The Constitutional Wisdom Ignored by the New Deal and Great Society

Numerous economic downturns and crises plagued America during the first one hundred fifty years of its existence. The nineteenth century witnessed repeated depressions. Undoubtedly, the Great Depression of the 1930s amounted to the most severe economic crisis ever experienced in the United States. As with all previous crises, however, the country recovered from the Great Depression and lifted the rest of the world into an age of greater prosperity.

Economically, America has transcended the Great Depression, and did so relatively quickly. Constitutionally and politically, however, the Great Depression still haunts the United States. This haunting legacy arose because of actions the federal government took in response to the world-wide economic events of the 1930s. The New Deal agenda pushed by President Franklin D. Roosevelt and his Democratic Party permanently changed the nature and role of the federal government, as well as the public’s expectations and demands on that government.

Contrary to one hundred and fifty years of political and constitutional experience, the New Dealers decided to combat the Great Depression by concentrating huge amounts of power within the executive branch of the federal government, leading to the bureaucratic behemoth that now characterizes the administrative state. This administrative state has produced a government in which individual citizens have little voice or control, thereby leaving that government with little accountability to the public. The administrative state has produced staggering, incomprehensible deficits that will at some point leave some future generation with an insurmountable burden. Because of its size, its distance from individual citizens, and its unaccountable bureaucrats, the administrative state has also spawned a deepening culture of political corruption within the federal government. None of these occurrences, however, would have surprised the constitutional Framers, who tried very diligently to protect against such occurrences.

The United States Constitution was a unique document. It created an exceptional form of government, unknown in the rest of the world at that time. Among its many exceptional features, one of the most important was its power-limiting feature. Although the Constitution established a strong national government, it also imposed an array of limitations on that power to prevent the federal government from becoming so strong that it could threaten the liberty of its citizens. As the Framers foresaw, a government without adequate controls could easily accumulate the kind of power that would then insulate that government from public accountability, providing the conditions rife for corruption and abuses.

Three characteristics of the U.S. Constitution that would later be ignored and even contradicted by the New Deal promoters are: first, the Constitution’s enumerated power scheme, in which only the powers specifically outlined in the Constitution are granted to the federal government; second, the separation of powers scheme, in which the power of each branch of the government – e.g., executive, legislative and judicial – is checked by the other branches; and third, the federalism scheme of the Constitution, in which the power of the federal government is limited by the role and power of the states. By concentrating unprecedented powers in the federal executive branch, the New Deal violated the federalism and the separation of powers dictates of the Constitution. And by giving to that newly empowered central government new and unprecedented authority over subject areas not enumerated in the constitutional delegation to the federal government, the New Deal violated the enumerated powers scheme of the Constitution.

Not only did this constitutional contradiction swell the size and power of the federal government beyond the wise forecasts of the Framers, it also restricted then the vibrancy of self-government in the United States. As the Framers foresaw, self-government thrives when the public engages in its government and actively directs that government. But as the Framers also foresaw, such engagement requires accountability – and accountability is best achieved when government is closer and more open to the public. This closeness and openness characterize state and local governments, but it was just those governments that the New Deal restrained by giving such vast powers and authority to the federal government.

Many of the problems with the federal government today would never occur in families or small business or state or local governments. That is because in those venues there is a greater transparency and accountability. While there might be corruption in state governments, it is nowhere near the scale of corruption at the federal level. The Framers knew this; and therefore to save the federal government from itself, the Framers imposed limitations on the power of that government, because the Framers knew the temptations for excess and abuse that would be created by unlimited power.

The Great Society programs of the 1960s and 1970s replicated the New Deal arguments for more power to be concentrated in the federal executive branch. And not surprisingly, many of the Great Society programs have descended into corruption and waste. The federalism revolution waged by the Supreme Court in the 1990s tried to revive the Constitution’s limited government scheme. Even President Bill Clinton in 1996 admitted that “the era of big government was over.” However, with the 2008 recession, the Affordable Care Act and the covid pandemic, big government came roaring back with a vengeance. Whether this unintended turn in America’s constitutional history can be meaningfully addressed, whether a lasting reform of the New Deal and Great Society distortions of constitutional structure power can be achieved will depend on America’s lasting commitment and embrace of the Framers’ wisdom.

 Patrick Garry is professor of law at the University of South Dakota and is the author of Limited Government and the Bill of Rights and The False Promise of Big Government: How Washington Helps the Rich and Hurts the Poor.

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