RECAP: 9/12 James E. Fleming & Linda C. McClain Constitution Day Lecture with University of Cambridge’s Gary Gerstle

So much of political discourse in the United States focuses on two-, four-, and six-year election cycles. Yet, so much of politics happens outside of them. As a way to both broaden and refine the conception of political time, University of Cambridge Paul Mellon Professor of American History Gary Gerstle, the Kinder Institute’s 2023 James E. Fleming & Linda C. McClain Constitution Day lecturer, explained that he has taken to instead studying political orders, constellations of ideologies, policies, and constituencies whose impact endures far beyond any cyclical chronology. At the center of his September 12 talk were the lone two orders of the past century in the U.S.: the New Deal Order, which began under FDR in the 1930s, crested in the 1950s and 60s, and collapsed in the 1970s; and the Neoliberal Order that followed it, which spanned the end of the 20th and beginning of the 21st centuries before meeting its own demise in the early twenty-teens.

As for the question of when, historically, political orders have emerged, the answer is fairly simple: economic crises are followed by crises of governance, which give rise to these orders and/or sound their death knell. Of greater interest here, however, was the question of how they remain durable and potent. In Eisenhower acquiescing to FDR’s philosophy, and Clinton doing the same to Reagan’s, we can see how durability is, on the one hand, a function of the presumptive opposition party bending to the will of the established order. But legislative consensus still requires constitutional legislation, and this is where the Supreme Court—the star, so to speak, of Prof. Gerstle’s talk—enters into the fray, specifically when it comes to propping up the political economies undergirding political orders. In terms of the particular historical context he was examining, three moments rose to the surface to bear this argument regarding the role of the Court out.

1. Louis Brandeis and the Rise of the Roosevelt Court

Taking up residence in the Oval Office at the nadir of the Great Depression, FDR’s plan for reversing its course was to extend to the federal government a sweeping authority to regulate the economy in the name of public interest. Two problems immediately presented themselves. For one, whether the government was intervening in social welfare, labor relations, mining, or agricultural production, the Constitution offered little in the way of sanction for it to do so. Making thing more difficult, FDR inherited a Supreme Court filled with justices who were conservative in their sensibility, especially on the matter of imputing new meaning into the nation’s framing document (as early as 1935, the New Deal appeared to be doomed at the hands of the Court). In stepped Justice Louis Brandeis, who had come to see the Constitution as a living document in which we are obliged to discern new meaning and yet unenumerated powers if the law is to have any chance of adapting to the changing circumstances of public life. Additionally, out went eight Supreme Court justices during Roosevelt’s tenure (including Brandeis himself, who retired in 1939), all of whom FDR replaced with jurists amenable to Brandeis-ian living constitutionalism as well as the particular macroeconomic persuasion at the heart of New Deal policy. Though not the most famous case of the era, this emergent jurisprudential consensus was perhaps nowhere more evident than in Wickard v. Filburn (1942). At stake was the constitutionality of the Agricultural Adjustment Act, which sought to address overproduction and the plummeting agricultural commodities prices subsequent to it by empowering the federal government to contractually require farmers to grow less crops and to pay them for what they didn’t grow. The plaintiff in the case, Ohio farmer Roscoe Filburn, was happy to cash his subsidies checks until he was fined by the government for growing 12 acres of wheat beyond his federal allotment. Filburn contended that each of the 12 acres were put to personal use and personal use only and were thus beyond the government’s regulatory reach. In what would become a theme in Prof. Gerstle’s talk, the Court read the Commerce Clause expansively in deciding unanimously against Filburn, arguing that—just like Texas cattle that were shipped to Kansas City slaughterhouses, and from there to East Coast marketplaces—some of his wheat had to, at some point, cross state lines, making its production an issue of interstate commerce that was very much constitutionally subject to federal regulation.

2. The Progressive Reign of the Warren Court

Per the precedent set in Wickard, it seemed as if all commerce was somehow construe-able as interstate commerce, which then gave rise to the question of what wasn’t subject to federal regulation via the expansive reading of the Commerce Clause that, by the time of Chief Justice Earl Warren’s appointment by Eisenhower in 1953, had become routine across party lines. As Prof. Gerstle showed, a somewhat perilous answer to this question can be found in the Warren Court’s landmark decision in Katzenbach v. McClung (1964), which enshrined the constitutionality of the 1964 Civil Rights Act. Similar to Roscoe Filburn before him, Ollie McClung, proprietor of Ollie’s Barbecue in Birmingham, AL, contended that his business was so disproportionately local that it fell outside the Civil Rights Act’s ban on racial discrimination in public accommodations, including restaurants, with interstate ties. The Court could have responded with an invocation of the 14th Amendment, refuting McClung’s claim to constitutional license to refuse in-restaurant service to Black customers by framing it as a violation of human or civil rights. Justice William O. Douglas in fact advocated for this higher ground path. In the end, though, the justices—again, unanimously—fell back on the Commerce Clause to defend the Civil Rights Act on economic grounds. On one hand, Prof. Gerstle argued, the Court’s methodology was both understandable and constitutionally viable. At the same time, however, it narrowed the distinction between intra- and interstate commerce to near non-existence, empowering the regulatory state to a degree that invited contestation.

3. Bork, Scalia, and the Neoliberal, Originalist Backlash

Indeed, with the onset of the Great Recession in the 1970s, the New Deal Order’s judicial philosophy proved to make it vulnerable to counter-attack. For a growing faction of increasingly vocal neoliberal New Deal dissenters, a capitalist economy heavily regulated by the federal government had no way of dealing with the economic pressures of de-industrialization and rising unemployment. Led by Yale Law Professor Robert Bork, University of Chicago Law Professor Antonin Scalia, and the Federalist Society chapters that sprouted up around them, the burgeoning Neoliberal Order, like the New Deal Order before it, almost immediately began to take on jurisprudential dimensions. The problem wasn’t simply, or even primarily, one of economic regulation; it was that living constitutionalism substituted moral predilection for valid constitutional interpretation of the Commerce Clause and much else, ushering in a form of judicial activism through which the few made laws for the many. Limits, they argued, were needed, and renewed fidelity to the Founders’ intentions could provide them. Thus, was originalism born.

It wouldn’t be until the Reagan administration that the full power of these conjoined movements, neoliberalism and originalism, would be unleashed against the vestigial limbs of FDR & Co.’s legacy. Under the watchful eye of Attorney General Edwin Meese, Bork and Scalia were appointed to the U.S. Court of Appeals for the District of Columbia, a short step away (for Scalia at least) from the nation’s high court; neoliberal academics like Richard Epstein at University of Chicago built out the sub-field of law and economics as a laboratory for developing challenges to the legal underpinnings of the New Deal Order; and the Federalist Society, seemingly growing in strength by the day, evolved into a pathway to the federal bench. While no one argument or case could alone undo nearly half-a-century of judicial precedent setting, members of the neoliberal/originalist stronghold were nonetheless adamant and diligent in chipping away at the pillars of Brandeis and Warren’s work. Most notably, the New Deal-era reading of the Commerce Clause was summarily dismissed as an extravagant and indefensible way for the Supreme Court to assume the lawmaking capacity that the Constitution gave to Congress and the states. Federal regulation of anything much beyond the sphere of transportation and navigation was deemed jurisprudentially invalid and piece-by-piece rolled back, with the idea that dismantling the regulatory state was the only way for the most actualized version of free market capitalism to thrive.

At the beginning of his talk, Prof. Gerstle noted that we currently find ourselves living in an interregnum, as no new political order has risen up to replace neoliberalism after the global financial crash of the late aughts. The void is as volatile as it is rich with possibility, but if a revival of living constitutionalism has any chance of filling it, we’ll need more voices like FTC Chairperson Lina Khan and the Constitution Day Lecture’s namesakes, James Fleming and Linda McClain, speaking with the confidence necessary for the shoots of a new order to grow hearty enough that they might become a jurisprudential tree.