The sympathetic state

Law and History Review

Volumn 23, Issue 2, 2005, Pages 387-442

  Dauber, Michele Landis ^a  

^a STANFORD LAW SCHOOL   (United States)

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EID: 44949151262     PISSN: 07382480     EISSN: None     Source Type: Journal    
DOI: 10.1017/S073824800000033X     Document Type: Review

References (182)

1. Frances Perkins, "The Roots of Social Security" (address delivered at Social Security Administration headquarters, Baltimore, Md. , October 23, 1962).
2. In another version of the story in Perkins's 1946 memoir, she admits that she told Roosevelt but swore him to silence "as to the source of my sudden superior legal knowledge. " Frances Perkins, The Roosevelt I Knew (New York: Random House, 1946), 286.
3. Perkins, "The Roots of Social Security"
4. Thomas Hopkinson Eliot, "The Legal Background of the Social Security Act" (address delivered at a general staff meeting at Social Security Administration Headquarters, Baltimore, Md. , February 3, 1961) ("Suffice it to say that with very little discussion at the Technical Board level, practically none at the Advisory Council Level, the research staff brought in the basis of what we have today, a contributory old-age insurance system based on the taxing and spending power, a la Justice Stone").
5. West Coast Hotel v. Parrish, 300 U. S. 379 (1937).
6. U. S. Constitution, art. I, sec. 8, cl. 1 ("The Congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts, and excises shall be uniform throughout the United States").
7. Theda Skocpol, Protecting Soldiers and Mothers: The Political Origins of Social Policy in the United States (Cambridge: Belknap Press of the Harvard University Press, 1992).
8. This doctrine was popularized by Thomas Cooley's authoritative Treatise on the Law of Constitutional Limitations Which Rest upon the Legislative Power of the States of the American Union, 6th ed. (Boston: Little, Brown, 1890)
9. and Treatise on the Law of Taxation, Including the Law of Local Assessments, 2d ed. (Chicago: Callaghan and Company, 1886).
10. and State v. Osawkee Township, 14 Kan. 418 (1875).
11. and in Helvering v. Davis, 301 U. S. 619 (1937), it upheld the old age benefit provisions of the Social Security Act.
12. Massachusetts v. Mellon, 262 U. S. 447 (1923).
13. To Eliot and the other government lawyers charged with finding a constitutional basis for social security, Perkins's "wilderness vision" seemed the best strategy, though Eliot was nervous about whether the Court would ultimately agree. Eliot recalled in 1980 that the older and more experienced lawyers on the CES staff, including U. C. law professor Barbara Nachtrieb Armstrong, and Assistant Attorney General Alexander Holtzoff did not share his anxiety and were very confident about the justification of the Social Security Act as a "tax and spend statute. " Thomas Eliot, Recollections of the New Deal: When the People Mattered (Boston: Northeastern University Press, 1992), 96-97, 112.
14. See Michele Landis, "'Let Me Next Time Be Tried By Fire': Disaster Relief and the Origins of the American Welfare State 1789-1874," Northwestern University Law Review 92 (1998): 967-1034
15. Michele Landis, "Fate, Responsibility, and Natural Disaster Relief: Narrating the American Welfare State," Law and Society Review 33 (1999): 257-318
16. Michele Landis Dauber, Helping Ourselves: Disaster Relief and the Origins of the American Welfare State, Ph. D. diss. Northwestern University, 2003.
17. The history of disaster relief also figured in the law review articles of the 1920s and '30s as a precedent that justified an expansive reading of the taxing and spending power. For instance, in his 1935 law review article McGuire discussed the citation of disaster relief appropriations in the Sugar Bounty cases and concluded that the Court had relinquished judicial review over appropriations decisions by Congress. O. R. McGuire, "The New Deal and the Public Money," Georgetown Law Journal 23 (1935): 155, 190.
18. Similarly, in an article published the same year, Cathcart discussed the Sugar Bounty and Butler decisions and concluded that Congressional power to spend out of the general revenues, including for the "relief of human suffering" is essentially unlimited. Arthur Cathcart, "The Supreme Court and the New Deal," Southern California Law Review 9 (1935): 328-30.
19. Charles Warren, Congress as Santa Claus (Charlottesville, Va. : Michie Company, 1932), 142
20. (quoting Edward Corwin, "The Spending Power of Congress-Apropos the Maternity Act," Harvard Law Review 36 [1922]: 580). Corwin's article had argued that the Court had no power to strike down the Sheppard-Towner Maternity Act because history demonstrated that Congress had always had plenary and unreviewable power over appropriations. Warren admitted that Corwin was right as to the history but urged that the Court should find a way to review Congress's relief appropriations or else "as to such legislation the powers of Congress are not limited by the Constitution in fact (however much they may be in theory)" (3).
21. Eliot, Recollections of the New Deal, at 95.
22. Skocpol, Protecting Soldiers and Mothers.
23. Brief for the Appellees at 24, United States v. Realty Co. , 163 U. S. 427 (1896) (No. 870) (Brief of Joseph Choate).
24. Senator William Borah (D-Idaho), Cong. Rec. , 63d Cong, 1st sess. , 1914, 51, pt. 16:16777.
25. Landis, "'Tried by Fire;'" Landis, "Fate, Responsibility, and 'Natural' Disaster Relief. "
26. On the development of disaster relief bureaucracies in the early Republic, see Michele Landis Dauber, "The War of 1812, September 11, and the Politics of Compensation," DePaul Law Review 53 (2003): 289-354.
27. During this period, the Congress approved such things as aid to the Irish famine victims, Resolution of March 3, 1847 (9 Stat. 207, No. 10)
28. Congressional Globe, 29th Cong. , 2d sess. , 1847, 16, pt. 1:505, and $200,000 in direct relief to victims of the Sioux Indian depredations in Minnesota.
29. Act of February 16, 1863 (12 Stat. 652, ch. 37)
30. Congressional Globe, 37th Cong. , 3d sess. , 1863, 34, pt. 1:179, 192, 440-45, 509-18.
31. Sidney Fine, Laissez-Faire and the General Welfare State (Ann Arbor: University of Michigan Press, 1956): 21
32. Corwin, "The Spending Power of Congress," 548
33. Warren, Congress as Santa Claus, 142.
34. Cong. Rec. , 71st Cong. , 1st sess. , 1931, 74, pt. 1:3241-43
35. Senate Committee on Manufactures, Federal Aid for Unemployment Relief: Hearings on S. 5125, 73d Cong. , 1st sess, 2-3 February 1933
36. Brief for the United States at app. C. 61-62, United States v. Butler, 297 U. S. 1 (1936) (No. 401)
37. Brief for Respondent Harold I. Ickes as Federal Emergency Administrator of Public Works at 164 & n. 80, App. D, 68-69, Duke Power Co. v. Greenwood County, 299 U. S. 259 (1936) (No. 32).
38. Landis, "'Tried By Fire. '"
39. Joint Resolution of June 9, 1897 (30 Stat. 221, No. 14).
40. Congressional Globe, 39th Cong. , 1st sess. , 1866, 37, pt. 1:916.
41. Congressional Globe, 39th Cong. , 1st sess. , 1866, 37, pt. 5:3913 (House), 3842 (Senate).
42. Cong. Rec. , 49th Cong. , 2d sess. , 1887, 18, pt. 2:1875.
43. See, e. g. , "Congress Affords Relief: Joint Resolution Passed Appropriating $200,000 for Mississippi and Red River Flood Sufferers," New York Times, April 8, 1897, at 3
44. "Congress to the Rescue: Appeal from the President in Behalf of the Flood Sufferers," New York Daily Tribune, April 8, 1897, at 1
45. "Relief for El Paso Sufferers," New York Daily Tribune, June 1, 1897, at 5
46. "Aid for the Mississippi Valley Sufferers," New York Times, March 16, 1882, at 1
47. "Relief for the Flood Stricken," New York Daily Tribune, April 8, 1897, at 5
48. Cong. Rec. , 49th Cong. , 2d sess. , 1887, 18, pt. 2:1269.
49. Coke had been removed from the Texas Supreme Court in 1867 as "an impediment to Reconstruction. " Congressional Biography 2002, available at http://bioguide. congress. gov/ (last visited January 7, 2004).
50. Cong. Rec. , 49th Cong. , 2d sess. , 1887, 18, pt. 2:1268.
51. The fact that legislators have generally been lawyers may add another dimension to theories that emphasize the bureaucratic competencies (usually, the lack thereof) of state actors in explaining the trajectory of American state development. Stephen Skowronek, Building a New American State: The Expansion of National Administrative Capacities 1877-1920 (Cambridge: Cambridge University Press, 1982)
52. Elisabeth S. Clemens, The People's Lobby: Organizational Innovation and the Rise of Interest Group Politics in the United States, 1890-1925 (Chicago: University of Chicago Press, 1997)
53. Theda Skocpol and John Ikenberry, "The Political Formation of the American Welfare State in Historical and Comparative Perspective," in Comparative Social Research: The Welfare State, vol. 6, ed. R. F. Thomasson (Greenwich, Conn. : JAI Press, 1983), 87-147
54. Congressional Globe, 39th Cong. , 1st sess. , 1866, 39, pt. 5:3919.
55. Cong. Rec. , 67th Cong. , 2d sess. , 1921, 62, pt. 1:472.
56. Cong. Rec. , 53d Cong. , 1st sess. , 1893, 25, pt. 3:3077.
57. The distinction made here between the moral imperatives for public and private relief may have been overstated, at least in the context of major disaster. As Karen Sawislak's excellent account of relief distribution by charitable organizations following the Chicago Fire in 1872 shows, private aid workers were extremely focused on distinguishing between "those who are helpless from their own misfortune and those whose misery arises from their own default. " Karen Sawislak, Smoldering City: Chicagoans and the Great Fire, 1871-1874 (Chicago: University of Chicago Press, 1995), 90. However, Sawislak notes that there were at least some charity workers following the Chicago Fire who, like Rep. Lawrence, thought that wretchedness and poverty demanded a charitable response regardless of individual fault - a view that was rarely, if ever, expressed in the context of federal relief (117). It is difficult to determine whether long-standing practices surrounding the distribution of government aid based on moral blamelessness influenced private disaster relief givers, or the reverse, or whether both practices were perhaps influenced by other social factors.
58. Congressional Globe, 39th Cong. , 2d sess. , 1867, 38, pt. 1:260.
59. Cong. Rec. , 48th Cong. , 1st sess. , 1884, 15, pt. 3:1038.
60. As president, he signed numerous relief bills appropriating millions of dollars in property indemnifications, cash assistance, and food and clothing distribution, including relief following the Caracas earthquake of 1812, the New Madrid, Missouri (territory) earthquake of 1815, and the massive relief program following the War of 1812. See Landis, "'Tried By Fire,'" 977 nn. 53-54
61. Landis, "The War of 1812. "
62. Story had a recurring role in disaster relief debates because he had written a defense of a broad interpretation of the General Welfare Clause and had there used disaster relief as an example of a necessary function of government that could no longer be fulfilled if the narrow interpretation were to prevail. Joseph Story, Commentaries on the Constitution of the United States (Boston: Hilliard, Gray & Co. , 1833), §§ 985-991.
63. Brief for the United States at 71, Field v. Clark, 143 U. S. 649 (1892) (No. 1,050)
64. Brief for the Appellants at 35, United States v. Realty Co. , 163 U. S. 427 (1896) (No. 870) (Brief of Joseph Choate)
65. Brief for the United States at 152-54, United States v. Butler, 297 U. S. 1 (1936) (No. 401).
66. Cong. Rec. , 67th Cong. , 2d sess. , 1921, 62, pt. 1:457, 472.
67. Cong. Rec. , 48th Cong. , 1st sess. , 1884, 15, pt. 3:2295.
68. The debates over the permissibilty of disaster relief and the scope of the general welfare clause provide a marvelous example of what a number of scholars have described as "the Constitution outside the courts. " This is particularly so given the highly explicit and repeated iteration of the dominant view that there was no judicial review of Congress's interpretation of the Clause. See Sanford Levinson, Constitutional Faith (Princeton: Princeton University Press, 1988)
69. Mark Tushnet, Taking the Constitution Away from the Courts (Princeton: Princeton University Press, 1999)
70. Keith Whittington, Constitutional Construction: Divided Powers and Constitutional Meaning (Cambridge: Harvard University Press, 1999)
71. Keith Whittington, "Extrajudicial Constitutional Interpretation: Three Objections and Responses," North Carolina Law Review 80 (2002):773-851.
72. Cong. Rec. , 48th Cong. , 1st sess. , 1884, 15, pt. 3:2296-97.
73. Congressional Globe, 39th Cong. , 1st sess. , 1866, 37, pt. 5:3919.
74. Cong. Rec. , 48th Cong. , 1st sess. , 1884, 15, pt. 2:1037.
75. Cong. Rec. , 55th Cong. , 1st sess. , 1897, 30, pt. 2:1470.
76. Cong. Rec. , 48th Cong. , 1st sess. , 1884, 15, pt. 3:2294.
77. Cong. Rec. , 67th Cong. , 2d sess. , 1921, 62, pt. 1:471.
78. Congressional Globe, 40th Cong. , 1st sess. , 1867, 39, pt. 1:90.
79. The evidence presented here is consistent with what Kramer has called "popular constitutionalism," the notion that "the people themselves - working through or responding to their agents in the government. . . were responsible for seeing that the Constitution was properly interpreted and implemented. " Larry Kramer, "The Supreme Court 2000 Term Forward: We the Court," Harvard Law Review 115 (2001): 11-12, 16. According to Kramer, judicial review in the early Republic was unaccompanied by any notion of judicial supremacy, and it was not until the period 1875-1905 that the Supreme Court became aggressive about asserting its dominion over constitutional interpretation. At least with respect to congressional spending in the general welfare, however, it appears that popular constitutionalism persisted much later than Kramer suggests. Indeed, the struggle he recounts over the Court's expanding reach during this period never materialized in the context of the General Welfare Clause, and as shown below the Court repeatedly ducked opportunities to reach the question and assert itself. Moreover, the writings of constitutional authorities during this period, including Thomas Cooley and many of the other key villains of the Lochner era, agreed that the Court had no power to review Congress's determinations on this question.
80. Cong. Rec. , 53d Cong. , 3d sess. , 1895, 27, pt. 4:2882.
81. Congressional Globe, 39th Cong. , 1st sess. , 1866, 37, pt. 1:939.
82. Cong. Rec. , 48th Cong. , 1st sess. , 1884, 15, pt. 2:1033.
83. Landis, "Fate, Responsibility, and 'Natural' Disaster Relief. "
84. W. E. B. DuBois, "The Freedmen's Bureau," Atlantic Monthly 87 (1901): 354, 357.
85. Congressional Globe, 39th Cong. , 1st sess. , 1866, 37, pt. 1:656.
86. Robert Bremner, The Public Good: Philanthropy and Welfare in the Civil War Era (New York: Alfred A. Knopf, 1980), 98.
87. George Bentley, History of the Freedmen's Bureau (Philadelphia: University of Pennsylvania Press, 1955)
88. Paul Skeels Pierce, The Freedmen's Bureau: A Chapter in the History of Reconstruction (New York: Haskell House Publishers, [1904] 1971)
89. Eric Foner, Reconstruction: America's Unfinished Revolution (New York: Harper & Row, 1988).
90. DuBois, "The Freedmen's Bureau," 359.
91. Bentley, History of the Freedmen's Bureau, 76
92. Mary Farmer, "'Because They Are Women': Gender and the Virginia Freedmen's Bureau's 'War on Dependency,'" in The Freedmen's Bureau and Reconstruction: Reconsiderations, ed. Paul Cimbala and Randall Miller (New York: Fordham University Press, 1988), 165.
93. 13 Stat. 507 (1865).
94. Victoria Marcus Olds, "The Freedmen's Bureau as a Social Agency" (Ph. D. diss. , Columbia University, 1966), 117.
95. Bremner, The Public Good, 117.
96. Farmer, "'Because They Are Women,'" 167.
97. An agent in Greenville, S. C. simply refused to distribute rations and refused to requisition them even when his superior instructed him to do so. He claimed that he was "refusing to feed the suffering lest I should encourage the lazy. " Olds, "The Freedmen's Bureau as a Social Agency," 199.
98. Foner, Reconstruction, 152
99. The transportation aid was intended to move freedmen from the cities (where they had congregated) back to the plantations (which were in need of labor), and thus off the relief rolls. One strategy used by the Bureau was to refuse to issue ration tickets to any able-bodied freedmen who refused to be transported to areas where there was a demand for their labor. Farmer, "'Because They Are Women,'" 171.
100. Congressional Globe, 39th Cong. , 1st sess. , 1866, 37, pt. 1:315.
101. Johnson had voted against the 1847 Irish famine relief bill. Foner, Reconstruction, 178, 216-18.
102. Congressional Globe, 38th Cong. , 1st sess. , 1864, 35, pt. 1:742.
103. Congressional Globe, 39th Cong. , 1st sess. , 1866, 37, pt. 1:630.
104. Cong. Rec. , 40th Cong. , 2d sess. , 1867, 39, pt. 1:40, 42, 45.
105. What is most striking about both the congressional debates and the press coverage of them is the lack of any serious constitutional controversy; these appropriations were taken by everyone to be well within the scope of Congress's authority. Indeed, a year later, when the Bureau requested a further appropriation, the New York Times editorial noted that "were the question simply one of relief it would be only necessary to determine the precise nature and extent of the emergency and the best means of rendering whatever relief might be required. These points . . . will have to be settled when Congress enters upon the question practically. " In this case, however, the Times worried that any further relief threatened "to make pets of the freedmen" and would pauperize them, so it advocated work relief instead. Editorial, "Southern Relief Question - Considerations for Congress," New York Times, 6 January 1868, 1.
106. Cong. Rec. , 40th Cong. , 2d sess. , 1867, 39, pt. 1:46-47, 85, 89, 211.
107. Editorial, "Relief for the South," New York Times, 23 March 1867, 1.
108. Cong. Rec. , 40th Cong. , 2d sess. , 1867, 39, pt. 1:88.
109. A "mudsill" was literally the lowest log in the wall of a cabin - the log that lay in the mud and supported the rest of the building. During the Civil War, the term came into use as a derogatory name for the lowest class of laborers. It was adopted as a term for low-level enlisted soldiers of the North. Oxford English Dictionary Online 2003, http://dictionary. oed. com (last visited January 7, 2004).
110. Cong. Rec. , 40th Cong. , 2d sess. , 1867, 39, pt. 1:259.
111. Cong. Rec. , 53d Cong. , 1st sess. , 1893, 25, pt. 2:3038. Senator Butler of South Carolina asked relief for 30,000 black victims of a cyclone because the state would likely not do so and "there is bound to be very great suffering among those people. "
112. Congressional Globe, 39th Cong. , 1st sess. , 1866, 37, pt. 5:3916-18.
113. Gordon Lee, The Struggle for Federal Aid, First Phase: A History of the Attempts to Obtain Federal Aid for the Common School 1870-1890 (New York: Bureau of Publications Teachers College, Columbia University, 1949)
114. Allen Going, "The South and the Blair Education Bill," Mississippi Valley Historical Review 44 (1957): 267
115. Lee, The Struggle for Federal Aid, First Phase, 88.
116. Going, "The South and the Blair Education Bill. "
117. The Struggle for Federal Aid, First Phase, 132
118. Cong. Rec. , 49th Cong. , 1st sess. , 1886, 17, pt. 2:1768.
119. Cong. Rec. , 51st Cong. , 1st sess. , 1890, 21, pt. 3:2295.
120. John Ezell, "Jefferson Davis and the Blair Bill," Journal of Mississippi History 31 (1969): 121.
121. Cong. Rec. , 53d Cong. , 1st sess. , 1893, 25, pt. 1:388.
122. Cong. Rec. , 53d Cong. , 1st sess. , 1893, 25, pt. 1:386.
123. Gene Clanton, Congressional Populism and the Crisis of the 1890s (Lawrence: University Press of Kansas, 1998), 62.
124. Cong. Rec. , 53d Cong. , 1st sess. , 1874, 2, pt. 4:3151.
125. Herbert Gutman, "The Failure of the Movement by the Unemployed for Public Works in 1873," Political Science Quarterly 80 (1965): 254
126. Benjamin Klebaner, "Poor Relief and Public Works During the Depression of 1857," Historian 22 (1960): 264.
127. Carl N. Degler, "The West as a Solution to Urban Unemployment," in New York History, ed. Mary Cunningham (Cooperstown: State Historical Association, 1955), 63-84.
128. Alexander Keyssar, Out of Work: The First Century of Unemployment in Massachusetts (Cambridge: Cambridge University Press, 1986), 251
129. see also Samuel Rezneck, "Distress, Relief, and Discontent in the U. S. during the Depression of 1873-78," Journal of Economic History 58 (1950): 498.
130. Keyssar, Out of Work, 251.
131. Degler "West as a Solution," 64.
132. Gutman, "The Failure of the Movement by the Unemployed for Public Works in 1873," 271
133. Klebaner, "Poor Relief and Public Works During the Depression of 1857," 266.
134. Calvin Woodard, "Reality and Social Reform: The Transition from Laissez-Faire to the Welfare State," Yale Law Journal 72 (1962): 320
135. Hannah Feder, Unemployment Relief in Periods of Depression (New York: Arno Press, [1936] 1971).
136. Although the notion of involuntary idleness began to gain currency as a result of the depression of 1893, the unemployed worker's moral culpability was by no means settled. For example, a Labor Department economist concluded in an 1898 study that European style unemployment insurance should not be adopted in the United States because "[t]hough lack of employment is often unavoidable on the part of the workingman, the latter's will and energy play such an important part that any attempt to distinguish voluntary from unavoidable idleness is futile. " William F. Willoughby, Workingmen's Insurance (New York: Thomas Y. Crowell & Co. , 1898), 375.
137. Cong. Rec. , 63d Cong. , 2d sess. , 1914, 51, pt. 16:16635, 16766-81.
138. The appropriation for relief of the Salem fire was $200,000, not $2 million. Cong. Rec. , 63d Cong. , 2d sess. , 1914, 51, pt. 16:16787.
139. 39 Stat. 360.
140. Cong. Rec. , 63d Cong. , 2d sess. , 1914, 51, pt. 16:16769.
141. 143 U. S. 649 (1892).
142. 163 U. S. 427 (1896).
143. Brief for the Appellants at 56, Field v. Clark, 143 U. S. 649 (1892) (No. 1050) (Brief of Edwin Smith).
144. Brief for the Appellants at 19-32, Field v. Clark, 143 U. S. 649 (1892) (No. 1050) (Brief of Charles Curie).
145. Brief for the United States at 67-69, Field v. Clark, 143 U. S. 649 (1892) (No. 1050).
146. Reply Brief for the Appellants, Field v. Clark, 143 U. S. 649 (1892) (No. 1050).
147. Field v. Clark, 143 U. S. at 695-96.
148. and Pollack v. Farmer' Loan & Trust Co. , 158 U. S. 601 (1895) (striking down the federal income tax).
149. Brewer, as a justice of the Kansas Supreme Court, had held that drought relief violated the public purpose doctrine. See State ex. Rel. Griffith v. Osawkee Township, 14 Kan. 418 (1875).
150. Brief for the United States at 187-88, United States v. Realty Co. , 163 U S 427 (1896) (No. 870).
151. Pollack v. Farmer's Loan and Trust Co. , 157 U. S. 429 (1895)
152. Morton Horwitz, The Transformation of American Law, 1870-1960: The Crisis of Legal Orthodoxy (New York: Oxford University Press, 1992), 26.
153. Brief for the Appellants at 7-9, United States v. Realty Co. , 163 U. S. 427 (1896) (No. 870) (Brief of Joseph Choate).
154. Hare concludes that the constitutionality of appropriations is "legislative, not judicial, and the errors of Congress cannot be corrected by the courts. " John Innes Clark Hare, American Constitutional Law, vol. 1 (Boston: Little Brown, 1889), 249.
155. Loan Ass'n v. Topeka, 87 U. S. 655, 665 (1874)
156. United States v. Realty Co. , 163 U. S. 427, 441 (1896).
157. The briefs in Mellon had, like those in the other cases discussed in this section, recounted the history of disaster relief as an authorizing precedent for the Maternity Act. Taft, who had argued those same precedents to the Court thirty years before, in Field, was by then chief justice. Despite intense public pressure on the Court to intervene, the Court again refused to reach the issue. See Robert Post, "Federalism in the Taft Court Era: Can it be Revived?" Duke Law Journal 51 (2002): 1545-47.
158. Clyde Jacobs, Law Writers and the Courts: The Influence of Thomas M. Cooley, Christopher G. Tiedeman, and John F. Dillon upon American Constitutional Law (Berkeley: University of California Press, 1954).
159. 14 Kan. 418 (1875).
160. See also Fine, Laissez-Faire and the General Welfare State, 136.
161. 111 Mass. 454 (1873).
162. In contrast with Civil War Pensions, disaster relief was untainted by political party associations, was generally supported by both parties and by both the executive and the legislative branches, and had been provided to every area of the country and every class and both black and white recipients rather than merely to the favored North or to blacks in the South. The pattern of party domination of distribution for supporters and voters that Skocpol documents for Civil War pensions was not replicated in the case of disaster relief despite the fact that it was a quintessentially "distributive" program. Richard L. McCormick, "The Party Period and Public Policy: An Exploratory Hypothesis," Journal of American History 66 (1979): 279
163. Theodore J. Lowi, "American Business, Public Policy, and Political Theory," World Politics 16 (1964): 677. Moreover, perhaps owing to its temporary emergency nature, disaster relief failed to spark fears of a large standing bureaucracy based on spoils. Thus, disaster relief was a national distributive program that provided an alternative precedent for expansion of the subsequent national welfare state. Indeed, to the extent that Progressives fretted about the evils of Civil War pensions, disaster relief likely looked all the more attractive as an authorizing precedent for an expanded system of public social provision.
164. Harry Scheiber, "Government and Economy: Studies of the 'Commonwealth Policy' in Nineteenth Century America," Journal of Interdisciplinary History 3 (1972): 135-51
165. Oscar Handlin and Mary Handlin, Commonwealth: A Study of the Role of Government in the American Economy, 1774-1861 (Cambridge: Harvard University Press, 1947).
166. Stephen Skowronek, Building a New American State: The Expansion of National Administrative Capacities, 1877-1920 (Cambridge: Cambridge University Press, 1982).
167. The account that Congress was not permitted by the Constitution to engage in national welfare spending before 1937 was perhaps a product of the vision of the New Deal lawyer-hero promoted by participants-cum-historians such as Rex Tugwell, Arthur Schlesinger, and to a somewhat lesser extent, William Leuchtenberg. Rexford Tugwell, The Democratic Roosevelt (Garden City, N. J. : Doubleday, 1957)
168. Arthur M. Schlesinger, The Coming of the New Deal (Boston: Houghton Mifflin, 1959)
169. William Leuchtenberg, Franklin D. Roosevelt and the New Deal (New York: Harper & Row, 1963).
170. These authors have emphasized both the legal acumen and political skills of the New Dealers in forcing the Court to back down. A narrative account of the long-established and undisputed power of Congress to spend however it pleased to advance the general welfare (and the Court's century and a half of acquiescence in that practice) would, after all, produce a far less dramatic narrative of liberal triumph. Moreover, such a history of the General Welfare Clause would only have served to call attention to the administration's poor draftsmanship of the Agricultural Adjustment Act, which, because it linked the processing tax directly to the benefit payments to growers, was vulnerable in a way that the Social Security Act (which paid benefits out of the general revenues) was not. Meanwhile, conservative opponents of the Roosevelt Administration were not interested in highlighting the legitimacy of the New Deal in the light of history and precedent. It is reasonable to conclude that while this history of the spending power was clearly well known and important prior to 1937, there was no one remaining after 1937 who saw much benefit in recalling it, and it faded into obscurity Thus, the notion that the Constitution constrained federal social spending prior to the New Deal may be another of what Barry Cushman has called a "constitutional bedtime story with a happy ending for New Deal liberals. " Barry Cushman, "Rethinking the New Deal Court," Virginia Law Review 80 (1994): 261.
171. William Novak, "The Legal Origins of the Modern American State" (Chicago: American Bar Foundation Working Paper #9925, 2002): 4.
172. For summaries, see Novak, "Legal Origins"; Manuel Cachan, "Justice Stephen Field and 'Free Soil, Free Labor Constitutionalism': Reconsidering Revisionism, Law and History Review 20 (2002): 8-18.
173. Stephen A. Siegel, "The Revision Thickens," Law and History Review 20 (2002): 635.
174. Alan Jones, "Thomas M. Cooley and Laissez-Faire Constitutionalism: A Reconsideration," Journal of American History 53 (1967): 751-71
175. Charles McCurdy, "Justice Field and the Jurisprudence of Government-Business Reliations: Some Parameters of Laissez-Faire Constitutionalism," Journal of American History 61 (1975): 970-1005
176. Howard Gillman, The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence (Durham: Duke University Press, 1993)
177. Michael Les Benedict, "Laissez-Faire and Liberty: A Re-Evaluation of the Meaning and Origins of Laissez-Faire Constitutionalism," Law and History Review 3 (1985): 293-31
178. Barbara Fried, The Progressive Assault on Laissez-Faire: Robert Hale and the First Law and Economics Movement (Cambridge: Harvard University Press, 1998), 31.
179. Aviam Soifer, "The Paradox of Paternalism and Laissez-Faire Constitutionalism: United States Supreme Court, 1888-1921," Law and History Review 5 (1987): 249.
180. Hiss did not merely lift the table from the Choate brief; he assigned a lawyer, A. L. Jacobs, from the Justice Department's Tax Division to research the history of appropriations under the General Welfare Clause. The result was a twenty-two-page memorandum, discussing a number of possible precedents which might be cited for the AAA, including a three-page "tabulation of [disaster relief] cases in which the appropriation cannot be justified except as a measure in behalf of the general welfare," and such things as codfish bounties and federal grants to the states. Interestingly, one of Jacobs's other suggestions was veterans' pensions. While Hiss made much of disaster relief in the brief, and cited several other forms of government spending such as the Children's Bureau, there is no mention of veteran's pensions as a precedent for New Deal welfare spending in his 280 page brief or 100 page appendix. Memorandum, A. J. Jacobs to Sewall Key, Aug. 22, 1935, NARA, RG 60, Correspondence File 5-36-346. Interestingly, the history of disaster relief, accompanied by an eight-page version of the table, was featured in Edith Abbott's monumental 1940 work on American social welfare history. Abbott, who was Dean of the School of Social Service Administration at the University of Chicago, describes disaster relief as the first phase of federal social provision, albeit one that was somewhat haphazard. Edith Abbott, Public Assistance: American Principles and Policies (Chicago: University of Chicago Press, 1940), 2:645-48, 691-99.
181. Cushman, following Peter Irons, makes a similar point with respect to the Commerce Clause, arguing that the NLRB lawyers responsible for drafting and defending the Wagner Act were careful to avoid the argument that validating the NLRA required the Court to make a revolutionary change. Instead, they described the Act as entirely consistent with existing precedent. Barry Cushman, "A Stream of Legal Consciousness: The Current of Commerce Doctrine from Swift to Jones and Laughlin," Fordham Law Review 61 (1992):105, 144-56
182. Peter Irons, The New Deal Lawyers (Princeton: Princeton University Press, 1982).