Crisis and Leviathan by Robert Higgs

Crisis and Leviathan by Robert Higgs

Author:Robert Higgs
Language: eng
Format: epub
Publisher: Independent Institute


CULTIVATING AND PRUNING THE FIRST NEW DEAL: THE SUPREME COURT

Legislate as it might, the 73rd Congress still had to get its laws past the courts. For several years the New Deal found the judiciary less than wholeheartedly enthusiastic about approving the emergency measures. By the end of 1936 federal judges had issued about 1,600 injunctions to restrain federal officials from carrying out acts of Congress. Federal courts were also finding many state emergency laws in violation of the U.S. Constitution. If the depression-spawned expansion of the scope of governmental authority was to survive, the Supreme Court, said to “hesitate between two worlds,” would have to abandon its old world and embrace the new one.50 The executive and legislative branches of government, attempting to preserve and expand their powers by creating unprecedented emergency programs, found themselves up against a slow-moving judiciary, the branch of government most insulated from the political currents stirred by the economic crisis.

Much more was at stake, however, than victory in a power struggle among the branches of government. Fundamentally the fate of capitalism was being decided. A market system rests on an indispensable foundation of private property rights. These are the effectively enforced expectations of private citizens that they can: (1) personally own property, including their own bodies and labor power, and exclude all others from deciding how the property shall be used; (2) appropriate the income and enjoy any other benefits yielded by the property; and (3) transfer their rights freely to others by mutually satisfactory contractual agreements. Obviously many New Deal laws and similar state statutes either destroyed or attenuated private property rights.

The U.S. Constitution, especially its Contracts and Due Process clauses but also its various limitations on the powers of the federal government, gave plaintiffs hope that many of the emergency legislative interventions would be found wanting by the courts. But, as usual, everything turned on how the justices chose to read the Constitution. This depended on the court's traditions and precedents, the perceived economic, social, and political exigencies of the time, and the character, courage, and ideologies of the judges. One could never be certain whether the judicial coin would come up heads or tails.

Exceptional uncertainty surrounded the Supreme Court during Roosevelt's first term. In those years the composition of the Court remained fixed. The justices tended to fall into three groups. A “progressive” set, inclined toward allowing considerable experimentation by the legislative branch, comprised Louis D. Brandeis, Harlan F. Stone, and Benjamin N. Cardozo. A “conservative” group, usually staunch in the defense of private property rights and hostile toward governmental intrusion into the market economy, included Willis Van Devanter, James C. McReynolds, George Sutherland, and Pierce Butler; to their many critics they were the “Four Horsemen.” Neither the progressives nor the conservatives constituted a majority. Hence the critical power of the remaining two justices, Owen J. Roberts and the Chief Justice Charles Evans Hughes. Because Hughes leaned more toward the progressive position, the most likely “swing man” was Roberts. As his opinion went, so the Court's decision was likely to go.



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