wages for women, with the purpose of casting a special concern, and protecting the health and morals of women. The liberal historians tend to filter from their record the recollection that Sutherland had been, as a Senator, a leader in the cause of votes for women. And in this case, when he struck down a paternalistic policy, he saw himself vindicating the same principles he had been advocating in the cause of votes for women. In this particular case, he also went to the rescue of Ms. Willie Lyons, who had been fired from her job as the operator of an elevator in the Congress Hotel. That was a job in which her employers would have been pleased to retain her, and for her own part, Ms. Lyons testified that she could find no other job as appealing or satisfying, in its setting or conditions or its terms of compensation. The pay, for Ms. Lyons, was $35 per month plus meals. But under the policy prescribed in the District of Columbia, her employers were prevented from employing any woman in that position for anything less than $71.50 per month. And yet, the law, in its liberal aims, cast its protections here only over women. Men, however, were not "protected" by the law, which meant that any man was free to accept the job as the operator of an elevator at the going market rate-which happened to be about $35 per month plus meals. In other words, the law, in its liberal tenderness, in its concern to protect women, had brought about a situation in which women were being replaced in their jobs by men.

It was curious that Sutherland's friend, Chief Justice Taft, would sound, in dissent, an accusation often hurled at the so-called conservative judges; he would accuse them of striking down a legislative act because it didn't accord with their "economic views." The phrase would become familiar to the point of a cliche: The judges were striking down laws because they did not accord with the "predilections" of the judges. In the first place, it was a distortion even beyond caricature to look at the reasoning produced by Sutherland, and reduce that reasoning to the plane of mere personal taste, as though everything Sutherland said could be reduced to the summary proposition, "I don't like it." But beyond that, there was nothing distinctly "economic" or "empirical" in the reasoning brought forth in these cases. Sutherland affected no theory of wages or employment, or anything else resembling an economic theory. It would be truer to say that his arguments were "jural" in nature; they ran back to the very postulates of law and jurisprudence.

Most notably, Sutherland's argument kept running back to the root issue of "determinism" and morality: If we assumed, for example, that race or class or gender exerted a kind of "deterministic" control on the moral conduct of any person, then no person, strictly speaking, could be held responsible for his own acts. As Sutherland and his colleagues saw it, the law fixing a minimum wage for women was simply layered with assumptions of determinism, mainly a determinism by gender and class. By its very terms, the legislation for the District of Columbia proclaimed the purpose of setting the schedule of wages that could sustain, among women, an appropriate standard of living, the standard that could "maintain them in good health and . . . protect their morals." Sutherland could remark then upon the awkward pretension of claiming to know that it required a wage of $16.50 per week to preserve the health and morals of a woman employed in the serving of food, while a wage of $9 per week might be sufficient to preserve the moral character of beginners in a laundry. Was there really a correlation between morality and income? Could we assume that all people with diminished incomes had diminished characters--that they were less to be trusted, that they were less affected by claims of duty or honesty? As Sutherland observed, "The relation between earnings and morals is not capable of standardization. . . . Morality rests upon other considerations than wages. . . .

But apart from the determinism by gender and income, there also seemed to be a kind of class determinism at work: it seemed to be assumed that anyone who fell into a class called "employer" had the capacity to pay the wage that was stipulated by the board. It would not apparently matter in the least whether the establishment in question was a large corporation or a marginal, small business, with one or two workers. It was simply assumed in the law that all employers had roughly the same capacities, and that it was better for any employer not to offer a job, than to offer a job at a wage that could not sustain a person living on her own.

Sutherland went on then to ask, in one of the cleverest turns of reasoning, if we would be willing to apply the same policy from a slightly different angle: If someone walked into a butcher's shop, could we oblige the butcher to sell to the customer for the same, fixed price the amount of food that he would need to sustain himself or his family?

Sutherland asked, If we could establish a minimum wage, why not a maximum wage? The protest may arise that the price of housing has moved beyond the means of middle class people. But the price of housing cannot be restrained without restraining in turn the wages paid by contractors, and those wages cannot be restrained without restraining the prices paid by carpenters and workers for groceries and other necessities. Sutherland managed to glimpse here the future that dared not yet speak its name. As the Court turned away from Sutherland's opinion in 1937, it would create, as I say, a new openness to recurrent bouts of wage-price controls. And in the most recent experience, we have seen liberal economists who have marshalled the evidence against the minimum wage, nevertheless trying to bring forth intricate arguments to suggest that the policy might nevertheless be justified. These economists don't contest--as they cannot contest--the testimony offered by employers, that they would not be able to hire or retain workers at a higher minimum wage. The economists claim, rather, that an increase in wages will beget an increase in demand, and demand in turn will beget more employment. Whether the argument, in this form, is right or wrong, the problem is that it bears all of the defects that are usually displayed by a utilitarian ethic. Even if it were the case that a rise in minimum wage would produce a net gain in employment, nothing in those aggregate figures would provide a ground for abridging the freedom of Willie Lyons to keep the job that she deeply wished to keep at the Congress Hotel. The cardinal virtue in the kind of teaching offered by Sutherland is that it put the liberty of the person quite well beyond the tinkering, and the calculations, of this utilitarian morality. But that understanding would disappear from the education of lawyers as the assumption took hold that the Adkins case had been overruled by the course of history, that Sutherland must have been refuted. In short, this was the kind of understanding that seemed to disappear from the furnishings of mind of lawyers when the sense took hold that the Court had begun sustaining the New Deal.

But apart from the minimum wage, the most enduring change produced by the turning of the Court on the New Deal has been the expansion of the federal government through the extended reach of the Commerce Clause. On this problem, there had been a breakwall, a clear barrier, and its breach should have signaled a warning to all members of the political class. Through the nineteenth century and the classic cases under the Commerce Clause, there was no need to speculate on the ways in which any local business could "affect" the currents of interstate commerce. There was no need for that kind of exercise, because it seemed to be understood by the political class that the impediments to commerce were mainly the barriers that cast up by law in the separate states. The landmark case of Gibbons v. Ogden involved a monopoly that had been granted, by the State of New York, for all boats moved by fire or steam through the waters of New York. That monopoly had created an impediment to the operation of other boats, which had been licensed under an act of Congress to engage in the coasting trade and travel a route that connected New York and New Jersey. In Cohens v. Virginia (1821), the case arose out of a law in Virginia that barred the sale of lottery tickets--in this case, tickets emanating from the District of Columbia. A survey of the cases would reveal that all of the famous cases in the nineteenth century fitted this pattern.

Jeremy Rabkin reminds me, in this vein, of the situation that arose not too long ago in New York State when Governor Cuomo sought to encourage the sale of wine from local vineyards by authorizing supermarkets to sell wine. But for the sake of favoring the wines of New York, that privilege would not be extended to wines produced outside the State. Well, that strikes me as the classic case. There would be no need to gauge how large or small the business was, or how much of its sales were in transactions outside the state. There is the unambiguous presence of a law, which barred the sale of products or services coming from outside the state. But at the same time, the example offers some other telling lessons: When the Commerce Clause was engaged properly, it could reach many prosaic details of our daily lives--like the purchase of wine or insurance. There was no real limit to the number of cases that could fall, tenably, under this principle; and so it could be said that the Commerce Clause, as traditionally conceived, was already a powerful instrument, quite national in its reach, quite capable of reaching the mundane details of our lives--quite adequate to its ends. The problem we would later encounter with the expansion of the Commerce Clause was not merely with its breadth or its reach of details quite local and prosaic. The concern rather was with a power that became uncabined or untethered, because accomplished lawyers were willing to call this power into play on the strength of rationales so flimsy that they were implausible or even laughable.

The trouble, if we can call it that, began quite plausibly, as Congress, from its earliest days, was drawn into a chain of measures that moved beyond those rather clear, confining tests, of whether there are barriers to commerce cast up by law. There was, behind this movement, the motor of a moral concern. There was an earnest interest in dealing with the interstate movement of unsafe food or drugs, or of alcohol and prostitution. Implicit in the regulation of commerce, built into its logic, must be a responsibility for establishing the moral boundaries of commerce--a responsibility on the part of the law to mark off the difference between the legitimate and the illegimate, and the kinds of goods and services that a decent people would not claim the right to demand or supply in the marketplace. That moral concern cannot be detached from the legislative power, and that concern eventually had to draw Congress more deeply into the matter. Most notably, the Congress had to be drawn into the enterprise of backing up the authority of the states as the states sought to address serious moral issues, but could not of course control the movement of goods and persons across the borders. In that spirit, Congress had been willing to provide a support to Mississippi in 1803, when that state had sought to ban the import of slaves.

But I will leave to another time--or to my book on George Sutherland--the task of unravelling this puzzle of the Commerce Clause. To his credit, Sutherland understood that the Commerce Clause did not pretend to be an econometric model for the flow of transactions in a modern economy. That clause provided a rough formula, rather, for the limiting of federal power.

Commentators have often derided the distinction accepted by the Court between commerce and manufacturing--though there was some sense to the distinction. But it had long been evident to the judges that the distinction was problematic, that even the most local business was affected by currents in the world economy, was long evident. Still, the rough distinctions had the function at least of discouraging a critical overreaching by the national government, and once the restraint was removed, the test of "commerce" could no longer cabin the federal power. One of the original Labor Board cases, in 1937, involved a firm in Richmond that manufactured men's clothing. The company produced less than half of one percent of the men's clothing produced in the United States. There was no evidence that the alleged discrimination against members of the union had brought the company to the threshold of a strike or the stoppage of production. If the reach of the law was to be measured in proportion to the "effect" on interstate commerce, then the "effect" in this case had to be reckoned as trivial or null.

But the law was cast in a form that was virtually indifferent to questions of scale. It could apply to the Jones & Laughlin Corporation, to a clothing factory, or even to a cattle ranch. Justice McReynolds raised, then, the questions that were still apt to raise:

McReynolds is not remembered for a nimble wit--he was, to put it mildly, a nasty anti-Semite, whose nastiness modulated at times to a steady unpleasantness. And yet, with the law providing straight lines, McReynolds could come off as a kind of Robert Benchley of the law. The empty formulas put forth, in this case, as surrogates for jural reasoning, were targets perfectly framed. The law was contrived on the predicate that the absence of unions would pose a danger to interstate commerce by raising the threats of strikes and violence. In that event, said McReynolds, why not address the evil more directly by barring the strike itself? And with that reasoning, as McReynolds pointed out, the government could be warranted in suppressing any strike that could act, even in a tangential way, to affect the stream of commerce.

From every angle, the rationale served up here under the Commerce Clause could justify the extension of the federal power to the smallest, most prosaic enterprises. That point was confirmed with a dramatic finality--and to our enduring disbelief--five years later in the improbable case of Wickard v. Filburn. On that notable occasion, the government was sustained when it sought to punish Mr. Roscoe Filburn, a farmer in Ohio, for the misdemeanor of setting aside a portion of his wheat for the consumption of his own family. In a line that would resound over the years in the law reports, Justice Robert Jackson would "explain":

That passage would be cited by the Supreme Court when it had to explain how the Civil Rights Act of 1964 would reach Ollie's Barbecue in Birmingham, Alabama. Drawing on the same doctrines established in these cases, Prof. Laurence Tribe testified before a committee of Senate in 1992 and argued that the Congress could legislate, under the Commerce Clause, to guarantee the right to an abortion. Once again, the Commerce Clause was capacious enough to cover all. It was previously thought that states violated the Commerce Clause when they impeded the flow of traffic; but now it was alleged that the laws of the state could offend the Constitution if they might encourage movement on the highways. Tribe could speak darkly then of a "highway of anguish," as women were forced to drive for the sake of travelling to a state with less restrictive regulations.

Of course, it never seemed to occur to the partisans of the Freedom of Choice Act that the formulas of the Commerce Clause would work in a strikingly different direction if one came to the problem with a set of assumptions, quite different from theirs, about the "persons" who were the victims in these cases and the bearers of rights. If one supposed for just a moment that the victim might be the child who was dismembered or poisoned in these surgeries, the Commerce Clause could even be used more persuasively on the side of the unborn child. Even if we stick to the non-moral formulas of the Commerce Clause, it could be contended, after all, that an abortion threatens to interfere most emphatically with the right of the fetus to travel in interstate commerce! But with the arguments that became familiar in the Civil Rights cases, the engagement of the Commerce Clause would become even deeper: It was postulated, for example, that discrimination against black people would discourage blacks from travelling between the states, and from that point the inference was drawn that the shortfall in traffic would diminish the orders for meat, linens, silverware--in short, that it would have a vast, depressing effect on commerce. In contrast, we need not depend so wholly on speculation when it comes to abortion, for we know fairly precisely the number of abortions that are performed each year. And by the application of the same form of reasoning, the argument would flow here even more powerfully: With about 1.3-1.5 million abortions each year, it is manifestly the case that the current volume of abortions is having a vast, depressing effect on the demand for bassinets, baby food, toys, first cars, college educations, weddings. And that says nothing of the production and revenue lost from a cohort of over a million new taxpayers who would start to come on the scene, in waves, 18 years hence.

Even liberal commentators on the law have treated with a certain mirth the reigning fictions of the Commerce Clause. Conservative critics have railed against these doctrines but without much effect so far (except for the recent decision in U.S. v. Lopez). And yet, the recent experience of our jurisprudence suggests that even doctrines long settled for judges may be overturned in a fortnight when they suddenly seem to collide with the "right to an abortion," which seems to be regarded more and more as a touchstone. We might find ourselves producing the most pronounced turnabout on this matter, not by summoning more arguments against the use of the Commerce Clause, but by showing how the doctrines of the New Deal would work even more powerfully to curb, or even deny, the right to an abortion. With only the slightest alterations--indeed, with only the filling in of the blanks-Justice Jackson's argument would have a rather unsettling application to that woman, in the isolation of her privacy, who is contemplating an abortion. Jackson's argument then could unfold itself in this way:

But then surely this implication could not have gone unnoticed all this time: For surely it must have been apparent long ago that nothing in the jurisprudence of the New Deal would have supported our "new" jurisprudence of privacy and abortion, the jurisprudence that began with Griswold v. Connecticut and with Roe v. Wade. Justice Black, the first Roosevelt appointee, dissented in the Griswold case, on contraception. Black was forever reluctant to interfere with the judgments of legislators, elected by the people, unless he could act on some mandate, made explicit in the Constitution. For Black, and the jurisprudence he described, there would have been no question about the competence of a state legislature to decide on just when the community could cast the protections of the law around unborn children.

The jurisprudence of privacy and abortion could be advanced only by invoking standards of justice that do not depend on the votes of majorities. They must appeal, in short, to the "logic" of natural rights. But the notion of natural rights carried also the awareness of moral truths. The professors of the new liberal jurisprudence would install the logic of natural rights, as a kind of lever in the hand of judges, but at the same time, in the style of Laurence Tribe, they would preserve the freedom to reject the existence of moral truths.

To establish the new jurisprudence of privacy and abortion, the heirs of liberalism have had to throw over the heritage of the liberal judges of the 1930s. That much has been clear to them. But what seems to go remarkably unrecognized, or unacknowledged, is the fact that the current liberal project in jurisprudence requires, as its jural ground, the arguments of those judges, like Sutherland and McReynolds, who resisted the New Deal. The clues should have been impossible to miss: The proponents of a "right to an abortion" have found the ground of that right in a supposed "right of privacy," which was established, in their construal, over four or five cases, and the two leading cases in the series were Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925). Both decisions were written by the cantankerous Justice McReynolds.

But this is not to say, of course, that Sutherland and McReynolds were bound to approve of "the right to an abortion." Nor does it suggest that an understanding of "natural rights" would entail, or even support, the right to abortion, or any of the other claims spun out of Griswold v. Connecticut. Those who know my work will know that I have made already a rather strenuous effort to show that a more demanding moral sense would reject all of those claims.

It is simply that the argument for a "right to abortion" requires an appeal to what may be called at least the "logic of natural rights." And that kind of an understanding cannot be drawn, as I say, from Justice Black and the jurisprudence of the New Deal. It requires at least the ground of the jurisprudence supplied by the judges who were resisting the New Deal. But if that connection is ever brought to the point of recognition--if the Four Horsemen were suddenly seen as the architects of the jural structure that produced the rights of privacy and abortion-then we should not be surprised to see reputations dramatically rehabilitated overnight. We might awake one day to discover that Sutherland, McReynolds, Butler, and Van Devanter were being celebrated, even lionized, in the law schools.

Years ago, Irving Kristol remarked, looking back on the New Deal, that "intellectually [it] was not a particularly interesting enterprise." By that I took him to mean that its novelties did not wear well and were not even particularly novel. The expansion of the Commerce Clause, powered by liberal ends, had long preceded the New Deal. What seemed to last were the rudiments of the welfare state in schemes of social insurance. An idea that ran back to Bismarck did not require a massive reshaping of the Constitution. Even with the original Constitution, the Federalists, the Whigs, and the new Republican party could find the grounds for a central government that could undertake internal improvements, offer land grants to launch universities, and pass the Homestead Acts. Against this sweep of measures a scheme of social insurance does not seem a long stretch.

Whether those schemes would encompass policies of redistribution or a thoroughgoing centralizing of administration were somewhat different questions. It is arguable that the principles of the Constitution are at odds with the notion of the graduated income tax. But the Constitution addressed itself to the matter in an indirect way by casting up barriers to that kind of taxation. In the same way, the Constitution cast up barriers to a radical centralization, but as Morton Grodzins pointed out years ago--and the Supreme Court is discovering again--there are no clear organizing principles for assigning functions to the local or the federal government, except perhaps for foreign affairs (even that has not always been clear). There are powerful reasons of prudence and statecraft for preferring a diffusion of responsibility, so that people are encouraged to become practiced in the arts of taking responsibility for things that come within their reach. But, as the Founders recognized, a critical barrier was crossed when the decision was made in 1787 to create a national government rather than a confederation. And people like James Wilson understood that the national government, as a real government, would be competent to all of the ends that arose for any legitimate government. The national government would not stand as a government less adequate to the ends of government than any other government in the territory of the United States. If a state could override the claims of privacy and pass laws against racial discrimination in public accommodations, it is not inconceivable that a national government might one day raise the same moral claim and flex the same powers. Without an explanation of that kind, it would still be hard to explain the Civil Rights Act of 1964, which couldn't plausibly be explained by the 14th Amendment or the Commerce Clause. But whether that national government could impose racial preferences, or set ceilings on incomes, are rather different questions, which may elicit different answers. Franklin Roosevelt was quite alert to the moral hazards of social insurance for banking that was set too high, and there was every reason to think that he would have appreciated the distortions that could be created by a federal government that funnelled money back to the states and encouraged politicians at the local level to spend more freely, without discipline, because they were spending money that was not their own. Even the Founders of the New Deal could have understood then the considerations that moved the Congress and a Democratic administration to reverse a policy of 60 years and begin dismantling a centralized system of welfare.

But if that monument of the New Deal could be dismantled or undone, we should be reminded that it is indeed possible to pose the question again, as though we were facing the questions of the New Deal as they were posed at the time. We would find then, I think, that what was vacuous or flimsy in the rationales, especially under the Commerce Clause, have not been remedied by time. They are still vacuous or flimsy. The judges who pointed out their vacuity have the claim then to stand again as our teachers in reminding us of the reasons, and principles, contained in the original Constitution. These judges also had the virtue of not being historicists: When they laid out their arguments so earnestly, they evidently assumed that the dissents they set forth, with a certain care and wit, could make a difference even if they were read a generation or two hence. That is, they didn't suppose that good reasons, any more than the provisions of the Constitution, would be repealed simply by the shifting consensus of the time. Holmes famously remarked that a page of history was worth a pound of logic. With added experience, we might aptly say now that a timely application of logic--or a willingness to learn again some old reasons--may spare us from several generations of misspent history. And along the way we may discover, as a late colleague of mine once put it, that we have principles we haven't even used yet.