New Deal Law and Order: How the War on Crime Built the Modern Liberal State
Author: Anthony Gregory
Publisher: Harvard University Press, 2024. 512 pages.
Reviewer: Elizabeth Dale | September 2024
In July 1794, several hundred men attacked the home of James Neville, a federal excise agent in western Pennsylvania. They were protesting the imposition of a federal tax on whiskey, which they objected to because it harmed them economically and because they denied the federal government had the constitutional authority to pass such a law.
The mob that destroyed Neville’s property was one of many that challenged federal officers in Pennsylvania in the early 1790s. Throughout, the state government was unable, or unwilling, to stop the challenges to federal laws. As a result, the resistance spread. In response, George Washington, at this point president of the United States, directed the governors of Pennsylvania and neighboring states to call up their militias against the so-called whiskey rebels. Then he rode out in front of the troops to suppress the insurgents. When the Pennsylvania rebels escaped to the hills before the troops arrived, Washington declared victory. A few men were arrested, then tried for treason; they were acquitted or later pardoned.
Some have argued the response to the Whiskey Rebellion proved the young federal government was able to suppress insurrection. But if the federal government won that battle, it lost the larger war. Even after it suppressed the mobs, the federal government was unable to enforce the tax, which farmers in several states continued to resist, or punish the resisters. After several years of failure, the whiskey tax was repealed during the Jefferson administration.
The Whiskey Rebellion exposed a constitutional weakness: State governments only had the power to enforce their own criminal laws within their borders. The federal government seemed to lack the constitutional power to pass or effectively enforce federal criminal laws.
That problem festered over the nineteenth century, increased during Reconstruction, and then worsened as the turn of the century brought the rise of ‘lynch law,’ labor unrest, Prohibition, and organized crime. By the start of the Depression, many agreed that the United States had become completely lawless.
Roughly a century and a half after the Whiskey Rebellion burned through western Pennsylvania, Presidential candidate Franklin Delano Roosevelt (FDR) took office. As complaints about lawlessness peaked, he responded by declaring a national war on crime, designed to strengthen federal authority in the area of criminal justice. FDR’s efforts are the subject of Anthony Gregory’s new book.
Gregory tells the story of how Roosevelt and a handful of allies, most notably his attorney general Homer Cummings, built a nation-wide law and order coalition and then used that coalition to remake the constitutional order, turning conventional federalism upside down as they empowered the federal government in the realm of criminal law. But as the book’s title suggests, this is not just a story about crime and punishment. Gregory argues that the law-and-order coalition built by FDR and his allies laid the foundation for New Deal liberalism and the modern American state.
The story Gregory tells is compelling and detailed. Chapter by chapter, he shows how the New Dealers were able to harness the sense that the United States had become lawless, using that fear to tie urban labor, Southern Democrats, African American activists, and the anxious middle class into a coalition that was willing, even eager, to see the federal government expand its constitutional authority through a mix of federal legislation, canny bureaucratic maneuvers, and deft Supreme Court appointments.
Coalitions require compromises, and that was certainly true here. Black activists lost from the beginning, watching their efforts to pass an anti-lynching bill be sacrificed to the New Deal coalition. But other compromises, though less familiar, also had long-term implications. Gregory ties Roosevelt’s war on crime to the rise of federal narcotics legislation, expanding FBI power, growth of the national security state, and mass incarceration.
The book deliberately engages those who argue about the history of the American state, as Gregory complicates their debate by insisting that researchers engage the role of criminal law and enforcement. But this is not simply an argument for more nuance. The liberal, law-and-order state that Gregory’s book traces the growth of gained disturbing powers because of the constitutional authority it accrued and continues to exert today. In this respect, the book will be of interest to people working in the areas of criminal law and justice, particularly those with a focus on the rise of mass incarceration or the overlap between criminal justice and national security.
At the same time, Gregory’s book invites further investigation. As he repeatedly notes, the idea of ‘lawlessness’ that played such a crucial role in the story he tells was profoundly ambiguous. Depending on one’s perspective, the term called to mind lynch mobs or pacifists, organized labor or corporate vigilantes, corrupt cops or racketeers, a handful of men peacefully sharing a joint or the Communist party.
That brings us back to the Whiskey rebels of western Pennsylvania. For officers of the young and weak federal government, those rebels were lawless criminals who refused to obey a federal tax law and then violently assaulted people and property during their resistance. But the Whiskey rebels believed they were taking the law into their own hands, legitimately challenging the implementation of a federal law they considered unjust and unconstitutional. Seen in that light, their ‘lawlessness’ was what Larry Kramer called popular constitutionalism, and Christian Fritz argued was the expression of the people’s sovereign power. It was a power I have argued people exercised in the realm of criminal law.
The ambiguity of lawlessness that FDR and his allies coalesced around invites us to dig deeper into the constitutional legacy of the constitutional changes they effected. Did Roosevelt and his allies merely rejigger the balance of state and federal sovereignty to give more constitutional authority to the federal government? Or did the New Deal coalition’s broad attack on lawlessness also squelch the constitutional role of the people in criminal justice?
References:
Elizabeth Dale, Criminal Justice in the United States, 1789-1939 (2011).
Christian G. Fritz, American Sovereigns: The People and America’s Constitutional Tradition Before the Civil War (2008).
Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (2004).
Elizabeth Dale is a Professor in the Department of History, at the University of Florida.
