The depravity of the 1930s and the modern administrative state

Steven G Calabresi, Gary Lawson

Research output: Contribution to journalReview article

2 Scopus citations

Abstract

Gillian Metzger's 2017 Harvard Law Review foreword, entitled 1930s Redux: The Administrative State Under Siege, is a paean to the modern administrative state, with its massive subdelegations of legislative and judicial power to so-called "expert" bureaucrats, who are layered well out of reach of electoral accountability yet do not have the constitutional status of Article III judges. We disagree with this celebration of technocratic government on just about every level, but this Article focuses on two relatively narrow points. First, responding more to implicit assumptions that pervade modern discourse than specifically to Professor Metzger's analysis, we challenge the normally unchallenged premise that the 1930s was a decade of moral wisdom about governmental design that should serve as a ground for constitutional reasoning that is superior to the actual text of the Constitution. The 1930s was a thoroughly awful time, worldwide and in the United States; and while America avoided some of the very worst trends of those times (although it was a worldwide leader in others, such as eugenics), the intellectual and political foundations of that decade were a terrible ground for theories of government. We do not make the absurd claim that everything that emerged from the 1930s was therefore bad simply by virtue of that origin, nor do we make the equally absurd ad hominem claim that everyone who supports anything from the 1930s must support everything from that time. We only want to call into question the (generally implicit) premise that the governmental forms of the 1930s are sacrosanct because that decade should be seen as the real constitutional founding. The intellectual foundations of the 1780s and 1860s-the decades that led to the ratification of the actual constitutional text and the Civil War Amendments-are far superior to those of the 1930s. To be clear, we think that constitutional interpretation should be about the Constitution, not about time periods, values, or constitutional "orders," but if for some reason one wants to focus on time periods, the 1930s should be the last time period to which one looks for guidance.

Original languageEnglish (US)
Pages (from-to)821-866
Number of pages46
JournalNotre Dame Law Review
Volume94
Issue number2
StatePublished - Jan 1 2018

    Fingerprint

ASJC Scopus subject areas

  • Law

Cite this