The Forgotten New Deal — What If?
The theme of my 2007 book on Jacksonian Democracy is that there is a “generational cycle” in constitutional law. My forthcoming book on William Jennings Bryan locates the Populists of the 1890s within that cycle and focuses on the idea of failure, since their defeat led to a transformation in doctrine that was as profound, if not more so, than the success of the Civil Rights Movement.
The New Deal was another turning point in the cycle, but here I want to contemplate the contingency of constitutional outcomes. It’s one thing to say that there is a pattern in our politics that tells you when significant legal change is likely to occur. What that change will be, however, is highly dependent on personalities and luck. The best example comes from the Jackson book, which explains why William Henry Harrison’s death in 1841 saved M’Culloch v Maryland from being overruled. Not all constitutional generations have these moments (though think about how different the 1980s would have been if John Hinckley had killed President Reagan), but the New Deal had more of them than any other. Put another way, this is a “What If?” book that will examine how close the New Deal came to going in different directions.
Let me set up the subsequent posts by listing several questions:
1. What was the relationship between the Populist movement and the New Deal?
2. What would have happened if the Gold Clause Cases went the other way in 1935?
3. How did Huey Long’s assassination change constitutional doctrine in 1935?
4. Suppose, as was original intention, Justice Van DeVanter had retired in 1933?
5. What if the assassination attempt against FDR had succeeded and John Nance Garner had become President?
6. How would the Court-packing plan have looked different if the Child Labor Amendment had been ratified?
7. Which year was more important for the New Deal–1935 or 1937?
More to come . . .