Professor Patrick Garry’s recently published An
Entrenched Legacy blames the increasing level of judicial activism on the
precedents established under Franklin D. Roosevelt’s New Deal. As Accuracy in
Academia previously reported,
FDR’s economic policies had a harmful effect on poor African-Americans,
lowering their status within the public sector and inflating African-American
unemployment when compared to their white counterparts. Professor Garry’s
thesis expands this criticism of the New Deal to condemn FDR’s court-packing
scheme, which, he argues, influenced the Supreme Court to focus on individual
rights protections instead of promoting overall liberty. In 1937 the Court
“abandoned the enforcement of the structural provisions of the Constitution. By
structural provisions I mean federalism and separation of powers, for
instance,” the University of South
Dakota Professor said.
This change, in
turn, led to a necessary expansion of judicial powers concentrated in the area
of individual rights, he argues. “In abandoning [the structural provisions] the
only protection for individual liberty was going to lie with judicial review of
specific individual rights and so the court…had to do that,” said Garry.
These rights, such as the right to privacy—found in the “penumbras,” or
shadows, of the constitution—inevitably led to judicial decisions based on
judges’ ethical judgments rather than strict constitutionality.
thesis was met with a series of criticisms by his fellow CATO Institute
panelists, most notably from Professor Abe
Krash of Georgetown
University. Professor Krash criticized the idea that civil rights could be
devolved to the states, noting that many state civil rights violations had been
justified in the name of states rights. “I think [Justice Louis Brandeis] would
not have for a minute supported the notion that we could look to the states for
the protection of individual rights and individual liberties,” he said. Krash continued, “The truth, and the blunt harsh truth
is…the pedigree of the states with respect to civil rights and civil
liberties is a very badly tarnished pedigree,” especially on issues such as
women’s rights, segregation, and slavery.
expert Roger Pilon
likewise critiqued Garry’s state-centric emphasis. He said, “But voting
with one’s feet is not cost free, and in fact most people do not so vote if the
intrusion on their rights may be bearable. Populations shifts are driven
more—not entirely, but more—by economic regulations that drive businesses, and
hence jobs, to other jurisdictions, not by discreet intrusions on rights.” Pilon founded, and now directs, the CATO Center for Constitutional Studies.
also views Garry’s connection between the New Deal and judicial activism as
tenuous, at best. The questions with
federalism that are at issue beginning with the mid-1960’s…They relate to
questions concerning limitations on state power…,” said Krash.
In contrast, the 1930’s dealt with questions about expanding Congressional
power, he argued.
Garry replied “I
don’t think the argument I intended to make was necessarily that we should look
to the states to protect liberty as if the states would be the only protection
there of liberty.” He later added that
“I don’t think federalism is states rights. Federalism is a balanced system of
dual sovereignty…I think this was largely put out of balance after the New
If Krash had his way, this balance would clearly tip in favor
of federal intervention. “…states rights were invoked as an argument why the
national government could not regulate the country’s business, which so
desperately needed to be regulated and dealt with if we were going to come out
of the Depression,” argued Krash (emphasis
added). In other words, he credits FDR and Congress’ economic intervention with
the nation’s financial recovery.
scholars believe that the New Deal policies actually hindered America’s
recovery. CATO Senior Fellow Jim Powell
concludes that FDR’s New Deal actually extended and intensified the Depression
in his book, FDR’s Folly. “Had Roosevelt only kept his inoffensive
campaign promises of 1932—cut federal spending, balance the budget, maintain a
sound currency, stop bureaucratic centralization in Washington—the depression
might have passed into history before his next campaign in 1936,” wrote Robert
Higgs for the Independent Institute. Robert Higgs has taught at the University of Washington, Lafayette
College, Seattle University, and the University
of Economics (Prague) and served
as a visiting scholar at Stanford
University and Oxford University.
Bethany Stotts is a
Staff Writer at Accuracy in Academia.