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New Deal - Constitutionalist Critique Viewpoint
The constitutionalist critique of the New Deal holds that the legislative and regulatory programs enacted under Franklin D. Roosevelt between 1933 and 1939 represented a fundamental departure from the constitutional order established by the Founders - one achieved not through amendment but through political pressure, judicial capitulation, and creative reinterpretation of enumerated powers. Holders of this view argue that the New Deal's administrative state, expansive Commerce Clause readings, and delegation of legislative authority to executive agencies violated structural limits on federal power that the Constitution's text, history, and original understanding clearly imposed. This viewpoint is associated with constitutional originalists, classical liberals, libertarian legal scholars, and a significant strand of conservative jurisprudence.
Core Arguments
The Commerce Clause Was Stretched Beyond Recognition
Constitutionalist critics argue that the New Deal's foundational legal move was a drastic expansion of Congress's power to regulate commerce “among the several States.” The original understanding, they contend, distinguished commerce (exchange) from production (agriculture, manufacturing, mining), and “among the states” from purely local activity. Cases like A.L.A. Schechter Poultry Corp. v. United States (1935) and Carter v. Carter Coal Co. (1936) reflected this understanding - and were correctly decided. The post-1937 jurisprudence, culminating in Wickard v. Filburn (1942), replaced this distinction with an “aggregate effects” test so expansive that virtually any economic activity could be federalized. Critics hold that Wickard in particular - which held that a farmer growing wheat for his own consumption affected interstate commerce - rendered the Commerce Clause effectively limitless and the doctrine of enumerated powers a dead letter.1)
The Non-Delegation Doctrine Was Abandoned
The Constitution vests “all legislative Powers” in Congress. Constitutionalist critics argue this means Congress cannot transfer its lawmaking authority to executive agencies without providing an intelligible principle constraining their discretion. The early New Deal statutes - most notably the National Industrial Recovery Act - delegated essentially unlimited authority to the executive to craft industrial codes. The Schechter Court unanimously struck down the NIRA on non-delegation grounds, and critics argue this decision was correct and should have become a durable precedent. Instead, the post-1937 Court effectively abandoned the non-delegation doctrine, allowing Congress to delegate broad policymaking discretion to agencies like the Securities and Exchange Commission, the National Labor Relations Board, and the Federal Trade Commission. The result, critics contend, was the creation of a fourth branch of government - the administrative state - not authorized by the Constitution's tripartite structure.2)
The General Welfare Clause Does Not Authorize Open-Ended Spending
New Deal programs rested heavily on Congress's power to tax and spend for the “general Welfare.” Constitutionalist critics acknowledge that United States v. Butler (1936), which initially struck down the Agricultural Adjustment Act, was decided on narrow grounds and later reversed, but they argue the underlying concern was sound. The Hamiltonian reading adopted in Helvering v. Davis (1937) - that “general Welfare” gives Congress an independent spending power constrained only by its own judgment - effectively transforms the general welfare clause into a grant of plenary legislative authority, rendering the rest of the enumerated powers superfluous. Critics hold that Madison's narrower view, under which “general Welfare” limits rather than expands the taxing power, is the more textually and structurally coherent reading.3)
The Lochner Era Was Not Lawless
A recurring theme in constitutionalist criticism is the rehabilitation of pre-New Deal substantive due process. The conventional account - that the Lochner era Court was imposing laissez-faire ideology with no constitutional basis - is contested by critics who argue that the protection of freedom of contract under the Due Process Clause reflected a genuine constitutional tradition of protecting economic liberty as a fundamental right. They contend that the New Deal Court's repudiation of Lochner was not a return to neutral constitutionalism but a substitution of one set of value judgments (pro-labor, pro-regulatory) for another (pro-liberty of contract), without a principled textual basis for the distinction.4)
The "Switch in Time" Was Judicial Capitulation
Constitutionalist critics attach significance to the sequence of events in 1937. Roosevelt's court-packing plan - his proposal to add up to six justices to overcome the existing Court's resistance - was widely condemned as an assault on judicial independence. Justice Owen Roberts's apparent shift in West Coast Hotel Co. v. Parrish (1937), coming shortly after the plan's announcement, is characterized by critics as a politically motivated abandonment of constitutional principle rather than genuine legal reasoning. Whatever one's view of Lochner-era jurisprudence, the critics argue, constitutional interpretation should not be driven by presidential threats to the Court's composition.5)
Historical Development
The constitutionalist critique of the New Deal has roots in the dissenting opinions of Justices James McReynolds, Pierce Butler, George Sutherland, and Willis Van Devanter - the “Four Horsemen” - who consistently argued that New Deal legislation exceeded federal power or violated substantive due process. Their positions were dismissed by New Deal liberals as reactionary, but the critique found scholarly rehabilitation in the latter half of the twentieth century.
The rise of originalism as a serious jurisprudential methodology, associated with Raoul Berger, Robert Bork, and later Antonin Scalia, provided a theoretical framework within which the New Deal constitutional settlement could be re-examined rather than simply accepted as settled. The founding of the Federalist Society in 1982 created an institutional home for this reassessment. Scholars including Richard Epstein, Randy Barnett, and David Bernstein developed detailed historical and doctrinal arguments against the New Deal precedents, moving the critique from judicial dissent to mainstream legal academia.
The practical stakes of the debate became visible in NFIB v. Sebelius (2012), where five justices rejected the argument that the Commerce Clause authorized the Affordable Care Act's individual mandate - a result that would have been unthinkable under the broad post-Wickard jurisprudence, and that constitutionalist critics regarded as partial vindication.6) More recently, the Court's renewed interest in the non-delegation doctrine, signaled in Justice Gorsuch's dissent in Gundy v. United States (2019), has brought the administrative-state critique back to the center of constitutional litigation.7)
Notable Proponents
Richard Epstein - University of Chicago and NYU law professor whose The Classical Liberal Constitution (2014) and earlier Takings (1985) argue that the New Deal constitutional revolution was doctrinally incoherent and that property rights and economic liberty deserve robust constitutional protection.8)
Randy Barnett - Georgetown law professor and architect of the constitutional challenge to the ACA. His Restoring the Lost Constitution argues that the New Deal Court abandoned the presumption of liberty that the Constitution's original structure demanded.
David Bernstein - George Mason law professor whose Rehabilitating Lochner offers a revisionist defense of substantive economic due process and challenges the progressive narrative about the pre-New Deal Court.
Philip Hamburger - Columbia law professor whose Is Administrative Law Unlawful? argues that the administrative state created by the New Deal violates constitutional separation of powers and has roots not in American constitutional tradition but in the pre-constitutional English practice of royal prerogative.
Justice Clarence Thomas - Has written or joined opinions calling for reconsideration of Wickard, the non-delegation doctrine, and Chevron deference to administrative agencies, treating New Deal-era precedents as candidates for overruling rather than settled law.
George Sutherland - Associate Justice (1922-1938) whose dissents in Home Building & Loan Association v. Blaisdell (1934) and West Coast Hotel articulated a textualist and structural argument against the New Deal settlement from within the Court.
Internal Debates
Lochner rehabilitation vs. structural critique - Some constitutionalist critics, such as Barnett, emphasize the protection of individual economic liberty under the Ninth and Fourteenth Amendments as the positive constitutional basis for their critique. Others, such as Hamburger, focus on structural separation-of-powers arguments and are less invested in defending substantive due process. These are complementary but not identical arguments, and not all critics accept both.
How far to roll back - There is disagreement about whether the goal is to overrule specific New Deal precedents (Wickard, Helvering) or to articulate limiting principles that constrain future expansion without requiring wholesale reversal of the post-1937 settlement. More radical critics like Epstein favor structural rollback; others seek doctrinal guardrails rather than full restoration.
Chevron deference - A related but distinct debate concerns judicial deference to agency interpretations of ambiguous statutes. Chevron U.S.A., Inc. v. Natural Resources Defense Council (1984) institutionalized such deference, and its overruling in Loper Bright Enterprises v. Raimondo (2024) was welcomed by constitutionalist critics as a correction of the administrative-state logic. The extent to which Chevron was itself a product of New Deal thinking is contested within the critique.9)
Originalism and the New Deal settlement - Some originalists argue that certain New Deal programs, properly construed, could be defended on originalist grounds - that the critique is of the Court's reasoning rather than all of the results. Others hold that the results themselves were unconstitutional and that no reconstruction of the reasoning saves them.
Related Pages
Footnotes
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