Below, Jonathan raises the following from a Jeff Rosen blog post:
The conservative justices may have calculated that they could strike down campaign finance restrictions without provoking a full-blown presidential backlash. But it takes only a few high-profile presidential attacks to tar a Court as activist in the eyes of history. During the 1930s, the Supreme Court upheld a great deal of FDR’s economic recovery program, but the New Deal Court is remembered today as a group of unprincipled activists because of just a handful of high profile decisions that FDR prominently attacked.
I assumed that when Rosen refers to the “New Deal Court,” he means the pre-1937 Court that resisted elements of the New Deal.
That said, it’s a bit odd to write that “the New Deal Court is remembered today as a group of unprincipled activists because of just a handful of high profile decisions that FDR prominently attacked.”
I’ve never heard the New Deal Court attacked as “unprincipled activists.” Reactionaries, yes. Defenders of a pre-modern “horse and buggy Constitution” (FDR’s words), yes. Out of touch, yes. Anti-democratic, yes. “Activists,” yes. But unprincipled? No! The complaint has always been that they had the wrong principles, not that they were unprincipled. It was quite clear to everyone that given existing constitutional precedent and understanding circa 1933, much of the New Deal was unconstitutional. That’s why, for example, the Court invalidated the National Industrial Recovery Act by a unanimous vote. And the Court invalidated the Agricultural Adjustment Act by a 6-3 vote, including “moderates” Hughes and Roberts.
That brings us to the “handful of high profile decisions.” The NIRA was the heart of FDR’s economic recovery program, and the AAA was the heart of his agricultural recovery program. The Court also invalidated a series of less significant, but still important, New Deal legislation. Rosen makes it seem FDR picked a fight over a “handful” of relatively inconsequential decisions. But there has probably been no greater example of the Supreme Court’s devotion to principled constitutional interpretation, and its willingness to challenge the political branches, than the Court’s willingness to invalidate the key elements of a very popular president’s economic program in the middle of the worst economic crisis in American history.
Finally, I vigorously disagree with the lesson Rosen draws from all this, which is that Obama is wise to take on the Court:
It’s a relief to see former Professor Obama having the nerve to stand up for judicial restraint and to criticize the conservative justices to their faces. If the justices don’t take the criticism to heart, they’re headed toward a full-blown confrontation with the White House and Congress that won’t end well for the Court.
FDR ultimately did engage in a full-blown confrontation with the Supreme Court, via his Court-packing plan, presaged by his vigorous attack on the Court in his 1937 SOTU address, and coming after he won a smashing victory in the 1936 elections. Yet despite FDR’s popularity and the Court’s lack thereof, despite the fact that he ultimately tried to mask his confrontation with the Court in concerns about the Justices’ age, despite huge Democratic majorities in the House and Senate, despite the Court’s invalidation of extremely important legislation, and despite the continuation of the Depression, the Supreme Court ultimately won the confrontation, and won it handily. FDR was widely accused of wanting to assume dictatorial powers, his popularity never quite fully recovered, and the Court-packing scheme got his second-term off to a rocky start, ultimately contributing to massive Democratic losses in the 1938 elections.
For that matter, Dred Scott didn’t much damage the Court in the long-run; nor did Lochner and associated cases, the New Deal confrontation with Roosevelt, Truman’s battle with the Court over his seizure of the steel industry, Brown, the Court’s 1957 opinions favoring Communist litigants, the redistricting cases of the 1960s, Roe v. Wade, Bush v. Gore, or any other cases or series of cases for which the Court has been harshly attacked by politicians and their supporters.
The general lesson is that the Court is not an easy political target, beyond standard “rally your base” considerations. The specific lesson of FDR and the Court is that even an extremely popular president at the height of his power lost when he tried to take on Court composed mainly of elderly gentlemen in their 70s whose constitutional ideology found little support even among the Republican opposition. FDR eventually won the war, but only by appointing new Justices. (This was virtually inevitable, considering that he was president for thirteen years; admittedly, Robert and Hughes in the interim became more, ahem, flexible (unprincipled?) in their interpretation of the Constitution, but I think they saw the writing on the wall, or perhaps Barry Cushman is right that later New Deal legislation was better-drafted to take constitutional objections into account.) That’s the only way a much less popular president, facing a much more vigorous and popular Court, is going to win this particular war, too.
UPDATE: I should add that to the extent the pre-1937 New Deal Supreme Court has a “bad” reputation, this is almost entirely an artifact of the fact that the academics who study the Court–historians, political scientists, and law professors–have been overwhelmingly sympathetic to the New Deal and hostile to its opponents, and have eagerly engaged in winners’ history for the last seven+ decades. Why “winner’s history?” Consider the widely accepted and repeated notion that the pre-New Deal Supreme Court invalidated “Progressive” economic regulation because the Justices were Social Darwinists. There is no (and I mean zero) evidence that any of the “conservative” Justices of the early twentieth century were motivated to any meaningful extent by Social Darwinism, but that didn’t stop historians from consistently asserting it as gospel because it fit into a narrative they favored.
corneille1640 says:
A quibble (I think) about FDR being at the “height” of his popularity in 1937. It’s not uncommon for a president, once reelected to a second term, to be considered a lame-duck (even though he would be reelected two more times, the tradition still was–with a couple of quasi-exceptions like Cleveland and T. Roosevelt–that presidents stepped down after two terms.) Regardless of his popularity, the “lame-duck” status probably made him less powerful than he might have been.
In other words, I think Mr. Bernstein is correct, but also that the fact that FDR was entering his second term was part, if a lesser part, of the reason he was unsuccessful* in challenging the Court.
*Edited to add: I suppose some think he was successful because the Court kind of reversed course, although I’ve heard contrary views to why the Court later ratified, for example, the Wagner Act and the other reforms. I was referring to the failure of his court-packing plan.
January 29, 2010, 9:42 amDel E. says:
DB wrote:
I suppose it depends on how you measure “damage” and “the long run.”
Dred Scott played some role in prompting The War of Northern Aggression certainly counts.
So, yeah, after the war was over, and the 13th and 14th Amendments were ratified, I think DB’s right that Dred Scott didn’t do much more harm.
January 29, 2010, 9:48 amBlue says:
It’s always been my impression that, far from being lauded, FDR’s court packing plan is one of the black marks on his administration.
January 29, 2010, 9:52 amjbeuks says:
If “[t]he general lesson is that the Court is not an easy political target,” the specific lesson from this piece is that Rosen is a partisan hack who wouldn’t recognize unprincipled activism if it bit him in the butt.
January 29, 2010, 9:59 amCharles says:
This seems like you are having it both ways.
who are the winner’s here? did FDR and the New Deal win, prompting the winner’s history revisions of fact or did the Supreme Court win and FDR never recover?
What argument are you making?
January 29, 2010, 10:04 amyankee says:
Despite decades of conservative attacks on “judicial activism” and a lot of controversial decisions, the Supreme Court is consistently one of the most popular institutions at any level of American government. Only the military and the police receive higher ratings in opinion polling: SCOTUS invariably beats the President, Congress, and other parts of the government. So picking a fight with the court is indeed quite difficult.
On the other hand, Obama’s fight with the court seems to be limited to rallying the base. He’s not proposing any substantive changes, just using some harsh rhetoric.
January 29, 2010, 10:05 amMitchell J. Freedman says:
May we call the Supreme Courts from the 1870s through mid-1930s the Gilded Age Court? For they grafted capitalist ideology onto the Constitution during that time. I have no reason to believe Justice John Marshall and most Founders, including Alexander Hamilton, who were far more mercantile, would have foreseen or agreed with those Supreme Court holdings that invalidated economic regulatory legislation of that era of Supreme Court Justices.
Also, FDR’s unpopularity more likely stemmed for the falling back into recession in 1937 and early 1938.
Finally, while I hope the phrasing by Del E. regarding the American Civil War was ironic, he is correct that Dred Scott was a major factor in ushering in the new Republican Party to the presidency in 1860–which of course led the Southern States to secede. They had spent the decade defending Federal law over State law in terms of capturing and returning runaway slaves, but when the Republicans prevailed in 1860, they decided it was better to secede than accede to the potential limitation of the power of masters over slaves in their States. I would also argue that Brown v. Bd of Ed did quite a lot to help the “conservative” movement in the South develop (there was a lot more economic populism in the South before that decision)–and Roe v. Wade did more for galvanizing the so-called “religious right” than nearly any other single factor.
January 29, 2010, 10:08 amS says:
What? Do you realize that with your that update, you wrote: ‘the court was not unprincipled, the historians are?” Such, ‘no, the other side is unprincipled’ is a wholly unoriginal and juvenile commentary.
January 29, 2010, 10:10 amMark Field says:
This might have made them courageous, but it didn’t necessarily make them principled.
Those attacks have been successful in the sense of resulting in an activist conservative Court.
January 29, 2010, 10:15 amBob White says:
S,
January 29, 2010, 10:18 amEither Bernstein has modified his update from what was there previously or you’re reading into it accusations that I simply don’t see to be there. His claim is that Rosen’s attack on the justices as being unprincipled is an extraordinarily dubious one, and not one generally recognized by the historians. While the pro-New Deal historians were opposed to the court’s actions, they still recognized that the justices were consistent in their beliefs. Or, at least that’s what I got out of it.
ShelbyC says:
Folks like to say that, but unless the last three appointments have changed the court very dramatically, it’s hard to see how a court that reaffirmed Roe, reaffirmed Miranda, ruled that race-based affirmative action satisfies a compelling state interest, and ruled that sodomy is a protected constitutional right is very conservative.
January 29, 2010, 10:27 amRonnie Slaven says:
I am wondering about an issue raised by the dissent in Citizens United. Part of their argument supporting a distinction between individual and corporate speech is the idea that diffuse, unempowered shareholders will be subjected to having a fraction of their investment siphoned off to fund political causes to which they are opposed. In his concurrence, Scalia raises and interesting point about the nature of the corporate form. Generally over time, corporate charters have become more general and have allowed corporations more discretion with respect to the speech they engage in.
That being the case, my point is the following. There are means less restrictive than top-down federal laws limiting the expressive political expenditures of corporations. Shareholders can move their money into corporations who organize themselves with charter restrictions. Corporations could either remove their authority to engage in such speech altogether thus attracting politically neutral investors, or they could subscribe to a particular ideology and remove their authority to support conflicting causes.
In either case the shareholder is enabled to decide from start to what uses his or her ivestment might be put. There would certainly be a momentum barrier to accomplish somethign like this with well-established large corporations. But if enough investors and shareholders demanded such restrictions on new and emerging companies, a trend in corporate governance might get started. In other words, “private” expressive activity can regulate corporate political speech without the need for constitutionally suspect public censorship.
Just a thought. Does anyone know if their are corporations that put specific limitations on their non-main-line-of-business expenditures? (former student)
January 29, 2010, 10:29 amDavid Bernstein says:
The idea that one can somehow figure out what individuals who lived 100+ years earlier would think about contemporary issues is inherently dubious, and strikes me as irrelevant to constitutional interpretation. What is important is the words they put down in the Constitution and what they mean, which did not change in the ensuing 100 years.
We can call the Supreme Court whatever they want, but I think this would be an extremely tendentious understanding of history. Given the lack of support for socialism in the U.S., I think it’s fair to say that all sides of the constitutional debate were pro-capitalism, and the question was the extent to which the Constitution authorized various regulatory interventions by the states and federal government. On a scale of 1-10, with 10 being extreme laissez-faire, and 1 being complete deference to novel regulations, the Court probably merits something like a “3.”
January 29, 2010, 10:30 amAssistant Village Idiot says:
ShelbyC – you are forgetting that to groups with a large sense of entitlement, anything short of getting what they want on demand is evidence that they are being treated unfairly. If the court is not uninterruptedly liberal, then of course it is conservative.
January 29, 2010, 10:39 amScott W Somerville says:
I don’t think Obama was wise to attack the Court on a free speech case. I’m personally enamored of the “Political Speech is an Absolute” concept, and would be willing to strike down any number of precedents in defense of what I believe to be the most fundamental of freedoms. We all know that Scalia and Thomas are ready to peel back what they believe to be bad precedents. Now Obama has openly attacked the three more moderate members of the Citizens United majority in public: Kennedy, who wrote the opinion, Alito, who shook his head in disbelief, and Roberts, who just happens to be Chief Justice. If Obama had been factually correct in his attack, he just MIGHT have had a chance of intimidating a “squish” on a debatable point, but the chance of frightening a member of the Citizens United majority into backing down was low before Obama tried to score political points in public.
We may have a long list of 5-4 decisions ahead of us, but I would predict we’ll see the “Justices United” in favor of freedom of speech until one of the (relatively young and healthy) majority retires or dies.
I also predict that filling Stevens’ seat is going to be even MORE interesting than usual. If I was a Republican Senator, I’d stand or fall on political speech. McCain may be willing to sell free speech down the river, but Mitch McConnell is equally passionate about defending it–and McCain has to run for reelection this year.
January 29, 2010, 10:40 amRalph Hitchens says:
President Obama is only the most prominent of many Democratic politicians critical of the Citizens United decision. We shouldn’t make too much of one line in the SOTU speech.
January 29, 2010, 10:42 amSuperSkeptic says:
I don’t see how you can make these claims:
Particularly in light of this acknowledgement:
The switch-in-time happened, etc. I don’t see how you can still claim a victory for the Court out of this.
January 29, 2010, 10:46 amS says:
Bob, It does not take reading between lines. He says in the main post that the Court was not unprincipled. And then in the update says that the historians are clearly, unprincipled-historians because they engage in ‘winners’ history.’ So unprincipled are they, that they made up a theory without evidence that the judges were social-Darwinists. Thus, the historians did find the judges unprincipled-Judges, because social Darwinism is not a proper jurisprudential theory.
January 29, 2010, 10:50 amDavid Bernstein says:
The notion of the “switch in time” is very controversial among historians, see the work of Cushman, Richard Friedman, and others. Hughes and Roberts were never consistent in their opposition to the New Deal and FDR (e.g., the Gold Clause Cases), there were, as Cushman points out, drafting differences between the upheld legislation and the invalidated legislation, and it didn’t take a genius to see that Roosevelt was going to appoint several new Justices before 1940 (I can’t remember if Van DeVanter announce his retirement before or after the Wagner Act cases came up), so the overall war was lost in any event on that basis.
But the more general point is that FDR fought the Court, the Court came out with more prestige than ever, and FDR was diminished. One reason that it’s hard to take on the Court politically is that IF the Court is threatened politically, it could always retreat a bit until the heat is off (consider the retrenchment from Brown I to Brown II’s “all deliberate speed).
Even if you think that’s what the Court did in ’37, which again is controversial it still supports my point that if there is a “full-blown confrontation with the White House and Congress”, Rosen is wrong that it “won’t end well for the Court.” If Rosen had made the narrower point that it’s possible that Obama could shift the political dynamics to make the Court more hesitant about “activist” decisions, I would object only in the sense that I don”t think that Obama has the political leverage to do this right now, plus picking a First Amendment case with much support from ACLUish liberals is almost certainly not the right one to launch such a campaign.
January 29, 2010, 10:55 amMitchell J. Freedman says:
David,
You ignored a very important term used in my comment, “mercantile.” It is not socialism vs. capitalism. Please lose the mid- to late 20th Century Cold War terminologies. In the 18th Century, Founders like Hamilton were into nation building and nation sustaining. Madison spoke in Federalist Papers No. 10 about “economic regulation” being the essence of “modern legislation” and Hamilton saw nothing wrong with setting up a government oriented bank to promote public works.
I am glad to hear you are not an “originalist” of the Scalia sort. Still, the fact remains there is a rather crabbed view of capitalist theory behind the “freedom of contract” cases of the late 19th Century and early 20th Century courts, and further, I would not in the least be surprised to find evidence that the one thing Holmes and McReynolds agreed upon was Social Darwinian philosophies. It was all the rage among the elite of that time, “conservative,” “liberal” whatever.
January 29, 2010, 11:18 amRichard S says:
Actually the Progressives were the “Social Darwinians.” Conservatives of the day were billed as knuckle-draggers, or the early 20th C equivalent thereof for opposing eugenics and related elements of the newest and best science of the day. Part of Bryan’s motivation at the Scopes trial was to suppored the equal, natural rights of man against the attack upon that principle by Progressive social Darwinians.
Second point. The irony about the New Deal Court is that they saved the reputation of the New Deal by killing off many of its worst excesses. The New Deal would look very different in history had the NIRA stayed on the books.
January 29, 2010, 11:22 amKosher chicken fan says:
Assessing the 1937 “switch,” and the upholding of the later New Deal laws, as a full victory for FDR, depends on assessing the relative scope of the upheld laws with the ones invalidated earlier.
If you view the invalidated laws (NIRA) as overwhelmingly broader than the ones later upheld — even though the upheld ones were still a radical break from the past — then the Court’s push-back held up significantly.
In my experience, even those fairly knowledgeable on these topics are not fully aware of how much broader the original New Deal was. Re-read Schechter Poultry in full, not just the excerpts. The extent of it is pretty shocking, in my view.
January 29, 2010, 11:25 amMitchell J. Freedman says:
Richard S. is calling Bryan a “conservative”? This is why these modern formulations are so off base. The people who opposed Social Darwinism were mostly people who were populists. To use our modern terminology, they were economically radical in terms in wanting government takeover of railroads and banks, and a better distribution of wealth, but culturally more conservative (traditional) than the usual banker and business person. And one thing about those folks is that most were not in powerful positions.
Social Darwinism was rampant among the elite of the business world, and in the world of intellectuals, whether it be intellectuals who were “progressive” or those who were “pro-business.” Edwin Black’s great book on Eugenics does not support the conclusion that Richard S. may be implying, that this was a view only on the liberal-progressive-left side of the ledger.
However, I am intrigued by Richard S. and Kosher Chicken Fan’s point about the NIRA being much broader than later New Deal programs. I will be glad to read the Schechter Poultry decision this weekend.
January 29, 2010, 11:35 amMark Field says:
While it gives me a happy to know that folks on your side see the glass as half empty, grading on this point is on a curve. Your curve is anchored on some right wing fantasy. Mine, of course, is anchored in reality. :)
These 2 sentences strike me as at least potentially inconsistent. The best evidence of what words meant in 1790 is surely found in the views of those living at that time.
January 29, 2010, 11:41 amSuperSkeptic says:
Mr. Freedman,
I appreciate your comment, but I have one quibble. In the Federalist no. 10, Madison nowhere says that “economic regulation” (in the modern sense that we use the term) is the essence of “modern legislation”. He spoke of “faction” “sown in the nature of man” caused in very large part by “the various and unequal distribution of property”. He subsequently listed various interests as examples, such as “[a] landed interest, a manufacturing interest, a mercantile interest, a moneyed interest” and how they naturally have different “sentiments and views”.
The relevant sentence you reference is: “The regulation of these various and interfering interests forms the principal task of modern legislation, and involves the spirit of party and faction in the necessary and ordinary operations of the government.”
While it could be read in the way you do read it, I think it is simply a broader point about faction and government, not an acknowledgement or endorsement of comprehensive “economic regulation” (a term nowhere used in the essay), particularly of type we have enjoyed since the progressive era and that is usually associated with the phrase.
I agree with your characterization of Hamilton.
January 29, 2010, 11:56 amGordo says:
The most damning criticism of the “Gilded Age” court (as an earlier commenter termed it) that I’ve heard is that they took the 14th amendment, which was intended to guarantee equality and an end of discrimination for freed slaves, gutted it of that intention, and instead crafted into it an unintended guarantee of “economic liberties” for the privileged and powerful.
I haven’t studied the issue enough to say whether I agree with this criticism or not, but if true, it’s a pretty potent argument.
January 29, 2010, 11:56 amSuperSkeptic says:
IIRC, Richard Hofstadter noted this very point in The American Political Tradition.
January 29, 2010, 12:04 pmDavid Bernstein says:
It’s false on a variety of levels. I wrote an explanation of why, but the computer ate it. One basic point: the standard myth you recount creates a tension between civil rights concerns and economic liberties concerns, as if you had “conservatives” on one side supporting economic liberties and opposing civil rights, and “liberals” doing the opposite. That’s completely anachronistic, and in essence you could not predict a Justices’ views on civil rights by knowing his views on liberty of contract.
January 29, 2010, 12:24 pmMark Field says:
It’s very true indeed. Pace Prof. Bernstein, you accurately described what the Court actually did.
Now, I do agree with Prof. Bernstein that there was no breakdown of positions on the Court such as he describes, but that’s mostly because there were very few civil rights supporters. IOW, the Court transformed the 14th A not because it needed to dismiss the rights of blacks in order to protect property, but because it wanted to protect what it saw as property rights and had no interest in the rights of minorities.
January 29, 2010, 12:45 pmlgm says:
DB writes: I should add that to the extent the pre-1937 New Deal Supreme Court has a “bad” reputation, this is almost entirely an artifact of the fact that the academics who study the Court–historians, political scientists, and law professors–have been overwhelmingly sympathetic to the New Deal and hostile to its opponents,
Maybe it looks this way to a law professor surrounded by other law professors. Outside law school, (most) people just wish the court had not stymied the New Deal. The New Deal was and remains very popular, and not just among a small academic liberal minority.
January 29, 2010, 12:53 pmAllan Walstad says:
It might have been a little tacky to spring a lambasting on the justices at the SOTU. But, we all laud the Court when it does right by our own views and criticize it when we think it did wrong. Let Obama do the same (and kudos to Alito for his effective retort). I guess the political calculation on Obama’s part was to rally his base and probably get some head-nodding from Repubs like McCain, too. He doesn’t have the popularity that FDR did as a base from which to take on the Court in any serious way. Nor will he have 3+ terms in which to remake the Court (and hopefully no more than 1).
What the Court overturned was this: individuals like myself can be prevented from pooling our resources through a corporate structure (NRA, Sierra Club…), to keep ourselves informed and get our message out regarding which candidates best serve our ideals and interests. That is a damnable violation of 1A.
But isn’t it a tragic commonplace that people of nearly every political stripe stand four-square for the Bill of Rights–until it’s inconvenient for them?
January 29, 2010, 1:14 pmAllan Walstad says:
…in no small part via a combination of ignorance and brainwashing by left-collectivist academia, in my opinion.
January 29, 2010, 1:18 pmKimberly Houser says:
Obama was right to call out the Justices. Their decision went way beyond the issue in front of them. They went as far as to hold a second set of oral arguments just to expand the case. http://intheeyesofthelaw.com/2010/01/22/supreme-court-rules-that-bribing-political-candidates-is-now-legal/
January 29, 2010, 1:27 pmShelbyC says:
1. No, you’re anchored in fantasy, and I’m anchored in reality. I bet we could do this all day. :)
2. I’m not sure what side I’m on, I agree as a policy matter with the outcomes of at least half of the cases I listed, but I still don’t see how these things makes for a conservative court. In total, the court seems fairly centrist.
January 29, 2010, 1:38 pmDavid Bernstein says:
Outside law school, (most) people just wish the court had not stymied the New Deal. Really? I must have missed the popular support for the government dictating wages and prices across a wide range of industrial American (the content of the NIRA). Sure, people generally support other aspects of the New Deal. But even today, I think it would be tough to get a constitutional amendment passed giving Congress the kind of power under the Commerce Clause that the Roosevelt appointees bequeathed it, without amendment. In any event, I didn’t say the historians views were contrarian, I just said they engaged in “winners’ history.”
And the justices who had no interest in property rights, like Holmes, often had even less interest in the rights of minorities. The two issues have no relationship, except that when the Court became more aggressive about enforcing liberty of contract under the 14th Amendment, it also became more aggressive in enforcing the rights of minorities, quite the opposite of what the standard myth would suggest.
January 29, 2010, 1:46 pmSuperSkeptic says:
Classic American pragmatism – don’t you love it?
January 29, 2010, 1:48 pmRichard S says:
I wrote too quickly. Of course, Bryan was not a free marketeer or conservative in many other ways. On the other hand, his religious opinion/ political philosophy did entail a critique of the new thing in social science. That allied him with Coolidge’s strong, and quite intelligent defense of the principles of 1776.
And my terminology was a bit inexact, again from haste. If my memory is correct, the supporters to eugenics sometimes complained that those who opposed eugenics were unscientific, “Social Darwinians.” Rather than let science guide who produced children and who did not, they would follow a laissez-faire policy. Eugenics, as a teacher of mine once noted, was the quintessential Progressive science. Strictly speaking, it was not “Social Darwinism,” as it did not want to leave mating to pure chance.
Not sure I understand the point about businessmen. Being a businessman is not a sufficient condition for being a supporter of limited, constitutional government.
January 29, 2010, 2:28 pmMark Field says:
Depends on your point of reference, which is why such characterizations are rarely informative.
Very true.
Agreed.
I’m not so sure this is right. I don’t see much change in the Court’s attitude. Depends on exactly what time period you mean, I guess.
January 29, 2010, 3:29 pmSquirrelZZ says:
The gilded-age Social Darwinism of many businessmen was of the “William Graham Sumner”(1840-1910) variety. There’s an overarching biological imperative to let nature sort out the winners and losers through the free market. Government actions to help people end up interfering with this.
January 29, 2010, 3:31 pmTo Have and Have Not says:
To the extent your third sentence is accurate, I suspect it’s because those who think it was a great idea have no clue how much damage it inflicted on the economy, how it prolonged the economic downturn, and how statist it made the federal government from that time forward. The collectivism would be worse still had McReynolds, Van Devanter, Butler, and Sutherland not stood foursquare against it.
January 29, 2010, 3:32 pmThe historical record says:
Businessmen didn’t quote Spencer, or quote Darwin either. They quoted scripture, and the founders, and sometimes economists. They talked a lot about the “common good” instead, and weren’t atheists. Spencer wasn’t even a Darwinian. He was a Lamarckian. He believed in boot-straps, not randomness. He wrote a long essay, “The Inadequacy of Natural Selection,” as late as 1893. The eugenicists Lester Frank Ward and Oliver Wendell Holmes, and the racists Cooley, Ross, Commons, Seager, Meeker and Henderson, were Progressive men, and might deserve the epithet, “Social Darwinists.” But the term, and what it means, really begins in a New Deal fight to defend Franklin Roosevelt.
January 29, 2010, 6:24 pmmariner says:
lgm:
A point made above is that most people did not and do not realize just how broad the New Deal actually was (or would have been, if not trimmed by the Court).
That it was and still is popular doesn’t refute the point.
January 29, 2010, 7:06 pmMitchell J. Freedman says:
To those who want to tar Progressives with the sole responsibility for “Social Darwinism,” I’d ask that they review Edwin Black’s book on Eugenics, “War against the Weak”. It details how people across the political spectrum, but firmly within the elite institutions of the time, including business leaders at the largest corporations, believed in theories that justified the poor being poor, blacks and Jews being inferior, etc. and the ultimate abuse of science, Eugenics.
To suggest, as the anonymous commenter, “Historical Record” does, that the phrase “Social Darwinism” and what it means “really begins in a New Deal fight to defend Franklin Roosevelt” is without merit. The New Deal was a set of domestic programs Bryan, an opponent of Social Darwinism, would have supported. Progressivism had differing strains, and Bryan at one point saw himself quite comfortable in Woodrow Wilson’s administration, for example, something he would not have felt in say Calvin Coolidge’s or William McKinley’s administrations. It is rather amusing to note that it is Charles Murray, a darling of many modern “conservatives,” who is most impressed with such theories of which groups are smarter than other groups, and leftists like the late scientist and writer, Stephen Jay Gould (who adored the New Deal), who wrote the definitive take down of such thinking, “The Mismeasure of Man.”
Finally, as to the commenter who believes my interpretation of Federalist Paper no. 10 is not quite accurate, please note that Madison lists the various economic interests and says their “regulation” is the “principal task of modern legislation.” That this is consistent with programs of internal public works (internal improvements was the phrase of the 1790s through 1840s) and a national bank proves the merit of my interpretation. I will say it again, the Gilded Age Supreme Court grafted corporate capitalist principles onto the Constitution, but the Supreme Court justices, starting in 1940 or thereabouts, restored the earlier Republic’s position that the Congress could regulate economic interests in a wide ranging manner if it chose to do so. And let’s not forget that Plessy and Buck were decided in the era of the Gilded Age Supreme Court, too…
Politics is alchemy and we should be cautious in assuming someone progressive on something like banning child labor should automatically be in favor of sterilizing Carrie Buck…
January 29, 2010, 9:09 pmDesiderius says:
Wow, the confusion of the real and ideal, what is and what could/should be on this thread is thick. Murray disagrees with the Social Darwinists that social inequality is an ideal to be pursued (counts as Progress), he just argues that fashionable blindness to current inequalities, including those of current performance, is a poor way to go about ameliorating it. I’ve worked most of my life doing just that. He’s right.
BTW, the Social Darwinists of today agree with him (on the ineffectiveness of that blindness in ameliorating social inequality), which is why the institutions they dominate have gravitated toward an
January 30, 2010, 10:14 amNewOld Deal eraProRegressive mindset that encourages that blindness. They get their social/economic immobility cake and let their would-be competitors eat their faux-leftism too.The historical record says:
Sumner mentioned Darwin once in Folkways and, as his student Keller said, “did not give much attention to the possibility of extending evolution into the societal field.” Sumner attacked imperialists and other predators. He defended what he called “the forgotten man” against more fearsome beasts. He attacked what he called “selfish cliques which seek political influence for interested purposes” and “plutocracy.” He said of the United States, “Nowhere in the world is the danger of plutocracy as formidable as it is here.” The politicians who made the IRS their party’s tool, who used patronage to extend its rule, who invariably dropped men from the tax-funded WPA payroll after each election year, who tried to geld the judicial branch and who punished newspaper publishers for criticising them, might deserve the epithet, “Social Darwinists.” They did, in a sense, act like beasts. And as for Spencer: He was not, despite what Edwin Black says in his book War Against the Weak, a eugenicist.
January 30, 2010, 6:49 pmathEIst says:
the tradition still was–with a couple of quasi-exceptions like Cleveland and T. Roosevelt–that presidents stepped down after two terms.)
January 31, 2010, 5:13 pmWhat is a quasi-exception. Cleveland served two terms(non-consecutive). T. Roosevelt served most of McKinley’s term and 1 more.
The Volokh Conspiracy » Blog Archive » Roscoe Pound, Glenn Beck, and Judicial Restraint: A Quick Response to David B. says:
[...] it and embracing judicial restraint. My reasons have nothing to do with “statism,” or, as David recently claimed, “winner’s history,” but rather my sense that the Constitution leaves open to the elected [...]
January 31, 2010, 10:31 pm