Bad Deal

How FDR made life worse for African Americans.

Reconsidering Roosevelt on Race: How the Presidency Paved the Road to Brown, by Kevin J. McMahon, Chicago: University of Chicago Press, 298 pages, $20

FDR's Folly: How Roosevelt and His New Deal Prolonged the Great Depression, by Jim Powell, New York: Crown Forum, 352 pages, $27.50

Franklin Delano Roosevelt ranks near or at the very top of almost every standard list of America's greatest presidents. But there is a substantial part of the American public for whom the legendary four-termer did little: African Americans. Despite the determined efforts of his do-gooder wife Eleanor, for example, he failed to support federal anti-lynching legislation and refused to integrate the armed forces. (Successor Harry Truman finally did the latter in 1948.) Although supposedly sympathetic to the plight of black America, FDR was not about to risk losing either his New Deal or World War II by alienating Southern supporters or moving too far ahead of public opinion.

Two recent books, one generally liberal and the other libertarian, offer interesting and divergent viewpoints on what Roosevelt and his New Deal did, and did not do, to improve life for American blacks. In Reconsidering Roosevelt on Race: How the Presidency Paved the Road to Brown, Kevin J. McMahon credits the New Deal with establishing a judiciary "eager to defer" to the executive branch's authority and expertise, allowing the Justice Department to "instruct" the courts on civil rights cases. In FDR's Folly: How Roosevelt and His New Deal Prolonged the Depression, Jim Powell argues that New Deal economic and regulatory policies were bad for many Americans, especially poor blacks.

Both books offer original and persuasive arguments and engage each other in a number of challenging ways. Ultimately, Powell's case is both more convincing and damning. His evidence reveals that the New Deal threw African Americans out of work, raised the price of food during the depths of the Depression, and granted monopoly bargaining powers to racist unions. In short, Powell writes, "Black people were among the major victims of the New Deal." Such a conclusion doesn't merely reveal FDR's often indifferent attitude toward minorities -- in passing wartime travel restrictions and internment rules on Italian Americans, for instance, he derided them as "a bunch of opera singers" -- it suggests that a thorough, fact-based re-evaluation of FDR's mythic status as a champion of the underdog is long overdue.

McMahon, an associate professor of political science at the State University of New York, Fredonia, attempts a bold rehabilitation of our 32nd president. While FDR is often credited with ameliorating the effects of the Great Depression -- if not actually saving capitalism, as the self-described conservative publishing magnate Conrad Black recently suggested in his hagiographic Franklin Delano Roosevelt: Champion of Freedom -- critics continue to denounce his failure to secure the civil rights of African Americans.

McMahon's novel defense of FDR's race policy is that his creation of a strong executive and deferential judiciary set the institutional foundation for Brown v. Board of Education, the 1954 Supreme Court decision overturning the vile doctrine of "separate but equal." In McMahon's words, the Roosevelt Court was "constructed to be instructed by the executive branch on race."

McMahon makes a good case. Eight of Roosevelt's nine Supreme Court appointees were liberal progressives with New Deal sympathies. Five Roosevelt appointees voted with the majority in Brown. The Civil Rights Section of the Roosevelt Justice Department worked closely with the National Association for the Advancement of Colored People (NAACP) and other civil rights groups on cases dealing with police brutality, lynching, and voting rights abuses. These actions sent a powerful message to white supremacists in the South and their allies in Washington.

But McMahon doesn't satisfactorily address the major case where his model proves grossly inadequate. In Korematsu v. United States (1944), the New Deal Court upheld the Roosevelt administration's wartime internment of Japanese Americans. Korematsu, McMahon writes, "represented one of those rare times when the Roosevelt Court's deference to the executive clashed with the advancement of civil rights and liberties." One wonders why such an outrage deserves the qualifier rare. Doesn't this travesty cast into doubt the whole case for combining an empowered president with a pliant court? McMahon doesn't say.

Instead, he reassures readers that "the decision did not negatively affect the campaign to secure the civil rights of African Americans through the courts." The internment of American citizens was "hardly a victory for civil rights," he grants, then returns to his main focus. But since the New Deal Court did not begin enforcing the Equal Protection Clause in earnest until the late 1940s, the payoff for African Americans was slow in coming.

The most serious question raised by McMahon's thesis, however, concerns the nature of New Deal jurisprudence itself. In 1937, as Roosevelt's crowning legal victory, the Supreme Court overruled Lochner v. New York, the 1905 "bakeshop" case that established liberty of contract among the individual rights protected by the 14th Amendment from state and federal violation.

Writing for the majority in West Coast Hotel Co. v. Parrish, Chief Justice Charles Evans Hughes held that "the Constitution does not speak of freedom of contract." It says only that liberty may not be deprived without due process. And an economic regulation "which is reasonable in relation to its subject and is adopted in the interests of the community," he continued, "is due process." In fact, "even if the wisdom of the policy be regarded as debatable and its effects uncertain, still the legislature is entitled to its judgment." In other words, the Supreme Court should generally presume the constitutionality of laws regulating the economy, as long as they appear "reasonable" and "in the interests of the community." This ruling secured federal and state regulatory power and eliminated the individual right to liberty of contract.

McMahon praises West Coast Hotel, arguing that the triumph of New Deal economics over the Lochner Court's jurisprudence removed an impediment to the civil rights of African Americans. He describes FDR's struggle to "replace a Supreme Court that had consistently restricted liberty" and writes of a "Supreme Court that had consistently endorsed the states' rights creed."

Both of those statements are false. Between 1905 and 1937 the Court upheld numerous state economic regulations, including laws regulating the entry width to coal mines (Booth v. Indiana, 1915) and requirements that railroad workers be paid in cash (Erie R.R. Co. v. Williams, 1914). These pro-regulatory decisions discredit McMahon's breezy assertion that the Court "consistently" endorsed laissez faire. Furthermore, a close reading of several key decisions by the Lochner Court shows that individual liberties were sometimes expanded at the expense of states' rights. Lochner itself explicitly declared the Court's authority to review state economic regulations under the 14th Amendment.

Subsequent rulings built on this precedent. Pierce v. Society of Sisters (1925) invalidated an Oregon law banning private schools. Gitlow v. New York (1925) read the First Amendment, in light of the 14th, as a protection against state restrictions on speech. In Meyer v. Nebraska (1923), a decision invalidating a state law that banned foreign language instruction for children until they reached the eighth grade, the Court offered a sweeping definition of liberty under the 14th Amendment.

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