Tuesday, July 02, 2002

Some people believe that the Great Depression (in the US in the 1930s) proved that capitalism was broken; that our constitutional government was unsuited for dealing with the crisis; that it was necessary for FDR to abolish constitutional limits on federalism; and that FDR saved the day with his various 3-letter agencies.

In fact all of this is nonsense. FDR's actions only made the Depression worse, and the economy only started getting back to normal after FDR left office. The New Deal did not help the economy.

Nevertheless, many liberals persist in the notion that FDR proved the necessity of a strong and unconstrained federal government. A good example is Judge Breyer on the US Supreme Court, whose recent dissenting opinion said:

the majority ignores a historical lesson, reflected in a constitutional understanding that the Court adopted long ago: An overly restrictive judicial interpretation of the Constitution’s structural constraints (unlike its protections of certain basic liberties) will undermine the Constitution’s own efforts to achieve its far more basic structural aim, the creation of a representative form of government capable of translating the people’s will into effective public action.

This understanding, underlying constitutional interpretation since the New Deal, reflects the Constitution’s demands for structural flexibility sufficient to adapt substantive laws and institutions to rapidly changing social, economic, and technological conditions.


Fortunately, Judge Thomas's majority opinion thoroughly rebuts Breyer. Representative government works just fine under the Constitution the way it was written. Did Breyer learn his New Deal nonsense in his classes at Harvard or Oxford?

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