New Deal Expansions Explored

Campus Report ^ | March 28, 2008 | Bethany Stotts

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New Deal Expansions Explored

by: Bethany Stotts, March 28, 2008

Professor Patrick Garry’s recently published An Entrenched Legacy blames the increasing level of judicial activism on the precedents established under Franklin D. Roosevelt’s New Deal. As Accuracy in Academia previously reported, FDR’s economic policies had a harmful effect on poor African-Americans, lowering their status within the public sector and inflating African-American unemployment when compared to their white counterparts. Professor Garry’s thesis expands this criticism of the New Deal to condemn FDR’s court-packing scheme, which, he argues, influenced the Supreme Court to focus on individual rights protections instead of promoting overall liberty. In 1937 the Court “abandoned the enforcement of the structural provisions of the Constitution. By structural provisions I mean federalism and separation of powers, for instance,” the University of South Dakota Professor said.

This change, in turn, led to a necessary expansion of judicial powers concentrated in the area of individual rights, he argues. “In abandoning [the structural provisions] the only protection for individual liberty was going to lie with judicial review of specific individual rights and so the court...had to do that,” said Garry. These rights, such as the right to privacy—found in the “penumbras,” or shadows, of the constitution—inevitably led to judicial decisions based on judges’ ethical judgments rather than strict constitutionality.

Professor Garry’s thesis was met with a series of criticisms by his fellow CATO Institute panelists, most notably from Professor Abe Krash of Georgetown University. Professor Krash criticized the idea that civil rights could be devolved to the states, noting that many state civil rights violations had been justified in the name of states rights.....