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1987
Constitutionalism after the New Deal Constitutionalism after the New Deal
Cass R. Sunstein
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Cass R. Sunstein, "Constitutionalism after the New Deal," 101 Harvard Law Review 421 (1987).
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ARTICLE
CONSTITUTIONALISM
AFTER
THE
NEW
DEAL
Cass
R.
Sunstein*
In
recent
years,
the
failure
of administrative
agencies
to
implement
congressional programs
faithfully
and
effectively
has
called
into
question
the
wisdom
of
the
central
institutional
innovations
of
the New
Deal:
the expan-
sion of
the regulatory
state
and
the
shift
in
power
from
the
states
to
the
federal
government.
In
this
Article,
Professor
Sunstein
challenges
the
New
Deal
more
fundamentally,
examining
not
only
the
institutional
changes
them-
selves,
but
also
the
shift
in
constitutional
commitments
that
underlay
those
reforms.
Professor
Sunstein
identifies
three
aspects
of
New
Deal
constitu-
tionalism:
the
rejection
of
the
original
constitutional
commitment
to
checks
and
balances
in
favor
of
independent
and insulated
regulatory
administra-
tion,
the
recognition
of
substantive
entitlements
beyond those
protected
at
common
law,
and
the
abandonment
of
principles
of
federalism
that
vested
regulatory
authority
in
both
the
federal
government
and
the
states.
Professor
Sunstein
argues
that
many
of
the
present
failures
of
regulatory
administration
-
particularly
the
problems
of
agency
capture
and
factionalism
-
can
be
traced
to
the
New
Deal's
failure
to
incorporate
the
original
constitutional
commitment
to
checks
and
balances
into
regulatory
administration.
The
remedy,
he
suggests,
is
to
reinvigorate
the
commitment
to
checks
and
balances
through
a
system
of
coordinated
review
of
agency
action
that
includes
a
strong
supervisory
role
for
each
of
the three
branches
of
government
-
the
executive,
the
judiciary,
and
Congress.
In
addition,
Professor
Sunstein
maintains
that
the
protection of
new
entitlements
during
the New
Deal
was
a
natural
and
justified
outgrowth
of
the
recognition
by
New
Deal
reformers
that
the
common
law
itself
favors
some
social interests
over others.
He
suggests
that this
substantive
aspect
of
the
New
Deal
should
be
incorporated
into
modern
public
law,
in
which
common
law
categories
persist
despite
the
insights
of
New
Deal
reformers.
Finally,
Professor
Sunstein
argues
that
the
third
aspect
of
New
Deal constitutionalism
-
the
emphasis
on
national
rather
than
local
control
of
regulatory
issues
-
has
been
carried
too
far,
depriving
citizens
of
the
opportunity
to
participate
meaningfully
in
the
debate
over
the
terms
of
their
social
life.
I.
INTRODUCTION
We
are in
the
midst
of
a
period
of
considerable dissatisfaction
with
the performance
of
the federal government.
The
post-New
Deal in-
*
Professor
of
Law,
University
of
Chicago
Law
School
and
Department
of
Political
Science.
Parts
of
this paper
were
presented
at
the
annual
American Political
Science
Association
meeting
in
September,
1987,
the
annual
American
Association
of
Law
Schools
meeting
in
January,
1987,
and
the
NEH/Federalist
Society
Conference
on
the
Bicentennial of
the
Constitution,
held
in
Chicago,
Illinois, in
November,
1986.
The
author
would
like
to
thank
Bruce
A.
Ackerman,
Akhil
Amar, Walter
Blum,
Clark
Byse,
Robert
Clark, David
P.
Currie, Christopher
Edley,
Richard Fallon,
Robert
Ferguson,
Donald
Gjerdingen,
Barry
Karl,
Frank
I.
Michelman,
Martha
Minow,
Henry P.
Monaghan, Richard
A.
Posner,
Carol
M.
Rose,
Susan
Rose-Ackerman,
Richard
B.
Stewart,
David
A.
Strauss,
Peter L.
Strauss,
Kathleen Sullivan,
and
participants
in
the
law
and
government
workshop
at
the
University
of
Chicago
for
valuable
help.
Veronica
Dougherty
and
Daniel
B.
Rodriguez
provided valuable
suggestions
and
research
assistance.
HeinOnline -- 101 Harv. L. Rev. 421 1987-1988
HARVARD
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[Vol.
101:421
crease
in
presidential
power,
and
the
creation
of
a
massive
bureau-
cracy
concentrated
in
the
executive
branch,
have
augmented
factional
power
and
self-interested
representation,
often
leading
to
regulation
that
fails
to
serve
the
interests
of
the
public
at
large.
In
significant
ways,
the federal
government both
overregulates
and
underregulates.
The
failure of
national
institutions
to
intervene
or
to
exercise
restraint
is
not
simply
the
product
of
the poor
judgment
of key
government
officials
or
the
triumph
of
a
particular
political
agenda.
Much
of
the
failure
of
public regulation
over
the
past
half-century
reflects
the
inadequacy
of
important
aspects
of
the
constitutional
vision
embraced
by
the
New
Deal.
Institutional
reform
is
thus
a
major
part
of
the
agenda
of
modern
public law.
A.
New
Deal
Constitutionalism
The regulatory
system
established
during
the
New
Deal'
has
failed
to
fulfill
its
original
promise.
In
the
New
Deal
period, reformers
believed
that
administrative
officials
would
serve
as
independent,
self-
starting,
technically
expert,
and
apolitical
agents
of change.
This
basic
understanding
wedded
the
original
constitutional
belief
in
the
need
for
an
energetic
national
government
2
to
the
desire,
associated
with the
Progressive
movement,
3
to
insulate
public
officials
from
par-
'
The
initial period
of
growth
for
the
regulatory
agency
came
before
the New
Deal,
during
the
latter
part
of
the
1
9
th century
and
the
first two
decades
of this
century.
See
generally
S.
SKOWRONEK,
BUILDING
A
NEW
AMERICAN
STATE:
THE
EXPANSION
OF
NATIONAL
ADMINIS-
TRATIVE
CAPACITIES,
I877-1920
(z982)
(surveying
the
early development of
the
modern
admin-
istrative
state).
It
is
important
to emphasize
as well
that
the New
Deal
was
far
from
monolithic.
There
were
competing
strands and
several
different
periods
of experimentation,
with
different
emphases.
For
all
its
novelty,
the
New
Deal
was
not
an
altogether sudden
break;
it
should
instead
be
understood
as
the
culmination
of
a
set
of
ideas
with
much earlier
foundations.
See
generally
id.;
W.
WILSON,
CONGRESSIONAL
GOVERNMENT:
A
STUDY
IN
AMERICAN
POLITICS
22-23
(I98i)
[hereinafter
W.
WILSON,
CONGRESSIONAL
GOVERNMENT]
(describing "the
new
leadership of
the
Executive");
W.
WILSON,
CONSTITUTIONAL
GOVERNMENT
IN
THE
UNITED
STATES
57-81
(1921)
[hereinafter
W.
WILSON,
CONSTITUTIONAL
GOVERNMENT];
id.
at
6o
(chronicling
the
rise
of
the President
"as
the
unifying
force
in
our
complex
system,
the
leader
both
of
his
party and
of
the
nation");
W.
WILSON,
THE
NEW
FREEDOM:
A
CALL
FOR
THE
EMANCIPATION
OF
THE
GENEROUS
ENERGIES
OF
THE
PEOPLE
5-8
(196i)
(detailing
Wilson's
campaign to
regulate
the
trusts).
The
discussion
in
this
Article
is
therefore
stylized,
emphasizing
dominant
features.
For
discussion
of
the
period,
see
generally P.
CONKIN,
THE
NEW
DEAL
(2d
ed.
1975);
K.
DAVIS,
FDR:
THE
NEW
DEAL
YEARS,
1933-1937
(1986);
0.
GRAHAM,
JR.,
TOWARD
A
PLANNED
SOCIETY
(1976);
E.
HAWLEY,
THE
NEW
DEAL
AND
THE
PROBLEM
OF
MONOPOLY
(1966);
R.
HOFSTADTER,
THE
AGE
OF
REFORM
(1955);
B.
KARL,
THE
UNEASY
STATE
(1983);
J.
PATTERSON,
CONGRESSIONAL
CONSERVATISM
AND
THE
NEW
DEAL
(1967);
J.
PATTERSON,
THE
NEW
DEAL
AND
THE
STATES:
FEDERALISM
IN TRANSITION
(x969).
2
See
infra
pp.
432-33.
3
See,
e.g.,
M.
BERNSTEIN,
REGULATING
BUSINESS
BY
INDEPENDENT
COMMISSIONS
35-39
(1955).
See
generally
R.
HOFSTADTER,
supra
note
I,
at
232-36
(describing
Theodore
Roosevelt's
efforts
to achieve
a
nonpartisan
administration);
S.
SKOWRONEK,
supra
note
I,
at
177-211
(discussing
the
Progressive
movement's
goal
of
reformulating
civil
administration).
HeinOnline -- 101 Harv. L. Rev. 422 1987-1988
CONSTITUTIONALISM
AFTER
THE
NEW
DEAL
tisan
pressures
in
the
service of
a
long-term public
interest.
The
concept
of
autonomous
administration,
now
under
sharp
attack,
was
originally
the
source of
enormous
optimism
about
possible
reformation
of
the system
of
checks
and
balances.
The
New
Dealers
believed
that
institutional
changes
were
necessary
to
allow
the
federal
government
to
deal
with
the
multiple
social
and
economic issues
that
arose
in
the
wake
of
the
Depression.
The
institutional
program
of
the
New
Deal
was
one
element
of a
three-part
critique
of the
traditional
constitutional
framework.
The
first
criticism,
substantive
in
character,
was
the culmination
of
a
long
period
of
rethinking
both
of
that
framework
and
of
the
system
of
common
law
ordering.
For
the
New
Deal
reformers,
the
common
law
was
neither
natural
nor
prepolitical.
Instead,
it
embodied
a
particular
social
theory,
serving
some
interests
at
the
expense
of
others.
4
In
particular,
the
New
Dealers
viewed
the
common
law
as
a
mechanism
for
insulating
the
existing
distribution
of
wealth
and
entitlements
from
collective
control.
The
common
law
catalog
of
rights
included
both
too
much
and
too
little
-
excessive
protection
of
established
property
interests
and
insufficient
protection
of
the interests
of
the
poor,
the
elderly,
and
the
unemployed.
Hence
the
New
Deal reformers
called
for
substantial
changes
that
would
recognize
new
interests
as
entitle-
ments
and
redistribute
resources.
5
Most
dramatically,
President
Franklin
Roosevelt
urged
a
"second
Bill
of
Rights,"
available
to
all
"regardless
of
station,
race,
or
creed,"
and
including:
The
right
to
a
useful
and
remunerative
job
in
the industries
or
shops
or
farms or
mines
of
the Nation;
The
right
to
earn
enough
to
provide
adequate
food
and
clothing
and
recreation;
The right
of
every
farmer
to
raise
and
sell
his
products
at a
return
which
will
give
him
and
his
family
a
decent
living;
The
right
of
every
businessman,
large
and
small,
to
trade
in
an
atmosphere
of
freedom
from
unfair
competition
and
domination
by
monopolies
at
home
or
abroad;
The
right
of
every
family
to
a
decent
home;
The
right
to
adequate
medical
care
and
the
opportunity
to
achieve
and
enjoy
good
health;
The
right
to
adequate
protection
from
the
economic
fears of
old
age,
sickness,
accident,
and
unemployment;
The
right
to
a
good
education.
6
4
See
infra
pp.
437-38.
1
See
infra
pp.
437-40.
6
F.D.
Roosevelt,
Message
to
the
Congress
on
the
State
of
the
Union
(Jan.
11,
1944),
reprinted
in
13
THE
PUBLIC
PAPERS
AND
ADDRESSES
OF
FRANKLIN
D.
ROOSEVELT,
VICTORY
AND
THE
THRESHOLD
OF
PEACE,
1944-45,
at
41
(1950).
President
Roosevelt
described
the
1987]
HeinOnline -- 101 Harv. L. Rev. 423 1987-1988
HARVARD
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REVIEW
The
second
element
of the
New
Deal
critique
focused
on
the
institutional
system
of
tripartite
government
and
checks
and
balances.
The
New
Deal
reformers
believed
that
the
original
constitutional
structure,
like
the
common
law,
was
closely
associated
with
protection
of
the
existing
distribution
of
wealth
and
entitlements.
In
their
view,
the
system
of
separated
functions
prevented
the
government
from
reacting
flexibly
and
rapidly
to
stabilize
the
economy
and
to
protect
the
disadvantaged
from
fluctuations
in
the
unmanaged
market.
7
In
addition,
the
New
Deal
reformers
believed
that
the
distribution
of
powers
among
the
three
branches
of
government
created
political
struggles
that
disabled
officials
in
the
executive
branch
from
making
regulatory
policies
free
of
partisan
pressure.
Although
the
most
radical
attacks
on
tripartite
government
failed,
some
of
the
impulses
behind
those
attacks
paved
the
way
for
both
enhanced
presidential
authority
and
the
rise
of
regulatory
administra-
tion.
8
The
newly
created
agencies,
largely
a
creature
of
the
New
Deal,
9
combined
traditionally
separated
functions
and
remained
free
of
direct
control
from
Congress,
the
federal
judiciary,
and
sometimes
origin
of
the
term
"New
Deal"
in
this
way:
The
word
"Deal"
implied
that
the government
itself
was
going
to
use
affirmative
action
to
bring
about
its avowed
objectives
rather
than stand
by
and
hope
that
general
economic
laws
alone
would
attain
them.
The
word
"New"
implied
that
a
new
order
of
things
designed
to
benefit
the
great
mass
of
our
farmers,
workers
and
business
men would
replace
the
old
order
of
special privilege
in
a
Nation
which
was
completely
and
thoroughly
disgusted
with
the
existing
dispensation.
F.D.
Roosevelt,
2
THE
PUBLIC
PAPERS
AND
ADDRESSES
OF
FRANKLIN
D.
ROOSEVELT,
THE
YEAR
OF
CRISIS,
1933,
at
5
(1938).
7
See
Dunn,
Regulation
by
Commission,
i99
N.
AM.
REV.
205,
205-06
(1914)
(discussing
the
inability
of
the
courts,
legislature,
and
executive
branch
to regulate
properly);
see
also
J.
LANDIS,
THE
ADMINISTRATIVE
PROCESS
*o-46
(1938)
(arguing
in
favor
of
agencies
rather
than
courts);
Eastman,
The
Place
of
the
Independent
Commission,
I2
CONST.
REV.
95
(1928)
(dis-
cussing
the
function
and
place
of
the
independent
commission
within government).
8
See
infra
pp.
440-41.
9
Although
administrative
agencies
have
been
a part
of
government
since
the
founding
of
the
republic,
the
modern
regulatory
agency
is
a
recent
phenomenon.
The
Interstate
Commerce
Commission
was
created in
1887,
and
the
Federal
Trade
Commission
in
1914,
but
it
was
not
until
the
New
Deal
that
the
modern
agency
became
a
pervasive
feature
of
American
government.
Eleven
agencies
were created
between
the
framing
of
the Constitution
and
the
close
of
the
Civil
War;
six
were
created
from
i865
to
the
turn
of
the
century;
nine
agencies
date
from
19oo
to
the
end
of
World
War
I;
nine
more
were
created
between
1918
and
the
Depression
in
1929;
and
no
fewer
than
17
were
created
in
the
decade between
193o
and
1940.
See
ATTORNEY
GENERAL'S
COMMITTEE
ON
ADMINISTRATIVE
PROCEDURE,
FINAL
REPORT
7-I1
(1941)
[hereinafter
ATTOR-
NEY
GENERAL'S
COMMITTEE].
These
New
Deal
agencies
included
the
Federal
Home
Loan
Bank
Board,
the
Federal
Deposit
Insurance
Corporation,
the
Securities
and
Exchange
Com-
mission,
the
Social
Security
Board,
the National
Labor
Relations
Board,
the
Commodity
Ex-
change
Commission,
the
Railroad
Retirement
Board,
the
Wage
and
Hour
Division
of the
Department
of Labor,
and
the
Selective
Service
Administration.
See
id.
at
io-ii.
In
addition,
of
course,
new
duties
were
conferred
on
established
entities
during
this
period.
[Vol.
101:421
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