The Sympathetic State: Disaster Relief and the Origins of the American Welfare State 0226923487, 9780226923482

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The Sympathetic State

The Sympathetic State Disaster Relief and the Origins of the American Welfare State

MICHELE LANDIS DAUBER

The University of Chicago Press Chicago and London

Michele Landis Dauber is professor of law and (by courtesy) sociology, as well as the Bernard D. Bergreen Faculty Scholar at Stanford University. The University of Chicago Press, Chicago 60637 The University of Chicago Press, Ltd., London © 2013 by The University of Chicago All rights reserved. Published 2013. Printed in the United States of America 22 21 20 19 18 17 16 15 14 13

1 2 3 4 5

ISBN-13: 978-0-226-92348-2 (cloth) ISBN-13: 978-0-226-92349-9 (paper) ISBN-13: 978-0-226-92350-5 (e-book) ISBN-10: 0-226-92348-7 (cloth) ISBN-10: 0-226-92349-5 (paper) ISBN-10: 0-226-92350-9 (e-book) Library of Congress Cataloging-in-Publication Data Dauber, Michele Landis, author. The sympathetic state : disaster relief and the origins of the American welfare state / Michele Landis Dauber. pages cm Includes bibliographical references and index. ISBN 978-0-226-92348-2 (cloth : alkaline paper) — ISBN 0-226-92348-7 (cloth : alkaline paper) — ISBN 978-0-226-92349-9 (paperback. : alkaline paper) — ISBN 0-226-92349-5 (paperback : alkaline paper) — ISBN 978-0-226-92350-5 (e-book) — ISBN-0-226-92350-9 (e-book) 1. Economic assistance, Domestic—Law and legislation—United States. 2. Welfare state—United States—History. 3. Disaster relief—Government policy—United States. I. Title. HV91.D348 2013 361.6'50973—dc23 2012013092 This paper meets the requirements of ANSI/NISO Z39.48-1992 (Permanence of Paper).

The mode by which the inevitable comes to pass is effort. —Oliver Wendell Holmes Jr.

CONTENTS

List of Figures and Tables / ix Acknowledgments / xi Dedication: A Human Contrivance / xv INTRODUCTION

ONE

/ Disaster Relief and the Welfare State / 1

/ Building the Sympathetic State / 17 T WO

THREE

FOUR

FIVE

/ Innovations / 35

/ The Spreading Delta / 53

/ Crafting the Depression / 79

/ The Bomb-Proof Power / 127

SIX

/ The Well-Beaten Path / 151

SEVEN

POSTSCRIPT

/ We Lost Our All / 185

/ Living in a Sympathetic State / 225 Appendix / 231 Notes / 259 Bibliography / 321 Index / 341

F I G U R E S A N D TA B L E S

FIGURES 2.1

Disaster relief appropriations from Senate debate over the Blair Bill / 46

3.1

Disaster relief appropriations from Joseph Choate’s Supreme Court brief in United States v. Realty Company / 60

4.1

Migrant Mother / 92

4.2

Relief line waiting for commodities, San Antonio, Texas / 93

4.3

Unemployed men queued outside a Depression soup kitchen opened in Chicago by Al Capone / 93

4.4

San Francisco Social Security office / 94

4.5

White Angel bread line / 95

4.6

Seven a.m. relief lineup on US 99, Arvin, California, April 10, 1940 / 96

4.7

Waiting for relief commodities, Urbana, Ohio / 96

4.8

Untitled Ben Shahn photograph / 97

4.9

Untitled Walker Evans photograph / 97

4.10

Their Blood Is Strong / 98

4.11

Madonna of the Flood / 99

4.12

Nipomo, California, March 1936, migrant agricultural worker’s family / 100

4.13

Sharecropper Bud Fields and his family at home, Hale County, Alabama / 101

4.14

Homer Sharer and family, Estherville, Iowa / 102

4.15

Lily Rogers Fields with children, Hale County, Alabama / 103

4.16

Wife of Homer Sharer and the baby, one of five children, Estherville, Iowa / 104

4.17

“Old age,” near Washington, Pennsylvania / 105

4.18

Tractored out / 105

x / Figures and Tables 4.19

Farmyard covered with floodwaters near Ridgely, Tennessee / 106

4.20

Mother of family camped near a creek bed, panning for gold, near Redding, California / 107

4.21

Grandmother of twenty-two children, from a farm in Oklahoma / 108

7.1

Number of writers mentioning excuses / 205 TA B L E S

7.1

Population distribution by region for 1930 US Census, letter writers in census subset, and all letter writers / 195

7.2

Percent urban dwellers by region for US Census, letter writers in census subset, and all letter writers / 196

7.3

Odds ratios from logistic regression on various excuses / 214–215

A.1

Log odds from logistic regression on various excuses / 238–241

A.2

Odds ratios from logistic regression of gender and age on marital status / 244

A.3

Odds ratios from logistic regression on the making of middle-class arguments and excuses / 246

A.4

Incident-rate ratios from negative binomial model on the number of excuses / 248

A.5

Incident-rate ratios from negative binomial model on the number of excuses for female writers only / 249

A.6

Incident-rate ratios from negative binomial model on the number of excuses for census subset only / 251

A.7

Incident-rate ratios from negative binomial model on the number of excuses controlling for length of letter / 253

A.8

Incident-rate ratios from negative binomial model on the number of excuses controlling for length of letter for female writers only / 254

A.9

Coefficients from linear regression on logged word count / 255

A.10

Coefficients from linear regression on number of excuses per 100 words / 256

AC K N OW L E D G M E N T S

Many individuals and institutions provided support for this project. Art Stinchcombe, at Northwestern University, supplied the crucial intellectual framework, sociological training, and support for this project. He was generous with his time and focused on helping me to develop my interests rather than his. His deep sociological imagination had a profound influence on me and is, I hope, to some degree reflected in this manuscript. Martha Nussbaum also served as a mentor and advisor for this project from its inception, providing excellent detailed advice and feedback that vastly improved this manuscript. Judge Stephen Reinhardt, for whom I had the privilege of clerking in 1998–99, taught me how to appreciate the practical work of legal argumentation, in addition to providing a model of intellectual clarity and commitment to social justice. The list of individuals who have read and commented on drafts over the past several years is too long to recount. Any omission from this list is purely accidental: Bruce Ackerman, Catherine Albiston, Sam Bagenstos, Jack Balkin, Peter Bearman, Derrick Bell, Dorothy Brown, Bruce Carruthers, Ken Dauber, Christine Desan, Mary Dudziak, Richard Epstein, Lauren Edelman, Dan Farber, Noah Feldman, Martha Fineman, Barbara Fried, David Garland, Bryant Garth, Howard Gilman, Risa Goluboff, Robert Gordon, Tom Grey, Ariela Gross, Jacob Hacker, Joel Handler, James Heckman, Carol Heimer, Deborah Hensler, Laura Jensen, Marian Jones, Laura Kalman, Sheila Kaplan, Michael Katz, Mark Kelman, David Kennedy, Michael Klarman, Jane Larson, Gary Lawson, Sanford Levinson, Saul Levmore, Ken Mack, Jerry Mashaw, Tom Miles, Martha Minow, Robert Nelson, Laura Beth Nielsen, Amir Paz-Fuchs, Claire Priest, Robert Rabin, Jack Rakove, Dorothy Roberts, Patrick Roberts, Emily Ryo, Austin Sarat, Dick Scott, Jordan Segall,

xii / Acknowledgments

Michael Shalev, Ronen Shamir, Susan Silbey, Cass Sunstein, Peter Teachout, Sudhir Venkatesh, Elizabeth Warren, Barbara Welke, Harrison White, Keith Whittington, Michael Willrich, and John Witt. I benefited from excellent feedback at many seminars and workshops too numerous to list. Earlier versions of several chapters of this book were presented at Annual Meetings of the Law & Society Association; the American Sociological Association; the American Society for Legal History; the Policy History Conference; the Social Science History Association and the Foundation for Law, Justice, and Society Workshops at Oxford University on Equality and Personal Responsibility in the New Social Contract; and the Social Contract in Hard Times. My two years as a doctoral fellow at the American Bar Foundation provided me with a rich academic environment steeped in the Law & Society tradition. There is no better environment than the ABF for a junior scholar working on interdisciplinary legal studies. Among the many wonderful colleagues I encountered at the ABF I am particularly indebted to Chris Tomlins and Bill Novak for critical feedback and support that helped improve the historical evidence and argument in this book. The dean of Stanford Law School, Larry Kramer, deserves special thanks for his generous support of my research. I also feel very fortunate to have Lawrence Friedman among my colleagues at Stanford. Lawrence provided both substantive feedback and personal encouragement, both of which were essential to the successful completion of this project. My sincere thanks also are due to Erika Wayne, Richard Porter, Alba Holgado, Paul Lomio, and the outstanding research staff at Stanford Law Library. I have been lucky to have had the opportunity at Stanford to work with many first-rate research assistants who have improved this manuscript immeasurably, including Ariceli Campos, Mark Hancock, Songhua Hu, Michael Meuti, and Erin Mohan. Grace Park and Tamar Kricheli-Katz worked on the analysis of the letters to Eleanor Roosevelt. Grace studied the 1930 census and coded the letters for variables found in the census data. Tami assisted me in devising and implementing a coding scheme for the letters and made significant intellectual contributions to chapter 8. The analysis of the letters to Eleanor Roosevelt could not have been written without Tami. Thanks also go to my assistant, Mary Tye, who transcribed all the letters. The dedicated archivists, librarians, and staff at NARA, the Franklin Delano Roosevelt Library, Harvard Law School, the Library of Congress, University of Kentucky Special Collections, Yale University Sterling Library, and the Seeley G. Mudd Manuscript Library have my sincere gratitude for their assistance.

Acknowledgments / xiii

John Tryneski, my editor at the University of Chicago Press, has been insightful, encouraging, and patient as I have completed this manuscript. The staff of the Press has been a genuine pleasure to work with, and their hard work has improved this manuscript. This book was supported in part by a Fellowship from the National Endowment for the Humanities (FA-51428–05). Additional support was provided by a Franklin and Eleanor Roosevelt Institute Beeke-Levy Research Fellowship, an Irvine Foundation Junior Faculty Fellowship, and an American Bar Foundation Doctoral Dissertation Fellowship. Portions of chapters 1–4 were originally published in the following: “Let Me Next Time Be ‘Tried by Fire’: Disaster Relief and the Origins of the American Welfare State, 1789–1874,” Northwestern Law Review 92, no. 3 (1998): 967–1034; “The Sympathetic State,” and “Judicial Review and the Power of the Purse,” Law and History Review 23, no. 2 (2005): 387–442, 451–58; “Fate, Responsibility and ‘Natural’ Disaster Relief: Narrating the American Welfare State,” Law & Society Review 33, no. 2 (1999): 257–318; and “The Real Third Rail of American Politics,” 60–81, in Catastrophe: Law, Politics, and the Humanitarian Impulse, ed. Austin Sarat and Javier Lezaun (Amherst: University of Massachussetts Press, 2009).

A H U M A N C O N T R I VA N C E

In 1933, during the heyday of what we now call legal realism, Jerome Frank had abandoned his faculty appointment at Yale Law School in order to work as a government lawyer. Frank later became a respected judge of the US Court of Appeals for the Second Circuit. But at that time he was—like a lot of the young elite lawyers of his generation—working for the New Deal. In that capacity he gave a speech to the American Association of Law Schools laying out what he saw as the justification for what he called “experimental jurisprudence,” which he preferred to the term “realism.” According to Frank, practitioners of “experimental jurisprudence” viewed doctrine—legal institutions and devices—“as human contrivances to be judged by their every-day human consequences.” Legal principles and doctrines were never to be blindly or slavishly applied when the result would be increased human misery and degradation. In Frank’s view it was not only incorrect as a matter of legal theory and practice but also morally bankrupt for a judge to “adopt a judicial stance that is aloof and indifferent to the ill effects of an adverse conclusion.” Rather, an experimentalist jurist applied his or her creativity and intellect to “deliberately selecting and creating those premises which justified results that they considered desirable.” If today Frank’s views sound outrageously illegitimate and improper (indeed, if we marvel that he was ever confirmed by the Senate with such a seriously damning paper trail), it is further confirmation of the conservative drift in the intellectual, political, and legal economy of this country since 1933. But it is also a much-needed reminder that notions that the legal academy often treats as fixed and timeless, such as jurisprudence, ethics, and constitutional interpretation, are historically contingent practices. Frank was describing what was then a respectable “modern” theory

xvi / A Human Contrivance

of constitutional interpretation and judicial practice. More important for our present purposes, the realist movement was a reaction against a period of mindless and rigid legal formalism. This book is the story of how a determined group of advocates, using their training, connections, and professional judgment, brought Frank’s views from the margins to the mainstream. Today, mired as we are in another period of mindless and rigid legal formalism, Jerome Frank’s humanistic judicial experimentalism is derided as lawless judicial “activism.” And probably no sitting member of the federal judiciary since Earl Warren has been more thoroughly vilified as an illegitimate judicial activist than Ninth Circuit Judge Stephen Reinhardt, for whom I clerked in 1998–99. For more than three decades Judge Reinhardt has applied his considerable intellectual brilliance to using the law as a “human contrivance” to ensure substantive justice and relieve misery. His practice, like that of the lawyers described in the pages that follow, has been to seek out precedents and bind decisions tightly to them in particular cases. His published opinions will serve as an important historical record of judicial resistance against the barbarity of capital punishment, against the abuse of the individual by the police, in favor of free speech and expression, for workplace justice, racial equality, humane immigration policy, and in defense of a compassionate welfare state for the poor and sick. Just as importantly, Judge Reinhardt’s writings will serve as evidence that the ideals of experimental jurisprudence are not dead. The Supreme Court and many lower courts have adopted a heartless proceduralism that is indeed “aloof and indifferent to the ill effects of an adverse conclusion.” Judge Reinhardt’s opinions, many of which express not only his views but also those of his Ninth Circuit colleagues, establish that this new formalism has won an incomplete victory. The lesson I hope we may take from history is that today’s renegade judicial activism is yesterday’s judicial experimentalism, and tomorrow’s respectable judicial practice once again. Such a shift will probably not occur during Judge Reinhardt’s lifetime. But it will certainly occur. This book is dedicated to Judge Reinhardt and to all those who are working, like him, to keep the New Dealers’ “experimental jurisprudence” alive into the next generation.

INTRODUCTION

Disaster Relief and the Welfare State

A Surprising Confidence In 1962 Francis Perkins, Franklin Roosevelt’s secretary of labor, recalled the “Roots of Social Security” for an audience of Social Security Administration staff members. The Committee on Economic Security, which had broad agreement on most issues involved in drafting the Social Security Act, “broke out into a row because the legal problems were so terrible.” According to Perkins, the legal committee had deadlocked in the summer of 1934 over the crucial question of the constitutional basis for federal authority over unemployment and old age insurance. Then, as Perkins told the crowd, she paid a social call on Supreme Court Justice Harlan Fiske Stone’s wife. The justice himself sat down to tea and asked how Perkins was getting on. She seized the opportunity and laid before him the problem that was occupying the committee: Well, you know, we are having big troubles, Mr. Justice, because we don’t know in this draft of the Economic Security Act, which we are working on—we are not quite sure, you know, what will be a wise method of establishing this law. It is a very difficult constitutional problem you know. We are guided by this, that, and the other case. [Justice Stone] looked around to see if anyone was listening. Then he put his hand up like this, confidentially, and he said, “The taxing power, my dear, the taxing power. You can do anything under the taxing power.”1

Perkins returned to work from her encounter with the justice and firmly, though somewhat mysteriously, informed the committee that Social Security and unemployment compensation should be justified as an exercise of

2 / Introduction

congressional power under the taxing and spending clause of the Constitution.2 According to Perkins and her chief legal advisor, Tom Eliot, the entire act was structured around Stone’s admonishment.3 Today, if Perkins’s tale is remembered at all it is as a confession of an overly cozy, if not flat-out improper, relation between the Supreme Court and the Roosevelt administration that in the end saved the infant welfare state from the Four Horsemen, the bloc of conservative justices who seemed set on blocking the New Deal. But we can glean a more interesting insight if we look past the tantalizing image of the whispering Justice Stone and listen to his advice: What was this power under which the federal government could “do anything,” and why was he so confident, in the summer of 1934, that the Supreme Court would ratify a scheme for which its advocates strained to find a constitutional basis? Justice Stone’s assurances of broad federal power should strike us as odd, coming as they did three years before 1937’s “switch in time” forestalled Roosevelt’s court-packing plan.4 It is nearly axiomatic in contemporary legal history that before 1937 federal intervention in the economy was blocked by a narrow interpretation of congressional power under the Constitution, especially during the late nineteenth and early twentieth centuries. In particular, it is commonly believed that before the New Deal the development of a US welfare state was stunted by a strict “Madisonian” view that Congress—under the very clause Stone cited—could appropriate funds only in the service of a specific enumerated power rather than in the “general welfare.”5 In this view, apart from a few specifically defined categories such as Civil War pensions,6 welfare spending was outside the scope of federal authority and fell to states, local governments, and charities. Even worse, the taxing power had been the focus of particular anxiety during the nineteenth century, and had been treated by conservative commentators to a legendarily narrow interpretation in the form of the “public purpose doctrine.”7 To us, then, it may well appear that Justice Stone was pointing Perkins toward not a safe haven but a locked door. This book searches out the source of Justice Stone’s surprising confidence. In fact, he was giving voice to a history that while perhaps unknown today was extremely familiar to the lawyers and politicians of Justice Stone’s generation and before. As we shall see, Stone was by no means alone in his belief that Congress could “do anything” under its power to tax and appropriate. Among those who shared Justice Stone’s view were the lawyers on the Committee on Economic Security (CES) and the academics and law professors advising them. Stone and his contemporaries based their conviction in large part on an expansive tradition of congressional

Introduction / 3

expenditures for the relief of people who had been, in the words of Populist Senator William Allen of Nebraska, when arguing for drought relief in 1895, “overtaken by a great calamity.”8 This tradition had again been the subject of extensive discussion in Congress four years earlier, following another drought that gripped the rural South in the summer of 1930. Declared by Time to be the “worst since the Civil War,” the drought left millions of families in an area spanning twenty-six states facing the coming winter literally barefoot and starving to death.9 In the bituminous coal fields of West Virginia and Kentucky, thousands of miners struck against the greedy brutality of the mine operators and were turned out of their homes with no means of survival. As fall wore on, the urban centers of the North fared little better, entering their second winter of bread lines and soaring unemployment. That winter, the Senate agonized from December to February over whether the federal government would dispense funds to ameliorate the suffering. Insurgent Wisconsin Republican Senator Robert La Follette Jr. led the fight for relief, filling hundreds of pages in the Congressional Record with letters meticulously documenting the plight of the needy. In speech after speech he asked relief opponents to “explain, if he can, what difference it makes to a citizen of the United States if he is homeless, without food or clothing in the dead of winter, whether it is the result of flood, or whether it is due to an economic catastrophe over which he had no control? I see no distinction.”10 President Herbert Hoover and the regular Republican leadership insisted that only state, local, and private funds could lawfully be expended to relieve both the drought and the Depression. Despite Hoover’s efforts to force the Red Cross to dispense private relief, the agency resisted, arguing that unemployment and drought were both outside its mandate because neither was a “natural” disaster.11 According to the agency’s central committee, the drought was caused by bad weather and bad credit, while unemployment was a purely “economic” problem. Only during true natural disasters could “victims of circumstance” be distinguished from those who were “willfully and maliciously” needy.12 The winter dragged on as Congress, Hoover, and the Red Cross stalemated over aid. Hoover’s inaction is consistent with the standard modern scholarly account of this period. The traditional story is that there was no federal relief or redistribution at all before the New Deal because of the twin evils of laissez-faire economic theory and laissez-faire constitutionalism. Revisionist histories of the period have chipped away at this account in several respects. Most prominently, Theda Skocpol has argued that pensions for Civil War veterans constituted a kind of protowelfare state for the general

4 / Introduction

population, and that the extension of pensions from veterans to the general elderly population failed to occur because of elite claims that the pension program was plagued with corruption.13 Other scholarship has focused on the development of various state-level benefits, the reliance on private pensions and insurance, the expansion of communications, and the growth of the federal bureaucracy as prerequisites to the later emergence of the New Deal state.14 However, no accounts have hinted at anything like widespread direct federal relief before the New Deal. This lack of precedent makes the New Deal seem even more wondrous an innovation, springing as it did from the apparently barren soil of the weak, laissez-faire federal state.15 In the standard account, and even in revisionist variants like Skocpol’s, the Great Depression itself was the motive force for the New Deal, acting as a deus ex machina breaking, through its sheer size and scope, the hold of weak and contradictory precedents on policy formation.16 Hoover’s stand against drought and unemployment relief was the last gasp of the Old Order17 before Roosevelt’s New Deal swept both it and a recalcitrant Supreme Court away and restructured federal spending in a “constitutional moment”18 ratifying, in Carl Degler’s view, a “third American revolution.”19 According to this account, the sheer scale of the Depression, and the desperate need it engendered, created a legal and political tidal wave that overwhelmed the obstacles that had previously prevented the development of a modern welfare state on the federal level.20 Attempts to find precursors to the New Deal have turned up only weak efforts that serve largely to confirm its singular quality. Hoover eventually acknowledged as much. Speaking in St. Louis in 1935, he complained bitterly that despite his efforts to “relieve distress which flows from national calamity,” history had rewritten him as a heartless scrooge: “All this was forgotten on March 3, 1933. We may accept that the date of Creation was moved to March 4,” the date of Roosevelt’s inauguration.21 Hoover does appear as a kind of tragic figure, like the last scientist to hold to the phlogiston theory of combustion before the modern oxygen theory swept it away. It is therefore striking that La Follette, in breaking with Hoover, did not demand a rethinking of American institutions as a necessary prerequisite to federal assistance for the needy. Instead, La Follette’s speeches on the Senate floor urged adhering to tradition, not breaking with it: This cry of dole is preposterous . . . we have been told by those speaking for the administration that to appropriate money to relieve distress and suffering in the drought-stricken States would be to violate a great American prin-

Introduction / 5 ciple. If that be true, Mr. President, we began violating that great American principle in 1827, when the policy of appropriating funds from the Federal Treasury for relief purposes was inaugurated . . . in order to assist relieving conditions created by a fire at Alexandria. . . . On the contrary, to refuse to meet this situation by a Federal appropriation is a violation of traditional American policy and is counter to the spirit of generosity which has always actuated the Government of the United States under similar conditions.22

La Follette evidently did not believe that relieving those caught in the dust bowl required a fundamental revamping of American government—not just a New Deal but a new constitutional order. Instead, he talked about tradition and pointed to precedents over a century old. That seems an obvious strategy, in that it is often easier to make a case for continuity rather than radical change. But why was he pointing to an 1827 fire in Alexandria rather than to pensions for Civil War veterans or poor relief? Both La Follette and Justice Stone based their expansive understanding of the possibilities of federal intervention in the economy on the long history of federal relief of disaster, a history with which they were familiar, although it has since become obscure. In fact, federal disaster relief had a longer history than even La Follette realized. As chapter one recounts, direct payments from the federal treasury to relieve “sufferers” actually began nearly forty years earlier than the Alexandria fire of 1827, in 1790.23 These payments began as a series of private bills for the relief of individuals, and gave way by 1822 to general relief bills benefiting a defined class of claimants. By 1827 Congress had already granted more than two dozen claims for relief, encompassing thousands of claimants and millions of dollars, following events such as the Whiskey Rebellion; the slave insurrection in St. Domingo (Haiti); and various fires, floods, and storms. Beginning in 1794, with the relief of distress caused by the Whiskey Rebellion, these funds were most often administered through centralized federal relief bureaucracies appointed by the executive branch, which evaluated applications and distributed benefits according to statutory eligibility criteria. These early appropriations quickly hardened into a set of legislative precedents that were repeatedly invoked both for and against proposed relief measures. In this respect Congress often acted less like a legislature than a court, with members arguing that the government was either constrained or compelled by its prior decisions. Indeed, La Follette’s citation of the history of disaster relief as an authorizing precedent was itself solidly in line with a long history of similar appeals. Concerns among members of Congress about the equitable application of these precedents contributed to

6 / Introduction

the construction of narratives that justified compensating some petitioners while rejecting others. Successful appeals employed a disaster narrative—a particular narrative form in which claimants are afflicted by sudden, unforeseeable events over which they have no control and for which they are morally blameless.24 By the middle of the nineteenth century, seventy years before La Follette rose to his feet in the Senate, disaster relief was soundly established as a nascent federal entitlement program that raised few, if any, constitutional questions.25 Disaster relief in the early nineteenth century cast, in Richard John’s terms, “a long shadow” over future social policy.26 Disaster relief appropriations continued to grow, both in number and in scale, over the course of the century leading up to the New Deal. This expansion was particularly brisk after the Civil War. Chapter one details this history, showing that it occurred during precisely the period that we now associate most closely with the dominance of laissez-faire ideology and the decided lack of any federal welfare state. Significantly, constitutional objections to disaster relief spending were infrequently raised in Congress, and typically were quickly brushed aside as irrelevant in the face of the imperative to respond to blameless suffering. This history of federal disaster relief was attractive to La Follette, and later to New Dealers, for a number of reasons. Most importantly, by the 1930s it represented a century and a half of spending on a wide variety of objects without a single reversal by the Supreme Court. Moreover, it was governed by a strong concern with equity and precedent, and it provided a clear narrative of relief of blameless loss into which the federal response to the economic Depression of the 1930s could be fit. In describing drought and deprivation as disasters like those to which the federal government had long responded, La Follette was trying to shift the burden to those who denied that the federal government had the means and the obligation to step in. As chapter two shows, deference to precedent and the early crystallization of the basic structure of the disaster narrative did not preclude innovation in what counted as a “disaster.” Instead, it defined the hurdles that a claimant had to overcome in order to be compensated as others had been in the past. In particular, a successful disaster story had to identify an entity or event that was wholly outside the control of the would-be victim, yet which was causally linked to an outcome intimately affecting his material condition. The plot structure of the disaster narrative is fixed, but the set of plausible occupants for the roles of “disaster” and “victim” have expanded and contracted over the last two centuries.27 Not surprisingly, politicians

Introduction / 7

advocating various types of federal transfer payments sought to represent them as responses to “disasters” using this template. Chapter two traces these efforts to expand the role of the disaster relief precedent, beginning with its use to authorize the Freedmen’s Bureau in the immediate aftermath of the Civil War through such varied measures as the effort to secure federal aid to education in the 1880, unemployment relief during the Depression of 1893, and federal farm loans during the first decades of the twentieth century. Chapter three explores the role played by disaster relief in the development of constitutional doctrines regarding the powers of Congress during the late nineteenth and early twentieth centuries. Beginning in the 1890s, with the Sugar Bounty Cases, the history of congressional appropriation for disaster relief was repeatedly cited in Supreme Court briefs and opinions and in policy debates as conclusive proof that Congress had virtually unlimited power not only to spend for the general welfare, but also to define what the “general welfare” consisted of. The notion that Congress’s power to tax and appropriate was unconstrained by the enumerated powers, and not subject to judicial review—in Justice Stone’s terms, that it could “do anything”—was by the 1920s widely accepted as settled doctrine. It was taught in major law schools (including at Columbia where Stone had been dean) and political science departments and cited as support for policies as diverse as the McKinley tariff and workmen’s compensation. The few opponents of an unfettered Congressional spending power, notably southern advocates of state’s rights, were increasingly marginalized in discussions about national power in the decades leading up to the New Deal. Chapter four shows how La Follette and later advocates for the New Deal called upon the history of social provision for disaster victims to make an argument that the Depression was a disaster that deserved, even mandated, federal relief, just as the federal government had relieved earlier disasters.28 The Democrats’ indictment of Hoover was not that he was too bound by tradition to respond to the economic disaster before him, but that he refused to take up the tools that were already at hand. A central element in the political mobilization of the New Deal was the disaster narrative writ large: the entire country was the victim of a pervasive disaster, the Depression. La Follette devoted his time on the floor of the Senate to reading hundreds of letters from public officials and businessmen from across the country in order to establish this point, that the economic downturn was both severe and national in scope. This work is perhaps the hardest for us to recover, situated as we are decades after its successful completion. For us, the Depression is a singular

8 / Introduction

event, a disaster with a capital “D” that held the entire country in its grip for a decade. But when La Follette first stood up to argue for drought relief, and again when Roosevelt introduced legislation to relieve unemployment, the Depression had to be conjured up out of disparate local circumstances, fashioned from statistics, reports, and images rather than encountered fully formed. Proponents of the New Deal undertook this task, in media as diverse as political speeches, pictures by photographers such as Dorothea Lange, films by Pare Lorentz, and novels by John Steinbeck.29 Once solidified, the Depression could appear in many arenas, including Congress and the Court, as a national disaster for which, Stanley Reed told the Supreme Court in 1936, it could be “safely assumed” that federal relief was constitutional.30 On the legal front, administration lawyers drew on the precedent of disaster relief in a similar though more focused way to assert that the history of deference to legislative judgments on spending should extend to cover such programs as old age insurance, unemployment compensation, and agricultural price supports. Rather than arguing that the Depression demanded that the Constitution change to accommodate changed circumstances, the New Deal’s lawyers insisted that the Supreme Court need not overrule any existing precedent in order to sustain Roosevelt’s legislative agenda. In chapter five, a close examination of the drafting of the Social Security Act corrects some key misperceptions of this history. It is today generally understood that the Constitution was an impediment to the adoption of a national scheme for unemployment and other forms of social provision during the New Deal. But this view was absent at the time. Instead, all of the lawyers involved in producing the Social Security Act believed that the spending power, based on the precedent of disaster relief, was broad enough in 1934 to permit the government to operate a national system of unemployment insurance. Indeed, legal experts at the time viewed the mixed federal-state programs that were pursued for political reasons as far more constitutionally vulnerable. Chapter six details the New Deal’s legal strategy in defending Social Security and other welfare programs in the courts. The government’s lawyers were largely successful in persuading the Supreme Court that their programs fit comfortably within established precedents and the broad limits of congressional authority to tax and spend in the general welfare. In fact, even when the Roosevelt administration lost key Supreme Court cases, for example when the Agricultural Adjustment Act was struck down in 1936, the court was careful not to base its judgment on limitations to the spend-

Introduction / 9

ing power, choosing instead to treat the offending legislation as impermissible federal interference in the affairs of the states. Representing the Depression as a “disaster” also provided a legal fallback in case the Court decided, despite precedent, to assert the right to review congressional spending in the service of the general welfare. Administration officials and lawyers reasoned that even if the Court did have the right to review Congress’s decisions in this area, the long history of disaster relief provided ample precedent for wide latitude in relieving calamity. They argued that relief of the Depression was solidly in line with earlier measures relieving victims of fires, floods, and hurricanes, measures that were presumably immune from constitutional question by virtue of their frequency and longevity. Roosevelt’s relief captain, Harry Hopkins, brought these strands together in a radio speech in early 1937, just as the Supreme Court was considering the legitimacy of the Social Security Act. The Mississippi River had overflowed its banks in January and nearly a million people were then homeless and living in tent cities throughout the South. As government photographers such as Walker Evans and the documentary filmmaker Pare Lorentz fanned out from Illinois to Arkansas to film the destruction (as well as the government’s benevolent response),31 Hopkins took to the airwaves to argue that “we should consider Government spending in the light of this country’s history, to see whether or not it is something new and revolutionary and frightful, or whether it is entirely traditional and has been going on for a long time.” As examples of “traditional” spending, Hopkins mentioned “direct subsidies” to the sugar industry, and then said: And as for the spending of Federal money to relieve the distress of individuals, there are more than 100 acts or resolutions of Congress dating back to 1803, which provide special subsidies or concessions to help groups of citizens recover from disaster or other circumstances beyond their own control. These policies were not mere official generosity. They were intended to promote the general welfare in accordance with the Constitution.32

These efforts by New Deal proponents to stress continuity over change are at odds with our understanding of the New Deal as a heroic break with a benighted past. The standard history of the American state is one in which the pre–New Deal federal government was hobbled by an activist Supreme Court and an institutional structure increasingly inconsistent with modern reality. But that is winners’ history, following a script that began to be written from the safe harbor of the 1940s, in the main by participants

10 / Introduction

in the administration, such as Perkins and Arthur Schlesinger. Contemporary proponents of the New Deal did not have the luxury of arguing that their proposals required a wholesale rethinking of the American political and constitutional order. In the 1930s only Roosevelt’s opponents, such as John W. Davis and James M. Beck, charged that New Deal social programs had no constitutional precedent. The Roosevelt administration faced the practical, and uncertain, task of passing legislation and then defending it against legal challenge. For this purpose, portraying New Deal legislation as unprecedented, foreign, revolutionary, or requiring a tacit constitutional amendment in order to survive would have been foolhardy at best. It was a far better tactic to represent the New Deal as entirely continuous with the past, and opponents such as Hoover as out of touch with traditional American values, rather than as defenders of them. Describing the Depression as a disaster was at one level a shrewd and largely successful effort to defend the New Deal in court. But it was also, as La Follette’s speech on the Senate floor shows, an attempt to locate relief payments in a moral context that would render them necessary as a required response to victims’ circumstances. There was no more ardent practitioner of this moral argument than Franklin Roosevelt himself, who despite the administrative challenges he faced devoted innumerable hours to a seemingly mundane task: reading his mail. Both FDR and his wife Eleanor made it a regular practice, as frequently as every day, to read a selection of letters sent to them at the White House. They encouraged citizens to write them letters in their radio addresses and magazine columns, and the populace responded with an extraordinary flood of mail.33 One estimate puts the number of letters and telegrams received by the Roosevelts during their fifteen years in the White House at an astonishing 30 million.34 The White House staff sorted and categorized all the mail, producing detailed statistical reports and color-coded maps based on the contents of the letters for the president’s use. The Chicago Daily Tribune called it “the mightiest mail mill ever set up in this capitol city,” set up to discern “the volunteered thought of the people, particularly about employment and relief.”35 At the insistence of his chief political advisor, Louis McHenry Howe, FDR used the flood of letters to the White House as “the most perfect index to the state of mind of the people”—a guide to how ordinary people regarded their situations, the obligations of government, and how effectively Roosevelt was doing his job.36 Several historians, most notably Robert McElvaine, have used letters to the Roosevelts as sources of direct testimony about conditions during the Depression while at the same time noting the prevalence of what might be

Introduction / 11

called “sad stories”—that is, accounts of individual circumstances using the conventions of the disaster narrative, with the writer playing the role of innocent victim of forces beyond his or her own control.37 Chapter seven examines a random sample of letters to Eleanor Roosevelt (whose correspondence from the public has been preserved in a large collection at the FDR Library in Hyde Park). The majority of these writers asked Mrs. Roosevelt for help in the form of money or personal items such as clothing. Rather than treating these letters as unproblematic reflections of reality, this chapter examines them as Louis Howe did: as indicators of the kinds of stories that ordinary people thought would work as compelling appeals for aid. In this sense, the letter writers faced writ small the same problem that New Deal proponents faced: how to fashion a story against the backdrop of an existing moral economy that would constitute a compelling case for aid. That the letter writers overwhelmingly turned to disaster (rather than to other possible accounts, such as need, former military service, citizenship, or political patronage) to bolster their cases for help is powerful evidence of the pervasiveness of disaster as an institutional logic governing redistribution in the American context.

The Disaster Relief Welfare State Let me say one thing right at the outset. There is no disagreement upon the public obligation to relieve distress which flows from national calamity.38 —Herbert Hoover, 1935

If disaster relief, and the “disaster narrative” of blameless loss, is so central to the American welfare state, why have scholars missed its importance? After all, during the Roosevelt administration officials from the president on down gave countless speeches comparing economic conditions to earthquakes and hurricanes, politicians and lawyers cited instances of disaster relief from the previous 150 years, and the government’s lawyers wrote numerous legal briefs reciting the history of disaster relief in defending New Deal spending measures. Could disaster relief have played a rhetorical role in securing passage of legislation and surviving constitutional challenges in the 1930s, but not a practical role in shaping the welfare state that resulted? This question is sharpened by the fact that many Progressive Era and New Deal reformers, including Perkins, had studied European social welfare systems. As the historian Daniel Rodgers points out, the study of international developments by some New Dealers doubtless influenced their

12 / Introduction

proposals for administering US social policy. Despite the likely influence of international models, however, advocates for the New Deal were careful to publicly disclaim any inspiration from foreign sources. Indeed, Rodgers notes that government officials “carefully concealed” Social Security’s social insurance features in a language of “compensation” and “benefits,” a move he attributes to an effort to misdirect the Supreme Court from the true nature of the act. However, he also notes that the Social Security Act ultimately bore little resemblance to a “universal citizenship-based insurance” system, despite what he sees as its drafters’ true intentions.39 Rodgers presents little evidence for the true intentions of the Social Security Act’s drafters.40 It is clear, however, that the political and legal viability of the programs they developed depended on rejecting foreign influence and hewing to the particularly American moral economy of redistribution based on fault. For example, in the last words uttered on the floor of the House prior to the enactment of the initial New Deal unemployment relief bill in 1933, Alabama Representative Henry Steagall, like La Follette and Hopkins, emphatically rejected the suggestion that the New Deal was a dole constructed along European lines: I think the gentleman will agree with me that he and I, at least, are estopped from complaining about anything socialistic in this legislation. There are abundant precedents to support this policy of having the Government supply aid, to supply food and clothing and shelter to relieve citizens in distress. We have done it for people in foreign lands; we have done it in various instances for our own citizens at home. That is all we are doing now. [Applause]41

The central role disaster relief played in the formation of US social policy exemplifies Paul Pierson’s concept of “path-dependence” as a process of “increasing returns” in which “the probability of further steps along the same path increases with each move down that path.”42 The history of disaster relief appropriations and the institutional structures, politics, narratives, legal briefs, and discourses surrounding them created, in Jacob Hacker’s terms, a set of “policy feedbacks” that exerted a continuing influence on the structure and shape of the eventual welfare state that emerged in the 1930s and that continue to echo through contemporary social welfare policy.43 Such theories focus on ways in which the timing and sequence of events, including the talk about those events, play a key role in determining the course of policy development. In this case, a seemingly minor practice in the early Republic came by turns to serve as the precedent for a host of programs during the New Deal.

Introduction / 13

It may be that the best test for the actual relevance of the disaster precedent is the logic of welfare provision itself: How do prospective recipients establish a claim on resources, and what determines the strength of that claim? Scholars have long noted that in the American context, unlike in more egalitarian European systems, the welfare state takes a weak form based on classical liberalism with its reliance on markets. Universalistic criteria such as citizenship, status, and even need may be insufficient to determine eligibility for state benefits.44 Rather, American relief efforts have historically sorted the poor by their relative moral worth, into what scholars have described as a “two-tiered” welfare state.45 But scholars have not fully understood the source and significance of this distinction between the “deserving” and the “undeserving” poor. Generally, the undeserving are thought to be disqualified because they are able-bodied.46 More recently, moral distinctions among the needy have been attributed to gender and race disparities.47 Disaster victims, however, have escaped any serious scrutiny as the ablebodied recipients of large, long-standing federal transfer payments. They have consequently been ignored by this moral and theoretical framework, omitted even when the definition of welfare is expanded to include all government programs that provide cash to citizens, such as Medicare and college loans, as well as indirect subsidies such as the earned income tax credit, deductions for private insurance plans and pension contributions, home mortgage tax deductions, and child care tax credits.48 One of the few exceptions to this inattention, from Frances Piven and Richard Cloward’s classic Regulating the Poor, is notable for its brevity: “federal aid was . . . given in cases of disasters such as floods and drought but not for the disaster of unemployment.”49 Disaster relief has not been a subject of serious inquiry but an ironic trope in the plot development of the “real” welfare state. This distinction between disaster relief and welfare may seem to be solidly grounded in reality. Surely floods and drought are fundamentally different from unemployment, making discussion of welfare as disaster relief at best metaphorical. Floods and drought are acts of Nature, while unemployment has human origins. When New Dealers and their predecessors cited disaster relief precedents as support for measures like the Freedmen’s Bureau, universal public education, and old age pensions, they must have been indulging in hyperbole or just arguing by analogy. Unfortunately for this argument, the boundary between natural and man-made events has proven in practice to be of only secondary importance to decisions about whether to provide disaster relief. Even the first

14 / Introduction

disaster relief measures included both natural and man-made disasters, including relief for victims of the Whiskey Rebellion in western Pennsylvania and for various Indian attacks on white settlers. In establishing claims for disaster relief, Nature is less a gatekeeper than a particularly useful ally in making the case that a loss was beyond the victim’s control to prevent. However, historically there have been many such allies, ranging from war to unemployment to old age, though all have been mobilized in the same way: to show how they constitute a force larger than and outside the control of their victims. Hence the effort devoted by proponents of the New Deal to representing the “Depression” as a national calamity overwhelming the ability of Americans to provide for themselves. Roosevelt himself happily ignored the boundary between Nature and other sources of misfortune, as when he declared in 1936 in the midst of a severe western drought, “we no longer believe that human beings hit by flood, drought, unemployment or any other national disaster” should be left to the care of private charity or state and local governments. Often he would compare the flood or hurricane to the Depression, telling the crowd to take a lesson about the role of the federal government in helping those in need through no fault of their own, as chapter four details. He ran for reelection in 1936 on a platform that explicitly included the right of federal aid to anyone “overtaken by disaster.”50 Even the distinction between natural and “man-made” has been more a site for contest than a clear-cut standard. The Red Cross refused to provide relief for the 1930 drought because it saw the unemployment and financial distress that resulted as a consequence of poor planting practices and reckless use of credit rather than a paucity of rain. Claims for relief of floods and hurricanes have long been subject to criticism that their victims could have foreseen and prevented the damage by avoiding building in areas that had repeatedly suffered similar events. So it is not only possible to have a man-made “disaster,” it is possible to move a “natural” disaster outside the realm of disaster entirely. Given this fluidity, in examining the history of disaster relief and the welfare state, we will do better to observe these contests over the meaning and content of the concept of disaster than to enroll ourselves as partisans on one side or the other of the question of what constitutes a true “disaster.” Money is the driver of these contests: there is a direct relationship in the American context between the ability to represent a loss as blameless and the amount of aid that can be claimed. It is far better when requesting federal funds to be standing hip deep in water than to be standing in an unemployment line. That is not because we have two different logics for re-

Introduction / 15

solving claims on public resources, an openhanded one for disaster victims and a skeptical one for the needy. We have one logic that sorts claimants into more or less generous systems depending on their ability to demonstrate that their deprivation is not their own fault. Sometimes circumstances conspire to enable the same people to move from one state of moral blameworthiness to another, making the moral economy of disaster and relief vividly clear. Hurricane Katrina’s destruction of New Orleans in August 2005 provided an abundance of such jarring moments, as reporters and politicians competed with each other to express outrage over the treatment of the same poor black residents of New Orleans who had been the targets of popular and sustained cuts in welfare and public housing programs. The Bush administration faced a firestorm of criticism over its failure to provide adequate help for storm victims, which it tried to counter by distributing thousands of debit cards loaded with $2,000 in cash and promising to speed other financial help to anyone who needed it. In ordinary times network television news anchors would not have been standing outside of public housing projects in New Orleans castigating the government for a failure of generosity. What changed with Hurricane Katrina was not the people, but their ability to portray themselves as the victims of circumstances beyond their control. In the wake of Katrina commentators wondered whether the hurricane and its aftermath would cure Americans of their acceptance of racial inequality, since it was the poverty of blacks in New Orleans that left them so vulnerable to the hurricane. They lived in the least valuable, lowestlying areas of the city, and many of them lacked the ability to flee in the face of the oncoming storm. But Katrina showed nearly the opposite: that a disaster can temporarily enable even a disadvantaged group to successfully claim large-scale resources while leaving undisturbed their inability to receive help for their chronic condition. The same logic that put $2,000 government-issued debit cards into the hands of poor black residents of New Orleans propelled the success of welfare reform: while they were not responsible for the hurricane, surely they were responsible for their own poverty if they failed to become self-supporting after five years on welfare. President Bush’s mistake was the same one that President Hoover made seventy-five years earlier. The New Deal called Hoover to account for failing to recognize that farmers with barren fields and workers without jobs could be successfully portrayed as victims of circumstances not their own fault, and hence people with powerful claims on the federal treasury. The same state that can be hard-hearted even in the face of great need can be sympathetic in cases of blameless loss, and for exactly the same reasons.

16 / Introduction

Opting for the wrong choice between these options, as Hoover and Bush did, can result in considerable political peril for failing to see the “obvious” imperative, whether that be to dispense or to withhold. Yet knowing whether a particular set of circumstances mandates rejection or relief has always been, over the last two centuries, a question of moral and political judgment, not an exact science. From its earliest days the history of disaster relief—whether relief was ultimately dispensed or not—has been one of claims making and argument.

ONE

Building the Sympathetic State

From the perspective of lawyers and politicians in the 1930s, the history of federal disaster relief was important primarily as a list of precedents for the idea that the federal government had a broad authority to spend in the “general welfare.” It also stood for the proposition that what welfare was “general” was a political question for Congress, and not the courts, to decide. Proponents of the New Deal had little need to tell the fuller story of disaster relief. But a brief review of that history will demonstrate how disaster relief came to occupy the role of key authorizing precedent for New Deal social welfare programs. As this chapter and the next show, the history of disaster relief has been driven by two intertwined logics: appeals to precedent that governed settled practices of federal aid, and efforts to expand the scope of that precedent to cover funding for new eventualities. Requests for government relief of loss began in the earliest days of the American republic. At first, requests came from individual citizens who lacked sufficient resources to pay their debts or taxes.1 Congress handled these requests through the system of private bills introduced for the relief of the petitioner, who would prepare a request in the form of a memorial or petition.2 The earliest private bills for economic distress requested the refund of taxes and duties paid on imported merchandise destroyed or damaged prior to sale. Between 1789 and 1801, there were sixteen such refunds.3 In the few cases where relief was denied, it was primarily because the committee concluded that the petitioner was responsible for his situation, either by his actions or because he ostensibly assumed the risk of a foreseeable loss.4 These early tax remissions quickly gave way to direct federal relief, indemnifications of property loss and damage, and food distribution. Generally, appropriations during this period for those who suffered the loss of

18 / Chapter One

property or class status were uncontroversial, popular, and supported by both Federalists and Republicans. Fear of setting a precedent that might prove, in the words of Republican Representative John Rhea, a lawyer from Green County, Tennessee, “destructive to the resources of the nation” resulted in the denial of some early requests. Rhea and the Committee on Claims recommended against compensation for a New York woman for kidnapping and torture by Indians. Rhea warned that despite the committee’s sympathy, allowing the claim would establish a “principle” that would “make the Government responsible” for many similar cases.5 Nevertheless, the vast majority of claimants who successfully portrayed themselves as the blameless victims of sudden catastrophe obtained federal funds. As with claims for tax relief, the committee thought those denied direct relief generally were responsible for their own hardship in some way.6 Between 1789 and 1825, there was a dramatic shift in patterns of congressional appropriations for relief. While the system of private bills continued through the nineteenth century, it was increasingly eclipsed by general relief bills that appropriated a large amount of money for the benefit of all persons fitting the eligibility criteria set forth in the bill—for example, all the citizens of Alexandria suffering loss in the fire. This new species of request for the benefit of a class of persons first appeared in 1794. Committees reported bills for the relief of entire communities or certain segments of communities—for example, all citizens who lost property during the Revolutionary War,7 or the 1796 remission of distillery duties for those who suffered by the “destruction of fruit” in a drought.8 In this new form of relief, Congress delegated broad administrative authority to commissioners, appointed by Congress and the president, who were charged with investigating applicants and distributing aid. For example, when in 1816 Congress granted charitable relief for losses caused by the War of 1812, it built into the statute a fully elaborated bureaucratic mechanism for the distribution of funds.9 The statute directed President Madison to appoint, with the advice and consent of the Senate, a commissioner for a two-year term at an annual salary of $2,000.10 It granted the office of the relief commissioner a franking privilege, specified the oath of office, and directed him to appoint a clerk. More importantly, the statute directed the relief commissioner to promulgate rules, regulations, and procedures to govern applications, evidence, authentication, and distribution of funds, and to publish those regulations for eight weeks in every newspaper in the country.11 The relief commissioner Madison appointed, Richard Bland Lee, was attacked in Congress for being too liberal in his eligibility determinations,

Building the Sympathetic State / 19

chiefly for approving over half a million dollars in relief for residents of the Niagara frontier. The matter was hotly disputed and a subject of great controversy in Congress and the press. Some members of Congress criticized not only Lee but also the decision to delegate benefit discretion to the executive branch. Although Congress exercised greater oversight, it did not rescind the decision to put determinations in the hands of an independent commissioner.12 Over a century before the New Deal ushered in the “administrative state,” and seventy years before the institution of Civil War pensions, Congress had established a fledgling federal administrative body with authority over national relief distribution.

The Constitution Although there were some early conflicts over the constitutionality of relief, most notably following the Alexandria fire, the permissibility of federal relief for acts of “Providence” was only rarely and half-heartedly revisited by Congress after 1827.13 By the mid-nineteenth century, Congress had passed approximately fifty separate relief bills for such events as grasshopper plagues, Mississippi river floods, and the Civil and Indian Wars. These grants were so uncontroversial that they usually were made by unanimous joint resolution.14 At that point members of Congress turned their attention from whether they could provide relief to whether they should. Over the course of the next century, the Alexandria fire, the Whiskey Rebellion, the St. Domingo revolution, the Caracas earthquake, and hundreds of other grants served as precedents invoked in contested claims for relief. Even at this early stage, disaster relief served as a precedent in debates over other federal spending programs. The most well known such dispute was over the constitutionality of federal spending on internal improvements such as roads. Madison vetoed Congress’s appropriation of funds to construct the Cumberland Road as he left office, a decision that his successor, Monroe, affirmed. Madison argued that the federal government lacked the ability to construct roads, since internal improvements were not an enumerated power under the Constitution. Congress reacted with fury to these decisions and appointed a committee, led by Representative Henry St. George Tucker of Virginia, to investigate the constitutional issues and report back. On December 15, 1817, the committee did so. Tucker, a Republican, had been chief judge of the Virginia Court of Appeals. He rejected the notion that Congress lacked the authority to spend on internal improvements. Tucker located its authority in the General Welfare Clause of the Constitu-

20 / Chapter One

tion, writing in the committee report that “there is, perhaps, no part of the constitution more unlimited than that which relates to the application of the revenues which are to be raised under its authority.”15 Tucker’s report recounted a long list of federal expenditures, including the “liberal donations to the wretched sufferers of Venezuela” following the Caracas earthquake. When Tucker sent his report to Madison, the former president reportedly accused Tucker, along with many other Jeffersonians, of departing from the “ancient doctrine” of strict constructionism.16 In 1822 Monroe vetoed another Cumberland Road appropriation, but he reversed himself on the interpretation of the General Welfare Clause and the question of Congress’s right to pay for road construction. “My idea,” Monroe wrote, was now that “Congress has an unlimited power to raise money and that in its appropriation they have a discretionary power, restricted only by the duty to appropriate it to purposes of common defense and of general, not local, national not state benefit.” Monroe himself now cited the relief of the Caracas earthquake as precedent for federal spending beyond the enumerated powers.17 In addition, the controversy over the Lee Commission and the claims of the Niagara frontier residents had been brewing throughout his entire presidency. It could not have escaped Monroe’s attention that Congress had appropriated several hundred thousand dollars for “charitable” relief for the victims of the War of 1812 without uttering a word about the Constitution.18 This series of events led Joseph Story to include a defense of the broad interpretation of the congressional power over appropriations in his 1833 Commentaries on the Constitution. Like Judge Tucker in the Committee Report on Internal Improvements, Story relied upon the history of disaster relief, including relief for the Caracas earthquake and the St. Domingo refugees, as an example of a necessary function of government that could no longer be fulfilled if the narrow interpretation were to prevail. Story would come to have a recurring role in disaster relief debates in Congress, and relief proponents would quote his view countless times over the next century as an authoritative interpretation of the General Welfare Clause.19

Precedent Beginning in 1794 with the Whiskey Rebellion, every major congressional disaster relief debate showed a Congress both constrained and compelled by the force of its past and its future. It is not surprising that most members of early Congresses addressing relief stated that they felt bound by precedent. Early American legislatures often acted in a quasi-judicial

Building the Sympathetic State / 21

capacity out of confusion surrounding the appropriate legislative role. Although Congress theoretically had unlimited power to alter the common law, it was unsure of its ability to do more than merely articulate a more fundamental natural law.20 As William Nelson noted in his study of legal change in Massachusetts during this same period, adherence to precedent was a nearly inviolate rule. Christine Desan has observed that New York’s colonial assembly engaged in “legislative adjudication,” acting like a court “with jurisdiction over cases concerning the public fisc.” Desan argues that contemporary understandings of a separation of powers between the legislative and judicial branches are inconsistent with patterns of institutional practice in 1789, and that “popular support for a legislative role balancing claims of private right and the uses of public revenue remained high after the Ratification.”21 With respect to disaster relief, it appears that a similar pattern of legislative adjudication continued unabated not just into the ratification but well beyond the point that a more contemporary understanding of the separation of powers was established. The perception of Congress as both legislature and court was so prevalent among the public that many relief petitions were often drafted in the form of legal briefs, complete with tables of prior relief cases, statutes, and evidentiary records.22 Congressional opponents of relief for the Alexandria fire remarked on this incongruity between the theory and method of legislation. Virginia Whig Representative William Archer argued: Precedents operated in judicial tribunals because the object of this judication was to obtain uniformity of decision. In a legislative jurisdiction, they had no binding operation, because the purpose was not so much to fix as to vary decision, till it is supposed to have attained correctness, and even to conform to the perpetual fluctuations of opinion. Precedents, then, were nothing as regarded their authority.23

Nevertheless, concern that all persons receive equal treatment dispensed according to equitable principles pervaded virtually every discussion of relief. Between 1789 and 1836, Congress or congressional committees denied nineteen claims for relief for fear of establishing a precedent.24 In an additional four cases, it was argued that relief should be denied because granting funds would be unfair to other analogous claimants who had previously been denied. Conversely, lists of precedents were also invoked to demand relief for eight petitions that were arguably similar to those previously approved.25 Often opposing sides of the same claim cited precedents. Massachusetts

22 / Chapter One

Federalist Benjamin Goodhue complained about a request for relief due to a fire in 1794: A fire happened lately in Boston, which destroyed perhaps ten or twenty thousand pounds worth of commodities that had paid duties. What kind of business would it be if all these persons were to come forward and make a demand of compensation. . . . Claims of this kind would never have any end.

But Virginian Josiah Parker, also a Federalist, recalled the fact that the House had granted over $10,000 in precisely this sort of relief six months prior, and argued that the claimants “should have the same justice with other petitioners to that House.”26 It was ultimately agreed that the petition would be “treated as others of that nature had been.”27 Fear of setting a precedent was the primary reason for the denial of aid to Savannah, Georgia, following a devastating fire in November 1796. Opponents of the measure argued that approving relief to Savannah would set a precedent that would require Congress to grant relief for any other community experiencing a fire. Federalist Representative William Cooper of New York stated that if Congress “saw the losses that had been sustained at New York, Charleston &c. it would appear only reasonable that, if relief was afforded in one case, it ought to be extended to another.”28 His fellow Federalist from neighboring Connecticut, Joshua Coit, said that he did not object “on constitutional grounds . . . [but because] to agree with the resolution would be laying a dangerous precedent.”29 Most strikingly, long lists of precedents were often marshaled to support requests for relief; the first statements made on the floor of the House in favor of relieving the Savannah fire recited a list of precedents. William Laughton Smith asserted to the House that these cases controlled the decision, leaving Congress no room to refuse. According to the South Carolina Federalist, “the precedents which had been adduced appeared to be no more strongly warranted than this, . . . Another case that occurred to him . . . the recompense allowed to persons who suffered in the Western insurrection. Was that authorized by the Constitution any more than the present?”30 Similar lists of precedents were cited several times during the 1836 debate over relief for white settlers following the Seminole War.31 While some, such as the Jacksonian Amos Lane of Indiana, asserted that it would be “cruel” under the circumstances to “pause for precedents in legislation or to consult the letter of the constitution,”32 others such as the anti-Jacksonian

Building the Sympathetic State / 23

Joseph White, the Florida territorial delegate, cited the Caracas earthquake, an earthquake at New Madrid, Missouri, in 1812, and other “repeated acts of this Government in charity for the visitations of Providence.”33 Lee’s massive outlays for the War of 1812 were cited with particular force by Representative James Harper of Pennsylvania, another anti-Jacksonian: “If a precedent was wanted, if would be found in a vote given yesterday, to pay a man for a barn which was burnt in Virginia, by the enemy, twenty years ago; and could the House hesitate to vote for the relief of these women and children?”34 By the time of the Alexandria fire in 1827, it was clear that many members of Congress, across a broad spectrum of political parties and regions, felt bound by earlier grants. The experience of forty years of relief measures, including the huge sums for the victims of the War of 1812, led advocates of the Alexandria relief bill, such as William Brent of Louisiana (a supporter of the nationalistic policies of John Quincy Adams), to charge that Congress was bound by its earlier actions to grant relief on grounds of equity.35 Opponents, such as House Speaker Andrew Stevenson, continued to question whether Congress should be bound by precedent like a court.36 As relief appropriations continued to proliferate throughout the nineteenth century, debate about the controlling nature of precedent diminished. For example, during debate over relief for an 1836 fire in New York, long lists of precedents for fire relief were read into the record several times.37 As Representative Bellamy Storer of Ohio, an anti-Jacksonian, contended, “the principle has been settled by repeated legislative acts.”38 Opponents focused on distinguishing the New York fire from those Storer listed and analogizing it instead to cases where relief had been denied. But few contended that Congress was not in some respects bound by precedent.39

Fate and Responsibility This legislative preoccupation with reasoning from cases and adhering to precedents critically shaped the substantive terms of the American contest over federal aid, as La Follette recognized when he cited the precedent of the Alexandria fire to justify drought relief a century later. As Congress came to consider itself obligated to entertain—and pay—federal claims for the relief of similar circumstances, the categories defining that similarity became the site of intense contest. The need to fit new claims within a set of precedents required legislators who advocated for relief to describe events in a particular narrative form: sudden, unforeseeable events for which the petitioner was blameless and that caused losses implicating the federal gov-

24 / Chapter One

ernment. Conversely, opponents attempted to distinguish claims along the same dimensions, arguing that this or that claim should be denied because the petitioner was responsible for his own plight. Ultimately, whether or not an event was determined to be a “calamity” deserving of federal intervention turned upon the ability of the claimants and their advocates to argue that they, like those who had previously received aid, were innocent victims of fate rather than irresponsible protagonists in their own misery. One of the earliest relief debates, for losses arising out of the Whiskey Rebellion, centered on this question. Because nearly everyone in western Pennsylvania vehemently hated the federal government and its excise tax, thousands rioted and many members of Congress resisted granting any relief on the principle that it would be impossible to find anyone who was innocent of wrongdoing.40 President Washington recommended compensation for all those who lost property in the riots, and a House Select Committee concurred, but some members of Congress, including some administration allies such as Thomas Boudinot of New Jersey, opposed the move as a dangerous precedent.41 Even if it was somehow possible to identify those who had supported the government during the riots, opponents such as Thomas Carnes of Georgia argued that it was difficult to see how they might be distinguished from others who had been denied relief following similar losses, such as the settlers in his state who had been decimated in struggles with Creek Indians.42 Supporters of the Pennsylvanians, such as Massachusetts Federalist Samuel Dexter, responded by asserting a difference in the relative moral fault of the actors for their own losses. He argued that the Georgia settlers had assumed the risk of loss by “‘plac[ing] themselves in a place of danger knowingly.’ The Creeks were an open enemy, but the insurgents an unexpected one.”43 Although relief for the Whiskey Rebellion was ultimately granted, it followed a month of bitter argument about principles of fairness to others who Congress had previously rebuffed or ignored. Eventually Congress made an open-ended appropriation for the president to dispense funds to those who had remained loyal and were in need of “immediate assistance.”44 Relative fault was also invoked in early relief debates by pointing to foreseeability, a notion then coming into vogue in common law tort litigation.45 As in early negligence court cases, those who failed to persuade Congress that they could not guard against their losses did not obtain relief. Often in this category in eighteenth- and nineteenth-century debates were losses attributed to the workings of the market, either for unemploy-

Building the Sympathetic State / 25

ment or business failure. For instance, in 1840 the Committee on Claims reported against the petition of Martha Bailey, a widow who applied for relief based on the fact that her late husband had not earned the expected profit from his contract to provide army rations due to a federal tax that raised the price of whiskey. Ohio Whig Joshua Giddings dismissively argued against the claim because “the entire risk of loss and hope of gain were taken by the contractor.”46 According to Giddings, any competent businessman would take into account the foreseeable risk of price fluctuations. Mrs. Bailey’s need was irrelevant to determining that she was ineligible for relief, just as it would have been had she been able to successfully argue that her loss was not her fault.

Expansion The pace of disaster relief declined somewhat in the twenty years immediately preceding the Civil War, which saw relatively few appropriations.47 According to some commentators, this falling off was due to fears within the dominant Democratic Party that extension of federal power would incite secessionist sentiments and split the party.48 This fear briefly overcame both the logrolling logic of federal appropriations—after all, trading votes was premised on the political order persisting long enough to collect favors in return—and the moral logic of blameless victimization. That reticence lasted until 1865, when the massive Freedmen’s Bureau relief effort threw the door to federal aid wide open again. Between 1860 and 1930 there were more than ninety separate relief measures for various fires, floods, droughts, and famines,49 compared with approximately half as many similar grants from 1790 to 1860.50 Some of these were quite large, such as the millions expended by the Freedmen’s Bureau for southern relief following the Civil War, or the similar sums for victims of repeated Mississippi River floods.51 Others were relatively small, for example, $10,000 for emergency food and transportation following a flood of the Rio Grande in 1897.52 During the same period, Congress rejected only a handful of proposals and only two were vetoed by the executive: President Johnson vetoed the first Freedmen’s Bureau extension bill in February 186653 (a subsequent effort passed a few months later over his veto,54) and President Grover Cleveland vetoed an appropriation for Texas drought relief in 1887.55 This tradition of federal aid was well known to the public, and there was extensive press coverage of congressional debates56 as well as numerous editorials in favor of the practice, such as an 1897

26 / Chapter One

demand by the New York Daily Tribune for “the prompt benefaction of the Federal Government” following a Mississippi River flood.57 Historians and legal scholars generally see the period from the 1860s through the Progressive period in the early twentieth century as a time of sharp limitations by the Supreme Court on the extent of national power. Yet disaster relief, unchecked by any legal or constitutional limitation, expanded dramatically during this time.58 This surprising fact about the history of welfare state development even during the so-called Lochner era will at first strike contemporary audiences as odd and possibly even wrong.59 It is an article of faith in contemporary legal historiography that prior to 1937 federal intervention in the economy was proscribed by laissez-faire constitutionalism if not by a general commitment to laissez-faire ideology in Congress and American society. In this view, apart from a few narrowly circumscribed categories such as Civil War pensions, welfare spending was outside the scope of federal authority and fell to states, local governments, and charities. During this period, conservative legal commentators insisted on an extremely narrow interpretation of the taxing power, which provided the constitutional basis for Congress’s forays into relief. This narrow interpretation came to be called the “public purpose doctrine,” and it was applied with particular force against state and local taxation.60 Modern readers, schooled in the history of the Lochner era, and the New Deal “switch in time” that ended it, may find the notion of an expanding national welfare state, undisturbed by the courts—indeed, universally viewed as beyond the purview of the courts—during this period to be simply fantastic. Yet the practice surrounding disaster relief grants in the late nineteenth and early twentieth centuries was strikingly similar to that of the first half of the nineteenth century—concerned with precedent, couched in a language of moral blame and obligation, and largely uninhibited by constitutional objections. This was so despite the political and ideological currents that might have been expected to derail the practice, such as the distaste for “paternalism” that Idaho Republican William Borah attempted to counter on behalf of the South’s cotton farmers in 1914. “The cry of paternalism should not deter us from the discharge of a plain duty of government in case of great emergencies,” he argued. According to Borah, the crash of the cotton market should be treated like other, previous disasters. “It is not paternalism,” he intoned, “to protect the people against the scourges of yellow fever, against the calamities and sufferings of earthquakes and great fires.”61 By the late nineteenth century, the power of the disaster relief precedent was such that even new questions, such as the entitlement of African Americans to relief funds, were assimilated into the moral logic of fate and

Building the Sympathetic State / 27

fault. Indeed, the most significant change was not the political or moral bases of relief, but a dramatic increase in both the frequency of appropriation and the amount granted in particular cases. The use of precedent as a powerful argument both for and against the enactment of particular measures persisted in the post–Civil War period, now strengthened by the addition of numerous new cases. The Texas drought relief bill Cleveland vetoed in 1887 is a case in point. Texas Democratic Senator Richard Coke, the sponsor of the bill, argued that although his wealthy state did not need the aid and would make its own provisions for the drought sufferers, it was entitled to receive the federal largess because money is expended here every year for the relief of people in different parts of the United States. Money was expended for the relief of the people of the great State of Ohio when they suffered from floods. There is not a session of Congress that money for the relief of people somewhere in the United States is not expended. We ask no departure from any precedents established by the Government . . . we are not asking [for anything] except for that which has always been freely granted to others having no greater rights or equities than ourselves.62

Coke vigorously denied Connecticut Republican Joseph Hawley’s snide comment that Texas was “pass[ing] the hat.”63 Instead, according to Coke “we ask no charity from Congress, we ask no aid from the National Government. We only ask to be treated as the people of other States are treated. Justice, not charity, is what we ask.”64 Coke’s fellow Democrat, Senator Eli Saulsbury of Delaware, disagreed about the force of the precedents in arguing against relief for the droughtstricken Texans. In Saulsbury’s view, the entire practice was unlawful, and the long line of precedents was “the very strongest argument which could be made against this appropriation of money. We see what we are coming to. Year after year, applications come up here from some section of the country for donations of money out of the public Treasury. We ought at once to put our foot down upon such proceedings.”65 Republican Henry Teller of Colorado, a former interior secretary during the Arthur administration, approved the prior precedents in cases of “great misfortune” but argued that this case would set a dangerous precedent because the drought only affected a small corner of a large, rich state, and there was no sudden emergency. “If you furnish seed to them,” he warned, “you will be called upon to furnish them to hundreds of others.”66 Most senators conceded the importance of the precedents but echoed

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Teller’s skepticism about the existence of a disaster sufficient to trigger their operation. Prior grants had been for such things as floods affecting utterly destitute freedmen who were unlikely to be aided by southern legislatures, or for other sudden catastrophes in which the victims were unable to help themselves. By contrast, Republican George Edmunds of Vermont pointed out that the Texas drought was not a sudden emergency but had happened several months before. People would receive aid from the state legislature and would be able to obtain seeds from their neighbors.67 Other senators said that they were troubled by the fact that the bill’s own sponsor denied the need for the funds, and indeed, denied the constitutionality of federal aid in general. Although the bill passed, it may be that the weakness of support for the claim contributed to Cleveland’s decision to veto it, given its poor prospects for passing over his objection.68 The importance of legislative precedents in congressional relief determinations highlights the fact that members of Congress were nearly always lawyers, often quite highly skilled ones. As lawyers (rather than merely party members or politicians) they tended to characterize situations as cases, reason analogically, and argue in favor of adherence to precedents under a theory of “equal justice” for similarly situated persons.69 They were particularly unlikely to ignore or dismiss as irrelevant arguments about the way Congress had treated similar claims in the past, even though they were in theory entitled to do so. As Republican Senator John Henderson of Missouri pointed out in connection with an 1866 proposal for relief for the victims of a fire in Portland, Maine, “it will not do to say to any lawyer that he must not rely on precedents. I apprehend that we all rely on them to a great extent.”70 Eventually, claimants (including advocates for unemployment relief during the 1930s) were able to persuasively contend that these precedents were so numerous and consistent that they created an entitlement to federal relief for certain sorts of losses—those beyond the claimants’ fault. As the Texas drought relief debate illustrates, the disaster narrative remained a crucial part of the process of claiming federal relief after the Civil War. Claimants were repeatedly described as deserving because they were needy through no fault of their own. Conversely, opponents argued that claimants had no one to blame but themselves for their problems and were thus not entitled to relief. In a typical example, Democratic Representative Daniel Garrett of Texas argued in favor of the $20 million 1921 Russian famine relief bill because “if I must decide as to whether or not I shall vote yea or nea in the matter of saving starving mothers and children by the thousands and tens of thousands in stricken Russia and Armenia who are

Building the Sympathetic State / 29

not in any way responsible either for their own sad condition or that of their government, I shall vote for the perishing women and children and take the consequences.”71 In opposition, fellow southern Democrat John Shields of Tennessee argued to the Senate that “if Russia is in trouble . . . it grows out of the people’s own fault, and out of their own idleness.”72 Sifting the responsibility of the needy was the chief way of distinguishing a “disaster” deserving of relief from other sorts of needs. Thus New Jersey Democratic Senator John McPherson responded to Populist Senators “Silver” Dick Stewart and William Peffer, who sought aid for the unemployed in the Depression of 1893, by distinguishing them from the unemployed of the South Carolina Sea Islands. McPherson supported aid for the Sea Islanders, whose factories were destroyed by cyclone, because they “are not responsible or to blame for what has overtaken them.”73 Indeed, ensuring that those who had caused their own problems were excluded from receiving government assistance was described by a number of congressmen as an essential feature of public, as opposed to private, charity.74 On this basis Ohio Republican William Lawrence (who was something of a constitutional scholar and had declined an appointment to federal court in Florida in order to serve in the Union Army), objected to the extension of Freedmen’s Bureau relief efforts to include former rebels whose betrayal of the Union had, in his view, caused the a widespread famine. Perhaps in the context of private philanthropy such distinctions would not be proper, he acknowledged, but “as the custodians of the public Treasury . . . we should be just as well as generous.”75 As before the Civil War, the constitutionality of disaster relief was rarely questioned during congressional debates. Indeed, relief advocates often mentioned the lack of controversy as evidence that the question had long been settled, as when Georgia Democrat James Blount reminded the House during debate of an 1884 Ohio River flood relief bill that “without one word of criticism in reference to the Constitution, without any expression save that of a great humanity” half a million dollars had been voted in relief following the yellow fever epidemics on the Gulf Coast.76 Although some members continued to express constitutional doubts, they were generally quite half-hearted, and resoundingly rejected.77 When congressmen bothered to respond to constitutional objections at all they argued that past Congresses had repeatedly given a liberal interpretation to the power to tax and appropriate in the general welfare.78 Occasionally, hoary standards like Madison’s vote in favor of the St. Domingo relief bill79 or the approving discussion of disaster relief in Story’s Commentaries80 were recounted. More often, proponents recited a long

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string of precedents to establish the lawfulness of the practice. In a typical example, during House debate over a Mississippi River flood relief bill in 1884, Louisiana Democrat Carleton Hunt offered—even though there had been no constitutional challenge—that “this appropriation is plainly warranted by the terms of the Constitution.” The former dean of the Louisiana Law School (now Tulane) then read aloud the General Welfare Clause, expounded at some length upon the meaning of the power, quoted Story, and concluded that Congress could spend in the furtherance of the general welfare and not just for enumerated powers.81 His fellow Louisiana Democrat, Ezekiel Ellis, also a lawyer, stood to cite the 1812 Caracas earthquake and 1847 Irish potato famine relief bills, and to inform the House that such figures as Nathaniel Macon (“the stringent and severe Democrat, the strict constructionist”), Calhoun, Breckenridge, and others had voted for them, and that Madison himself had signed the Caracas resolution.82 Tennessee Republican Barbour Lewis took the floor to state impatiently that he had “no disposition whatever to discuss the constitutional phases of this question. It is sufficient to state in this connection that in the history of this government a great many precedents have been established whereby such an appropriation . . . can be and in my judgment ought to be justified in the mind of every member of this House.”83 Similarly, Missouri Republican Senator John Henderson argued in favor of the Portland fire relief bill of 1866 that “if I can find that past Congresses have exercised the power and that the present Congress has exercised a similar power, I shall not hesitate when these poor people are calling . . . the interpretations of the Constitution made by past Congresses add much force to the arguments that may be made in favor of the proposition before us.”84 As Texas Democrat John Reagan put it during an 1884 Mississippi River flood relief debate in the House, “we have a long line of precedents which have met the approbation of the most illustrious minds of the past, and we know that if we shall do what we are now asked to do we do not violate the Constitution.”85 In addition to agreeing that Congress could spend for disaster relief because it was in the general welfare, senators and congressmen frequently pointed out that determining the general welfare was Congress’s exclusive province. As the powerful Appropriations Committee chair and future House Speaker Joseph Cannon argued in supporting relief following a flood on the Rio Grande in 1897: “In matters of this kind, involving the appropriation of money, Congress has unlimited power.” According to the Illinois Republican, “Gentlemen on one side or the other may say that measures of this kind violate the Constitution; yet when we make an ap-

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propriation we are the judges of the propriety of the appropriation, and there is no power to withhold the money when once appropriated.”86 Although “Uncle Joe” Cannon’s assertion that under the Constitution it was for Congress alone to “judge . . . the propriety of the appropriation” may sound to modern readers as so far afield that it must have been unusual, in fact, it was a widely shared and oft-repeated interpretation of congressional power to tax and spend. In another example, Former House Speaker Joseph Keifer, an Ohio Republican, reminded the House during discussion of a joint resolution appropriating $125,000 for victims of Mississippi River floods in 1884 that “the General Government has throughout its history selected extraordinary cases for granting relief. Where we shall stop, where the boundary line is, must always rest within the discretion of Congress.”87 In the view of the vast majority of members of Congress who spoke on the subject, if those judgments were subject to any review it was only by the electorate, and not the courts. The sole sign of any anxiety in Congress regarding judicial review of disaster relief appropriations was the bare suggestion by South Carolina Democrat John McSwain at the end of the House debate over the 1921 Russian famine relief bill that the recent advent of the (now-constitutionally permissible) income tax might cause citizens to “appear in the Supreme Court to enjoin the disbursement of this money on the ground that Congress has exceeded its constitutional power.”88 But a chorus of senators, led by Republican Reed Smoot of Utah, proclaimed that even if the measure were unconstitutional (which they did not concede), they would gladly vote their sympathies and then throw themselves on the mercy of the “American people [who] from one end of the land to the other will say that Congress did the proper and right thing.”89 In the same vein, Republican Samuel Randall of Massachusetts declared that he supported opening the relief operations of the Freedmen’s Bureau to “suffering and starving” whites, particularly women and children, regardless of any prior disloyalty. “I shall not be ashamed to look [my constituents] in the face and say that in voting this appropriation I did it from the impulses of humanity and I venture that with one voice they will say to me ‘well done good and faithful servant.’”90 The notion that the people were the ultimate judge of the legitimacy of appropriations decisions91 led congressmen to present evidence of popular opinion in speeches to support or attack particular measures. In one particularly vivid example, Nebraska Populist Senator William Allen read editorials from the Omaha Bee harshly critical of the Senate’s decision a few days earlier to refuse $300,000 in drought relief to his parched state in the win-

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ter of 1895: “The rejection of the amendment to the agricultural appropriation bill . . . means that Nebraska need expect no Federal aid in caring for her drought sufferers. Senator Allen’s proposition was perfectly legitimate, and its adoption by Congress would have elicited only approval from the great mass of the people from whom the Federal Government really derives its revenue. There have been numerous precedents in its favor.”92 The amendment was resubmitted and promptly passed with a 31–17 vote.93 Relief proponents facing the rare legislator who was determined to make a constitutional objection often responded that the claim of the innocent victim to government assistance was so compelling that it trumped such pedestrian concerns.94 This drove some to articulate a theory of the state based upon compassion and charity. As a frustrated Lyman Trumbull, chairman of the Senate Judiciary Committee, declared in heated debate over the 1866 extension of the Freedmen’s Bureau, “If you want to know where the constitutional power to do this is, and where the law is, I answer it is in that common humanity that belongs to every man fit to bear the name, and it is in that power that belongs to us as a Christian nation.”95 Other legislators similarly found a kind of extraconstitutional governmental authority in the very necessity of the circumstances, the law of civilized nations, principles of sovereignty, and the ideals of Christian charity. A constitution that would bar such desperately needed relief, according to Iowa Republican Representative Josiah Grinnell, “is not worthy to be our great charter.”96 Moreover, legislators frequently contended that the exigencies of the current catastrophe swamped their own constitutional objections.97 For example, in an 1884 House debate over a proposal for $300,000 in aid after a devastating Ohio River flood, Republicans who were angry over Democratic opposition to the Blair Education Bill taunted Democrats seeking the flood relief by demanding that they articulate a constitutional basis for the measure. Ohio Democratic Representative John Follett tartly replied, to laughter and applause from the Republicans, that “necessity knows neither law nor constitution, and never did in this country.”98 Fellow Ohioan Adoniram Warner told the packed chamber that “mingled with the appeals that come to us for help are the cries of children and the petitions for women homeless, shelterless, hungry; and in this presence I cannot stop to argue literal construction of the Constitution. I will take the side of mercy and risk it on that.”99 Isaac Jordan, also of Ohio, was even more blunt: “I do not know whether this bill is constitutional or not. We have not time to enter into a discussion of this question. While we would stand here debating it the floods would not abate and the people would perish.”100

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Nevertheless, Colorado Republican James Belford was gleeful at hoisting the Democrats on their own petard. Amid Democratic cries of “Vote! Vote!” the former Colorado Supreme Court justice joined in mocking the Democrats to laughter and applause from the Republican side: Talk about Constitution! Talk about laws! Humanity is greater than any constitution which was ever formulated by any people. It is humanity for which constitutions are enacted and laws are made. And Paul put it right when he said the greatest of all the virtues is charity, either in the individual or the nation. Talk about state rights in a matter in the cloudy presence of a constantly accumulating calamity! Suppose my friend from Connecticut had lived in the days of Noah . . . I suppose he would have referred that drowning crowd to the city council of Nineveh . . . Now in the name of Heaven—not in the name of the Constitution, but in the name of that sweet broad rainbowrobed charity which would make us better and brighter and more generous men—let us make this appropriation. [Applause]101

In response, Texas Democrat John Reagan lamely attempted to distinguish disaster relief for the innocent victims “who may be dying now for the want of it,” from legislation, like the Freedmen’s Bureau and the Blair Bill, that “trenches upon the powers and rights of the States and upon the liberties and securities of the people.”102 In the former case, the Democrats were in agreement that a higher law of mercy was applicable even if “it might be difficult to point to a precise warrant in the Constitution” for relief.103 Despite the Republican needling of the Democratic proponents of states’ rights, in truth the Republicans agreed with Democratic relief proponents that disaster appropriations were clearly in the general welfare,104 and the bill passed overwhelmingly.105 The evidence presented in this chapter of the long history of government assistance to the sympathetic victims of forces beyond their control calls into question our understanding of just what is exceptional about “American exceptionalism.”106 Scholars and political observers have long focused on explaining “the stark underdevelopment of the U.S. welfare state,” relative to its European counterparts.107 Usually these explanations are made with reference to ideological, political, and institutional factors that combined to create the stunted and stingy American state.108 The evidence recounted here suggests a somewhat different account. Rather than a state defined by rugged individualism or the free play of market forces, we can glimpse instead the emergence of a state based on a deeply popular and settled practice of redistribution to those in need

34 / Chapter One

“through no fault of their own.” This system of redistribution was supported by both parties and all sections of the country and quickly gathered steam throughout the late nineteenth and early twentieth centuries. As the next chapter shows, this history of federal disaster relief was repeatedly held up by advocates of expanded national power as the basis for a number of attempts, mostly abortive, to launch a more thoroughgoing welfare state during the years leading up to the New Deal. Although largely unsuccessful, these efforts set the stage for the more effective use of the disaster precedents in support of the New Deal.

T WO

Innovations

From the first private bills for relief of distress in the late eighteenth century, every successful claim enhanced the appeal of disaster relief as a precedent for those seeking federal funds. Some losses fit comfortably within the scope of earlier precedents, so that sufferers from earthquakes, fires, and floods had a relatively straightforward path to compensation. But as noted in the introduction, the boundary between disaster and fault, between blamelessness and blame, is indeterminate and contestable. Advocates in Congress and the press could shove events across the line in either direction, given sufficient political will and rhetorical skill. The nineteenth and early twentieth centuries saw a series of such efforts to draw the circle of disaster more broadly than in the past. Advocates cited disaster relief precedents in support of relief for the victims of certain calamities for whom aid was desirable, if not seen as automatically warranted, by past examples. The first such effort involved the Freedmen’s Bureau, initially justified under the War Power and then, after the cessation of hostilities, as a response to the disaster that had befallen black, and even some white, southerners. The last began with Wisconsin Senator Robert M. La Follette Jr.’s response to drought conditions in the winter of 1930, and served as the vanguard of the effort to cast mass unemployment as a disaster on a national scale in the 1930s.1

The Freedmen’s Bureau No approximately correct history of civilization can ever be written which does not throw out in bold relief, as one of the great landmarks of political and social progress, the organization and administration of the Freedmen’s Bureau. —W. E. B. Du Bois2

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On February 5, 1866, Massachusetts Representative Thomas Dawes Eliot, chairman of the committee on freedmen’s affairs, stood on the floor of the House to defend a bill extending the life of the Freedmen’s Bureau. The bill’s opponents argued that the agency was unconstitutional. Eliot sarcastically replied that “this would be a marvelous misfortune if true, and would prove that our Constitution, ordained to promote the general welfare and secure the blessings of liberty, had not within itself the power to do its work.”3 Over in the Senate, former treasury secretary William Fessenden sounded a similar theme, asserting that “we have the power to appropriate money; and though we do not find a specific power to appropriate money for this particular purpose; it is yet an object of government, a thing that the government and country must provide for and there is no other way of doing it.”4 Fessenden and Eliot both argued that Congress was not restricted to spending only in the service of enumerated powers; it was clearly in the general welfare to relieve the widespread starvation and social dislocation that followed in the war’s train: “Will you make no appropriations for the benefit of these people; not only the colored people who have thus been thrown upon the world but the refugees who have been driven by the war from their states, out of their possessions and reduced to poverty and misery?” Fessenden demanded. “All the world would cry shame upon us if we did not.”5 To Eliot and Fessenden, the provision of the Constitution empowering Congress to appropriate for the general welfare was plainly intended to permit it to meet just such an unforeseen crisis.6 The Freedmen’s Bureau was the mechanism by which they proposed to do it. Inaugurated in March 1865, it was located administratively within the War Department and was charged with control of all freedmen and abandoned lands in the rebel states during the war and for a period of one year afterward. It was originally intended to address the problem of “contraband”—runaway or abandoned slaves who crossed Union lines by the hundreds of thousands and swarmed behind the Union troop movements in search of food, work, and safety—by providing relief and by leasing abandoned farm lands to the former slaves.7 After the war’s end it took on a number of ambitious projects, some more successful than others, including land reform, implementing a system of free labor, constructing social institutions such as courts, hospitals, and schools for blacks, punishing violations of the freedmen’s civil rights, and providing relief.8 It would be impossible to overstate the scale of the destitution in the South following the war, when, in Du Bois’s words, “all the Southern land was awakening as from some wild dream to poverty and social revolution.”9

Innovations / 37

Relief was thus the most important first task of the bureau: “to subsist the many thousands of unemployed while work was being found for them.”10 The Freedmen’s Bureau Act had specifically provided that the commissioner (General Oliver O. Howard was appointed shortly after the act’s passage) may “direct such issues of provisions, clothing, and fuel, as he may deem needful for the immediate and temporary shelter and supply of destitute and suffering refugees and freedmen and their wives and children, under such rules and regulations as he may direct.”11 In order to carry out the enormous job of relieving the millions of impoverished southerners, to say nothing of the other operations of the bureau, Howard created an elaborate bureaucratic structure, with headquarters in the nation’s capital.12 Under this system, there was a quartermaster general in Washington, and most states had a disbursing officer, quartermaster general, and chief of commissary. Each state was divided into districts, headed by a subassistant commissioner, and the districts were often divided into subdistricts with an officer and an agent. Howard published extensive regulations in numerous “Circulars” and also issued an operations manual governing the actions of all agents.13 By midsummer 1865, Howard had obtained commissary stores for “rations” and promulgated regulations governing eligibility screening and distribution.14 In most states bureau agents issued monthly ration “tickets” to recipients who met prescribed eligibility requirements.15 In August of 1865 the bureau was issuing 148,000 rations every day; at the end of the year, it was still supplying fifty thousand people per day.16 The bureau’s relief operations were quickly attacked from all sides. Clinton Fisk, assistant commissioner for Kentucky and Tennessee, complained that rebels were “swindling” the bureau by pretending to be loyal refugees, while the southern press excoriated it as a “bureau of charity” for giving free food, clothing, and other benefits to the black laborers who, they alleged, would not work if they could obtain government relief.17 Howard himself was ambivalent toward relief. Although he expressed sympathy for the conditions of the people, he also worried about “pauperizing” the freedmen and ordered that rations be cut on a number of occasions in order to induce the freedmen to accept labor contracts at low prices.18 In August 1865 Howard halted government relief to all whites who were not, strictly speaking, refugees.19 A month later he directed agents to “carefully investigate the matter of issues of Rations to Refugees and Freedmen and order their discontinuance whenever in their judgment such issues can be dispensed with.”20 After October 1865 Howard decreed that relief was to be strictly limited to cases of extreme suffering.21

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This retrenchment proved impossible to maintain in the face of widespread starvation in the winter of 1865/66. Many bureau agents continued to distribute rations even after Howard’s orders to stop, particularly following a string of floods and storms in the spring of 1866.22 Although aid was reduced, as Paul Pierce notes, “in many states it was deemed impracticable and inhumane to give the order full force.”23 In the first fifteen months of its operation, the bureau distributed approximately 13 million rations, two-thirds of which went to freedmen.24 Howard estimated the cost of the food, clothing, and medical supplies the bureau distributed during this period at over $2 million.25 In addition, the bureau provided free transportation (either to find work or to return home) to nearly ten thousand people during the same period.26 As noted above, in the original legislation Congress had provided that the bureau would operate during the war and “for one year thereafter.”27 The bureau’s relief programs were intended to be temporary emergency measures remaining in operation only until the state governments were reestablished, solvent, and able to assume the care of the poor, now including poor freedmen.28 Howard was particularly keen to turn poor relief over to local authorities; however, this proved impossible.29 Bureau agents reported that there would be widespread famine without federal intervention.30 Northern Freedmen’s Aid societies demanded that Congress extend the life of the bureau, and Howard sent a request to Congress for an appropriation of $11 million for the coming year.31 The task of extending the life and resources of the bureau fell to the moderate Republican faction led by Lyman Trumbull and William Fessenden in the Senate, and John Bingham in the House. The radicals, led by Thaddeus Stephens in the House and Charles Sumner in the Senate, had lost control of the thirty-ninth Congress when they forced the issue of black suffrage. According to Eric Foner, the moderates did not share the radical vision of the Civil War as a “golden opportunity” for consolidating and extending the power of the national government or ensuring the political equality of the freedmen.32 Instead, they sought to carry out Reconstruction, while preserving insofar as possible traditional principles of federalism.33 Still the bureau extension bill they proposed was far-reaching. Trumbull, the chair of the Judiciary Committee and a lawyer who had drafted both the Thirteenth Amendment and the Confiscation Act, wrote the bill with Howard.34 It would have extended the life of the bureau indefinitely and expanded its jurisdiction to the entire nation, dramatically increasing both the size of the bureaucracy and the scope of its operations.35 Thus the moderate Republican proponents of extending the mandate

Innovations / 39

of the Freedmen’s Bureau found themselves in a potentially delicate political situation in January 1866, despite their strength in the Reconstruction Congress. While the war was ongoing, and even in its immediate aftermath, providing aid and protection to former slaves could be justified in strategic as well as humanitarian terms: feeding and clothing blacks lent moral weight to the North’s complaint against the South, mollified a potentially explosive force, and provided an incentive to slaves still working in the South to withhold their labor from the Confederate economic machine. Even the bureau’s highly bureaucratized and centralized relief operations, which provided for millions of American citizens—functions that Howard conceded were “abnormal to our system of government”— were easily shoehorned into Congress’s War Power, which was portrayed as nearly infinite.36 But now the war was over. Democrats were asking hard questions about the constitutional basis for an institution like the bureau in peacetime. In the Senate, Democrat Thomas Hendricks of Indiana, who would later become vice president under Grover Cleveland, led the attack. He demanded that Trumbull tell the Senate “where is the power of the General Government to do this thing? I have understood heretofore that it has never been disputed that the duty to provide for the poor, the insane, the blind and all who are dependent on society rests upon the States and that the power does not belong to the General Government. What has occurred then in this war, that has changed the relation of the people to the General Government?”37 Reverdy Johnson of Maryland and Garrett Davis of Kentucky joined Hendricks’s objections. Davis, who had been elected as a Unionist to fill the seat vacated when J. C. Breckinridge was expelled for supporting the rebellion, insisted that the support of paupers was a state, not federal, responsibility and assailed the bureau as “wholly heretical and not having a figment of authority in the Constitution.”38 Trumbull, Eliot, and other bureau supporters began to cast about for a constitutional provision that could sustain their bill. Suggestions of the continued use of the War Power were unavailing (Kentucky Senator James Guthrie exclaimed that the war had been over for nine months!), and they turned to Congress’s power to provide for the general welfare through appropriations.39 Trumbull claimed that “whenever in the history of this Government there has been thrown upon it a helpless population that must starve and die but for its care,” aid had been provided. He and his allies cited as precedents relief appropriations for Indians, land grants for schools, and the distribution of seeds through the Bureau of Agriculture. While they did not refer directly to the history of disaster relief in this par-

40 / Chapter Two

ticular debate (they would do so extensively during the next bureau appropriation debate a few months later), they repeatedly described the freedmen as the deserving, innocent victims of both slavery and emancipation (which had “thrown” them upon the world in a helpless condition) who were clearly not to blame for their miserable condition, and claimed for the federal government both moral duty and the constitutional power to respond to such a vast humanitarian crisis. The extension bill passed on February 9, 1866; President Johnson vetoed it the next day.40 In his veto message, Johnson echoed congressional Democrats’ concerns about the bureau’s constitutionality in peacetime. He wrote that “a system for the support of indigent persons in the United States was never contemplated by the authors of the constitution, nor can any good reason be advanced why, as a permanent establishment, it should be founded for one class or color of our people more than another.”41 Johnson had initially supported the bureau as a temporary wartime necessity; however, he styled himself as a strict constructionist and had voted against disaster relief while in the Senate.42 The override vote narrowly failed. However, a slightly diminished version of the bill passed over a second veto on July 16, 1866.43 At that time Congress also passed a separate measure appropriating nearly $7 million, over half of which was for relief. Nowhere was the rhetoric of blameless victimization by forces beyond the control of the purported victims more potent than in the thicket of racial antagonism surrounding the Freedmen’s Bureau. From the very beginning, proponents of federal relief for the newly emancipated slaves were careful to cast them as the innocent victims of what California Representative Cornelius Cole called “this crime scarcely second in magnitude to the crucifixion.”44 Republicans described the freedmen as “orphan children” who were “sober and industrious.”45 “It is not their crime or their fault that they are so miserable,” argued Connecticut Representative John Henry Hubbard, in favor of the 1866 extension bill. “From the beginning to the present time they have been robbed of their wages, to say nothing of the scourgings they have received.”46 Bureau advocates were quick to assign blame for the continued poverty of the South’s black population to such factors as the war, southern white hostility, and the degraded conditions of slavery—illiteracy, dependency, irreverence—that Republicans asserted had left them ill prepared to care for themselves. Bureau opponents adopted the opposite stance, relying on racial imagery to describe the black population as the victim only of its own inherent vices. During the debate over the 1866 effort to extend the life of the bureau by two years, Senator Saulsbury avowed that white people were

Innovations / 41

being unfairly taxed “to support in idleness a class who are too lazy or too worthless to support themselves.”47 Kentucky Senator Davis objected that the bureau’s relief efforts would “establish a great system of lazzaroni . . . of poorhouses for the support of lazy Negroes all over the Southern states.”48 Fears that “lazy and worthless men will gather around the Freedmen’s Bureau to be fed and clothed”49 dominated the House debate over relief. Indeed, these concerns were so deeply felt in Congress that before it passed the 1866 extension bill over Johnson’s veto, it adopted an amendment providing that “no person shall be deemed destitute, suffering, or dependent on the government for support within the meaning of the Act who, being able to find employment could, by proper industry, or exertion avoid such destitution, suffering, or dependence.”50 These issues were magnified in 1867 when Congress debated extending the eligibility for bureau relief to white southerners regardless of prior disloyalty. Radicals vigorously resisted this move to expand the mission of the bureau, but a coalition of moderates, who claimed to be motivated by humanitarian considerations, and Democrats joined together to pass it. There was widespread crop failure throughout the South, and reports of famine were filtering into Congress.51 In the face of accounts coming from Howard and others that, according to Senator Reverdy Johnson of Maryland, “they have seen lying upon the roadside men, women and children in a state of starvation, dying for want of food” there was little support for denying aid.52 As in other cases, constitutional doubts were ostentatiously cast aside in the name of suffering humanity,53 and legislative precedents were listed, including prior bureau relief appropriations, Irish famine relief, and various measures for the relief of an 1866 fire in Portland, Maine.54 A strong current of support for what I have termed the “Sympathetic State” ran through these debates, as when Vermonter Frederick Woodbridge argued to the House that the Constitution was of no relevance because relief was justified under the laws of sovereignty, which “authorizes a government to do what its own preservation demands . . . it would be so dark a stain upon the honor of our country and so huge a blot upon the civilization of the age by placing it upon the record of this House that the Congress of the United States refused to give bread to nearly sixty thousand starving people who live under the same government with us.”55 After the bill passed, the New York Times (which had covered the controversy extensively) agreed with this vision of the role of government, and editorialized that “humanity has triumphed over partisan hate, and our Government is spared the disgrace of rejecting the appeal for relief which comes from the Southern people.”56

42 / Chapter Two

Race figured in this contest in ways that we might now find surprising, with opponents alleging that the southern whites were inferior, lazy, and unwilling to work for their own support, as contrasted with images of the hardworking slave robbed of his rightful wages. For example, Illinois Representative John Logan, a former Union Army general, ridiculed the idea that the national government should provide relief funds to white former slave owners, saying, “there is a class of people in the South that never did make bread, and never will, who will always be starving if we allow them to become pensioners. If they had used ordinary industry and energy, they would not today be in want of assistance to save them from starvation.”57 Ohio Republican Representative Robert Schenck proposed an amendment to pay for the relief by taxing the rich of the South, saying: whenever work is to be done, wherever honest labor is to be put forth by men for their own support, no people are more apt to call upon Hercules instead of putting their own shoulder to the wheel than these same southern rebels. While they had their Negroes to work for them we did not hear this cry for assistance, but this means of support being taken away none are more ready than they to make Negroes of the Northern mudsills58 who are expected to work and pay taxes for the support of those who despise them.59

General Benjamin “Beast” Butler, who was hated by southerners for his treatment of the civilian population while military governor of occupied New Orleans and for refusing to return fugitive slaves as “contraband of war,” asked whether the workers of the North should be “taxed to support in lazy whiskey drinking idleness the self-styled aristocracy of the South?”60 Nevertheless, proponents such as Ohio Republican Representative John Bingham repeatedly emphasized that the war was not the fault of the innocent white women and “unoffending little children,”61 and that they, at least, deserved relief. The debates over the 1867 southern relief bill illustrate the complex racial politics of the Freedmen’s Bureau as a precedent in two different ways. First, the extension of federal relief to blacks for the twin “disasters” of slavery and emancipation drove Democratic congressmen to demand the same sort of largess for their white constituents who were in their view at least as deserving as the “colored lazzaroni.” The bloody shirt of the Freedmen’s Bureau would thus be waved during many future debates over federal relief.62 Second, the bureau created a precedent for the assumption of federal responsibility for indigent blacks that the southern states, unwilling to provide any subsistence benefits to former slaves, came to rely upon. Follow-

Innovations / 43

ing numerous floods, storms, hurricanes, and other events, southern Democrats repeatedly requested federal relief for the “helpless colored people” who had lost out. Although they sometimes acknowledged that their state should provide for the victims, they were obviously eager to avoid such a result and relied instead upon northern sympathies for the freedmen to provide funds from the national treasury.63 It remains tempting to regard the bureau as a singular event, a creature of a time when the animus of the Civil War reordered, albeit temporarily, the racial hierarchy of American society.64 Few historians of the American welfare state have taken up W. E. B. Du Bois’s invitation to “throw out in bold relief” the role of the Freedmen’s Bureau in American political development. An unpublished dissertation from 1966 noted that the bureau was clearly the first federal public assistance agency, yet scholars of the welfare state had ignored it.65 This neglect has remained uncorrected in the thirtyfive years since that observation, despite a veritable frenzy of effort aimed at ferreting out the nineteenth-century precursors of the welfare state and important “constitutional moments” in state development.66 However, many people with aims more practical than scholarly, including those designing and defending the New Deal, saw the bureau as a key element in a history of social provision that would validate other relief efforts, both modest and massive. In addition to the lowly status of its “victims”—if the federal government could aid blacks, surely it could relieve whites in dire circumstances—the bureau showed that the precedent of disaster relief was sufficiently flexible to authorize quite radical departures from traditional principles of federalism, given a big enough “disaster.” And since the disaster to which the Freedmen’s Bureau responded was, at root, one of massive unemployment in the wake of the collapse of the South’s economy, the bureau was of particular interest to later advocates like La Follette, Perkins, and Eliot, who needed authorizing precedents for the relief of unemployment.

The Blair Education Bill The Freedmen’s Bureau quickly became assimilated into the line of precedent as an outpost that could be used both to validate less far-reaching measures as clearly appropriate and as a weight that might tilt the balance on other innovations. An example of the former came even before passage of the bureau extension bill, when bureau opponents in the Senate, such as Maryland’s Reverdy Johnson, proposed $50,000 in fire relief for the residents of Portland, Maine.67 In support of the aid bill, proponents mar-

44 / Chapter Two

shaled a stream of precedents capped now by the enormous relief expenditures of the bureau. This incorporation of the Freedmen’s Bureau into the line of “ordinary” disaster relief solidified its role in the stream of federal relief precedents. It was then available to serve as a precedent in support of other efforts at innovation and extension, including some that were less successful than the bureau itself. The first such proposal was the Blair Education Bill, which was unsuccessfully introduced in Congress over a period of a dozen years from 1880 to 1892 (it passed the Senate three times but was repeatedly blocked in House committees). The Blair Bill sought to provide federal funding for common, or public, schools in order to counter the widespread illiteracy, particularly among southern blacks and poor whites, captured in the 1880 census.68 As passed by the Senate in 1884 (and unchanged in subsequent years) it would have provided $10 million in aid to local schools in the first year, which would be gradually reduced over a period of seven years, for a total appropriation of some $77 million.69 Although most historians have long ignored it,70 Blair’s proposal was probably the single most hotly debated political issue in the 1880s. It had deep support around the country, including in the South, among labor, farmers, and in the business community. Petitions in support of the bill, many of which were mass-produced, poured in to Congress from everywhere,71 and newspapers all over the country editorialized for and against it. According to Gordon Lee southern papers supported the bill and “Senators who opposed the bill on the grounds of unconstitutionality were bitterly castigated” in editorials.72 One Virginia newspaper editor threatened to turn the Democrats out of office for opposing the bill, while the Nation and the New York papers, both Democratic and Republican, opposed the bill because it would erode local responsibility for education. The debate “brought the federal aid question squarely to the forefront of much of American editorial thought.”73 Blair argued to the Senate during the 1886 debates that “the measure has been generally and thoroughly discussed throughout the whole country and probably public sentiment is more largely in favor of this bill than was even known to be the case with any other of like importance in the history of American legislation.”74 The Blair Bill’s supporters repeatedly recited the history of disaster relief for two purposes: to show that Congress had the authority to spend federal funds for purposes it deemed necessary, and to argue that illiteracy qualified as the kind of “disaster” to which Congress had already responded, notably in the case of the Freedmen’s Bureau. For example, in the 1886 Senate debate, Democrat Howell Jackson of Tennessee defended the bill

Innovations / 45

as “warranted by the express language of the Constitution . . . approved by the unquestioned weight of high authority, . . . and sanctioned by the contemporaneous and continued practice of the Government,” referring to spending for disaster relief under the General Welfare Clause.75 Similar arguments were made in each of the four debates over the bill, in 1884, 1886, 1888, and 1890. The fact that disaster grants were for temporary emergency relief prodded Blair and other supporters of the education bill to cast illiteracy and its amelioration as a similar emergency demanding similar measures. This shift was both rhetorical—for instance, Blair in 1884 called illiteracy a “volcano”—and practical.76 The limited time frame of Blair’s proposal reflected this need; proposals made in the 1870s calling for a permanent federal educational fund were defeated because they were widely seen as unconstitutional and unprecedented. Seeking to take advantage of the authorizing precedent of disaster relief, however, Blair and his allies advocated for direct appropriations out of the general revenue to meet the temporary emergency of illiteracy.77 This strategy was largely successful with the press, which echoed the “disaster” arguments, as when the Charleston News and Courier argued that if the Constitution permitted aid for the Chicago fire and Mississippi River flooding, then it surely permitted aid to the South in its “critical emergency.”78 The Blair Bill also saw the first use of an instrument of persuasion that had not previously appeared in congressional debates: a table of prior instances of disaster relief by the federal government79 (fig. 2.1). Democratic Senator John Daniel of Virginia, speaking in support of the Blair Bill in 1890, asserted that Congress had unlimited authority to spend in the general welfare, citing “the opinions of those who were the contemporaneous expounders of the instrument,” such as President James Monroe, and Senators John C. Calhoun and Daniel Webster.80 He then went on to present as evidence of congressional practice a “list of no less than twenty-five or thirty measures, cases where relief has been granted by Congress to sufferers by fire, floods, earthquakes, and in the extermination of diseases.”81 His list included the Caracas and New Madrid earthquakes, the 1847 Irish famine relief, the Portland fire, the 1867 Freedmen’s Bureau extension, the Chicago fire, and two-dozen other cases. He asked rhetorically, “What difference is there—constitutionally speaking—in the passage of this bill and in the passage of such bills as those which are here referred to? They are all, or nearly all, based on the constitutional prerogative to provide for the general welfare.”82 This table, which subsequently appeared in various forms in many

Fig. 2.1. Table of disaster relief appropriations from Senate debate over the Blair Bill. 21 Cong. Rec. 2295 (1890).

Innovations / 47

other contexts, represented a hardening of the appeal to precedent in the face of what proponents surely saw would be strong resistance. The work of gathering cases, having them printed in tabular form, and distributing them to legislators went well beyond the casual citing of prior authority in the midst of debate. It is thus no accident that this tactic appeared during the 1890 Senate debate, when the bill was losing southern support (indeed, it was defeated in the Senate in 1890 after passing on three prior occasions),83 since it is a sign that stronger measures would be needed for success when the gap between prior precedents and present case was wide. Viewed in this way, the table is a sensitive indicator of conflict over the applicability of precedent, and it appeared in each subsequent innovative effort—particularly in New Deal debates and legal briefs.

Unemployment and Farm Relief The Blair Bill was followed by other, also unsuccessful, efforts to use the history of disaster relief in support of innovative relief legislation. In each of these cases, the table of prior cases (now maintained and updated by the Senate document room staff)84 was placed into the Congressional Record and served as the basis for numerous speeches and newspaper editorials. The Depression of 1893 saw such an effort, led by Kansas Populist William Peffer, who asked the Senate why the federal purse strings could not be loosened to relieve the suffering of unemployed workers if it could be opened to fire sufferers and freedmen.85 Peffer’s interest in the history of disaster relief was first piqued during the debate over relief for the Sea Islands Hurricane victims in November 1893. In that case, the cyclone had destroyed the factories that had provided the only source of employment for the isolated black community.86 Peffer opposed hurricane relief because “there are a great many other people who are in circumstances as destitute as these,” who were equally deserving of relief, and said that if the Senate considered the appeal from South Carolina, he would bring one on behalf of the unemployed workers throughout the country who were suffering through winter in the midst of a severe Depression.87 A month later he did so, proposing a national system of unemployment relief (funded by placing millions of dollars of silver currency into circulation).88 During the November debate over the South Carolina relief bill, Peffer had contended that the entire enterprise of relief was unconstitutional. Now, however, he saw things quite differently. The Congress did have the power to vote relief, either implied in the Constitution or inherent in the nature of governance.

48 / Chapter Two There are great occasions, Mr. President, when nations, communities, and individuals may call to their aid powers which, under ordinary circumstances, are not known to exist. . . . It is too late now, Mr. President, in the history of this grand people to say that we dare not do anything of this kind. Upon an examination of the record it will be found that there are many instances where the Congress of the United States has gone to the relief of suffering people in different parts of the country.89

Peffer then recited a slew of disaster precedents beginning with the Portsmouth fire in 1803, and including the New Madrid earthquake, the New York fire of 1836, the Alexandria fire, the Minnesota Indian depredations, the Portland fire, and the 1867 Freedmen’s Bureau Act. He referred the Senate to the “paper from which I am reading, in its tabulated form,” which was printed in the Record with the text of his speech.90 As in the case of the Blair Bill, we may take the presence of the table and Peffer’s detailed argumentation as a sign that in 1893 it was a stretch to contend that idle workers were destitute “through no fault of their own”91 in the same way as victims of floods, fires, hurricanes, and earthquakes. Nothing came of Peffer’s 1893 effort to mobilize the precedent of disaster relief in support of his proposal for federal unemployment relief, though doubtless he would have been gratified to see the success his ideas eventually enjoyed during the New Deal; as Gene Clanton notes, Peffer was only “one great depression and four decades ahead of [his] time” 92 However, the bare fact that Peffer made the connection between disaster relief and unemployment relief indicates that attitudes about the causes of industrial unemployment were in transition. During the extremely severe Depression of 1873 (until the 1930s known as the “Great Depression”) there was only one fleeting mention of New York’s “suffering and starving poor” during discussion of an 1874 appropriation for southern flood victims,93 and the suggestion that the two groups were comparable was swiftly rejected. Prior to 1893 the general view was that the unemployed were at fault for their own circumstances, either because of laziness or due to an unreasonable refusal to accept the market wage94 or unwillingness to move to the “vast interior” where there were employment opportunities.95 The values of the middle class made it hard for them to accept that there were involuntarily unemployed people. In Alexander Keyssar’s view, “no one doubted that business panics occasionally threw some men and women out of work, but it was widely believed that these were transient episodes, affecting a small number of workers, who found new jobs in

Innovations / 49

short order. If a worker was idled repeatedly or for a prolonged period of time, it was almost certainly his own choice or his own fault.”96 This began to change in 1893, when, Keyssar says, there was “something of a breakthrough in middle-class thinking about the problem of involuntary idleness” due to the severity of the downturn.97 Whereas in the Depressions of 1857 and 1873, cities would purchase transportation to send their unemployed to the “empty west,”98 and the government’s free land policies called into question the willingness of the unemployed to make their own way in the world,99 by 1893 those possibilities had melted away, exposing the realities of the modern business cycle.100 At this point, Keyssar notes, the word “unemployment” began to appear in common usage. It then became plausible to describe mass idleness as a national catastrophe rather than a personal failing.101 As with the Panic of 1893, the collapse of world cotton markets in 1914 produced a widespread depression in the cotton-growing South and led to numerous impassioned appeals from southern legislators for disaster relief.102 One of these was an amendment to President Wilson’s war tax bill Senator Hoke Smith of Georgia proposed that would have allowed the government to issue bonds and compelled the federal government to buy up enough southern cotton to support the price at a profitable level.103 Senators attacked the proposal as both unconstitutional and paternalistic, charges that provoked a litany of prior appropriations for disaster relief from supporters. Senator Frank White, an Alabama Democrat and lawyer, contended that the constitutionality of the measure was clear, although he acknowledged that as a matter of policy it was “not in accord with the principles heretofore declared and maintained by the leaders of the party to which I belong, but those principles have been departed from and are no longer insisted upon by that party. They are history; they are not living, vital principles today.”104 Rather, White said, the question under the precedents was whether or not there was a “real emergency” affecting a sufficiently extensive section of the country: “the precedent has already been made and repeated by all political parties . . . this Government has been engaged in this kind of business since 1810, when it appropriated money to take care of sufferers by an earthquake in Venezuela, and has continued ever since.”105 White then placed into the Record a different table of prior disaster relief appropriations; the Treasury Department prepared this one on October 16, 1914, listing not only domestic flood and fire relief but also numerous foreign aid appropriations for famines and plagues.106

50 / Chapter Two

Other senators chimed in with their own lists of disaster precedents. North Carolina Democrat Lee Overman read the Senate a letter to the editor of a North Carolina newspaper arguing that the $2 million [sic] Congress appropriated for relief of the Salem fire earlier that year entitled the southern farmers to the same treatment was read into the record.107 Democrat Ellison Smith of South Carolina reminded aid opponents, “you did not balk at sending your millions to suffering San Francisco.”108 Republican William Borah of Idaho agreed, noting, “we have spent millions of dollars to take care of the situation after great fires in some of our cities; after the earthquake at San Francisco; and we have sent large sums of money to sufferers in foreign lands by reason of earthquakes and other disasters.” The history proved, in Borah’s view, that “there is no difficulty about the powers of our Government. . . . [T]his whole question depends upon the proposition of whether the disaster and the unfortunate condition in the South has reached the proportions of a national catastrophe.” Borah reminded the Senate that the Supreme Court had determined that “the great object of government is the common good, and that the Constitution as to the tax-levying power has left a wide discretion to the wisdom of Congress” in dealing with such emergencies.109 As in other debates, those senators supporting relief emphasized the extent to which the farmers were innocent of any wrongdoing110 and voiced support for a more sympathetic and less formalistic state, either through a “liberal construction of the Constitution” that would allow the national government to address the problems of expanding industries and changed economic conditions,111 or, if necessary, by pragmatically abandoning the Constitution for a more humane organizing principle, as Ellison Smith argued: It is a sad commentary upon the Congress of the United States to say that . . . the Nation may not relieve itself in the hour of distress because of constitutional limitations. . . . This, it seems to me, should be a lesson to some of the great constitutional lawyers on this floor. Just as sure as we, the lawmakers, and the Congress of the United States convince the people of America that they were made for the Constitution and not the Constitution for them, that, no matter what disaster might come for which relief could be given, in order to preserve the letter of the Constitution the people must suffer, there will either be a different Constitution or a different Congress to interpret it.112

House debate on a similar measure that would have provided loans directly to the affected cotton farmers followed the same basic script, includ-

Innovations / 51

ing the citation of prior disaster relief precedents, the assertion that the farmer was suffering “through no fault of his own,”113 and the suggestion that there was a law of humanity higher than the Constitution that should guide the Congress in cases of innocent suffering. As Kenneth McKellar of Tennessee, who would later reprise these arguments during the New Deal, put it succinctly, “What is government for unless it is to protect its citizens in time of disaster or misfortune?”114 Despite the outcry from southern congressmen and their allies, northerners were unwilling in 1914 to extend the disaster relief precedent to authorize a system of agricultural price supports for one particular regional crop suffering from market failure (rather than from the boll weevil or some other “natural” crisis). As in the case of unemployment relief, however, these first hesitant efforts to cast economic difficulties as disasters deserving of federal aid were later successful (in this case, very shortly thereafter, with the passage of the Federal Farm Loan Act of 1916).115 The failure of these efforts at expansion and innovation had multiple causes, but important among them was the difficulty in representing widespread suffering that was not due to calamitous natural events as a “disaster.” William Peffer, arguing for unemployment relief in 1893, used newspaper articles from around the country to create the sense that unemployment was a problem of national scale and dimension rather than “limited to one locality, to one town, to one city, to even one State.” His investigation showed that the problem “spreads out over the entire country, that one-third of the industrial population of the whole people are unemployed.”116 Proponents made reference to far-flung deprivation and cited specific examples, but were often reduced to ruing the fact that their listeners and readers could not see the need with their own eyes, as Ellison Smith told the Senate about the cotton farmers in 1914: “those living outside of the cotton-growing States cannot have any adequate conception”117 of the scope of the catastrophe. Likewise, South Carolina Representative David Finley complained that if only Congress could somehow be convinced of the extent of southern deprivation, it would grant the requested relief.118 However, as chapter four shows, it would not be until the 1930s, when modern techniques of aggregation and representation such as statistical depiction, documentary photography, press wire services, radio, and film were brought to bear, that the problem of narrating events like market failures and unemployment as singular calamities would be effectively addressed.119

THREE

The Spreading Delta

Senators and congressmen routinely brushed aside questions about the constitutionality of disaster relief spending while they were debating disaster relief measures. They even sought to widen the scope of “disaster” to encompass, as chapter two showed, measures from the Freedmen’s Bureau to federal aid to public education. If pressed they argued that the long history of disaster relief measures demonstrated that Congress necessarily had the power to respond to need as it saw fit. But were they right? Could Congress actually afford to disregard the Supreme Court in passing these spending measures? The traditional view of the Court during the late nineteenth and early twentieth centuries is that it was a sturdy bulwark against government intervention in the economy, a position that reached its zenith in the 1905 Lochner decision, a case that came to stand in for the court’s free-market bias during this period.1 This view is at odds with the idea that Congress could spend for disaster relief with impunity. More recently, however, this image of the Court as what William Novak2 aptly calls “the great bogeyman of liberal reform” has been subject to repeated critique.3 As Stephen Siegel notes,4 for the past twenty years there has been a “growing scholarly realization that the Lochner era was far more receptive to economic regulation than the traditional account acknowledges.” Yet even the revisionists conclude that the Court was hostile to “class legislation”5 and paternalism.6 Surprisingly, disaster relief was repeatedly assailed as both without drawing the Court into the role of forbidding it, despite having multiple opportunities to do so. In questions of federal spending for the general welfare, Congress made it clear that it expected the Court to defer to its judgment, and the Court did so, at least by abstention. By the 1930s it was widely, although not universally, accepted that the General Welfare Clause

54 / Chapter Three

gave Congress a broad power to spend as it saw fit. A generation of law students, including those who would later staff the government’s defense of New Deal legislation, learned that unlike in the contentious fields of taxation and commerce, the federal government’s spending power was clearly established, in major part by virtue of over a century of unchallenged disaster relief spending. Opponents of this view, led by southern states’ rights advocates horrified at the idea that the federal government’s spending powers outstripped those of cities and states, fought a rear-guard action that, though heartfelt, was increasingly isolated from the mainstream.

The Choate Story Book During the late nineteenth and early twentieth centuries, the power of Congress to spend in the general welfare was raised in several cases before the Supreme Court. Two of these cases, Field v. Clark7 and United States v. Realty Company,8 involved the constitutionality of a controversial provision of the McKinley Tariff Act of 1890 that offered to pay domestic sugar producers a bounty, or subsidy, of two cents per pound of production. Beginning in the 1880s, Germany and other European countries paid an export bounty to beet sugar growers, flooding the world markets with cheap sugar.9 While the McKinley tariff steeply raised duties on most imported goods, it placed raw sugar on the free schedule despite the fact that sugar generated the most import revenue of any commodity. The duty on refined sugar was retained. This arrangement was sought by the American Sugar Trust, which was led by Henry Havemeyer, the founder of the American Sugar Refining Company. Havemeyer would come over the next few years to control virtually all American sugar manufacturing.10 The Sugar Trust’s goal in ending the raw sugar tariff was to drive down the price of Americangrown beet, sorghum, and cane sugar with artificially cheap “bounty-fed” European sugar. In an effort to placate planters, and to encourage domestic sugar production, Congress included a sugar bounty in the McKinley Act.11 The sugar bounty was one of the most contentious political issues of the 1890s, and it was viewed nearly universally with contempt. It was seen as a blatant scheme by the trust to bloat its profits at taxpayer expense, driving down prices paid to growers while keeping the price paid by the consumer for refined sugar high. The New York Times editorialized that the bounty was “essentially corrupt,”12 and a letter to the editor in April 1890 called the bounty “an outrage upon Republican doctrines and the Constitution of the United States.” Articles in the Harvard Law Review and other law journals decried the sugar bounty as unconstitutional. In a typi-

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cal comment, Joseph Wheless, writing in the American Law Review in 1896, called them an “unprecedented scheme of legislating public moneys into private pockets.”13 Even the sugar growers themselves lobbied against the bounty, preferring instead to retain the protective tariff. Testifying against the bounty to the House Ways and Means Committee, former Louisiana Governor Henry Warmuth led a delegation of sugar planters in opposition to the provision. Warmuth, a Republican who had served as governor during Reconstruction, correctly predicted that the bounty, unlike a tariff, would be deeply unpopular with the public, who would demand its repeal the following session. Republican committee member Samuel Peters of Kansas echoed Warmuth, arguing against the bounty for the sorghum growers in his state. The bounty, unlike the tariff, Peters said, would lead to “constant agitation.” The amount of money paid out under the bounty would quickly multiply, and “if for instance the industry grew until 25 million in hard money was paid out of the treasury for bounties there wouldn’t be a schoolhouse in the country in which a meeting would not be held to pass resolutions demanding that the bounty law should be repealed. It would be a direct payment of money,” which ordinary people would be able to see “going to one favored industry.” According to Peters, “Every grange in the country would be against it.”14 No one even knew what it might cost, and the commissioner of Internal Revenue admitted there was no way to estimate it. Texas Governor “Big Jim” Hogg vetoed a bill that would have allowed the state to receive the bounty for convict-produced sugar, calling it an “encroachment on states’ rights,” although Texas’s private sugar planters received the bounty.15 Peters’s prediction that the bounty would be costly proved to be correct, and its price tag only grew as the number of producers increased in response to the stimulus. In 1891, its first year of operation, the federal government paid over $11 million in sugar bounties, which the Times termed “a gift to the sugar makers.”16 By 1894 it was estimated that at the rate of two cents per pound, the bounty could cost as much as $90 million per year.17 Consumers reacted angrily to this “bonanza for the sugar trust,” so that by 1893 there was a national political “craze in opposition to the sugar bounty.”18 It was revealed that Havemeyer’s trust extorted Hawaiian planters to pay over half of any bounty payments to the trust as a condition of doing business. If the planters objected to the terms, the trust reportedly told them they could “eat their sugar.”19 By 1892 the planters themselves were again asking Congress to replace the bounty with tariff protection from cheap German sugar.20 The bounty was repealed as part of the Wilson-Gorman Tariff

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Act of 1894, the passage of which was engulfed in an influence-peddling scandal, when the Sugar Trust bribed several members of the Senate to ensure that the tariff on refined sugar was retained. Both the bounty and the Senate scandal served to confirm the public belief that the Sugar Trust had “debauched” the political process for its own gain.21 This overwhelming popular sentiment that the bounty was illegitimate and a symbol of political corruption made it an inviting target, even in cases where it seemed irrelevant. In Field v. Clark, decided in 1892, the Marshall Field Company, a Chicago department store, challenged duties assessed against it on imported goods by arguing that the entire tariff act was invalid because the government lacked the constitutional power to pay the sugar bounty. Marshall Field’s lawyers urged the Court to extend to the federal government its 1874 decision in Loan Association v. Topeka, holding that state and municipal taxation must be for a public purpose. In the retailer’s view, the notion of the general welfare could not be broader than that of the public purpose.22 After all, they argued, the federal government had less power than the states, so that any limit on the states must also apply to Congress. Thus because the bounty was for a private rather than a public benefit, and the bounty was an inextricable part of the McKinley Tariff Act, they contended that the entire law was unconstitutional.23 The task of defending the power of Congress to spend in the general welfare fell to then–solicitor general William Howard Taft. Taft strenuously denied that the public purpose cases had any application to Congress. Those cases “are all of them cases of municipal taxes which must be for municipal purposes . . . that is a very different object for taxation than the encouragement by the National Government of a widespread industry in many quarters . . . for national purposes.”24 Citing Thomas Cooley’s view that the “general welfare” was broader than the municipal public purpose limitation due to the need for broad taxation and expenditure powers, Taft argued that it was for Congress, not the Court, to determine what was in the general welfare. As support for this proposition, he turned—like Trumbull, Peffer, Blair, and later, La Follette, Hiss, and Roosevelt—to the history of disaster relief: The difference between what constitutes a “public purpose” for a municipality and for the Government of the United States is illustrated by reference to those acts of Congress in which direct bounties as acts of charity have been conferred by the United States upon classes of people in this country and in foreign countries. We have taken, from the speech of Senator Daniel upon the constitutionality of the Blair Education Bill a table prepared by him evi-

The Spreading Delta / 57 dently with much care and accuracy, showing the various acts of Congress by which sums of money were appropriated from the US Treasury to assist private individuals in distress.25

The table was reproduced in full on page 70 of the government’s brief. To the cases cited in the table, Taft added some discussion of the St. Domingo refugee bill and Story’s Commentaries. He concluded that if the public purpose doctrine applied against Congress, “then every one of the acts referred to in the foregoing table would be unconstitutional and void, and yet as we see they cover a period of a century, nearly the whole life of our present constitutional government.” He added as a rhetorical flourish that “in a note to be found in Elliot’s Debates it is stated that the act for the relief of the citizens of Venezuela ‘the motion to fill in the blank’ left for the amount was moved by ‘the strictest constructionist of the Constitution the country has ever seen, Mr. Calhoun.’” Taft concluded by urging the Court to agree with “Judge Cooley’s statement that a much wider latitude with reference to expenditures is to be allowed the Congress of a nation than the legislature of a State or the council of a city.”26 The appellants in their reply brief responded to the disaster relief precedents, disputing both their validity and applicability.27 The Times continued to inveigh against the bounty and described Taft’s brief as one in which “a very good lawyer has been expected to defend a very poor cause.” Taft, according to the Times, had made a “pathetic” attempt to “stretch the General Welfare Clause comfortably over the beneficiaries of the sugar bounty.”28 Legal commentators declared the question of the scope of the General Welfare Clause to be one of the most important constitutional questions the Court ever addressed. An article in the Harvard Law Review predicted that the decision on this question would have “as far reaching an influence as any since Dred Scott’s.”29 The Court acknowledged this view in a unanimous opinion by Justice John Marshall Harlan, writing that “it would be difficult to suggest a question of larger importance, or one the decision of which would be more far-reaching” than the power of Congress to spend in the general welfare. Nevertheless, the Court sidestepped this important question by holding that the tariff and bounty provisions were separable so it was not required to reach the constitutional issue. Even if the bounty were impermissible, the Court ruled that Field would still owe the duties on his merchandise, and left for another day the question of the scope of the General Welfare Clause.30 Four years later in 1896, the second sugar bounty case, Realty Company, presented the same question under different circumstances. In the inter-

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vening years, Democrat Grover Cleveland, who (it may be recalled from the Texas drought relief veto) was hostile to disaster relief and other federal spending, had replaced Republican President Benjamin Harrison. Following the repeal of the bounty in August 1894, sugar producers who were in the midst of the growing season at that time felt cheated and sued for the payment of the bounties. The growers argued that they had relied upon the promise in taking on debt and entering the field of sugar production. After the bounty’s repeal, the Cleveland administration stopped paying the claims, taking the position that the law had been unconstitutional in the first place. At that point, in March 1895, Congress appropriated money to pay those individuals who were in the midst of the production process when the original bounty had been repealed,31 but the Cleveland administration still refused to pay on the grounds that the entire bounty was invalid and unconstitutional, citing a January decision of the DC Court of Appeals.32 Public opinion began to turn in favor of the planters, who, as the Times editorialized three days after the repeal, had invested heavily based on the reasonable expectation of receiving the bounty. “It is obvious,” said the Times, that there was a “certain inequity in the course of the Government.” The administration’s continued refusal to pay even after Congress voted a special appropriation for the planters was “assailed by torrents of criticism” by the press.33 The controller of the Treasury, according to critics, was “apparently filled with a desire to magnify his powers,” had “declared himself confronted with a great constitutional question,” and had subverted the will of Congress without any authority.34 In the context of the changed economic climate following the Depression of 1893, the growers were seen as the victims of the trust, on the one hand, and an overreaching executive ignoring the will of Congress, on the other.35 The editor of the American Law Review, William Draper Lewis, who later became dean of Pennsylvania Law School, wrote in favor of the bounty, saying that Congress had the power to appropriate for the general welfare, including aid to particular industries. Foreshadowing the importance of the Sugar Bounty Cases to the New Deal, Lewis wrote that the Cleveland administration’s construction of the Constitution would “in the eyes of the majority, make the Federal Government impotent in the face of great industrial needs.”36 In December 1895, a New Orleans district judge ruled in a pair of test cases that the bounty was constitutional, setting up the appeal to the Supreme Court.37 The briefs in Realty Company essentially rehearsed the arguments from Field but with the government changing sides. In the new case the government argued that the law was invalid because Congress lacked

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the authority to spend in the general welfare, and urged the Court to adopt a narrowing construction of the General Welfare Clause in order to stop the growing “socialistic wave.”38 Meanwhile, the planters argued that Congress had broad, unreviewable discretion to spend as it saw fit. The sugar producers were represented by Joseph Hodges Choate, who was widely considered to be the best corporate lawyer of his time. That same year Choate argued (and won) the Pollock case striking down the federal income tax.39 His opinion of his own importance and his role in history is indicated in the title of an odd little autobiography he published highlighting the heroism of his various lawyerly pursuits: The Choate Story Book. Choate’s brief opens by entirely denying the power of judicial review over congressional appropriations, which he described as a “purely legislative question . . . which the courts have no means of determining, and that therefore the decision of Congress is final and binding upon all branches of the Government including the Courts.” Although Choate conceded that Congress could spend only for the general welfare, he argued that “Congress is necessarily the sole and final arbiter of that question—its fiat is law—its stamp to that effect makes the use national, the purpose national.”40 Otherwise, according to Choate, the courts would become embroiled in second-guessing thousands of appropriation decisions and “a hopeless confusion of the judicial and legislative departments of the Government must ensue.41 Choate then went on to argue that the history of disaster relief appropriations illustrated by inclusion of a two-page table (fig. 3.1) demonstrated that the General Welfare Clause had been given an expansive interpretation and that the court had no power to “review and veto” Congress’s judgments.42 The argument was amplified by a discussion of several disaster relief cases such as the Alexandria fire, the St. Domingo refugee bill, the 1867 Freedmen’s Bureau extension, as well as by the views of various constitutional scholars and treatise authors, such as J. I. Clark Hare, Thomas Cooley, John Pomeroy, and the eminent historian Hermann Von Holst, all of whom agreed that “it must be accepted as settled law that Congress is the sole and final judge as to the use to which the public money of the United States shall be put.”43 According to Hare, as quoted by Choate in his brief to the Court, the remedy for any error by Congress in this regard was at the polls, not the courts.44 Even if, however, judicial review of congressional determinations of the general welfare were appropriate, Choate argued that the sugar bounty was well within the scope of that clause. He argued that the clause must be interpreted considering “the established practice of more than a century—

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Fig. 3.1. Table of disaster relief appropriations from Joseph Choate’s Supreme Court brief in United States v. Realty Company. Brief for the Appellants at 20–21, United States v. Realty Co., 163 U.S. 427 (1896) (No. 870) (Brief on Joseph Choate).

concurred in by every Congress and approved by the people,” referring to the history of disaster relief appropriations. The government’s sole argument, according to Choate, was that the public purpose doctrine limiting municipal and state taxation should apply to the federal government. But “we respectfully submit that those cases have no real bearing upon the broad national question here involved and that what is for the general welfare or general benefit of a vast nation of seventy millions of people, covering half the continent, is not to be measured by what is for the public use of a school district or a town or a city or even one of the forty-five states of the Union.”45 He concluded his brief by pointing out that Judge Cooley had

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long recognized that the determinations of Congress regarding the public interest were entitled to deference, and that even Justice Miller, in Loan Association v. Topeka, had acknowledged that the determination of whether a particular use was public depended upon the type and size of government, and its course and usage in terms of the “objects for which taxes have been customarily and by long course of legislation levied.”46 As in Field, the Court’s opinion in Realty Company was unanimous. This time, however, the decision was authored not by the relatively liberal John Marshall Harlan47 but by Rufus Peckham, who would later pen several of the most reviled opinions of the Lochner era, including Lochner itself.48 Although the Court again declined to directly decide the scope of the General Welfare Clause (deciding instead that the act of 1895 reinstating the bounty for certain claimants created a “debt” that Congress was constitutionally empowered to pay), it referred explicitly to the disaster relief table in its opinion, noting that “payments in the nature of a gratuity yet having some feature of moral obligation to support them have been made by the government by virtue of acts of Congress, through its power over appropriation of the public money, ever since its foundation. Some of the acts were based upon considerations of pure charity. A long list of acts directing payments of the above general character is appended to the brief of one of the counsel for the defendants in error.” The Court took the table “as evidence of what has been the practice of Congress since the adoption of the Constitution.”49 Moreover, Peckham wrote, the question whether or not a particular case was within that “class of claims which Congress can and ought to recognize as founded upon equitable and moral considerations and ground upon principles of right and justice . . . must in its nature be one for Congress to decide for itself.”50 Commentators such as Edward Corwin correctly interpreted this statement,51 written by a reactionary jurist for a deeply conservative Court, as a signal that the Supreme Court was unlikely ever to intrude into the field of congressional spending so long as it was even arguably in the general welfare.52 The significance of the points raised by the losers in the Sugar Bounty Cases should not be missed. As noted by the appellants in Field and the government in Realty Company, the deference Congress received was denied to municipal and state determinations. Even municipal disaster relief legislation, narrowly conceived, was often struck down by state supreme courts, which interpreted their own constitutions to bar disaster relief as impermissible “class legislation” that transferred money from the popula-

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tion to private interests (“from A to B” in Judge Cooley’s famous formulation) through the mechanism of taxation in violation of the public purpose doctrine.53 In the 1875 case of State ex. Rel. Griffith v. Osawkee Township,54 then– Kansas Supreme Court Justice David Brewer (who later would vote when on the Supreme Court with the majority to uphold federal spending in both Field and Realty Company) wrote for the court that state legislation allowing municipalities to issue bonds for the relief for drought-stricken farmers violated the Constitution because such relief was not a “public purpose.”55 Similarly, in Lowell v. Boston,56 decided in 1873, the Massachusetts high court held that relief for the Boston fire was unconstitutional because it was not for a public purpose. These constraints were well understood in Congress and were reported in the press.57 The problem of courts barring local disaster relief was so widespread that as late as 1932 a Note in the Yale Law Journal urged the explicit amendment of state constitutions to permit state and local disaster relief. After Realty Co., Congress not only had an unreviewable power to appropriate, as William Draper Lewis had written in the American Law Review, to address “great industrial needs” but its power to do so vastly exceeded that of state and local governments.

The Education of George Sutherland The shape of the career of the General Welfare Clause after the Sugar Bounty Cases and before the New Deal is more like a spreading delta than the main course of a river. The clause appeared in policy debates on a variety of topics, law school and political science curricula at Harvard, Columbia, and elsewhere, and in subsequent Supreme Court cases. A useful perch from which to follow its course is, ironically, the shoulder of one of the conservative Four Horsemen of the New Deal Supreme Court, George Sutherland. By the time Sutherland heard arguments about the federal government’s power under the General Welfare Clause in such key New Deal cases as US v. Butler, he had had ample opportunity to consider its merits as senator from Utah and as a Supreme Court justice. The outcome in Realty Company, which cut against the tide of what some scholars58 have described as a Supreme Court bent on overturning class-based legislation, caught the attention of various reformers interested in harnessing the resources of the federal government in the service of their causes. One such reformer was Miles Dawson, a prominent insurance actuary and attorney who advocated a national workers’ compensation insurance system in the first decades of the twentieth century. Dawson was a

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consultant to the Bureau of Labor, a member of the advisory board of the American Association of Labor Legislation, and the author of numerous books and articles on the subject of workingmen’s insurance.59 In 1905 he had served as technical advisor to the Armstrong Committee (alongside its chief counsel Charles Evans Hughes) that investigated the shady marketing practices of the New York life insurance industry.60 Dawson testified over a two-day period in the summer of 1911 before a commission charged with investigating workmen’s compensation policy chaired by George Sutherland, then a senator from Utah. Sutherland’s commission was a bipartisan blue ribbon panel created in 1910 by a congressional joint resolution to study the subject of employer liability and workers’ compensation.61 That task took on new urgency in the wake of the March 1911 decision of the New York Court of Appeals in Ives v. South Buffalo Railway striking down the state’s workers’ compensation law, followed the next day by the Triangle Shirtwaist fire, one of the deadliest industrial accidents in American history.62 The panel was charged with investigating the policy and legal dimensions of replacing the then-current negligence-based system with compulsory workers’ compensation. Under the existing regime employers carried private insurance of varying cost and quality, and most workers were unable to collect anything due to punitive legal doctrines such as assumption of risk and the fellow-servant rule, which generally barred recovery by employees for workplace accidents.63 Legally, the pressing question for the commission was whether any system that required employer contributions would be constitutional under the Due Process Clause of the Fifth Amendment. This difficulty seemed a serious obstacle to a national system. Sutherland, an advocate of reform in this area,64 was so concerned that he announced at the beginning of the hearings that the commission would begin with the legal problem and would not take testimony on policy until it had “determined, as nearly as possible, how far, under the Constitution, we would be permitted to go with our legislation.” Sutherland dismissed some witnesses’ suggestion that the Constitution should be amended, saying that the commission “hoped to find some way in which we may deal with this subject under the existing Constitution.” But prospects for this seemed bleak. Some experts, like Ernst Freund of the University of Chicago, advocated drawing an early Supreme Court test of whether federal workmen’s compensation was possible at all. Freund testified on behalf of the American Association of Labor Legislation that Congress should begin with limited coverage for workers on steam railroads in the District of Columbia.65 In response to these doubts, Dawson announced that he had discov-

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ered a “novel” approach that was not only undoubtedly constitutional, but that would actually favor a national system of payroll taxes paid by employers with compensation payments made by the federal government. He breathlessly informed the commission that Congress could tax and spend for the general welfare, and that Congress alone had the power to define the general welfare. He assured the commission, lest they dismiss his legal argument prematurely, that “those two great antagonists in the construction of the American Constitution, Thomas Jefferson and Hamilton, absolutely agreed upon this proposition.”66 As did Story. In fact, Dawson argued, while the committee might be “astonished” to hear it, he had performed an extensive search “with a microscope” of the authorities and had found “absolutely nothing adverse to the views which I shall present.”67 He invited the commission to subject his brief on the constitutionality of workers’ compensation to “the most careful and caustic criticism” in order to ensure that there were no holes in his reasoning.68 Committee members pressed Dawson on his claim that Congress could define for itself the content of the general welfare. “Congress is the final judge,” he repeated, though he was confident that the Supreme Court would agree that workmen’s compensation was within the ambit of the clause. Georgia Representative William Brantley asked whether this meant that Congress could set up factories and go into the manufacturing business at taxpayer expense, a hypothetical that a frustrated Dawson dismissed as “academic and sophomoric.”69 Sutherland asked Dawson to cite “any case decided by the Supreme Court of the United States which holds that Congress may impose a tax to be devoted to some purpose wholly dissociated from any delegated power in the Constitution.”70 This was, of course, the crux of the issue: could the taxing and by extension spending power be detached from the enumerated powers and attached to the (potentially infinitely) capacious “general welfare”? Dawson responded that although the Supreme Court had never directly decided the question of whether the objects of spending were limited to enumerated powers, Realty Company stood for that proposition. This was so because the Court had twice chosen not to halt the payments to the sugar men even though the sugar bounty was not related to any enumerated power.71 Dawson went on recite a capsule history of disaster relief, drawn from the debate on the Blair educational bill in 1890, of instances of payment for “relief of sufferers by fire, earthquake (including one at Venezuela), Indian depredations, overflow of the Mississippi and Ohio Rivers, cyclones, yellow fever, grasshoppers, lack of seed by failure of crops, or from accidents at arsenals.”72 According to Dawson, these cases together

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with various bounties and other federal payments formed an “unbroken line of precedents upon similar subjects.” There could be “no escape” from the conclusion that the national Constitution gave Congress the power to tax and spend for the general welfare, however it should define that term. It would permit Congress to enact a system not only for the District of Columbia, or interstate railway workers, or for territories like the Philippines and Puerto Rico, but for “us all.” Dawson submitted a lengthy brief on the subject, including his research and conclusions, to the commission, including several pages of citations and argument regarding these instances.73 This brief was the result of Dawson’s two-year “exhaustive examination” into the question of the constitutionality of a national system of workers’ compensation. In the aftermath of the Ives case, the president of the American Academy of Political and Social Science asked him to present a paper at the group’s April 1911 meeting. Other presenters at the meeting were better-known, eminent experts on the subject, and Dawson was awed by his assignment, and not a little fearful that his conclusions would be mocked as the work of a rank amateur. Yet he pressed on, motivated by the hope of solving the intractable problem of the legality of the developing welfare state. His paper, later published in the group’s Annals, concluded that a national system justified under the General Welfare Clause had a far better chance of surviving constitutional challenge than a state system, because “the national constitution is in this respect broader as to the taxing power than the constitutions of most of the states.”74 But instead of the “altercation and controversy” Dawson feared, the proposition met with wide approval. Indeed, he told the commission, this was the reaction of nearly everyone who had heard his argument and thought about it. This included the “most conservative” Chicago law Professor Ernst Freund, who Dawson said had approached him after his testimony the previous day and said enthusiastically that Dawson was onto something, had found “the way it should be done.” It also included lawyers for the railroads and the National Association of Manufacturers, “whose learning and standing we have great reason to respect” and who, Dawson excitedly told the commission, he was gratified to learn had independently arrived at the same conclusion.75 The disaster precedents and the arguments from them that Dawson recited to Sutherland that day were the same ones that the Court, at Joseph Choate’s urging, had used twenty years before to uphold the validity of the sugar bounties in Realty Company, and the same ones that the current President Taft had used in his brief in Field v. Clark defending the bounties as well. Dawson knew his audience. Sutherland was one of the strongest

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advocates of the tariff in Congress. He was a good friend to the sugar men and their subsidies, owing to the number of sugar beet growers in Utah.76 He was unquestionably familiar with the bounty cases and the controversy generated when President Cleveland had refused to make the payments authorized by Congress. Dawson went on to warn darkly that if Congress could spend only for enumerated powers, then bounties and, by extension, the tariff, and indeed “the whole course of the Federal Government from the very foundation of the Nation in regard to protective taxes” were unconstitutional as well. Sutherland granted Dawson’s point about disaster grants and even added that federal money had been spent to relieve earthquake sufferers in Italy, but argued that “the mere fact that Congress has made an appropriation for a given subject is not conclusive that it had the constitutional power to do so.” Dawson responded by saying that the Supreme Court had had many opportunities to overturn congressional appropriations for such things as the sugar bounties and disaster relief, but had chosen not to do so, and had thereby “indicated its view by failing to hold them unconstitutional” that Congress had the power to spend for these purposes.77 It was simply a fact that “the general agreement of most of the high authorities on the Constitution, including those who helped to frame it, all tends to the same opinion—to sustain the power of Congress to do these things.” Sutherland, likely uncomfortable being put in the position of appearing to question the validity of tariffs and bounties, abandoned his line of questioning and turned to actuarial matters. As Dawson’s résumé and the respectful hearing accorded him by the commission show, he was no crackpot. Still, his 1911 proposal for a compulsory national social insurance program, financed by an excise tax on the payrolls of employers, does seem very forward looking, by twentyfour years to be exact. The commission ultimately recommended a bill, but much more circumscribed than the one Dawson suggested and justified under the commerce power rather than the General Welfare Clause. Although Sutherland led the effort for the bill, it failed to pass the House, and President Taft decided to test the waters by starting a compensation scheme in the Panama Canal zone instead. For his part Dawson continued to champion the taxing power as a basis for national action to aid the victims of industrial injury and their families.78 Nothing concrete came of his ideas at the time, yet his proposal to help injured workers joins the ranks of earlier efforts by advocates of the Blair Bill, farmers, freedmen, and the unemployed to use the history of disaster appropriations as the entering wedge for the American welfare state.

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Miles Dawson likely gave Sutherland his first lesson on the history of federal spending for disaster relief, and it would not be his last. He next heard of it after he had ascended to the Supreme Court from an even less likely source, at least by our modern lights: James M. Beck. Beck is best known as a founder and central figure of the American Liberty League and a rabid anti– New Dealer.79 He had resigned his seat in Congress in 1934 to protest the fact that Congress had become “merely a rubber stamp” for Roosevelt and devoted himself to opposing the administration full time. In a 1935 speech he called the New Deal the “ghastliest wreckage of our form of government in history.”80 Even before Roosevelt’s election, Beck had been raging against Leviathan in a series of books with titles like The Vanishing Rights of the States and Our Wonderland of Bureaucracy. The chief villain in Beck’s view was the General Welfare Clause, which, he said, after the Civil War had been “converted by practical construction into an unlimited grant of power.” He likened the power of appropriation to the iceberg that had sunk the Titanic, “inflicting a similar fatal wound to the good ship Constitution.”81 But in 1923 Beck was Warren Harding’s solicitor general and had vigorously defended the iceberg to the Supreme Court in the Maternity Act case. The Maternity Act, called by one historian “the first venture of the federal government into social security legislation,” was passed under intense pressure from newly enfranchised women voters after Children’s Bureau studies showed that the United States had one of the highest maternal and infant mortality rates in the developed world. It was assailed by the American Medical Association as the beginning of compulsory health insurance, and by proto–Liberty League organizations as a “feminist-socialist-communist” plot against the Constitution. The same organizations that united to successfully defeat the Child Labor Amendment worked tirelessly against this measure as well. The intensity of this opposition is hard to fathom given the narrow scope of the law, which only provided small matching grants to the states.82 Backed by doctors and antisuffragist organizations such as the Women Patriots, Massachusetts challenged the law on behalf of its taxpayers (along with an individual taxpayer) arguing that Congress lacked the constitutional authority to spend money for maternal and infant health. According to the law’s opponents, Congress could spend only for enumerated powers. There was extensive attention to the case in the press and academic circles.83 Whatever personal misgivings Beck may have harbored about the constitutionality of the law, his brief and argument betrayed no doubts whatever on this score. Rather, he urged the Court that “the overwhelming weight of authority” supported a broad and “almost unlimited” power of Congress to spend in the general welfare, and to define that term as it saw fit.

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Beck supported this position with familiar authority: figures from the early Republic—Story, Hamilton, Monroe, Calhoun—and a checklist of disasters that had occasioned congressional spending, such as the Caracas earthquake. He quoted numerous treatises and articles by eminent experts, including Princeton professor Edward Corwin’s celebrated Harvard Law Review article, which analyzed the subject and concluded that the Maternity Act was “indubitably” within the broad and essentially unreviewable power of Congress to spend for the general welfare. Moreover, Beck said, this had been the “practical construction” by Congress of the spending power since the country’s inception, and his brief canvassed dozens of grants “to aid sufferers from calamities” both foreign and domestic as well as for a variety of scientific and charitable purposes that had been made. According to Beck, these precedents were “so numerous and extend to such an early date as to be entitled to binding force in this Court.”84 The plaintiff’s response was to argue that disaster appropriations were not precedents for spending in the general welfare. Instead, they were utterly lawless expressions of sympathy for victims of calamities, and “constitutional scruples are suppressed under the influence of this natural sympathy.”85 As Beck dryly pointed out, this left the Court in the unappealing position of having to declare that numerous departments and bureaus of government, as well as popular practices like disaster aid and bounties, were against the law. Beck gave Realty Company and the sugar bounties extensive treatment, and here he sounded like no one so much as Miles Dawson. If Congress was restricted to spending for enumerated powers, then it likewise lacked the power to pay bounties or “moral debts,” to the sugar men or anyone else. In fact, no one other than Congress, and certainly not the Court, could decide when such a debt was owed because the question was entirely political: Such acts, being within the broad political discretion of Congress, for which its members are answerable to the people at the polls, and done under powers of appropriation, which have the sanction of a century of usage, are not juridicially unconstitutional to the extent that the judiciary may sit in judgment upon the manner in which such discretion is exercised.86

This assertion caught the attention of the New York Times, which reported Beck’s view that on questions of the general welfare, the Court was required to “accept the decision of Congress.”87 In his oral argument, Beck noted that Congress had recognized the broad scope of its appropriation power in “innumerable” instances (including these bounties) totaling “billions of

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dollars” and urged again that this was not a fit subject for judicial review.88 The plaintiffs were left to lamely complain that the sugar bounty shouldn’t establish a precedent since it had been contested and even repealed at the time.89 Faced with the threat that rejecting Beck’s argument posed to the tariff and bounty policy on which Republican political dominance relied, Justice Sutherland refused, like Rufus Peckham in Realty Company, to strike down the appropriation as beyond Congress’s power.90 Instead, like Peckham he attempted to place the entire unsettling matter of appropriations as far from the Court as he could get it. While Peckham had suggested that the Court had no power to review congressional spending decisions, Sutherland went him one better. He wrote in the majority opinion in Massachusetts v. Mellon in 1923 that taxpayers lacked standing to challenge Congress’s determination of the general welfare, making it unlikely that courts would even reach the question of judicial review, let alone the merits, in the future. The editors of the Columbia Law Review proclaimed that Sutherland had “dealt a death blow to the argument that legislation by Congress in aid of the states was an interference with states’ rights.”91 Sutherland’s opinion would prove to be an exceedingly popular resource for New Deal lawyers for this very reason, although the Supreme Court, as in Butler, found other ways to hear spending cases when it wished to.

The Tip of the Iceberg By the time of the New Deal, the idea that Congress had a virtually unfettered right to define and to spend in the general welfare was broadly although not universally accepted as settled doctrine. But for many government lawyers in the 1930s, defending the New Deal was their first professional work of any significance, and hence they could not draw on decades of experience in litigating cases and reading court opinions. In response they clung more, not less, tightly to the strategies and doctrine they learned in law school. What did these future lawyers learn about the General Welfare Clause from their professors before they went to Washington? It is well-worn folklore that a great many of these lawyers were educated at Harvard Law School. This has been routinely attributed to Felix Frankfurter’s skilled use of connections on behalf of his pupils, so much so that Frankfurter has been seen as the éminence grise directing the New Deal’s legal strategy from his professorship at Harvard. Less well known but ultimately as important to the story of legal work in the New Deal was the lawyers’ connection as students to Thomas Reed Powell, who taught

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nearly all of them constitutional law. Powell, in turn, had strong ties to the political science faculty (including Frank Goodnow and John Burgess) at Columbia University where he earned his PhD and taught for many years before moving to Harvard. It was at Columbia that Powell absorbed the then-conventional wisdom that Congress had virtually unlimited power, unreviewable by the Court, to spend as it pleased in the general welfare. The relatively new discipline of political science was then in development, led by figures such as Burgess and Goodnow at Columbia, Woodrow Wilson, and later Corwin at Princeton, and W. W. Willoughby at Johns Hopkins.92 All of these men wrote on the history of the General Welfare Clause and advocated its use as the basis for expanding the field of the national government to include social welfare. These men were founders of the American Political Science Association in 1903, and Goodnow was the organization’s first president, and they were taking the discipline an exciting direction, away from merely historical work, into greater involvement in the current political events of the day.93 Columbia began publishing the American Political Science Review a few years later in 1906, the year that the young Thomas Reed Powell arrived, shortly after his graduation from Harvard Law School, to begin his doctoral work under Goodnow. As soon as Powell arrived at Columbia he retook constitutional law (which he had already studied under John Chipman Gray at Harvard in 1903) from John Burgess. A towering figure in public law and political science, Burgess had founded the political science department at Columbia in 1879, as well as the Political Science Quarterly, the first academic political science periodical in the United States, in 1886. He was an “ardent nationalist.”94 His course on constitutional law was renowned, and was taken by—in addition to Powell and Goodnow—Stanley Reed, Harlan Fiske Stone, Alexander Holtzoff, Teddy Roosevelt, and, in 1905, FDR, who found the class more interesting than any other in his first year of law school.95 Burgess, who was a friend of Powell’s family, likely played a key role in his decision to study political science at Columbia. Powell’s timing at Harvard was poor; James Bradley Thayer had taught constitutional law for a generation, but Thayer had died just before Powell began law school.96 Thayer had been a skeptic of judicial review over legislative spending decisions, telling his class that the Massachusetts Supreme Court decision in Lowell v. Boston, that fire relief was not a public purpose, was wrongly decided, and that it was “rather high handed for courts to say that the legislature cannot reasonably [decide what] is for the public benefit.”97 Eugene Wambaugh, who taught the course after Powell had de-

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parted for Columbia, agreed and told Zachariah Chafee’s class that after Realty Company, “there is nothing in the Constitution of the United States to prevent communistic taxation.”98 But there was no trace of this view in the notes that Powell took in John Gray’s 1904 class.99 Thus it may have been news to him to hear Burgess’s lecture on Realty Company. Burgess went over the facts of the case, explaining the sugar bounties and the protective tariff. As Powell recorded in his notes that day, Burgess told the class that the Court’s opinion had “broken down” the idea that Congress could tax only for a public purpose. Instead, as Powell wrote in his notebook, the Court’s decision that the determination of the general welfare was not subject to judicial review “really means the whole nation lies within the discretion of congress. There is no limit on appropriations.”100 Powell heard this view from his other advisors at Columbia as well. This was a period of realist ferment at Columbia, and Powell found himself right in the thick of it, moving in a circle that included John Dewey, Charles Beard, William Dunning, Franklin Giddings, and especially Frank Goodnow. Goodnow had published the leading tax casebook in 1905, which featured Realty Company in a section on the purposes of taxation. His influential volume, Social Reform and the Constitution, appeared in 1911, just as Miles Dawson was testifying before Sutherland’s commission. Goodnow’s book makes Dawson’s “novel” argument seem a bit less so. Goodnow wrote extensively on the subject of the General Welfare Clause, noting that there were numerous precedents for charitable spending by the federal government that could be marshaled in support of old age, sickness, and accident pensions. Moreover, he noted that there was no hated “public purpose” doctrine to limit Congress’s spending decisions—no way for the Courts to review its decisions about the general welfare. He concluded his discussion of pensions by saying that “there is much ground for the belief that such pensions, particularly if confined to indigent persons, might constitutionally be provided by the federal government under the auspices of the more expansive general welfare clause rather than by the states.”101 Powell stayed on at Columbia, taking Goodnow’s place when Willoughby recruited the older man to Johns Hopkins in 1914. Powell inherited Goodnow’s course on American constitutional law, eventually taking over Burgess’s chair as the Ruggles Professor of Constitutional Law.102 In a speech given around this time, Powell informed his audience that the spending power of Congress was broader than that of the states both because of standing problems and “the latitude which the Supreme Court has shown toward contributions by the US in aid of individuals.”103 His influence on his students there, including such figures as William O. Doug-

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las and “brain truster” Ray Moley,104 was clear in a 1923 article by the editors of the Columbia Law Review arguing that the taxing power was more promising than the police power as a basis for federal “social legislation,” citing both Realty Company and Massachusetts v. Mellon. “The decisions of the Supreme Court seem on the whole to vindicate the Liberalist,” said the Review, which predicted that the spending power would provide the basis for unemployment and other pensions within the next ten years.105 When Powell returned to Harvard in 1926 as the sole teacher of constitutional law, he brought this idea and the precedents supporting it back with him. Students in his classes learned that it was settled law after Realty Company that Congress could appropriate funds regardless of any enumerated power. They studied the extensive history of legislative precedents that supported such spending, specifically those for the relief of catastrophes and disasters, and the way that the Court had deferred to those practices in the case of the sugar bounty. For example, in his lecture on the case to Tom Eliot’s class in 1932, Powell informed them that Congress “has the whole determination of what US monies can be employed for.” (Eliot would soon thereafter help to draft the Social Security Act as a member of the Technical Board of the Committee on Economic Security.) Powell pointed out that “in times of distress” Congress had often distributed relief, such as seeds to drought-stricken farmers, and that Congress could easily justify such expenditures as a “moral debt.” In any event, the Court in Realty Company had assigned that determination to Congress, and at this point “it would probably be said that the courts had no power to pass on congressional appropriations.”106 Eliot himself made it clear in response to Powell’s Socratic questioning that he saw the taxing power as key to expanding the “supreme power” of the national government.107 While their law school educations had naturally emphasized the far more contentious areas of the commerce power, public utilities, and taxation, it was taken for granted by students in Reed Powell’s class that federal spending, as opposed to regulation, was largely beyond challenge. This conclusion had obvious appeal for lawyers seeking a legal basis for new large-scale federal spending programs. Charles Wyzanski, who graduated from Harvard Law in 1930 and went on to work in the solicitor general’s office, later credited his success in that job to Powell’s constitutional law course. Powell taught his students to pay attention to the development of doctrine, not merely the announcement of a “disembodied set of legal principles which you could understand without being concerned with who it was who announced them, and what had been said by these same men on previous occasions.” According to

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Wyzanski, Powell had “one of the very best minds that ever worked in the twentieth century in the field of constitutional law,” and he was a far more important teacher and mentor to the New Dealers than was Frankfurter despite the greater attention paid to the latter. In fact, Wyzanski, who defended the Social Security Act in the Supreme Court, attributed the successful record of his cohort in the New Deal cases compared with that of the earlier group that had worked on such cases as Schechter, Panama Refining, and the railroad retirement cases to the influence of Powell. This “second wave” of lawyers, including Alger and Donald Hiss, Paul Freund, and Wyzanski, “were people who had benefited from Reed’s training. They hadn’t benefited from Frankfurter’s training.”108 Powell was solidly in the mainstream in teaching that the General Welfare Clause gave Congress a broad, potentially unreviewable power to spend. Among his contemporaries, Edward Corwin was the leading exponent of this view, having published a highly regarded article on the subject in the Harvard Law Review in 1922. This was the article that James Beck had cited as support for the Maternity Act against Henry St. George Tucker. In it he recounted the history of various interpretations of the clause, and concluded that Congress had always enjoyed a plenary and unreviewable power over appropriations and “any attempt to apply the Madisonian test to national expenditures today would call for a radical revision in the customary annual budget of the government and for a revolution in national administration.” He interpreted Realty Company as an indication that the Court considered the matter a political question into which it would not “thrust its sickle,” a prediction that proved accurate after Sutherland’s opinion in the Maternity Act cases. As one biographer put it, Corwin thought that “the general welfare is what Congress finds it to be.” At that time Corwin was considered one of the (if not the) nation’s leading constitutional experts. His commentary was considered to be equal in importance to those of Kent, Story, and Cooley.109 His most successful and widely read volume, The Constitution and What It Means Today, also covered the subject, saying that while Congress could not regulate without an enumerated power, it “may, at its discretion, appropriate money in order to provide for the general welfare.”110 In addition to the faculty at Harvard, Columbia, and Princeton, law professors around the country taught this view. For example, Cornell law professor Charles Burdick, a former student of both Corwin and Goodnow, wrote in 1923 that there was simply no evidence for the other side. He pointed out that every constitutional expert who had written on the subject and every president since the Civil War, Congress, and the Court

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had all in some way approved the ability of Congress to spend beyond the enumerated powers. He cited a lengthy list of legislative precedents including “relief for sufferers from disaster in this country.”111 Constitutional law at George Washington was taught during this period by a Harvard graduate named Charles Collier, who held the same view.112 Vincent Nicholson, who taught at Temple, was an expert on the subject. Nicholson, who had attended both George Washington and Harvard law schools, ridiculed the narrow interpretation of the clause as one that would “revolutionize the federal government, decimate the Cabinet, and depopulate the City of Washington.”113 As this suggests, all of the major treatises and casebooks on constitutional law in use at Harvard, Columbia, and most American law schools at the time that the New Deal lawyers were educated took the same position. For example, the casebook used by Powell at Harvard, James Parker Hall’s Cases on Constitutional Law, noted that restrictions on the use of funds raised by state taxation are relaxed in “cases of great emergency” (though not for the alleviation of ordinary poverty), while quoting extensively from Realty Company for the proposition that Congress has broad authority to spend for relief based on moral claims even if no enumerated power is involved. Hall’s constitutional law treatise also described Realty Company as authorizing an expansive congressional power to spend for moral obligations. This power was, according to W. W. Willoughby’s influential Principles of Constitutional Law, essentially unlimited, at least by the courts. In Willoughby’s treatise on The Constitutional Law of the United States, published in 1910, he cited Realty Company and quoted the Court there as relying on the precedent of congressional appropriations for charitable relief following disasters for its conclusion that generally the propriety of a spending decision “must in its nature be one for Congress to decide for itself” and is essentially not subject to judicial review. Charles Warren wrote that the Court had adopted the “broadest definition” of Congress’s power over appropriation. Other treatises and law review articles followed suit.114

The Lost Cause Of course, not every American lawyer and law professor was as sanguine about the implications of the doctrine, even if they admitted its existence. Although professors at northern schools like Columbia, Harvard, and Princeton (where Corwin taught jurisprudence) might treat Congress’s unlimited power of the purse as an unproblematic, even desirable, feature of the legal and political landscape, at least one professor in the South saw

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the development of the general welfare power as insidious, oppressive, and dangerous to the nature of federalism. This critic was John Randolph Tucker, son of Judge Henry St. George Tucker, grandson of St. George Tucker (author of Tucker’s Blackstone), and nephew of Virginian John Randolph. As Roosevelt’s attorney general, Homer Cummings, explained in a 1936 speech dedicating a new law school building at Washington and Lee University in Tucker’s honor, “there are few American families with such an illustrious history.”115 Tucker had been attorney general of Virginia before the Civil War, and a staunch supporter of slavery. During the war he was the leading theorist of the legality of secession.116 At war’s end, he was chief legal advisor to Jefferson Davis. Tall and handsome, Tucker had a sharp wit, a penchant for stories, and a sense of humor that made him a favorite dinner guest. He was elected to the House in 1875 and remained there until 1887, where he “stood manfully forward in defense of the South” despite its humiliating defeat in the war. Fittingly, Tucker’s first reported speech in Congress was in opposition to an appropriation for the planned centennial celebration in Philadelphia, in which he argued that Congress lacked the power to spend in the general welfare. He became chairman of the powerful House Ways and Means Committee, where he used his position to repeatedly block the Blair Bill despite its widespread popularity in Virginia.117 He subsequently became dean and professor of constitutional law at Washington and Lee University, and was president of the American Bar Association (ABA) in 1894. Grover Cleveland seriously considered him for a Supreme Court appointment. During his life (and after, through the posthumous publication by his son, also named Henry St. George Tucker—called Harry—of his treatise on the Constitution) Tucker argued vehemently and frequently for a narrow interpretation of the General Welfare Clause in which Congress could spend only for enumerated powers, subject to strict judicial review. In his view there was no greater threat to whatever remained of states’ rights than an unchecked spending power, despite the fact that his father had headed the 1817 House committee on internal improvements that gave a broad interpretation to the clause.118 Tucker taught a number of students, including John W. Davis, a leader with Beck of the Liberty League who participated in the Agricultural Adjustment Administration (AAA) litigation against Alger Hiss and the Tax Division; Newton Baker, the former mayor of Cleveland, and William Robertson Perkins, who both represented Duke Power against Jerome Frank; and Borden Burr, who challenged the unemployment insurance provisions of the Social Security Act on behalf of the Steward Machine Company.

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John Randolph Tucker’s position on the limits of congressional spending was unique among treatise authors of the time, and was frequently cited as authority against the constitutional legitimacy of the New Deal spending programs, even by those few New Deal opponents who had sat through Reed Powell’s class at Harvard. Davis had been Tucker’s student and then his colleague on the law faculty from 1896 until Tucker’s death the following year. Speaking at the John Randolph Tucker Memorial Lecture in 1952, Davis recalled Tucker’s narrow view of the spending power with great nostalgia: “How rarely does one hear that note sounded in these latter days.” Davis assured listeners that his mentor would have been appalled by the Court’s decision in Butler to open the treasury to what Tucker had called the “schemers and jobbers” of Congress, thus creating “the widest of all breaches in the constitutional wall.”119 One person on whom John Randolph Tucker had a defining influence was his son, Harry, whose “views on constitutional law were the same as his father’s.” Harry had succeeded his father in his position as a law professor and then dean at Washington and Lee, as president of the ABA, and in Congress, where he opposed liberal spending for such things as the Maternity Act. A close friend of Grover Cleveland, Tucker’s views on the General Welfare Clause may have influenced Cleveland’s decision to veto the Texas drought bill and obstruct the sugar bounty.120 In 1922 he published a tract fulminating against federal spending in the form of a Virginia Law Review article titled “The General Welfare,” in which he relegated Realty Company to a footnote and claimed that the Supreme Court had never addressed the question. Harry waved the bloody shirt with abandon and liberally quoted his own father for his famously narrow interpretation of the clause. According to his father, Tucker said, the unrestricted power of appropriation was a “usurpation” that threatened to “virtually absorb the autonomy of the States and consolidate the whole governmental system into centralism.” When the case went to the Supreme Court, Harry Tucker refashioned his article as an amicus brief, asserting that Beck, by failing to heed his father’s warning, would lead the country to crash upon the “threatening rocks of Socialism.”121 James Beck was sufficiently concerned about the influence of the Tucker family’s reputation to include a firm rebuttal from none other than John Randolph Tucker’s own father. Henry St. George Tucker had been president of the Virginia Court of Appeals, a member of Congress, and a law professor at the University of Virginia. When Judge Tucker was in Congress, he authored an extremely important 1817 report to the House disagreeing with Madison’s and Monroe’s position on internal improvements. In that

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report the elder Tucker concluded after analyzing the history of disaster relief and other grants that there was no part of the Constitution “more unlimited” than the power of the Congress over expenditures. It was this report that brought to bear the history of relief for such “calamities” as the Caracas earthquake and St. Domingo slave rebellion on the internal improvement debate and eventually led to Monroe’s change of heart on the subject. Beck excerpted the report for two full pages of his brief, including Judge Tucker’s conclusion that the intent of the framers had been to give Congress an “extensive discretion” in the expenditure of public money, and that this had been the construction of the clause “since the origin of the Government.” Quoting Harry’s grandfather was evidently Beck’s reply to his amicus brief.122 In doing so, Beck marginalized the Tuckers—who were already associated with one Lost Cause—even within their own family, putting the son and the grandson once again on the wrong side of history. The General Welfare Clause now seems to us a dusty corner of the Constitution, an unlikely source for a “constitutional revolution” on the scale of the New Deal. But as I show in chapters five and six, the New Deal’s lawyers were interested in winning cases, not in blazing new legal ground. The plain fact is that the Supreme Court has never—before, during, or after the New Deal—struck down a federal law because Congress had exceeded its constitutional authority to spend. Instead, the Court has repeatedly restated Realty Co.’s principle of deference to Congress on the question of the general welfare. As Chief Justice William Rehnquist noted in 1987 in South Dakota v. Dole, “the level of deference to the congressional decision is such that the Court has . . . recently questioned whether ‘general welfare’ is a judicially enforceable restriction at all.”123 What could be more appealing to a young lawyer charged with defending a new federal statute than that?

FOUR

Crafting the Depression

It makes little or no difference to me whether the victims of this economic depression are suffering from a situation caused by the failure of industrial and financial leadership or lack of statesmanship in this country, or whether men and women are suffering from some act of God. The suffering is just as acute and the victims are as much in need of relief in the one case as in the other.1 —Senator Robert La Follette Jr., December 1930

La Follette was not blazing new ground in contesting the relevance of the distinction between acts of God and acts of men in deciding who deserved relief. It was, ironically, Herbert Hoover who first saw clearly the difficulty of distinguishing the economy from nature during the drought of 1930–31. Drought, as the Red Cross noted, was a hard case to fit into the disaster narrative because it was generally considered just “one of the many hazards of farming—like the boll weevil or a bad harvest.”2 The regions hit hardest by the drought were also staggering under the weight of economic collapse, so it was difficult to say what caused local poverty. For Hoover, the blurred divide between drought and depression made federal drought relief a dangerous proposition, since it could draw the government into unemployment relief on an enormous scale. Hoover, who as Coolidge’s commerce secretary oversaw the Red Cross’s relief of the massive 1927 Mississippi River flood, tried to forestall La Follette’s efforts by asking the Red Cross, America’s private disaster relief organization, to relieve both the drought and unemployment.3 Unfortunately for Hoover, the Red Cross was equally mindful of the difficulty in maintaining the precarious distinction between natural and economic calamities. The organization initially refused to relieve either the unemployed or the drought-stricken farmers, citing its charter authoriz-

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ing relief for “pestilence, famine, fire, floods, and other national calamities.” The agency argued that the slow, creeping, and ordinary character of drought placed the sufferers outside the scope of Red Cross activity. Moreover, the entire South was a morass of economic devastation caused not only by the drought but also by the 1927 flood, the southern sharecropping system, a rash of southern bank failures, and the depression. Red Cross administrators feared that it would be impossible to distinguish drought sufferers from the ordinary unemployed, and refused to provide any relief at all until the drought became a famine.4 By December 1930 Hoover was desperate. Fearing that an increasingly angry Congress would approve direct federal relief, he again pressed the Red Cross to take responsibility for both the drought and unemployment. The Red Cross resisted pressure from Congress, Hoover, and the president’s special Woods Committee on Employment, arguing that if it fed the farmers, the urban unemployed would be resentful.5 Congress tried to force the issue by appropriating $25 million for the Red Cross to distribute to drought-stricken farmers and the unemployed. The Red Cross refused the funds and instead issued a $10 million drive for drought relief in the South, setting off howls of derision on Capitol Hill. Senators from drought states bitterly accused Hoover of using the Red Cross for his own political purposes and pointed out that the Red Cross had only recently requested a direct appropriation following a hurricane in Puerto Rico.6 Although it continued to decline direct federal funding, eventually the Red Cross agreed to distribute government surplus wheat, cotton, and garden seeds.7 Children’s Bureau head Grace Abbott wrote an article in the leading social work journal that publicly ridiculed the Red Cross’s decision to limit relief to “calamities that may be classed as ‘acts of God.’”8 She also attacked the Supreme Court, caustically noting that although “one high ecclesiastical authority has characterized the world-wide depression as an act of God, it would not be placed in that category by judicial precedents in the United States.” Abbott demanded that relief workers question the increasingly fragile boundary they were called upon to draw in giving food to certain people while refusing others. She pressed this point not only directly but also subtly, as by placing quotation marks around the word “disaster.” Nevertheless, Abbott and other relief advocates could not wholeheartedly agree with Hoover that the depression was in the same category as prior natural disasters. Taking such a position might provoke Congress to accede to Hoover’s desire to abandon the “disaster” to the recalcitrant Red Cross, dooming the prospect of federal intervention. Abbott addressed

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this risk by arguing that there was a crisis so huge it was beyond the agency’s resources and urged Red Cross social workers to lobby for federal relief. Many did, like Sylvia Quigley, a Red Cross county chairwoman from Nebraska: Sentiment of the entire community is that funds should be provided by Government and administered through the Red Cross without further delay. If President Hoover and [Red Cross National Chairman] Judge Payne would circulate among the common people for a few hours they might stop fiddling while the country starves.9

As Nan Woodruff notes, Hoover tied relief for the drought and the depression into a package and sought to hand it off to the Red Cross.10 By arguing that depression relief should operate on the same traditional principles guiding natural disaster relief, however, Hoover drove the opening wedge for relief advocates who capitalized on the opportunity to treat the depression as a disaster. Hoover inadvertently opened the door for La Follette and, ultimately, Roosevelt, to discover and use the extensive history of direct federal disaster relief as an explicit precedent for New Deal relief endeavors.

Fine Hair-Line Distinctions Turning this opportunity into a mandate for a large-scale unemployment relief required, as in the many past invocations of precedent, that the history of federal disaster relief be made present in the contemporary debate. This required La Follette, and later Roosevelt’s lawyers (as I show in the next two chapters), to become historians of disaster relief, citing the hundreds of prior occasions on which Congress granted direct federal relief. This strategy presented an invitingly narrow ground on which relief might be granted. It merely asked legislators, and later the Supreme Court, to conform to an overwhelming stream of precedents rather than inaugurate a radical departure. In this consummately lawyerly invocation of precedent, the New Deal’s forerunners and advocates defined their relief strategy as continuous with—in fact, mandated by—past practice. It was not only their substantive arguments for relief that echoed the past. Their method of disputing over the history of disaster relief and the relevance of the precedent was itself also drawn from the prior debates. La Follette first began recounting the history of federal disaster relief in De-

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cember 1930, when he attempted to tack aid for the unemployed onto one of the many failed drought relief bills. After ticking off dozens of instances of federal disaster relief, La Follette demanded that the Senate “adhere to the policy which the Government has always maintained of affording relief to citizens who are in distress and unable to meet their own problems.” La Follette warned that this expectation of relief was so central to the American social contract that “parties and leaders failing to meet their responsibilities and to carry out this traditional policy of the American Government in extending relief to innocent victims of disaster, whether created by nature or by man, will be repudiated.”11 Southern senators from cash-starved drought states adopted La Follette’s stance, and on January 14, 1931, Tennessee Senator McKellar broke into debate out of order and read a list over one hundred disaster grants beginning with the Venezuela earthquake of 1812 and ranging over the next 120 years.12 The press picked up La Follette’s drum and began to beat it. The Baltimore Sun on January 12, 1931, dismissed Hoover’s resistance as “idiotic bilge,” insisting that “there is not the slightest reason to think Government food relief will any more really destroy self-respect now than famine relief, flood relief, and fire relief have done in the numerous instances in which they have been granted in the last 100 years.”13 The Washington Daily News echoed this view two weeks later when it included La Follette’s list of precedents in an editorial demanding federal food aid. The list next surfaced at the other end of the Capitol, when Representative Hastings, from dusty Oklahoma, sent the News editorial to H. H. B. Meyer, director of the Library of Congress’s Legislative Reference Service, requesting a list of the amount of money appropriated in each of the listed cases. He received a letter from Meyer the next day informing him that La Follette was a step ahead: “I find that we have already compiled a list of these appropriations acts, somewhat more full than that previously published,” and enclosing a list of over one hundred separate acts. Hastings interrupted routine appropriations discussion on January 26, 1931, to argue the precedential value of the San Francisco earthquake and the Mississippi River flood. He then inserted the entire list, filling three full pages of the Record.14 The deconstruction of the distinction between needs attributed to “Nature” and other sorts of needs was crucial to the measure’s success and was therefore hotly contested. Relief opponents shored up the boundary by insisting that acts of God provided no precedent for what they characterized as purely economic distress. For instance, Senator Hastings of Delaware responded to La Follette’s list by agreeing that drought relief was

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required under the precedents, but that “an economic situation like the present one” was wholly another matter. La Follette derided this reasoning as the “splitting of legal hairs and theories” in which “I am not the least bit interested.”15 He responded, as had congressional relief advocates for over a century, by rhetorically linking the moral agency of current claimants with successful prior petitioners: I know that those who oppose action looking to relief of destitute citizens of the United States to-day due to a national economic breakdown will contend that these precedents apply only to citizens who are suffering distress and privation due to an act of God. So far as the victims are concerned, it makes little difference to them whether they are homeless, cold, and hungry as a result of a physical trembling of the earth or whether they find themselves in that condition due to an economic earthquake which has deprived them of the opportunity of earning their daily bread. I cannot see fine, hairline distinctions which opponents of Federal assistance . . . draw with regard to those precedents.16

The success of La Follette’s strategy was evident in his opponents’ complaints. A January 16, 1931, editorial in the New York World complained about the impossibility of reestablishing the eroded distinction between natural and economic disasters. “If the drought sufferers are the victims of conditions beyond their control,” the paper argued, “so are the idle coal miners, and so, for that matter, are the four or five million unemployed throughout the country.”17 Ultimately, even Hoover’s floor leader in the Senate, Indiana Republican “Sunny Jim” Watson conceded that the disaster relief precedents might well compel Congress to make “a single appropriation to meet a single emergent condition” for the depression if local governments and the Red Cross were overwhelmed.18 No general relief bill passed during that session due to Hoover’s determined opposition. La Follette returned the following year, however, to hold further hearings on unemployment relief with his newfound ally, freshman Colorado senator Edward Costigan. On February 1, 1932, the two men again brought in a bill for direct federal unemployment relief. La Follette introduced the bill and immediately recited a string of disaster relief precedents, beginning with the 1827 Alexandria fire. Costigan also quickly evoked disaster relief images in his first speech on the Senate floor, which was praised by a journalist as “one of the most beautiful and telling I have ever heard.”19 He argued that “the lives of many American citizens,

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without fault of their own, are to-day as definitely in danger as if menaced by flood, famine, fire, or earthquake.”20 Costigan, a skilled trial attorney, wryly reflected on the similarity between the depression and the San Francisco earthquake, the Mississippi River flood of 1927, and several other disasters: Permit me to refer to one or two extracts from the messages accompanying these separate occurrences, for they bear on what I said at the outset about American standards and American precedents with reference to the relief of human misery. In 1906, on April 19, the Senate of the United States passed a resolution which read in part: “Whereas the most terrible disaster which has ever taken place on this continent has occurred in the State of California.” Surely we are in a position to modify that statement at this hour. Unfortunately a more tragic disaster has overtaken America in the economic calamity we are discussing. “Whereas there is most urgent need of means to . . . care for the injured and shelter and feed the homeless.” What is to be said of the present need to shelter and feed the homeless and care for the injured of our industrial disaster?21

By this time the power of these connections, as well as the fear they engendered, was palpable. At the same moment that La Follette and Costigan were pressing their point on the Senate floor, across the river in Virginia constitutional historian Charles Warren railed at an auditorium full of law students against the illegitimacy of federal relief for any purpose. Warren had served as an assistant attorney general in the Wilson administration between 1914 and 1918. A close friend of Justice Louis Brandeis, and a preeminent authority on early constitutional history, Warren had won the 1923 Pulitzer Prize for history with his monograph, The Supreme Court in United States History. As Congress battled the economic collapse, Warren fought against federal relief. His tactics, like Costigan’s, were those of a lawyer: in a series of speeches at the University of Virginia in late January 1932, later published in book form as Congress as Santa Claus, or National Donations and the General Welfare Clause of the Constitution, Warren methodically attempted to distinguish away each precedent the Capitol Hill relief proponents cited. Warren, like Hoover, conceded the identity between natural and economic injuries, and he therefore broke with those who rested their case upon the definition of “acts of God.” Instead, Warren echoed the World

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editorial, declaring all federal assistance utterly illegitimate, the result of “political and economic influences, of compromises, and of logrollings, and that they were enacted over the protest of a strong minority, and that, furthermore, the question of Constitutional power played only a small part in the arguments or votes of the majority.”22 In a determined, if polemic, style Warren worked his way through La Follette’s list, trying to undermine the precedential value of every single example. He concluded that practically no debate took place in Congress on any of these appropriations except for that of the Salem fire sufferers, which was vigorously opposed; and no one could answer the question: Even if we admit the power of Congress to appropriate under the General Welfare Clause, how do these appropriations for purely local relief come within the scope of the distinction insisted upon by Alexander Hamilton between National, general, public and local, individual benefit?23

In a nice rhetorical turn, Warren argued that “a flood of laws bestowing Government alms has deluged our statute books.”24 Warren, like James Beck, had been in government during the extension of the disaster relief precedent and was familiar with the expansive interpretation of the General Welfare Clause. And, like Beck, he turned on the practice during the depression. During his tenure as assistant attorney general from 1914 to 1918 there were more than a dozen separate disaster relief acts, totaling upwards of $2 million including $200,000 following the 1914 Salem fire in Warren’s own state of Massachusetts. Warren first raised his objection to disaster relief two decades later during the Depression, when he became concerned that “the kinds of disaster and losses to be relieved by Government also constantly tend to increase in number.”25 For Warren the problem with fire relief in 1827 or 1914 was not that it rested on flawed constitutional logic, but that it was readily available to serve as persuasive legal authority for “an increasing movement in this country to redistribute private wealth by Legislative action.”26 Despite the efforts of La Follette and Costigan, Congress did not pass a bill for direct federal relief until after Roosevelt’s inauguration in 1933.27 Just as Warren feared, however, the disaster relief precedents they mustered during this period remained a critical part of the new administration’s strategy for crafting, and later for defending, New Deal social welfare programs. Roosevelt’s relief strategy was merely a continuation of La Follette’s efforts, and his legislative effort to pass a relief bill was engineered by La

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Follette himself. In January 1933, Roosevelt invited La Follette to his retreat in Warm Springs, Georgia, where they discussed numerous issues including unemployment relief. La Follette later wrote his brother, Philip, that Roosevelt “was in substantial accord with the progressive position.”28 With the support of Roosevelt and key future members of his administration like Harry Hopkins and Frances Perkins, La Follette and Costigan introduced still another unemployment relief proposal (for what ultimately became the Federal Emergency Relief Act of 1933) and held subcommittee hearings in the weeks immediately prior to Roosevelt’s inauguration. Hopkins, who would soon take charge of all New Deal relief enterprises, testified at the hearings. According to his biographer, Hopkins’s “convenient conviction” at this time with respect to unemployment relief, was “that a precedent can almost always be found for a new idea, however revolutionary it may seem, if you really search for it.”29 During the course of the hearing, a seven-page table titled Relief Legislation, 1803–1931 was presented and inserted into the report; it was an expanded version of the Library of Congress’s list. It detailed 135 separate disaster relief appropriations, beginning with the Caracas earthquake of 1812 and ending with the prior year’s appropriation of $500 million to the Reconstruction Finance Corporation for unemployment relief loans to the states.30 Within days of his inauguration, Roosevelt met with Hopkins, Perkins, La Follette, Costigan, and Senator Robert Wagner to discuss the relief bill.31 With the president’s support it passed quickly and was signed into law on May 12, 1933. Donald Howard, assistant director of the Charity Organization Department of the Russell Sage Foundation, wrote in 1945 that disaster relief provided “precedents which have probably been cited more frequently than any others in support of federal responsibility for relief needs, including those for “fire, flood, grasshoppers, storms, drought, earthquake, volcanic eruption, war pestilence, and famine.” This view was seconded by Edward Ainsworth Williams, a graduate student from Columbia University who worked for Hopkins and later wrote in his dissertation that the precedent provided by disaster relief was the “one major answer” to the assertion that relief was a local responsibility. La Follette’s 1930 prediction that refusal to adhere to these precedents would carry political consequences is borne out by Howard’s bitter complaint: “Despite this long list of precedents for using federal resources to relieve need arising from disaster, the Hoover administration in the early years of the Great Depression refused to look upon it . . . as a disaster, and long refused aid for the hapless victims.”32 Citing the mountain of disaster relief precedents, however, was only part of the job of building and defending the New Deal. After all, prece-

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dents—no matter how many—are irrelevant if the cases to which they are supposed to apply are not convincingly analogous.

The Dust Bowl and the Soup Line The plausibility of a disaster story depends upon the causal link between event and outcome, and that tie is therefore its point of greatest vulnerability. It is not enough to simply identify a need or loss. On the contrary, the loss is always a potential embarrassment to a claim, because it is necessarily closely linked to the victim. The most easily available candidate for blame is, after all, the claimant himself or herself, who can easily slip from victim to perpetrator. A “disaster” is achieved by constructing a causal link to another, more distant entity to which responsibility can be credibly assigned. Disaster narratives thus trade on logics imported from other moral, political, and technical domains where entities are forged and causal accounts developed. Indeed, factors such as race and gender crucially shape relief claimants’ ability to successfully depict themselves as deserving victims of forces beyond their own control. The ability to sustain a narrative of blamelessness depends on the strength of those causal links in the face of attack from those opposed to compensation.33 In the case of the depression, blaming an external event or entity posed peculiar problems of documentation and visual imagery. Ordinarily, the task of inserting an entity into the role of “disaster” was greatly aided by the ability to describe its qualities: the height of a flood, the ferocity of a savage attack, the all-consuming power of a fire. The depression, by contrast, was difficult to disentangle from its victims. How to separate “unemployment” from the individual unemployed, or migration from the migrant, so that blame might be channeled away from the claimant? Images of the depression threatened to collapse into descriptions of need, which in America, unlike in universal social welfare systems constructed along different logics, often compel contempt rather than relief. Successfully narrating the economic dislocation of the 1930s as a disaster meant constructing an event—the “Great Depression”—that was beyond the control of those without jobs but that was sufficiently tangible that it could be seen as the cause of their unemployment. Conversely, relief advocates had to subsume individual cases of misery in the broader logic of disaster, so that whatever the details of particular misfortunes they could function as examples of the effects of large forces. The solution was to use two techniques to ensure that the individual unemployed rarely came into sharp focus: aggregation and iconization. In the first, New Dealers subsumed

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individuals into a mass, for instance, through the use of statistics or photographic images of crowds. In the second, they employed various discourse strategies to render individuals as representatives of a type—victims of circumstance—rather than as individuals with personal biographies that included, at least at this moment, being desperate, rootless, or jobless.

The Aggregation of the “Great Depression” Relief advocates during the winter of 1930 were immediately confronted by the problem of heterogeneity. Faced with millions of individual losses separated by time and space, each with its own set of circumstances and consequences, La Follette and others trying to get direct federal relief needed to find a way to rhetorically overcome this fracturing. Their response was to represent local events as manifestations, or symptoms, of more global phenomena. These connections allowed them to elide the local qualities of effects and to use them as evidence of a single, overarching cause—the depression. This effort drew on the research methods of social work, sociology, and economics, as well as the then-developing field that Dorothea Lange called “sociological photography.”34 In this they followed a trail blazed by Progressive Era “social surveys” such as that conducted in Pittsburgh by Paul Kellogg, who would later publish the work of Lange and other New Deal photographers in the Survey Graphic.35 Once built, this object—now a “Depression” with a capital D—was available to serve as the causal agent in a disaster narrative that would—through the application of precedent—provide an avenue to the resources of the federal government. La Follette’s famous “survey” was one strategy for building this bridge between the local and the general. During the fall of 1930, La Follette became suspicious of what he regarded as overly optimistic information about unemployment coming from the Hoover administration. In December, La Follette and Massachusetts Democrat David Walsh sent out an inquiry to the mayors of every American town with more than five thousand residents. They received in response thousands of letters detailing the number of the unemployed and the inadequacy of state, local, and private relief. La Follette obtained similar telegrams from the American Federation of Labor’s national office, which he immediately brought to the floor of the Senate and read to his colleagues. The union’s survey results reflected a numbing, rhythmic, sameness: Ten thousand or more through chamber of commerce all people working for city 1 per cent of their salary. Widespread distress and suffering exists.

Crafting the Depression / 89 Yes; people are suffering from hunger, lack of clothing, fuel, and shelter and protection. . . . Over 5,000 unemployed at Kansas City, Kans. Soup line established at free employment bureau. Widespread distress and suffering exists among men, women, and children for lack necessities of life. Deplorable condition growing steadily as winter advances. No relief in sight. . . . Approximately 15,000 unemployed in Memphis. Suffering intense. Emergency committee appointed by mayor working to relieve situation. No outlook for immediate future. Trades council working in conjunction with committee. . . . Fully 15,000 unemployed in Mobile and in need of food and clothing. Community chest limited to rendering aid to most urgent cases. Conditions growing worse as weather grows colder, forcing unemployed workers South. City has opened free lodging house. No provision made to feed hungry central trades council people. At least 50,000 workers idle in St. Louis, Mo., with no chance to secure employment. A number of relief agencies are providing some relief, but not sufficient to prevent extensive suffering amongst thousands of families suffering for the want of food, clothing, fuel, shelter, and other necessaries of life.36

La Follette used these telegrams from local union secretaries to tie together the fates of “these four or five million unemployed and their dependents,” arguing that they were all “innocent victims of this economic disaster.” He continued this strategy over the following year by filling over two hundred pages of the record with his own survey results in February 1932.37 He also began at that time to use statistics from the Bureau of Labor Statistics and the Children’s Bureau. These numerical abstractions allowed the aggregation of large numbers of the unemployed into a loss of almost unimaginably large proportions and at the same time into the visible trace of, in Edward Costigan’s terms, “what is commonly spoken of as the ‘depression.’”38 Speaking of “the depression” was made much easier by drawing its statistical portrait. La Follette avowed that the results of his questionnaires—“the only reliable information in existence”—proved the consequences of “this holocaust of depression.”39 In contrast with the prior year’s debates, when the term was rarely used, on the day he submitted his survey results to the Senate La Follette used the word “depression” fifteen times just in the opening moments of his speech. The rhetorical force of La Follette’s move to aggregate is underlined by the Hoover administration’s staunch refusal to do so. Hoover appointed two separate committees to study the problem of unemployment between

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1930 and 1933. The second of these was headed by Walter Gifford, the president of AT&T. Gifford, called before La Follette’s 1931 subcommittee hearings on relief, had no idea how many were jobless anywhere in the country and insisted that no such figures were available. Under intense questioning from Senator Costigan, Gifford admitted his ignorance of how many people were on relief in urban or rural areas, even of “how many at this hour are on the verge of starvation.” This resistance to compiling effects was not accidental; it allowed Gifford to avoid the conclusion that there was a common cause event lurking in the background. Gifford concluded his testimony by stating that he found it “pleasant” to be “hopeful.”40 The work of establishing the depression as a singular event—a disaster— for millions did not stop after Roosevelt’s election. If anything, the New Dealers worked harder than their predecessors at establishing the exact contours of the catastrophe.41 They used this information to justify their alphabet of programs to mitigate the depression’s effects, and later, to defend those agencies and programs in the courts. This goal also found expression in the artwork and photographs various New Deal agencies produced, such as the Resettlement Administration (RA). Initially headed by liberal Columbia economics professor Rexford Tugwell, the RA had the broad charge of ameliorating rural poverty. Its historical section employed photographers, writers, and other artists to marshal support for the New Deal. The section head, Roy Stryker, hired a staff of photographers including Dorothea Lange, Walker Evans, Ben Shahn, Russell Lee, and Arthur Rothstein, as well as pioneering documentary filmmaker Pare Lorentz, sending them out armed with “shooting scripts” to track the effects of the depression and the benefits of Roosevelt’s programs.42 Stryker’s scripts requested particular shots, and also asked the photographer to focus on a sociological “theme” that advanced the politics of the administration. Most often the photographers mailed in their film to Stryker’s unit for development, numbering, and printing. Stryker himself was primarily responsible for reviewing contact prints and selecting those he deemed “suitable” for printing. Images Stryker rejected for printing were classified as “killed,” and sometimes Stryker punched a hole through the killed negative.43 The photographers complained bitterly about this practice, but for the most part such culling was unnecessary. The photographers were “carefully self-censoring” and focused on subjects that depicted blameless victimization by larger forces and the potential for progressive social policy to aid society.44 Those images selected for printing were frequently carried in newspapers and magazines around the country, including Time, Fortune, Today,

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Look, and Life—so much so that Stryker’s group became a “veritable picture service” for the press.45 The photos were contained in reports given to Roosevelt and Congress, and were displayed at conventions of social workers.46 Exhibitions arranged by the government were viewed by hundreds of thousands of people around the country, including one in Grand Central Station viewed nearly a quarter of a million times. In 1938 Archibald MacLeish used sixty-eight Farm Security Administration (FSA) photographs to illustrate his book Land of the Free (just one of many books using the photos), which generated wide press coverage and reprinting.47 Like the Lange photo known as Migrant Mother (fig. 4.1), many of these pictures quickly came to stand in for the Depression itself. Kenneth Dauber, following art historian Michael Baxandall, argues that the particular form taken by cultural objects is best seen as the result of producers’ efforts to anticipate the effects of their work on their audiences.48 It is not necessary, however, to parse the New Dealers’ intentions from the range of possible variation, because Stryker left a detailed record including scripts, letters, diaries, and memoranda. This evidence, coupled with the images—both selected and killed—show that New Deal artists and bureaucrats explicitly chose forms, as did La Follette, that were most likely to elicit sympathy for the Depression’s victims. The photographic equivalents of labor statistics and compilations of surveys were images of crowds awaiting various sorts of relief: unemployment checks, bread, soup. In fact, photographers working for Stryker and other New Deal agencies experimented with a variety of techniques for capturing masses of people within the bounds of the photograph, including views from above and foreshortening. These efforts are all an attempt to overcome the difficulty inherent in making visible abstractions like “unemployment,” “hunger,” and “blamelessness.” The queue photos in figures 4.2–4.7 are a clear example. The viewer is prevented from identifying the men as individuals by the hats, shadows, and hazy focus that obscure details of physiognomy. These are people made equal in their loss. This homogeneity was an intentional theme of several New Deal artists.49 These photos also transmit the blameless character of the needy by their orderliness, and through racial appeals.50 These are, after all, queues and not riots, made of downcast mostly white people patiently, lawfully, awaiting relief. The importance of these themes is evident in figures 4.7–4.8. These shots were part of a 1938 series Ben Shahn took of people awaiting distribution of relief commodities in Ohio. Figure 4.7 was selected and captioned by Stryker. Figure 4.8, however, was killed. As Natanson observes based on his extensive study the photographs,

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Fig. 4.1. Migrant Mother. Dorothea Lange (1936), Library of Congress, Prints & Photographs Division, FSA-OWI Collection, LC-USF34-T01-009058-C.

“Stryker tended to see black material as notably less usable than white images.”51 He also explicitly instructed the FSA photographers not to take any “mob scene” photos, and tried to discourage Dorothea Lange from taking pictures of her favorite subject—strikes—asking her instead to take her famous intimate portraits of suffering, such as those shown in figures 4.1, 4.10, 4.12, 4.17, and 4.20–21.52

Fig. 4.2. Relief line waiting for commodities, San Antonio, Texas. Russell Lee (1939), Library of Congress, Prints & Photographs Division, FSA-OWI Collection, LC-USF33-012083-M5.

Fig. 4.3. Unemployed men queued outside a Depression soup kitchen opened in Chicago by Al Capone. (1931) NARA, Still Picture Records Section, Special Media Archives Services Division, College Park, Maryland, 306-NT-165319c.

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Fig. 4.4. San Francisco Social Security office. Dorothea Lange (1938), Copyright the Dorothea Lange Collection, Oakland Museum of California, Oakland, California. Gift of Paul S. Taylor.

During the Ohio–Mississippi River flood of 1937, Stryker saw a unique opportunity to build on these themes using not only photographs but also the new medium of documentary film. Walker Evans and Stryker’s assistant, Edwin Locke, were sent to follow the crest of the flood from Cairo, Illinois, to Forrest City, Arkansas, where they were to meet up with Lorentz. Evans and Locke were supposed to document the federal government’s role in relieving the catastrophe, but they immediately focused on the fate of black flood victims, shooting roll after roll of film showing “horrible conditions” in “concentration camps,” most of which were never displayed (fig. 4.9).53 Many of these photos depicted race relations by contrasting better conditions in the white camps, or by showing white soldiers and authority figures towering over long lines and crowds of shivering African Americans standing in the rain awaiting meager rations.54 Lorentz had just released a documentary funded by Stryker and Tugwell about the dust bowl, The Plow That Broke the Plains, to glowing reviews in newspapers around the country.55 As he was finishing his second govern-

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ment film, this one about the Mississippi, the river flooded and he had to “start over.”56 In contrast with Evans’s focus on abysmal conditions facing black refugees, Lorentz’s film, titled The River, featured exclusively white subjects waiting patiently for rations in orderly, clean camps. Stryker was intent on getting Lorentz’s flood photos into print, urging the filmmaker

Fig. 4.5. White Angel bread line. Dorothea Lange (1933), Copyright the Dorothea Lange Collection, Oakland Museum of California, Oakland, California. Gift of Paul S. Taylor.

Fig. 4.6. Seven a.m. relief lineup on US 99, Arvin, California, April 10, 1940. Dorothea Lange (1940). Copyright the Dorothea Lange Collection, Oakland Museum of California, Oakland, California. Gift of Paul S. Taylor.

Fig. 4.7. Waiting for relief commodities, Urbana, Ohio. Ben Shahn (1938), Library of Congress, Prints & Photographs Division, FSA-OWI Collection, LC-USF33-006624-M1.

Fig. 4.8. Untitled, unprinted negative. Ben Shahn (1938), Library of Congress, Prints & Photographs Division, FSA-OWI Collection, LC-USF33-006624-M2.

Fig. 4.9. Untitled, unprinted negative. Walker Evans (1937), Library of Congress, Prints & Photographs Division, FSA-OWI Collection, LC-USF33-009231-M3.

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Fig. 4.10. Their Blood Is Strong. Dorothea Lange (1936) (Courtesy of the Martha Heasley Cox Center for Steinbeck Studies, San Jose State University).

to work up a layout for McCall’s magazine.57 The River was released to critical acclaim in October and was one of the most commercially successful documentary films in history, winning film festival prizes and showing to millions in commercial theaters around the country.58 The structure of The River, like other RA/FSA work, explicitly linked the disaster and the Depression and focused on the New Deal’s role in ameliorating both.59 But the innovative use of film reached a much larger audience and in a far more potent manner.

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The Iconization of the “Depression Victim” While the task of constructing the Depression as an event could best be accomplished with a wide-angle lens, the work of narrating the Depression as a disaster demanded a tighter focus. The disaster story, after all, has two main actors. Having built an event large enough to qualify as a disaster

Fig. 4.11. Madonna of the Flood. AP Photo / James Keen (1937).

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Fig. 4.12. Migrant agricultural worker’s family. Seven hungry children. Mother age thirty-two. Father is native Californian. Nipomo, California. Dorothea Lange (1936), Library of Congress, Prints & Photographs Division, FSA-OWI Collection, LC-USF34-009097-C.

outside the range of human agency, the New Dealers next turned their attention to representing its victims. Here they confronted another, perhaps thornier, abstraction. Making the heterogeneous mass of poor people into disaster victims meant justifying their circumstances as the result of fate. In this project the details of individual encounters with economic hardship had to be exposed to view, but in a manner that foreclosed the conclusion that the needy themselves were to blame for their own hard times. This, in turn, required that images and words depict individuals shorn of their biographies, leaving only the Depression itself as a cause of their deprivation. The imperative to suppress claimants’ own moral agency accounts for one of the most striking qualities of Depression-era images of the victims: their simplicity and surface clarity. These images, drawn both in words and in photographs, are intended to immediately engage the viewer in the suffering depicted while discouraging any lingering interest in the particular

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case represented. Thus we have, in some of the most enduring visual images of the Depression, vivid pictures of babies being nursed by migrant women who are otherwise wholly anonymous, without clues as to family status, location, or historical circumstances. This focus on obvious surfaces at the expense of complicated depths is a consequence of the purpose of these images, which is to stand in for an otherwise abstract and inaccessible class: the victims of the Depression, whatever their personal circumstances and individual histories. It is also this focus that qualifies these images as icons, as vehicles for making present in the experience of the viewer entities that would otherwise be beyond sensation. But just as religious icons run the risk of involving the believer in the signifier to the exclusion of the signified, so too did images of Depression victims run the risk of being too engaging. The artists and bureaucrats who made these images thus employed various strategies to manage an anxious relation between their icons and the entire class of fellow sufferers they represented.

Fig. 4.13. Sharecropper Bud Fields and his family at home. Hale County, Alabama. Walker Evans (1935 or 1936), Library of Congress, Prints & Photographs Division, FSA-OWI Collection, LC-USF342-008147-A.

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Fig. 4.14. Homer Sharer and family. Estherville, Iowa. He has rented farms in the past. Was last employed as hired hand for sixteen months, but is on unemployment relief. Russell Lee (1936), Library of Congress, Prints & Photographs Division, FSA-OWI Collection, LC-USF34-010094-D.

One of the most well known and successful efforts to narrate the Depression as a disaster by transforming its victims into icons of blameless suffering was John Steinbeck’s 1939 novel, The Grapes of Wrath. Historian Walter Stein recounts the way that the story was frequently compared to Harriet Beecher Stowe’s famous iconization of slaves: “The Grapes of Wrath could well have been rechristened ‘Uncle Tom Moves West.’” As with Stowe’s novel, the public’s pity passed effortlessly through the characters to the class they symbolized, at least for an admittedly interested reader like Franklin Roosevelt, who told a 1940 radio audience, “I have read a book recently. It is called The Grapes of Wrath. There are 500,000 Americans that live in the covers of that book.” In fact, Steinbeck so succeeded in installing the Joads as icons that within a year, all of California’s migrants were commonly referred to as “Joads.”60 The imprint left by Steinbeck’s work extended beyond Depression-era California: over half a century later, Tom Joad appears in music and popular culture as the powerful, instantly recognizable, bowed-but-unbroken victim of large forces beyond his control.

Fig 4.15. Lily Rogers Fields and children. Hale County, Alabama. Walker Evans (1936), Library of Congress, Prints & Photographs Division, FSA-OWI Collection, LC-USF33-031326-M4.

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Fig. 4.16. Wife of Homer Sharer and the baby, one of five children. Former tenant farmers and hired hands. They are now living on unemployment relief in Estherville, Ohio. Russell Lee (1936), Library of Congress, Prints & Photographs Division, FSA-OWI Collection, LC-USF34-010112-D.

Steinbeck’s novel, like Lange’s photographs, was an intentional effort to win public sympathy for federal intervention and relief. In February and March 1938, John Steinbeck participated in an FSA effort to rescue thousands of migrant families caught by flooding in the pea fields of Visalia and Nipomo, California. The agricultural workers, who already subsisted in deplorable conditions, were stranded by torrential rains, and were literally starving to death. Although the FSA attempted to get food and medical care to the migrants, the Growers’ Association sabotaged and disrupted the relief effort. Five thousand workers, mostly women and children, died of starvation and smallpox. Steinbeck later told FSA camp manager Tom Collins that the flood “hit me and hit me hard for it hurts inside clear to the back of my head. I got pains all over my head, hard pains. Have never had pains like this before.”61 Although he had already been working with the FSA, writing journalistic exposés and articles about the migrants for two years, including a series of articles punctuated by Dorothea Lange’s photographs (fig. 4.10),62 Steinbeck was overwhelmed by the events of that winter and “knew he had witnessed the stuff of tragedy.” He abandoned

Fig. 4.17. “Old age” near Washington, Pennsylvania. Dorothea Lange (1936), Library of Congress, Prints & Photographs Division, FSA-OWI Collection, LC-USF34-009681-C.

Fig. 4.18. Tractored out. Dorothea Lange (1936), Library of Congress, Prints & Photographs Division, FSA-OWI Collection, LC-USF34-T01-018281-C.

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Fig. 4.19. Farmyard covered with floodwaters near Ridgley, Tennessee. Walker Evans (1937), Library of Congress, Prints & Photographs Division, FSA-OWI Collection, LC-USF33-009256-M5.

his other projects in favor of writing a realist novel, the literary form best suited, according to Martha Nussbaum, to the elicitation of sympathy.63 The book was an instant smash. It was first published in March 1939, and by mid-May it was the best-selling book in the country. By the beginning of 1940 it sold 500,000 copies, and won both the National Book Award and the Pulitzer Prize for fiction. It was hailed as an American masterpiece and made into an Academy Award–winning film within a year of its publication. With the rise of the New Criticism a few years later, however, came the complaint that Steinbeck had not drawn his characters as fully as he could have, given his obvious literary gifts.64 The characters were thought fuzzy, flat, and out of focus; in the words of one critic, the Joads were “fitted into allegorical role, heightened beyond the limits of credibility.”65 Critics also argued that the plot was thin, and inexplicably interpolated with long exegeses on politics, history, and economics.66 As a text, the novel’s endurance and power was mysterious to critics, who felt that it lacked “the most essential elements of fiction—plot and character.”67 If we read The Grapes of Wrath as a claim on federal resources for victims of the Depression, and not just as a work of literary art, we can make sense of the flaws that puzzled the New Critics. Steinbeck faced two related risks

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in his effort to elicit compassion for the migrants. The first was that readers would conclude that his characters, pitiful though they may be, were dispossessed not by dust or tractors but by their own hands—that the story might channel blame toward them rather than carry it away. If the Joads were to be grasped as victims of the Depression, rather than of their own

Fig. 4.20. Mother of family camped near a creek bed, panning for gold. “Slept in a bed all my life long ’til now—sleeping on the ground. Near Redding, California. Dorothea Lange (1935), Library of Congress, Prints & Photographs Division, FSA-OWI Collection, LC-USF341-009474-C.

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Fig. 4.21. Grandmother of twenty-two children, from a farm in Oklahoma; eighty years old. Now living on the outskirts of Bakersfield, California. “If you lose your pluck you lose the most there is in you—all you’ve got to live with.” Dorothea Lange (1936), Library of Congress, Prints & Photographs Division, FSA-OWI Collection, LC-USF34-009857-C.

idiosyncratic personal histories and characters, then their uniqueness had to be suppressed in favor of what was common to all such victims. Second, at the other extreme, readers might become so attached to the characters in the novel that they would sympathize solely with Steinbeck’s Joads and, by some exceptionalist logic, no others. Steinbeck needed to transfer readers’

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sympathies from the Joads to the class of victims. Had the Joads been fully realized, readers might have refused to take this next step, instead seeing the Joad family as uniquely deserving of emotional engagement. In this Steinbeck faced a problem similar to that of makers of religious icons: that viewers might venerate the image and forget the more abstract reality it represented. Steinbeck carefully steered a course between these two hazards by using the very techniques that so distressed the New Critics. To ensure that the Joads could not be blamed for their state of want, Steinbeck suppressed facts about them other than their dispossession, ultimately entirely stripping them of their history and rendering them flatly against a dreary backdrop of suffering. Steinbeck then reminded the reader that the Joads were mere placeholders for real people by interweaving sociological discourses on the lives and conditions of migrants with his story about the Joads. Finally, Steinbeck impeded any desire to worship his icons by painting them as flawed, not in large ways that caused their predicament, but in small, human, ways that made them ordinary rather than saintly. These techniques cut the Joads off from their own past and consequently from alternative explanations for their deprivation, while at the same time seamlessly blending them into all of the other migrants whose fate they shared. The thinness of Steinbeck’s characterization of the Joads can be seen in how little the reader knows about their life before the migration. By the time we encounter them, they have been “tractored off” their land, their little house knocked off its foundation. All that remains of their domestic life at the story’s opening is a shell: The kitchen was empty of furniture, stove gone and the round stovepipe hole in the wall showing light. On the sink shelf lay an old beer opener and a broken fork with its wooden handle gone. . . . An old copy of the Philadelphia ledger was on the floor against the wall, its pages yellow and curling. Joad looked into the bedroom—no bed, no chairs, no nothing. On the wall, a picture of an Indian girl in color, labeled Red Wing. A high button shoe, curled up at the toe and broken over its instep.68

When Tom finally locates his family, their way of life has already faded away, and their truck was now “the new hearth, the living center of the family.”69 This shift of focus, from the house to the truck, is a device that propels them onto the road, but also breaks their connections to their past. Yet even this light baggage seems too much for Steinbeck, and he repeatedly has the Joads shed more of their past on their way west. Even before

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they leave, Ma Joad burns her small stationary box full of keepsakes accumulated over the course of her life: after removing a few items of jewelry, she burns the paper records of her family’s existence in Oklahoma: letters, clippings, photographs. She is troubled by losing this trace into the past, and hesitates before placing the box “gently among the coals.”70 Once on the road the Joads are increasingly stripped of aspects of any identity other than that of migrants. The grandparents die at the side of the highway, as does the family dog. The oldest son, Noah, refuses to cross the river into California and runs off. Rose of Sharon’s immature husband abandons her. Ma is despondent over the breakup of the family.71 As they glimpse California, they are transformed into people with barely any link to their past, one of thousands packing the ragged trucks streaming into the lush valley. Tom notes their new, anonymous status, exclaiming, “Jesus, are we gonna start clean! We sure ain’t bringin’ nothin’ with us.’”72 The effect is to leave readers with ever-fewer bases for countering Steinbeck’s identification of the causes of the Joads’ disaster, even if they want to. The decontextualized characters and their missing internal lives are puzzling indeed for a novel lauded as a masterpiece, particularly when we consider Nussbaum’s insight that the power of a novel to elicit pity for its subjects lies in its very capacity to draw the reader into the “richness of the inner world” of its characters.73 Yet Steinbeck gives only glances at history, at emotions, at relationships. We know that “Grampa fit in the Revolution,” and that something happened with Indians in his distant past. We know that Ma and Pa are married, but we experience none of their reflections on their courtship, none of their internal feelings for each other, nor any depth to their bond. We know that Tom was in prison for four years, but he won’t discuss the experience, preferring to “jus’ lay one foot down in front a the other.”74 We know that Al is going to marry Aggie Wainwright, who lives at the other end of their boxcar, but we do not see or experience any moments with these lovers who are always “out walkin’.” We know nothing of their passion, their desire, their sexuality—we suspect that they have been so dehumanized by now that they have nothing of these complex emotions left. In fact, the only feelings they are allowed are those of pride, grief, remorse, fear, and eventually, anger—defining them as oppressed and forlorn but nothing else. It was essential to Steinbeck’s project that the Joads be both more and less than compelling characters; they had to be sufficiently generic to stand in for Roosevelt’s “500,000 people who live between the covers of the book.” Unfortunately, the very features of the novel as literary genre—its

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ability to elicit compassion by bringing readers into the emotional world of individual characters—threatened to undermine this purpose, a problem, as Nussbaum notes, general to the socialist novel.75 Steinbeck maintained the reader’s pity for his characters but diminished the distracting features of individuality by continually alternating the reader’s perspective between near and far views, bringing the Joads into sharp focus, then zooming out until they are so small that their cars “crawled out like bugs.”76 Steinbeck’s interjection of what he called the “general” in the midst of the “particular” narrative of the Joads might be seen, as it was by the New Critics, as a sign of confusion between the literary forms of novel and political essay.77 And it certainly did depart from the novel’s typical insistence on richly detailed, highly individualized portraits. But it can more profitably be recognized as an example of another literary form with which Steinbeck was undoubtedly acquainted: the ethnography. As James Clifford and others have pointed out, ethnographers beginning with Bronislaw Malinowski’s famous 1922 monograph, Argonauts of the Western Pacific, had, by the time of Steinbeck’s writing, worked out a technique for alternating between vivid description and theoretical explanation in order to produce authoritative accounts of culture.78 Ethnographers wrote detailed descriptions of far-off individuals in order to create a sympathetic relativism in which their subjects could be perceived as not bad, just different. Steinbeck, following this insight, adopted their literary style in his rendering of the foreign and increasingly racialized Okies.79 His project was, then, both novelistic and ethnographic: using the literary device of the Joads, he authoritatively narrated the migrants’ rituals for birth, death, maturation, marriage, their religious, economic, and welfare institutions, and their efforts to maintain those practices under the intense pressures of deprivation. In the now-familiar rhythm of ethnography, particular segments of interaction between the Joad family and others are recounted, then given context and meaning by the ethnographer. In one example, the Joads stop for the night in the first of many ditch camps. In the next chapter Steinbeck interprets the activity in the camp for the reader, described in his journal as, “the change on the roads”: At first the families were timid in the building and tumbling worlds, but gradually the technique of building worlds became their technique. Then leaders emerged, then laws were made, then codes came into being. And as the worlds moved westward they were more complete and better furnished, for their builders were more experienced in building them.80

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This shift in literary voice, from the involved novelist to the authoritative social scientist, generates distance between the reader and the Joads, reducing them from the status of friends to the subjects of a case study. Moreover, by continually sifting the Joads into the masses and then culling them out again, Steinbeck highlights their status as examples, so that readers’ attachment to the Joads never overwhelmed their status as representatives of a type.

One Thousand Words In crafting his portrait of the Depression victim, Steinbeck drew heavily on the work of other artists involved in the effort to dramatize the migrants’ plight, many of whom were employed by Stryker or other New Deal agencies. In particular, he was influenced by the photographs of Dorothea Lange and Horace Bristol, as well as by Lorentz’s groundbreaking documentary films.81 D. G. Kehl has traced the links between characters in Steinbeck’s book and Lange’s pictures, arguing that the writer’s portraits of Tom Joad and Jim Casey were based upon her work.82 Lange’s photos were clearly associated with the novel: they were used to illustrate Steinbeck’s 1936 series for the San Francisco News, and later were reprinted as Their Blood Is Strong with a Lange shot of a nursing mother on the cover (fig. 4.10). New Dealers recognized early the power of photography to construct sympathetic icons of the Depression’s ravaging effects. Many of the most famous photographers and documentary film makers of this period, including Lange, Evans, and Lorentz, were employees of the Roosevelt administration, under explicit direction to document the effects of both the Depression and of Roosevelt’s programs. The intimate portraits of the poor taken by Lange during her time with the RA and later the FSA were originally taken to illustrate statistical reports written by her husband and collaborator, Paul Schuster Taylor. Taylor, a student of John Commons, was a liberal labor economist and young assistant professor at Berkeley when he and Lange began to document the effects of the Depression in California. When Federal Emergency Relief Administration (FERA) official Lawrence Hewes took Taylor and Lange’s report to Washington in 1935 and showed it to politicians like Tugwell, Eleanor Roosevelt, and Senator La Follette, he quickly realized that Lange’s pictures—thirty-nine shots on twenty-four pages—“were about the most important thing in the whole show.” Her photos were a huge success and were an important element in Harry Hopkins’s decision to allocate funds for federal migrant camps,

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which Taylor proudly noted were “the first federal public housing in the United States.”83 One reason Lange’s FSA photos were so compelling, according to Pare Lorentz, was that they portrayed the dust bowl refugees as blameless victims of fate: “You do not find in her portrait gallery the bindle stiffs, the drifters, the tramps, the unfortunate aimless dregs of the country. Her people stand straight and look you in the eye. They have the simple dignity of people who leaned against the wind, and worked in the sun, and owned their own land.”84 Lorentz was so impressed with Lange’s ability to portray the innocence of the migrants that he hired her to assist him when he made The Plow That Broke the Plains. At Stryker’s direction, Lange and other FSA photographers took thousands of “idealized pictures of decent, dignified, folk who where blamelessly down on their luck.”85 They were pictures not of people but of suffering. Lange and Taylor agreed that her photos were designed to explicitly argue that “these people are worth helping! They are down and out but they are not the dregs of society. They’ve just hit bottom, that’s all.” They were, according to the couple, “the children of distress, driven West by dust, drought, and Depression.”86 Lange’s pictures thus were used by the Roosevelt administration to stand for not only the plight of the migrants but also the suffering of the entire nation under the Depression, itself an interesting fact given their regional specificity. As Lange noted, her task was to represent virtue in a single image, and with no props except the people themselves: Their roots were all torn out. The only background they had was a background of utter poverty. It’s very hard to photograph a proud man against a background like that because it doesn’t show what he’s proud about. I had to get my camera to register the things about these people that were more important than how poor they were—their pride, their strength, their spirit.87

Lange’s conviction, reflected in her photographs, that images of surfaces could suggest depths without actually portraying them was undoubtedly shaped by her pre-Depression work as a commercial portrait photographer. She knew from experience that viewers read into photographs significance that would be impossible to represent directly. Thus the use of a direct gaze to signify honesty and dignity, or of eyes gazing downward to signify humility and passivity, was part of Lange’s photographic repertoire before she took any pictures of migrants.88 Lange was a master at signaling moral qualities while leaving ambiguous the details of the lives of the people she

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photographed. In this project she was doing with a camera what Steinbeck did with a pen. Like Steinbeck she drew on the techniques of her craft, and on the visual competencies of her audience. Two well-known images produced during the Depression illustrate another element in the iconization of victims: the use of white mothers and babies, and preferably both. Madonna of the Flood (fig. 4.11) was shot in a Memphis refugee camp following the Mississippi River flood of 1937. It was published in Life magazine, which hailed it as the “best shot” of the flood, and was distributed by the Associated Press (AP). The prize-winning photo, taken by photographer James Keen, was reprinted in the 1937 Red Cross Annual Report on federal and private assistance to the flood victims. Its title, reported variously as “Lowland Madonna,” “Madonna of the Flood,” and “Memphis Madonna,” invoked arguments about innocence from religious domains. As with the migrant photos, there is no context for the picture other than the disaster and suffering. Neither the names nor the hometown of the subjects, Winifred and Charles Waver of Luxora, Arkansas, were reported despite the fact that the photographer knew them. Rather, the AP presented them as “the faces of America in disaster.” 89 Scores of similar pictures featuring white women nursing, cradling, and feeding babies fill the FSA archives. The most successful such image, and the picture that has “come to symbolize the entire Depression experience in America” is Lange’s Migrant Mother (fig. 4.1).90 Lange took the photo in February 1935 at a pea pickers camp in Nipomo. The original caption for the photograph was “Destitute peapickers in California; a 32 year old mother of seven children. February, 1936.”91 Even this sparse biography evidently offered too much information from which an account of the subject’s culpability might be forged (seven children?), and the picture became known by its present iconic title. Stryker himself gloried in the picture, calling it the “ultimate” and “the picture of Farm Security.” It was published and republished, quickly generating intense emotional reaction among viewers.92 It has become a transparent icon of blameless victimization in contexts as varied as the Spanish Civil War and the Black Nationalist movement. According to George Elliot’s introduction to the Museum of Modern Art’s Lange retrospective in 1966 the picture “leads a life of its own,” in its ability to crystallize “the humanly universal results of poverty.”93 Figure 4.12 shows another shot of the same woman taken by Lange that same day, this one again invoking claims about innocence through the use of a nursing baby. The importance of women and children in Lange’s visual repertoire seems to lend support to Skocpol’s argument that the New Deal, and the

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American welfare state more generally, have “maternalist” origins.94 Yet Lange and other FSA photographers also took many pictures of men, alone and in groups (figs. 4.2–4.8), and some of the FSA’s most famous images of women and children included men (fig. 4.13). This portrait, part of a series by FSA photographer Walker Evans, directly involves the man with his family. Similarly, figure 4.14, taken by Russell Lee in 1936, shows an unemployed worker with his wife and children. Rather than reading these pictures of men as somehow peripheral to the New Deal’s rhetoric, it is more useful to see Stryker, Lange, Evans, and others as drawing on a moral economy of blame and moral virtue in crafting these images of need. New Deal photography was not bent on showing that the Depression claimed women and children as victims, and therefore that unemployment should be relieved. Rather, photographers looked for subjects who could be protected against the collapse of need into blame and responsibility. For this purpose children, and most especially babies, were ideal, since their responsibility for their own misfortune could be easily refuted. Men presented difficulties because gendered conceptions by viewers threatened to undermine the male subjects’ status as icons of deprivation. For this reason it was imperative that their biographies, as glimpsed through the lens of the camera, gave no indication of any complicity in their own circumstances. Pictures of men thus required a greater effort on the part of the photographer to represent dignity, hard work, and moral innocence than those of women and children, whose portraits traded on already-established logics of virtue and blamelessness. Lange often attempted to accomplish this by appending page-length captions to photos including men, explaining in detail the reasons for the father’s unemployment: Migrant family from Oklahoma. A family of six alongside the road. An example of how they fall between the relief agencies. The father, age thirty-five, is an intelligent fellow, a painter by trade. Advanced tuberculosis, victim of an occupational disease. Ineligible for WPA (Works Progress Administration), rated as totally disabled. As a state charge under Oklahoma relief standards, the family were told the maximum relief would be seven dollars every two weeks. They lost their home, their furniture, took to the road a year ago and when the photographs were made they were found to be without money, shelter, and without food for the four children.95

In another example, Lange describes a family living in a tent camp outside Sacramento. “Father was coal miner in Tennessee but when the mines

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were not working received two days a week relief work. Thought we could make it better out here.”96 These captions demonstrate the intense effort required to direct blame away from images of needy men. A more frequently adopted strategy was merely to omit men from the photos altogether, taking alternative views or shots of a family that included only the woman, baby, and perhaps another younger child. Figures 4.15 and 4.16 exemplify this approach, taken by Evans and Lee with respect to the same families shown in figures 4.13 and 4.14, now shorn of their adult male members, and even of older male children.

Constructing Unemployment and Old Age as Disasters We refused to leave the problems of our common welfare to be solved by the winds of chance and the hurricanes of disaster. —Franklin Delano Roosevelt, January 20, 1937

Once constructed as an entity, the Depression was available to be described, and ultimately, to be analogized to “other” earlier disasters. This was, to be sure, not a one-way process; the use of disaster metaphors themselves helped to reify the collection of effects into a solitary experience, in La Follette’s terms, an “economic earthquake.”97 While FDR became a master of disaster metaphors, as in the above passage from his Second Inaugural Address, he did not start out this way.98 At first he was more likely to describe the economic circumstances as an “emergency” requiring extraordinary measures than as a disaster. This pattern did not escape Hoover’s notice. By his count Roosevelt based more than two hundred executive orders on “emergency” grounds and used the word “emergency” more than four hundred times in public statements between 1933 and 1934.99 For example, in an extemporaneous address to the Conference on Mobilization for Human Needs in September 1933, Roosevelt recounted that the governor of South Dakota had been at the White House the previous day showing pictures of farm lands decimated by grasshoppers. Roosevelt described it as an “emergency” and said that “we are going to take care of it as an emergency.” He went on to distinguish economic hardship—“cases in some of the coal-mining sections of this country where families have been starving”—from “disasters” involving “grasshoppers and floods,” which, ironically given Hoover’s fate, he suggested should be dealt with by the Red Cross.100 Within a few years, though, Roosevelt would be making the opposite point, moving fluidly between floods and economic turmoil.

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In November 1935 in Atlanta, for example, Roosevelt described the Depression as a “disaster” and recalled the “overwhelming demand that the national Government come to the rescue of the homeowners and farm owners of the Nation.” He accepted his renomination by the Democratic Party in 1936 by thanking “the millions of Americans who have borne disaster bravely and who have dared to smile through the storm.” At the 1936 Jefferson Day Dinner in New York City, he again called attention to the distinction between man-made and natural disasters, but this time to deny its significance: The strong arm of the Nation is needed not in immediate relief alone. We all grant that. It is needed also in taking measures of prevention before natural disasters occur. It is needed equally in taking measures to prevent economic disasters, which are not natural but are made by man.

Moreover, in a reprise of La Follette’s strategy in Congress Roosevelt recited to his audience a nationwide litany of disaster—“the cotton problem of Georgia, the corn and hog problem of Iowa, the wheat problem of the Dakotas, the dust storms of the west, the destructive tornados in the South, and the floods in the Northeast”—in order to drive home his contention that the nation was faced by a singular calamity: “Nebraska’s corn and Eighth Avenue’s clothing are not different problems; they are the same national problem.”101 On occasion Roosevelt went even further, melding ruined landscapes and ruined lives into a single vivid metaphor, almost as if visually overlaying one upon the other. In a speech in Kansas City in October 1936, for example, Roosevelt reported that he had just come from the West where he had seen for himself the terrible conditions of the “national dust bowl.” Yet, Roosevelt testified, “through the years of this depression we have had destruction even more tragic than that—waste in men and women . . . Of all the appalling waste of the days of false prosperity and recent disaster, human erosion has been the most calamitous.” Lest his audience miss the implication, Roosevelt laid it out for them: “We no longer believe that human beings hit by flood, drought, unemployment, or any other national disaster should be left to themselves with the sole help of such charity as may be available to them.”102 For Roosevelt, “natural” disasters became occasions for arguing that the federal government should be just as generous and responsive to victims of the Depression as to more traditional disasters. Addressing an audience in

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Gainesville, Georgia, in March 1938, the president called their attention to the tornado that demolished their town two years before: “Gainesville suffered a great disaster. So did the Nation in those eight years of false prosperity followed by four years of collapse.” He reminded the conservative southern Democrats that they had received over a million dollars in federal disaster relief, and he urged their continued support for aid to the unemployed because “the application of this principle to national problems would amply solve our national needs.”103 Roosevelt had visited Gainesville in the weeks after the disaster in 1936. He now returned two years later on a campaign visit, at which he endorsed Senator Walter George’s opponent in the Democratic primary because George had opposed some of Roosevelt’s measures in the Senate, including the Social Security Act. The speech, known now as the “Brother’s Keeper” address, criticized the leaders, including George, of a southern “feudal” economy that resulted in wages for the region that he said were “way too low.”104 Because of the controversy, the speech (including his equation of the hurricane with the Depression) was reprinted on the front pages of hundreds of papers around the country. The apotheosis of Roosevelt’s enlisting of natural disasters as a political ally in his fight for the New Deal came in his famous speech on his court-packing plan, delivered on Victory Day, March 4, 1937. The speech came near the high-water mark of the 1937 Mississippi River flood and as the courts contemplated the fate of the Social Security Act. The Mississippi and Ohio River floods of 1937, the worst natural disaster in US history, had left a swath of destruction throughout the South unparalleled since the Civil War. Thousands died, and nearly a million people were left homeless and stranded in disease-plagued tent cities.105 Refugees “filled armories, barracks, tent cities, and even boxcars” according to a Life magazine issue devoted to the crisis. The New York Times designated it a “super flood,” far worse than anything the country had ever seen.106 Levees were dynamited across the Midwest in a desperate attempt to save towns and cities, such as Cairo, Illinois, from inundation.107 In the singular devastation of the 1937 flood Roosevelt saw a singular opportunity to rally support for federal power. Roosevelt railed against the court’s striking down the New Deal’s programs by arguing that the court had left the nation defenseless against disaster, saying: The Ohio River and the dust bowl are not conversant with the habits of the Interstate Commerce Clause. But we shall never be safe in our lives, in our property . . . unless we have somehow made the Interstate Commerce Clause

Crafting the Depression / 119 conversant with the habits of the Ohio River and the dust bowl. . . . Here too we cannot afford, either individually or as a party to postpone or run away from a fight on the advice of defeatist lawyers. Let them try that advice on sweating men piling sandbags on the levees at Cairo!

He portrayed the Supreme Court as tying the hands of the federal government in dealing with a whole range of disasters, including “floods and droughts and agricultural surpluses, strikes and industrial confusion and disorder.” Roosevelt’s call to action against the court was, tellingly, an appeal to the force of nature: “Here are Spring floods threatening to roll again down our river valleys, NOW! Here is the dust bowl beginning to blow again, NOW! . . . I say we must act NOW.”108 Roosevelt was not alone in seeing the political opportunity the flood offered. Two weeks earlier La Follette had given a speech broadcast nationally over NBC radio in which he defended Roosevelt’s court plan, arguing that the Supreme Court’s interpretation of the constitution had rendered it impossible for either Congress or the states to take action on a host of problems, including “unemployment relief, housing, the protection of our river valleys from floods, or our national resources from a waste that spells ultimate national disaster.” La Follette, whose speech was published in Vital Speeches of the Day for 1937, warned that floods and droughts were increasing in size and scope.109 This theme was picked up by Stuart Chase, a member of Roosevelt’s kitchen cabinet, who sent a letter to the editor of the New York Times two days later calling for “vigorous federal action” to address the “appalling situation” of a nation “increasingly stricken with flood, drought, and dust storm.” A well-known consumer advocate who had been a member of the FTC, Chase first coined the term “New Deal” in his book by the same title in 1931. Although his letter was not published by the Times, it formed the basis for Roosevelt’s Victory Day speech, including Chase’s trenchant observation, picked up by Roosevelt, that “the Ohio River is not conversant with the interstate commerce clause.”110 Renderings of the Depression by Roosevelt, La Follette, and others likened it to hurricanes, floods, fires, tornados, droughts, storms, wars, tidal waves, plagues of locusts, and other disasters. Harry Hopkins gave the nation’s WPA workers the moniker “shock troops of disaster” (the title of a 1938 WPA documentary film about the agency’s hurricane relief operations) and conspicuously dispatched them to the scene of every flood, fire, hurricane, or storm during this period. Fifty thousand WPA workers were assigned to relieve the 1937 flood alone.111 Roosevelt and Hopkins obtained a long-sought increase in funds for the WPA by adding a clause to

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the appropriation measure referencing flood relief. As Time put it, “on the flood crests of the Ohio and Mississippi, Franklin Roosevelt’s Relief program rode to an easy victory.”112 Hopkins’s radio address, discussed in this book’s introduction, reminded listeners of the century-long “tradition” of American relief to “help groups of citizens recover from disaster or other circumstances beyond their own control.”113 Assistant Attorney General Robert Jackson, who argued the government’s case for the Social Security Act in the Supreme Court, echoed Roosevelt’s Victory Day accusation that the court, if not checked, would eventually stop the government from providing disaster relief. Jackson told a Carnegie Hall audience on March 24 that only the national government could respond to the needs of the people in a country “increasingly stricken with flood, drought, and dust storms. The elements will wait for no [constitutional] amendment.”114 The mobilization by Roosevelt and others in his inner circle of the 1937 flood and other natural disasters helped to make the case for the unemployed, who, in turn, became “these innocent victims of this economic disaster.”115 In Roosevelt’s speech accepting the Democratic presidential nomination in 1936, he characterized the Democratic Party platform, and in particular, its Social Security plank, as one that “sets forth that government in a modern civilization has certain inescapable obligations to its citizens, among which are protection of the family and the home, the establishment of a democracy of opportunity and aid to those overtaken by disaster.”116 His description was then quoted in the Democratic Party’s campaign literature and disseminated to campaign workers all over the country, who were instructed to use it when responding to Republican arguments against Social Security.117 The analogy was sometimes vulnerable, however, as Nebraska Senator George Norris acknowledged in the debate over relief for the unemployed in the winter of 1931. “It may be that in some cases those who suffer are in part and are sometimes wholly to blame. But . . . [w]hen people, especially little children, are suffering for the necessaries of life, the first thing to do is to bring relief . . . from the Federal Treasury.”118 Norris, like Steinbeck and Lange, presented the poor stripped of biographical detail in order to minimize the possibility that their need could be attributed to their own fault and, like Lange, resorted to the use of children as icons of blamelessness. Others, like Senator McKellar, worked at perfecting and defending the metaphor: “It was not the fault of these people that there was a great panic in New York. It is not their fault that there is a great period of depression in this country. It is their misfortune, and this Government from time im-

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memorial has provided for such a situation, and it is our duty to provide for this one now.”119 Certain claimants were far more easily able to describe their loss as the result of a big, sudden calamity. Similarly, some claimants were better able than others—due to features of their biographies, such as youth, race, or gender—to portray themselves as innocent. Some cases, like the migrants fleeing the “dust bowl”—white families including women and children who were at least partially affected by bad weather—were highly persuasive on both dimensions, and required very little work by advocates to narrate their need as the result of a disaster. Others, like retirees who were expected to save for their old age—a slow process that was entirely foreseeable and hardly sudden—had a harder story to tell. The drought and dust storms of 1934–36, as well as the floods of 1938, eased the migrants’ ability to claim federal aid by providing large, sudden events linked, however precariously, to “nature.” Steinbeck opened his story with the dust and closed with the flood, despite his awareness that the dust bowl had relatively little to do with the situation of most of the migrants.120 In fact, as Stein notes, most of the migrants were refugees not from the weather but from mechanization, what Dorothea Lange called “tractor refugees.”121 Lange tried to make the case that tractors were as much a disaster for the tenant farmer as the dust in a revealing series (fig. 4.18) that emulated the style of other FSA photos of disasters such as floods (fig. 4.19). Many of these tractors were purchased by large landowners with payments under the Agricultural Adjustment Act, however, and the FSA discouraged Lange and Taylor from this line of argument. Similarly, Steinbeck’s novel presented mechanization and greed as the principal causes of the migrants’ need (though sandwiched between the drought and the floods). By the time of the film, however, all reference to tractors had been excised in favor of opening disclaimer that explicitly blamed the Joads’ troubles on the weather. Despite the relative ease with which the migrant story fit the structure of the disaster narrative, efforts were made to destabilize the legitimacy of their claim on federal relief by calling attention to their relative fault for their own deprivation. In a 1940 letter to Roosevelt a native Californian expressed commonly held views: The fact that they are leaving their native land unfit for human habitation is not surprising. Their ignorance and maliciousness in caring for trees, crops, vines, and the land is such that California will be ruined if farming is left to

122 / Chapter Four them. Please do not put these vile people at my door to depreciate my property and loot my ranch.122

Moreover, the migrants’ claims of innocence were threatened by attempts to racialize them as “Okies” and describe them as members of a “degenerate” minority group, a “degraded American stock,” rather than as white, northern Europeans.123 Members of racial minority groups seeking to narrate their losses as the result of fate face a special difficulty because they are highly likely to be cast as a “disaster” for the dominant racial group. This was the case with the California agricultural migrants, who, once racialized, were described by Californians as a disaster for health, education, and social order. The attack on their whiteness was therefore a tactic that, if successful, was potentially fatal to claims of moral innocence. Steinbeck and the entire staff of the FSA’s Historical Section refuted this attack with extreme vigor. Pictures taken by Lange, Rothstein, and others focused on blond-headed children. For example, the title of Steinbeck’s pamphlet (fig. 4.10), Their Blood Is Strong, is a direct claim for the pure racial stock of the migrants. Stein concludes that the effort to transform the Okies into a disfavored racial minority ultimately failed, commenting acidly that “no novel, however brilliant, which chronicled the migratory route of the Pedro Morenos in California’s valleys could have become a bestseller.”124 Understanding the features of the migrants’ claim that fit easily within the structure of the disaster narrative helps to make sense of the apparently odd fact of their iconic status. Why, after all, should Lange’s Migrant Mother come to represent the suffering of the urban unemployed, or of the elderly indigent? It is curious that these images, taken quite late in the Depression—1936 through 1940—of groups that were entirely excluded from the Social Security Act as agricultural laborers, should be taken as representations of the Depression itself. The force of their case lies not in really good pictures, or in a really good book, but in the reason that these objects are yet today regarded as “really good”—that is, in the features of their story, which lent themselves to an easy construction of the migrants as disaster victims. By contrast, what is today regarded as the centerpiece of the New Deal, the Old Age Insurance provisions of the Social Security Act of 1935, was extremely difficult for Roosevelt to fit within the disaster narrative, and it required tremendous effort to squeeze it into conformity with the scheme of precedents authorizing federal aid. The migrants could point to a number of events beyond their fault—weather, banks, unscrupulous capitalists, tractors. The urban unemployed could, of course, attribute their losses to

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the agency of the Depression, which was constructed as a sudden catastrophe. Dependent children could point to the death or abandonment by a parent, and the blind and disabled could attribute their injuries or illnesses to accidents or to the agency of germs. The dependent elderly, however, had no such bad luck. They aged slowly, inevitably, and were expected to save for that eventuality. The fact that they turned up impoverished after their retirement was a claim that was dangerously embarrassed by its connection to their own conduct. Although it is today common to view these pensions as the most favored form of American welfare, old age insurance was in 1935 the most controversial part of the Social Security Act and was thought likely to be stricken from the bill in part because it “does not purport to be an emergency measure,” in the words of the National Association of Manufacturers.125 In the end, it was only the insistence of Roosevelt himself that salvaged this portion of the law.126 The Social Security Act Congress ultimately passed provided minor matching grants to the states for direct relief to the indigent elderly who had lost savings and suffered during the Depression, but it resoundingly rejected the efforts of the Townsend and Lundeen movements for direct federal pensions for the elderly financed out of general revenues. Longterm assistance for the elderly was provided by the old age insurance program, which was financed by a regressive tax on employees, excluded most poor workers, and encouraged “thrift.” Benefits were keyed to contribution levels, and the program emulated an annuity form of “true insurance” rather than social insurance. Today we see this program as the best form of welfare. The facts that Social Security is contributory and thought of as “insurance” are viewed as features that have fostered the program’s popularity with the middle class. But they should also be seen as a product of the difficulty of narrating as something as foreseeable, inevitable, and long term as aging as a disaster. Roosevelt repeatedly demonstrated that he recognized both the necessity of the disaster narrative as a prerequisite for federal funding and the fragility of the analogy between disaster relief and old age insurance. From the outset of his push for Social Security, he used rhetorical strategies designed to strengthen the link between disaster victims and the elderly, and to minimize features of aging that appeared to undermine his claim. For instance, during his famous speech of June 8, 1934, announcing his intention to seek economic security legislation, Roosevelt focused not on pensions but on the dust bowl. He carefully mapped the analogy: “Economic circumstances and the forces of nature themselves dictate the need of constant thought as to the means by which a wise Government may help the

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necessary readjustment of the population.” Invoking religious images of innocence, the president described the way that “the top soil in dry season is blown away like driven snow,” and went on to discuss the ways in which irrigation and other kinds of “human engineering” can be “employed in the attack on impossible social and economic conditions.” He concluded that only comprehensive national planning rather than a piecemeal approach by “the 48 states” could solve the problem.127 Roosevelt then shifted abruptly to Social Security, tying it to the drought. He drew an identity between the people affected by the drought and the Depression, sounding the administration’s theme of “human erosion,”128 and arguing that “it must be clear to all of us that for many years to come we shall be engaged in the task of rehabilitating many hundreds of thousands of our American families” just as we will be rehabilitating the dirt. Roosevelt’s invocation of the dust bowl during his inauguration of Social Security sought to blur the boundary between old age and drought. He sought to highlight both the social causes of the dust bowl and the natural causes of dependency in order to make the two more closely comparable and to use the acknowledged legitimacy of federal drought relief as a springboard for his social insurance scheme. This was accomplished by slipping smoothly from protection against the hazards of wind and drought to “security against the hazards and vicissitudes of life,” and joining the two under the umbrella of “safeguards against misfortunes which cannot be wholly eliminated in this man-made world of ours.” Roosevelt concluded with an appeal to precedent, asserting that his program of social provision required no shift in American principles or values, but was entirely consistent with past practices of federal relief.129 Further driving home his point, the next day, June 9, 1934, the president asked for and obtained what was then the largest single disaster relief measure in American history: $525 million for drought relief.130 This case was also made by Stryker’s photographers, particularly Lange, who took heartrending shots of impoverished elderly women dislocated by the dust bowl (figs. 4.20–4.21). Roosevelt’s attempt to describe aging as a disaster by characterizing it as a “misfortune” and as a “hazard and vicissitude of life” was frequently quoted by his Committee on Economic Security and by congressional advocates as the primary focus of the legislation. When it became clear by November of that year that the committee regarded unemployment as far more within the scope of what could properly be considered a “hazard” or an “emergency,” Roosevelt shored up the old age provisions in a speech to the National Conference on Economic Security, saying,

Crafting the Depression / 125 There are other matters with which we must deal before we shall give adequate protection to the individual against the many economic hazards. Old age is at once the most certain, and for many people the most tragic of all hazards. There is no tragedy in growing old, but there is tragedy in growing old without means of support.131

In this example Roosevelt described aging as a disaster with reference to “events” that happened to transform the otherwise normal process of growing old into a disaster. This was a strategy adopted by his Committee on Economic Security and later by New Deal lawyers defending the scheme before the Supreme Court. These efforts relied upon descriptions of urbanization, bank failures that wiped out savings during the Depression, industrialization, farm foreclosure, and demographic data showing longer life expectancies, that combined to transform the aging process from a bucolic vision of familial support into a disastrous dependency (see figs. 4.17, 4.20–4.21).132 The next chapter investigates the success of this strategy in crafting and defending the Social Security Act.

FIVE

The Bomb-Proof Power

In November 1935 Harvard law professor Felix Frankfurter wrote to his longtime friend, Jerome Frank, who was then special counsel to the Public Works Administration. In that role Frank was directing the defense of a federal program that aided the construction of municipal power plants that would compete with private utilities. Southern power companies, like the South Carolina giant Duke Power, sued to stop the program, arguing that the federal government lacked the authority under the constitution to spend money for the construction of the plants. Frankfurter, who had recommended Frank for his first government job back in 1933, warned Frank against portraying the New Deal as a radical innovation. Doing so would require the courts to adopt a wholly new perspective on the limits of national power in order to uphold the administration’s program. Instead, Frankfurter advised Frank to seek precedents that would establish the New Deal’s public works program as firmly in line with traditional conceptions of federal authority.1 Frankfurter was particularly worried that his friend’s well-known commitment to legal realism would lead him astray. He thought that Frank might well decide to disregard precedent in favor of a direct appeal to necessity. “Nothing,” he urged, “seems to be more important than to avoid arguments of novelty and of potentially far-reaching implications.” On the contrary, Frank should try to “employ familiar concepts, expressed in very familiar, simple, unarousing language” and abandon any effort to vindicate any realist philosophy or “expose the bunk of old arguments.” Frankfurter admonished him to abandon his “romantic” idealism and to focus his energy on “the simple minded effort to square a present case with past formulations.” Frank bristled at Frankfurter’s input, though not for the reason we might

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expect given what we know of both men. Frank’s Law and the Modern Mind was one of the founding manifestos of the Legal Realist movement. It was Frank, after all, who was supposed to have suggested that judicial decisions hinged on what judges had for breakfast. Frank was irritated at Frankfurter’s insistence that he abandon his theory of the judicial process in order to win his case. But Frank was annoyed with Frankfurter not because he disagreed with his tactical advice. He was angry because he felt that his friend was making such an obvious point that Frank felt his intelligence and legal skills were being insulted. Clearly wounded, Frank snapped back that “my strategy has been exactly that suggested by you, namely, to assert on behalf of the government no more power than is necessary to justify the precise action heretofore taken by it. You ought to know that I do not believe in trying to vindicate abstract principles and that to me the important thing is to win particular cases.” Furthermore, Frank tartly noted that he, unlike his friend the professor, had been practicing law for twenty-one years and that his strategy was always to “take the homeliest illustrations in the simplest possible English and to bring the facts of the case within the sanction of the least controverted precedents.” This, to Frank, was not contrary to legal realism; it was the very essence of it. Because judges prefer to portray their decisions as flowing from precedent, “it is essential to use the particular kind of jargon and articulate one’s ideas in terms of the particular kind of precedential language that, so far as one can conjecture, will be most pleasing to the particular tribunal to which the argument is addressed.” Frank knew enough not to argue in court that law was all “bunk,” and he resented deeply the suggestion that he would be so naive. Back and forth they went. Over half a dozen letters that winter, the two men bickered over the strength of Frank’s commitment to building traditional legal arguments based on precedent despite his famous academic writing.2 If this argument strikes a discordant note today, it is because in our standard historical understanding the New Deal brought about a tectonic shift in the constitutional landscape, a shift instigated in part by the cadre of Legal Realists, including Frank and Thurman Arnold, who became key legal strategists within the government and whose disdain for precedent and formalism drove the New Deal’s constitutional revolution.3 Yet as the argument between Frank and the more conventional Frankfurter shows, even dedicated Realists took as an absolute imperative that they had to portray the New Deal programs as entirely continuous with the past. In the case of the spending programs, anyway, this was not a task they saw as particularly arduous. As Arnold advised Assistant Attorney General Robert Jackson

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in September 1936 regarding the government’s brief in the Social Security cases, the administration should avoid the suggestion that the act was in any way going to extend the power of the federal government and should instead emphasize its conformity with past practices. In Arnold’s view the case for the constitutionality of the program was conclusive based on legal precedent. “There are no cases,” he wrote, “which have to be overruled to sustain the constitutionality of the Act.”4 Frank and Frankfurter, Arnold and Jackson, and others such as Alger Hiss at the Agricultural Adjustment Administration (AAA), and Alexander Holtzoff, Thomas Eliot, and Barbara Armstrong at the Committee on Economic Security (CES) were prominent members of a dense network of more anonymous government lawyers who drafted and defended the social welfare programs of the 1930s, including unemployment insurance, old age benefits, mortgage assistance, farm subsidies, public works programs, and others. These lawyers were spread across a wide range of government departments and agencies in Washington and elsewhere in the country, with centers of gravity at the justice, agriculture, and treasury departments. They were bound together by a constant flow of memoranda, briefs, and meetings from which they formed a loose consensus about how best to draft legislation and to beat back the multitude of court challenges to the New Deal.

A Very High Place Relief for the unemployed and elderly was one of the Roosevelt administration’s top priorities. That need was initially met like a disaster, with emergency appropriations distributed on a temporary basis through the Federal Emergency Relief Administration (FERA), and later, Works Progress Administration (WPA), the Public Works Administration (PWA), the Home Owners Loan Corporation, and the AAA and Resettlement Administration (which dealt with rural poverty). Although these relief programs were clearly better than nothing, many thought they did not go far enough.5 In 1934 Paul Kellogg, the editor of Survey and Survey Graphic (which published many of the Resettlement and Farm Security photos), decried the government’s “hectic temporary attitude toward crisis relief.” Kellogg and many other like-minded social welfare advocates throughout the country thought that “families stripped of a chance to work by forces beyond their grasp” and those who were stricken by illness or old age should be able to rely on more permanent public social provision, such as a national system of unemployment and old age insurance.6

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President Roosevelt had been inconsistent in his commitment to a more permanent solution but agreed to support social insurance under pressure from Frances Perkins.7 On June 8, 1934, Roosevelt announced, in a speech written by “brain truster” and former Thomas Reed Powell student Ray Moley, then a law professor at Columbia and an editor at Today magazine, that he would send Congress an Economic Security Bill early in 1935, and appointed a cabinet-level Committee on Economic Security (CES) to investigate solutions and draft legislation.8 The CES was staffed by a group of committees set up around substantive questions such as old age security, unemployment, and medical insurance, and employed a host of policy experts, actuaries, and lawyers. Arthur Altmeyer, a young assistant secretary of labor under Perkins, was appointed to head the technical board that oversaw these efforts, while Edwin Witte, an associate of Altmeyer’s from the Wisconsin State Industrial Commission and an economics professor at the University of Wisconsin, was made the CES executive director.9 They had to work fast. Witte and Altmeyer started work at the end of July 1934, and were to bring in a bill by December 1, in time for Congress to consider when it returned from the Christmas holiday.10 The resulting bill, renamed the Social Security Act by the House Ways and Means Committee in hearings that winter, called for an unemployment insurance system run by the states and a national system of payments to the elderly coupled with compulsory contributions from employers, as well as grants-in-aid to the states for various forms of assistance.11 It is well known that the structure of unemployment insurance was a controversial issue within the administration, as Roosevelt and his close advisors repeatedly rejected proposals for the nationalization of the unemployment as well as the old age program. The standard account of the resolution, by both participants and scholars, is that constitutional and political concerns over federalism rendered a national plan for unemployment impossible. In a typical example, Arthur Schlesinger cites both the “anticipated resistance in Congress to a national approach [and] the presumed constitutional vulnerability of such an approach” as the basis for the decision.12 John Ikenberry and Theda Skocpol assert that Roosevelt and Perkins “firmly believed” that only a plan that deferred almost completely to the states on unemployment insurance could get through the Supreme Court.13 Robert Lieberman similarly claims that “the principal barrier to an entirely national system of social insurance that the committee members foresaw was constitutional.”14 For her part, Perkins later recalled that a major factor influencing her away from a national plan for unemployment was the opinion of the attorney general’s office that it was highly doubt-

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ful that the federal government could “distribute its funds on the basis of social benefit.”15 In sum, the standard account of these events is that serious constitutional concerns, together with the political problems caused by states’ rights advocates in Congress, combined to defeat the movement for national unemployment insurance. But this story that the Constitution barred national action, or indeed, that anyone connected with the Committee on Economic Security believed it did at the time, turns out on close inspection to be wrong. In fact, as I show below, the real story of the rejection of national standards in favor of complete state-level freedom seems to be very nearly the opposite. With only one exception, lawyers, law professors, and outside legal and constitutional experts agreed that a national plan for unemployment insurance would be “safer constitutionally” than the federal-state plan that was eventually adopted.16 Contrary to Perkins’s recollection, the attorney general’s office, in the person of Cummings’s personal assistant, Alexander Holtzoff, repeatedly informed Perkins, Witte, and the committee formulating the social security bill that from a constitutional perspective the state-run plan that was eventually adopted was the most vulnerable of all the possible choices. Indeed, the lawyers CES consulted advised Perkins and other officials that the only way that plan had any hope of passing constitutional muster was to strip the federal government of any ability to impose any standards on the states with respect to the provisions of their laws. It was right around this time that Justice Stone whispered to Frances Perkins over tea that Congress could “do anything” under its broad power to tax and spend in the general welfare. As we have already seen in chapter two, Justice Stone was not the only one at the time who thought so. It was just this fact that had encouraged Miles Dawson and inflamed John Randolph Tucker. Tucker had repeatedly warned during the late nineteenth century that the General Welfare Clause could lead to a federal usurpation in the southern states, as it had during Reconstruction through the Freedmen’s Bureau. Now it appeared that Tucker’s dire predictions might be about to come true. Under the spending power, Congress was poised to appropriate money for unemployment benefits and impose conditions on the southern states in exchange for making those benefits available. This meant that federal unemployment legislation could mandate inclusion of agricultural or domestic workers, could set minimum benefit levels, could forbid long waiting periods, in short, could upend the South’s “racist practices and low-cost patterns of labor control.”17 In the end it seemed that the Tuckers were right. The General Welfare Clause was a threat to the South’s political and economic system, and no

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one saw this more clearly than the members of the Roosevelt administration as they mulled over what to do about unemployment insurance. Consequently, the CES officials came to see this wide latitude in the appropriations power as a drawback rather than an advantage as they anticipated getting their legislation through Congress. In an effort to placate conservative southern Democrats, and possibly to a lesser extent mollify the Wisconsin proponents of state experimentation, the administration rejected the nationalizing plans they had been advised were more constitutionally sound. In what follows, I show that they selected the federal-state plan despite a consensus among legal experts that its chances in the courts were far worse. The CES staff was preoccupied from nearly the first moment of its existence with what Thomas Eliot later recalled as “the omnipresent question of constitutionality.”18 Three days after Witte’s appointment he began reaching out to law professors, including Frankfurter and Columbia’s Joseph Chamberlain, and to Justice Brandeis for advice. He asked them to help the committee decide “whether a national social insurance system (in the sense of a system directly operated by the Federal Government) is possible under the Constitution.” Witte said that he recognized that “we badly need the advice of qualified men who are sympathetic with the general purpose but appreciate the constitutional pitfalls.” He specifically asked the professors whether the Commerce Clause, the General Welfare Clause, or “some other power of Congress” might provide a sufficient basis for the committee’s work.19 Ironically given his later exchange with Frank, Frankfurter declined Witte’s request and advised him to ignore constitutional issues and instead to pay attention to politics and policy considerations. He cautioned Witte not to make the assumption that just “because a law may be constitutional therefore it is wise.”20 Witte disregarded Frankfurter’s advice as soon as he had a legal staff in place. Tom Eliot, who had vigorously argued for the taxing power as a means to expand national authority while a student in Thomas Reed Powell’s class, was on loan from the Department of Labor. Eliot, the twentyseven-year-old grandson of Harvard president Charles Eliot, had come to Washington soon after graduating from Harvard Law School (where he won the Ames moot court competition) in 1932 to become assistant solicitor of labor under Frances Perkins. In that role he had been the principal draftsman of the failed Wagner-Lewis unemployment insurance bill during the past spring. He became CES’s counsel, and after the Social Security bill’s passage, general counsel to the Social Security Board. Alexander Holtzoff, who later worked with Jerome Frank on the public power cases, was a

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graduate of Columbia Law School and himself a former student of Burgess and Goodnow. He was a career Justice Department lawyer and special assistant to Attorney General Homer Cummings, who had detailed him to work with Witte and Eliot on drafting the legislation and shepherding the economic security bill through Congress.21 The committees addressing various subjects were getting down to business by the beginning of September. Barbara Nachtrieb Armstrong, a University of California law professor with a PhD in economics, was retained as a consultant on both unemployment and old age security. Armstrong was beautiful, brilliant, and tough as nails. Her close friend and colleague, Roger Traynor, described her as a woman of enormous integrity and commitment to the ideals of humane government. A gifted teacher and respected scholar who had written a book on social insurance, Armstrong had great patience and warmth but also did not suffer fools gladly.22 Armstrong was well liked by her colleagues on the board, but she and Witte clashed from the beginning, and she reduced Witte to tears more than once.23 She was placed in charge of the team making recommendations on old age security, where she was assisted by Douglas Brown, the head of the Industrial Relations Department at Princeton. Bryce Stewart, an industrial consultant from Philadelphia, was to head up the group working on unemployment.24 Working late into the night in the roach-infested and decrepit Walker Johnson building they shared with FERA, Armstrong’s staff concluded that state-level old age insurance would be actuarially impossible due to labor mobility, while Stewart argued vehemently that states were inappropriate units for unemployment insurance due to the inability to take advantage of risk distribution.25 Moreover, if left to their own devices states would have widely divergent benefit levels and waiting periods, while a national program would be uniform.26 Both Armstrong’s and Stewart’s teams supported a unified national program. On October 1, the technical board headed by Altmeyer heard from both groups and decided that a nationally administered, unified scheme of unemployment and old age insurance would make the most sense, if it was constitutional.27 The lawyers began to weigh in on the side of a national plan. They quickly discarded any idea of using the commerce power as a basis for the plan and settled on Congress’s power to tax and appropriate.28 Witte wrote to William Leiserson, then the head of the National Mediation Board and a member of the CES unemployment committee, in mid-October rejecting his suggestion that a national plan could be based on the Commerce Clause. Witte informed him that all the lawyers believed that using the commerce

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power would cause constitutional problems and it was “only through the taxing power that we can possibly work out a national system.”29 Holtzoff provided a brief on the subject from the Justice Department, concluding that there was a “strong probability” that a federally administered system of old age and unemployment insurance based on the taxing and spending power would be upheld.30 The chief competitor to what Armstrong and Stewart called the “straight national” plan was based on the failed Wagner-Lewis unemployment insurance bill that Eliot had helped to draft during the prior session of Congress.31 Under this scheme, the federal government would levy a tax on employers that could then be offset by state tax revenues if the state enacted unemployment and old age insurance plans that met certain federal criteria. Eliot told his colleagues that Justice Brandeis had personally (through his daughter and son-in-law) suggested the idea and hinted that the Court would go along.32 Holtzoff, though, had doubts about this approach, particularly if there were to be any federal standards for state statutes. He worried that it would run afoul of the Child Labor Tax Case, in which the Court had held that a punitive tax on goods produced through child labor was not a true revenue measure but a regulation under the guise of the taxing power, and therefore an impermissible attempt to regulate intrastate commerce. Holtzoff thought the Court would probably not see Wagner-Lewis as much different.33 By contrast, he thought that the straight national plan, which could impose a tax paid into the general revenues and make a separate appropriation from the treasury for the payment of benefits “would obviate many objections on the ground of alleged unconstitutionality and would stand the best chance of being sustained from a constitutional standpoint.”34 Armstrong agreed that the straight national plan avoided the problem of the Child Labor Tax Case. Both Holtzoff and Armstrong noted that under the Maternity Act cases, it would be difficult even for anyone to challenge the appropriation, which seemed to be well within the general welfare in any event.35 This view was also echoed by the law professors from whom Armstrong sought opinions, much to Witte’s dismay.36 Dudley McGovney, Armstrong’s colleague at the University of California and the chairman of the ALI Committee on Constitutional Law, wrote her that the straight national plan had the best chance of surviving Court review, and Douglas Maggs at Duke concurred, as did several Harvard professors Eliot consulted.37 The only question in Armstrong’s mind was whether the federal government had the power to require employers to report information such as the basis for each employee’s dismissal, a point on which Eliot was also

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skeptical.38 However, all the lawyers agreed that it was going to be virtually impossible to impose any meaningful federal standards on the states through the Wagner-Lewis device, making the national plan more attractive to many on the CES staff. Eliot wrote in early October that for the WagnerLewis approach, “the fewer the standards the better chance the bill has in the courts.”39 This meant that the states would be free to offer abysmally low payments or long waiting periods, making the benefits little more than illusory. On October 1, Altmeyer assigned Eliot to investigate the “views of leading authorities on constitutional law” and report back on whether a national plan could be defended.40 Eliot was deeply conflicted. First, it was well known within CES that the president and his cabinet officers strongly preferred a federal-state cooperative scheme rather than a straight national plan, at least for unemployment insurance.41 According to Armstrong, shortly after she arrived in Washington she prepared a report for the technical board recommending national social insurance. Witte called her into a private office and nervously told her that she shouldn’t have made that recommendation because “from a very high place, certain results are wanted.” Witte viewed the idea that the straight national plan was constitutionally safer than the state plan as “the rankest heresy.” That night, Armstrong and Witte had an argument so intense that Armstrong feared Witte would physically assault her.42 Although Witte refused to reveal the “high place,” Armstrong and her staff suspected it was Perkins, Eliot’s boss, and it was clear that the “certain result” was a recommendation for a Wagner-Lewis style bill that gave the states a great deal of freedom.43 Eliot was also extremely politically ambitious and would soon run for Congress himself.44 Eliot’s desire to please Perkins and, indirectly, the president, was overwhelming. Second, Eliot felt an intense pride of authorship in the Wagner-Lewis bill, which Stewart’s unemployment committee had unanimously rejected in September in favor of a national plan. He resented Armstrong, who acted as if she thought the bill was the “craziest thing ever dreamed up in the mind of man.” As he admitted many years later, his motives for his vehement advocacy of a bill based on that scheme within the CES were not “altogether pure.” In retrospect he suspected that he had been arrogant or that his judgment had been colored by “the fact that this was my baby and whether or not people said it was the best baby didn’t matter. It was the best baby because it was my baby.”45 He was also, in Armstrong’s description, “bumptious” and not all that bright.46 Eliot responded to these conflicts by distorting Thomas Reed Powell’s views, reporting inaccurately that the Harvard professor thought the

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Wagner-Lewis plan was “certainly stronger constitutionally” and that the national plan would not have a very good chance in the Supreme Court. This, along with his revelation that Frankfurter refused to even offer a legal opinion because he was so opposed to the national idea, seemed to end the discussion of the straight national plan.47 On October 29, Eliot walked into Armstrong’s staff meeting in the Walker Johnson building. They did not see much of Eliot as he usually stayed in his own office in the Labor Department.48 When Armstrong informed Witte that the group had decided to recommend old age insurance on a national scale, Eliot interrupted and said that the proposal was impossible because it was unconstitutional. Armstrong sharply reminded Eliot that she was a law professor who knew a few things about the Constitution and that she did not agree, and furthermore that McGovney, Maggs, and Holtzoff all supported the proposal. Eliot first seemed surprised to learn that she was a law professor, stammering that she was an economist. He then recaptured his bearings and replied that Thomas Reed Powell at Harvard was a far more important constitutional authority and he had said it couldn’t be done. Then according to Armstrong, Eliot announced, “that disposes of the constitutional question. Shall we go on to other things?”49 Unfortunately for Eliot, Armstrong was a “very dear old friend” of Thomas Reed Powell and did not take well to being affronted by the “arrogant, smarty-aleck” Tom Eliot.50 According to friends, Armstrong had a real dislike for the entitlement of “lords of the manor” types, and Eliot’s heritage—she disdainfully referred to him as a “‘one L’ Eliot—surely rubbed her the wrong way.51 He had “flatly said what Mr. Powell said,” and it was, she said, “a big, whopping lie.” She sent Powell a telegram, stomped out of the Walker Johnson building, and boarded the evening train for Boston, in order to find out for herself what her friend had told his former pupil. She later recounted meeting Powell in the library of his home that weekend. “Well, of course I never said such a thing,” he reassured her, and asked what she wanted him to do. Somewhat mischievously, she asked him to write a note to Tom Eliot “telling him what you do think” that she could carry back to the CES and deliver. Armstrong reported that she carried a longhand letter from Powell back to Washington that read: Dear Tom: Somewhere you picked up the impression that I believed that it would be unconstitutional to have a compulsory old age insurance system in this country. Of course, until the Supreme Court has a specific law and passes upon it, no one can be sure of this. But to the extent that I am supposed to

The Bomb-Proof Power / 137 be a constitutional law authority, I say of course we can have it. Sincerely yours, Thomas Reed Powell. P.S. I have no doubts whatsoever. TRP.

Armstrong was so nervous that she might misplace the letter that she made three photostatic copies and stashed them in different places. She then strode into a Monday meeting with Eliot and triumphantly handed it to him. Doug Brown, who knew about the letter, watched the color drain from Eliot’s face as he read the note. He handed it back to her, and she proceeded to read it to the group, obviously savoring her victory. She then announced that now that they had the approval of such an “outstanding authority” as Thomas Reed Powell they would “no longer go on the basis that it’s impossible and we can’t do anything.”52 In Armstrong’s telling, Powell’s letter “settled the constitutional fight” over Congress’s power to enact national legislation and no one raised it again. After all, “Mr. Powell was very much alive and kicking at the time and I don’t think Tom would have wanted to have anything more said about it up in Cambridge, especially when he had political ambitions. It was never mentioned again.”53 Indeed, by November 5, Eliot was backing away from his earlier statements that Wagner-Lewis was better from a constitutional perspective than a national plan, and now contended only that it was just as good. He informed Witte in a tellingly tortured construction that “it might be a good guess that a national bill was legally stronger than, or as strong as the Wagner-Lewis bill.” As to unemployment reporting, he echoed Holtzoff’s and Armstrong’s earlier suggestion that the necessary information on employee terminations could be reasonably connected with the tax and the expenditure of the funds.54 Advised by legions of actuaries and economists that state-level old age insurance was a practical impossibility, Armstrong and Brown plowed ahead with their plan for national old age insurance.55 On November 9, Armstrong consolidated her victory over Eliot and informed the cabinetlevel committee that the “unreserved opinions” of all the legal experts, including Holtzoff, Powell, Corwin, McGovney, and Maggs, was that the national plan was “from a constitutional standpoint a safer method of approach” than Wagner-Lewis.56 In the case of unemployment, however, there was a new, compromise position on the table: the subsidy plan. This was a federal-state plan that would use conditional grants-in-aid under Congress’s power to appropriate in the general welfare to encourage state adoption of unemployment insurance laws. The subsidy plan was regarded as a more liberal alternative

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to the national plan than was Wagner-Lewis because it would allow for federal standards through the less coercive means of a conditional expenditure rather than a tax offset. Although Bryce Stewart continued to press for a straight national plan, it was becoming clear that “very high places” were interested only in some variant of federal-state cooperation, and the subsidy plan was the fallback position of the nationalization advocates.57 For their part the lawyers liked the subsidy plan better than WagnerLewis. Perhaps sensing that this was the best deal they could hope to get on unemployment, they lined up behind it. Holtzoff informed Witte, on November 6, that of the three possible plans, the subsidy plan was actually “least open to objection from the standpoint of constitutionality and will be easiest to uphold, while the Wagner-Lewis bill will be the most difficult to sustain.”58 Barbara Armstrong noted that the subsidy plan would at least provide better federal control over administration than the “looser device” of Wagner-Lewis, while University of Washington political scientist Joseph Harris, who was Witte’s assistant director, wrote that the subsidy plan was “safer constitutionally” than Wagner-Lewis.59 Edwin Witte reported to the cabinet-level committee that “among the people consulted there seems to be a quite general impression that the federal-state subsidy plan is the least likely to be overthrown on constitutional grounds.”60 This left Eliot to snipe that whatever Holtzoff said the subsidy plan was not “constitutionally bomb-proof” by any means and that Wagner-Lewis was still preferable for political, if not for legal, reasons.61 Holtzoff and Armstrong were not alone in their thinking in 1934 that the spending power was “bomb-proof.” Douglas Brown’s Princeton colleague, Edward Corwin, had recently used his famous 1923 Harvard Law Review article on the spending power as the basis for the 1933 Storrs Lectures at Yale Law School. When the lectures were published as The Twilight of the Supreme Court, the book was so popular it went through four printings between 1934 and 1937. Corwin’s argument was that “the success of the spending power in eluding all constitutional snares, goes far to envelop the entire institution of judicial review, as well as its product, constitutional law, in an atmosphere of unreality, even of futility.”62 The joke, according to Corwin, was on the Court, for as it shut the door on regulation, the windows to spending were flung open. One anti–New Deal law professor fulminated in 1933 that the General Welfare Clause was a “loophole” in the Constitution through which Socialists could “drive a coach and four.”63 A review of Corwin’s book by his friend Thomas Reed Powell said that Corwin proved that “the net result of judicial review in general has been to divert governmental action from the likely salutary mode of national

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regulation and supervision to the intrinsically undesirable expedient of high taxation and profuse spending.” The book was “a challenge to the Supreme Court to sustain what Congress and the President have been doing even if without confidence in the prescriptions applied. If Congress cannot regulate, it can tax and spend.”64 In his introduction to the volume, Dean Charles Clark of Yale Law School described this as “the breakdown of all constitutional limitations found in the exercise of the spending power.”65 Armstrong and Brown consulted with Corwin about the constitutional basis for the Social Security bill. His ideas, like Powell’s, found a receptive audience among CES staff. Moreover, they seemed to be bearing fruit; on October 18, a week before Holtzoff expressed his approval of the subsidy plan, the district court upheld the AAA in the Butler case, accepting the government’s argument that Congress enjoyed a very broad power to spend in the general welfare. But Holtzoff had also acknowledged what Barbara Armstrong had delicately called “socio-political reasons” for supporting the less constitutionally sound method of Wagner-Lewis.66 In his November 6 memorandum to Witte, he concluded that “the constitutional aspects of this matter are not necessarily the determining factors,” and there may be issues of politics or policy that would have to be weighed in making the decision.67 Armstrong was far more politically naive. It was to her simply inconceivable the administration would even consider choosing such a crabbed and inferior plan when it had the constitutional power to do much more. She thought if she could have a chance to explain the staff’s legal theories to Felix Frankfurter that he would immediately understand the correctness of their position and persuade the president to support the national unemployment plan, so she sent him a letter requesting a meeting. In response, he sent his protégé, Ben Cohen, to turn her down. She complained bitterly to Cohen that it was immoral for the Harvard professor to support Wagner-Lewis (and advise the president to do so) when the law didn’t require it, “even if 120 million people are going to go down the drain.”68 She was shocked and disillusioned when Frankfurter responded that his loyalty to the Brandeis family, which supported the Wagner-Lewis model, was his primary concern. To Witte, by contrast, the real question was not about the Constitution at all, it was about “the desirable extent of national control” over unemployment insurance.69 The national plan would obviously provide the most national control, and the subsidy plan would clearly provide more than Wagner-Lewis. He might have preferred to be able to cast this as a question of law in order to allow the administration to appear more con-

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strained than it was, but Armstrong’s maneuverings had made that impossible. Witte tried to “sell-out” the staff and create the impression that the technical board supported Wagner-Lewis for legal reasons, a move that enraged Armstrong. She thought Witte lacked vision and continually referred to him a “peasant.”70 In any event, by early November the question was obviously one of politics and policy and had been decided far above his level. Witte, Altmeyer, and Eliot were in touch with the desires of Perkins, and through her, the president. For this reason they favored the WagnerLewis device despite the fact that the entire staff and all the committees were united against it, as were many industry groups such as the Business Advisory Council of the Chamber of Commerce.71 On November 9, there was a meeting of the CES cabinet-level committee, which included Perkins, relief commissioner Harry Hopkins, secretary of agriculture Henry Wallace, secretary of the treasury Henry Morgenthau, and Holtzoff (standing in for Homer Cummings), with other members of the various subcommittees, including Armstrong. The meeting was called in order to decide which of the three unemployment plans to approve (national, subsidy, or Wagner-Lewis) because all of the CES internal committees were divided. Altmeyer concluded that this was a matter that would have to be resolved by the cabinet-level committee and “perhaps the President.”72 Although Hopkins was reported to be a supporter of the national plan, he made a motion that was quickly adopted that “all thought of an exclusively federal system be abandoned.”73 The CES took no action on whether to opt for the subsidy or for the Wagner-Lewis option, and the dispute spilled over into the blue-ribbon advisory council, comprised primarily of business and labor representatives. At the large National Conference on Economic Security held in Washington on November 14–16, an event that was intended to be “window dressing” in which business, labor, and social welfare experts came together to laud the administration’s proposal, Armstrong and other members of the technical board went behind Witte’s back and lobbied hard for increased national control. As a result, the advisory council voted to reject WagnerLewis in favor of the subsidy plan. One of Armstrong’s allies then leaked the vote to the New York Times. Under political pressure, the advisory group then rescinded that vote the next day, saying it was only an expression of the individual views of a majority of the members of the council.74 Frank Graham, president of the University of North Carolina and the chairman of the advisory panel, strongly endorsed the subsidy plan, as did other members of the council, and Graham eventually wrote a separate report on the subject.75 The dispute, which had previously been internal and

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invisible to the public, was now being fought out in the press, and generated “considerable heat.”76 The key issue for supporters of the subsidy plan was the ability of the federal government to establish and enforce minimum standards for state unemployment laws, something that would not be constitutionally possible in a Wagner-Lewis style bill. The business leaders on the advisory group wanted minimum standards because, according to Graham, “in a national industrial society, you can’t have 48 plans for unemployment insurance.”77 As a result of the fight, CES was unable to meet the December 1 deadline the president had set for presenting its recommendations, and Roosevelt had to issue an executive order extending the life of the CES. He gave Witte until Christmas to produce a bill.78 It appears that Roosevelt then intervened in favor of the Wagner-Lewis scheme as a matter of political expedience. The 1932 Democratic platform had called for social insurance “under State laws.” In his speech on June 8, 1934, announcing his intention to pursue an economic security bill, FDR had called for maximum cooperation with the states, and the president had reiterated his preference for state administration of unemployment in his first meeting with Witte, Perkins, and Eliot shortly after the CES began its work.79 After the staff had strayed from this goal and recommended a national plan, the cabinet-level group had simply refused their recommendations and reiterated the administration position in favor of state-level unemployment insurance laws. Now the CES staff was pushing hard for the federal government to impose minimum standards for unemployment benefits and administration on the states. A December 1934 memorandum from Roosevelt’s close aide Tom Corcoran to the committee laid out the administration position. Corcoran, who was then special assistant attorney general, dismissed supporters of a fully national plan as “idealistic perfectionists” who would play into the hands of business opposition by ignoring the political reality, and particularly the racial realities of the South.80 Corcoran, who had graduated at the top of his Harvard Law School class and clerked for Justice Oliver Wendell Holmes Jr., did not think a plan run by the federal government would necessarily be unconstitutional. He thought that question of the constitution was beside the point given the political environment. He said that “speaking realistically there is no prospect that agreement can be reached on any specific national plan for a long time.”81 Wagner-Lewis, Corcoran suggested, was better than nothing, and nothing was the very real alternative confronting the CES at this time. This pleased Eliot, who was irrationally attached to his “baby.”82 Unfortunately, it also left the lawyers charged with getting the bill through Congress and the Court an impossible task if they wanted to impose any

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federal standards for state laws dealing with such matters as the amount of monthly benefits and the required waiting period for applicants. Of course the political impossibility of enacting those very standards was the main reason the president had selected the Wagner-Lewis plan in the first place. The CES thereafter abandoned all such efforts, deciding to make only “suggestions for state legislation” to governors “which the states were free to follow or not to follow as they saw fit.”83

The Bogey Man of Unconstitutionality As Roosevelt and Corcoran anticipated, the real problem once the Social Security bill got to Congress was not that the Constitution would allow the federal government to do too little but that it would permit it to do too much. Any hint of broad federal authority under the General Welfare Clause was certain to provoke a negative reaction from southerners. CES Assistant Director Joseph Harris observed in April as the Ways and Means Committee Report on the bill was about to come to the floor that there was a surprisingly “strong states’ rights” feeling in Congress. The CES struggle over federal standards for unemployment insurance had been “just so much wasted effort,” Harris dryly noted, because the chief change made in committee was to strike out most of the federal controls anyway. It now appeared ridiculous that the technical board staff could have ever thought the subsidy plan could pass, let alone a fully national program. In Harris’s description, even the minimal federal rules that would have been allowed under the Wagner-Lewis framework were being shorn from the bill because “the Southern Democrats in particular are very anxious not to give to any Federal Administrator the power to tell the sovereign state of Arkansas how it shall administer old age pensions or any other phase of social legislation, or how much of a pension shall be granted.”84 The administration’s main challenge was not to show that the bill was constitutional. It was to reassure Congress that the federal government would not use its spending power to implement federal, rather than local, standards on such matters as who would receive unemployment relief and how much they would get. Part of this task was accomplished by acceding to categorical exclusions from coverage for most black workers in the South, in order to respond to what Douglas Brown euphemistically referred to as “a certain objection” from southerners.85 Even that, however, proved an insufficient guarantee against the interference of the national government in southern affairs.86 To this end the Wagner-Lewis device was helpful because, as the administration freely admitted, if there was much

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in the way of federal standards the Supreme Court would be likely to strike down the tax as a subterfuge intended to regulate under the Child Labor Tax Case. This concern for the political rather than the constitutional aspect of federal spending was entirely consistent with the previous century of congressional consideration of relief legislation. Rather than dealing with constitutionality, proponents of the measure, such as Michigan Representative Fred Crawford focused on speeding aid to the “direct victims of the most recent ‘wash out’” who had been injured “without contributory negligence on the part of our people, and against their thrifty habits.” He argued that the elderly were entitled to help because they, “through no fault of their own, had taken from them all income and all accumulated surplus of the frugality of prior years.” Crawford, a Republican who made his fortune in sugar beets, said that the government had a duty to help the victims of “these great economic disasters” that washed away their jobs, homes, and savings.87 New York’s Robert Wagner, the Senate sponsor of the bill, urged aid for those whose incomes had been “shriveled by the blight of widespread unemployment and uncompensated old age.”88 In fact, Representative Ernest Lundeen of Minnesota’s Farmer-Laborite Party, who supported a much more liberal alternative bill, called attention to the lack of discussion of the constitutionality of the bill on April 17, two days before it passed the House. “I am surprised that able lawyers on this floor have not taken up that question in more detail,” said Lundeen, who was himself a lawyer. He was perhaps concerned that there would be too little in the record to demonstrate to the courts that Congress had considered the question and articulated a basis for its authority to enact the measure. The Social Security Act, said Lundeen, provided direct relief “to the unemployed, the sick, the disabled, and the aged. It is simply an exercise of the appropriating power, the power of Congress to spend money,” like aid the Home Owners Loan Corporation and other emergency legislation provided. Congress had determined that direct aid to individuals paid out of the national treasury was in the “general welfare” in those cases, and this was no different. If anything, the case for the unemployed was even stronger.89 Lundeen inserted into the record a statement on the constitutionality of social insurance by Leo Linder, who had studied the more generous alternative “Lundeen Bill” for the International Juridicial Association. Linder, a Brooklyn lawyer who would later go on to work for the National Lawyers Guild, testified before the House committee on labor in its hearings on the measure in February. His statement was drawn from all of the prior

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briefs and debates on the appropriations power. “Our highest authority, the United States Supreme Court, has in the famous Sugar Bounty case—I will not here take the time to read the citations, all of which are set forth in the footnotes to the brief—definitely upheld appropriations by the Government in payment of purely moral obligations . . . and has indeed held that an appropriation even out of considerations of pure charity— the words ‘considerations of pure charity’ are a quotation out of a United States Supreme Court opinion—cannot be reviewed by the judicial branch of the government.” He then asked the committee to consider the appropriations it had made in the past, including for the Caracas earthquake, the St. Domingo refugees, and the billions of dollars for “needy and distressed people during the Depression.” He rejected any suggestion that the bill “usurped” states’ rights, saying that the pension law was not an exercise of the commerce power, but rather the appropriating power.90 The next day, in the concluding hours of the debate, Lundeen reiterated much of Linder’s argument about the constitutionality of the bill to the now-packed chamber. Applying Linder’s analysis of the Lundeen Bill to the president’s bill then under consideration, he discussed the appropriations practice of the early congresses, and the Sugar Bounty Cases. Surely, exclaimed Lundeen, aid to the unemployed was not less in the general welfare than aid to the sugar men. Moreover, he said, “if Congress passes the bill, it will thereby declare that, in its judgment, the bill is for the ‘general welfare,’ and no court has the power to substitute its judgment on this question for that of Congress.” In his view, it was “for the ‘general welfare’ that all human beings in the United States who through no fault of their own are unable to earn the necessities of life” would receive assistance. His remarks were met with applause.91 Immediately after the conclusion of the Senate Finance Committee hearings, the CES staff had a brief flash of worry that Senate opponents would try to kill the measure by alleging that it was unconstitutional. Witte, who had by then returned to Madison, wrote to Roosevelt confidant Ray Moley, by then a member of the CES Advisory Council, on May 10 pleading for the president’s help in placating Senate conservatives, which he said was needed “more than ever before.” The Schechter Poultry and Railroad Retirement cases had just come down, providing “an excuse for voting against the bill.” Witte explained to Moley (and, hopefully, to Roosevelt) that the railroad pensions that the Court had struck down were based on the commerce power, while old age insurance was based on the taxing and spending powers, which “while not unlimited, are much broader than the control over interstate commerce and in the opinion of the Attorney Gen-

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eral are entirely adequate to sustain both the old age insurance and unemployment insurance titles.”92 Then, on May 15, CES Assistant Director Joseph Harris, who had taken over after Witte’s departure, wrote Holtzoff a panicky letter informing him that Colin Stam, counsel to the Joint Committee on Internal Revenue Taxation, had prepared a memorandum on the constitutional aspects of the House version of the bill.93 In the memo, Stam concluded that the grantsin-aid to the states for unemployment administration, old age assistance, dependent children, and public health were legitimate uses of the appropriating power, citing Beck’s argument in the Maternity Act cases, Realty Company, and the history of appropriations, including those for disaster relief. He specifically discounted the opinion of those, including Harry St. George Tucker, who thought that appropriations could be made only for enumerated powers. Stam argued that by contrast the old age insurance provisions of the bill were a regulatory scheme that usurped state power.94 Harris, a political science professor on leave from the University of Washington, spent much of his time writing talking points that rebutted the allegations of southern congressmen that the bill was “an invasion upon the power of the states.”95 He was worried that Stam’s brief would wind up “in the hands of one of the Senators opposed to the measure and [would] be used on the floor of the Senate when it took up the measure in June.” Concerned that there would be a “big splurge” of allegations that the bill was unconstitutional, Harris wanted Holtzoff to help him prepare a reply just in case it was necessary.96 On June 7, as the Senate was beginning debate, Witte sent Harris’s reply brief over to Mississippi Senator Pat Harrison, a supporter of the bill and chair of the Senate Finance Committee. In it Harris relied on Corwin’s writings on the spending power, reviewing the history of appropriations for disaster relief not only in the United States but also in foreign countries, such as for the Caracas earthquake. “The history of Congress is replete with appropriations of this kind,” he wrote. Old age benefits were, like these, expenditures for the public welfare. But in the end Senate debate on the constitutionality of the measure was also sparse. Harrison, also a lawyer, assured his colleagues that “we have done everything we could to eliminate questionable matters of constitutionality.” He said that Cummings’s assistant, “a most highly respected man and a really great lawyer”— referring to Holtzoff—and other experts had assured the members of the committee that “the bill will be upheld by the Court on all constitutional questions.”97 Robert Wagner then presented the case for the bill’s constitutionality

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to a nearly full Senate chamber. His canvass of the appropriation power was brief, because there was not a “single reputable authority” against the power of Congress to make the grants-in-aid to the states for unemployment or the direct grants to the elderly. The government had a long history of both “Federal subsidies to the States as organic entities and Federal aid to large classes of stricken individuals.” Indeed, Wagner continued, “hundreds of illustrations come readily to mind where unchallenged expenditures of Congress have been far more tenuously linked to the general welfare than those contemplated by the present bill. . . . Congress has provided generously for the victims of the Mississippi River floods. Are these floods more constant or more dreadful than the advent of uncared for old age?”98 One of the few dissenters on the bill was the conservative Democrat, Walter George, of Georgia. Prior to his election to the Senate, George sat on the Georgia Supreme Court, and now he said that he had “very grave doubt” about the constitutionality of the bill. He agreed with Stam that the Court was likely to see the payroll tax as part of a scheme to regulate business. Even George was forced to admit, however, that “the courts will go a long way to uphold the power of Congress to appropriate, and I am not going to controvert that. I also know that the courts will go a long way to sustain legislation of this character, and I think they should.” He could tell that the Senate was “not in a receptive mood” to hear his constitutional objections and repeatedly tried to back away from discussing the legal aspects of the bill.99 California Republican Hiram Johnson, who was nearing seventy, urged the Senate to ignore legal criticisms of the Social Security bill: “Whenever we touch the human equation, whenever we seek to aid those who are in distress and those who require sympathetic treatment on the part of the Government, always there arises the bogey man of unconstitutionality.”100 Holtzoff had spent substantial time reassuring southern Democrats that the old age provisions of the bill were entirely constitutional.101 In addition, Attorney General Homer Cummings supplied both the Ways and Means and Senate Finance Committees with a brief defending the constitutionality of the act (written by Holtzoff) in which he said that the idea that the power of appropriations was “in any way restricted or circumscribed is indeed a novelty.”102 A version of this statement was read into the Record by Ways and Means committee member Jere Cooper of Tennessee in the days prior to House passage.103 In the brief, Cummings said that there was no difference from a constitutional perspective between grants-in-aid to the states and direct payments to individuals, citing as examples grants to agricultural colleges and railroads, “payments for the direct relief of the victims of the San Francisco earthquake; and payments for the direct relief of the

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sufferers from the Mississippi floods[, which] are among the numerous instances that may be cited. The validity of these payments does not appear even to have been questioned.”104 This caused one conservative commentator writing in the Virginia Law Review to scowl that the federal government’s exercise of the spending power had usurped state authority and led to the “redistribution of wealth by taxation and the creation of a permanent dole.”105 While this conclusion might have been overblown, it was surely true—as John Randolph Tucker, Charles Warren, and Edward Corwin had already seen—that the appropriations power gave Congress wide latitude to pursue policies with which individual states might violently disagree. It was this recognition on the part of the southern members of his party, like Walter George, that led Roosevelt to forego a national unemployment insurance program. The work of the lawyers on the Committee on Economic Security and the law professors who advised them made it apparent that the Constitution was no real impediment to such a program. Ironically, it was that very fact that made southern legislators unwilling to place such power in the hands of the federal government.

The Boob System As this history makes clear, participants in the CES did not see the Constitution as an impediment to the development of the New Deal welfare state. Rather, lawyers involved in formulating Social Security came to the conclusion that a fully national modern administrative welfare state was actually the easiest thing to defend under the constitution as it existed in 1935, since it would require no change whatsoever in constitutional interpretation. Social Security is the starkest counterexample to the suggestion, by Bruce Ackerman and others, that the New Deal welfare state required a “constitutional revolution” or an implicit constitutional amendment in order to be upheld.106 Every lawyer involved in the CES, even the reluctant Tom Eliot, thought not only that the constitutional power to tax and appropriate was broad enough to encompass the Social Security Act, they also thought it could justify far more than that and far more easily. If Witte and Eliot were tempted at first to use constitutional constraints as a “banner to persuade people to accept the state-federal” social insurance plan, that idea quickly fizzled after Armstrong took the train to Cambridge.107 At that point it was clear that whoever was occupying Ed Witte’s “very high place”—most likely Roosevelt—had far fewer degrees of freedom politically than he did legally.

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Unemployment insurance presented Roosevelt with a particularly difficult political problem, compared with the rest of his economic security program, one that Thurman Arnold aptly called the “what are we coming to argument.”108 As a number of scholars, most notably Jill Quadagno and Robert Lieberman, have persuasively shown, Roosevelt capitulated to strong congressional opposition to federal control over the South’s racist labor practices.109 Southern Democrats, writes Lieberman, were “committed to preserving both racial segregation and the distinctive regional labor market.” Unemployment insurance, by providing an alternative to the economic dependence of black workers on the planter system, was a serious threat to both.110 One response to this danger in Congress was to eliminate agricultural and domestic workers, who were disproportionately black, from both old age and unemployment insurance. But Lieberman argues that the fear of losing state control was so sharp among southern members of Congress that even after the categorical exclusion of virtually all black workers, there was concern that any national standards at all might lead to the receipt of unemployment benefits by some black workers in the South someday.111 In the end the administration gave up even what little federal control they had under what Barbara Armstrong had termed the “looser device” of Wagner-Lewis. Comparing the unemployment insurance proposals with the CES proposals for old age security is instructive. As Armstrong repeatedly argued, the constitutional bases for the two national programs were essential identical. But the old age portions of the bill may have provoked less aggressive congressional opposition for a number of reasons. First, old age pensions were politically popular in a way that social insurance for the unemployed was not. There were seven thousand Townsend Clubs claiming 2 million members around the country who were clamoring for generous public old age pensions.112 Second, and equally importantly, the racial issues were more salient in the case of unemployment than in old age insurance. By Lieberman’s estimate, three-fifths of southern black workers could not participate in old age insurance due to the exclusion of agricultural and domestic workers.113 But even if they had been included, it is likely that federal support of poor, aged workers who were no longer in the labor market would not inflame southern anxieties so much as the threat of federal control of its active, mostly black, workforce. For these reasons, Roosevelt and the cabinet officers on the CES may have felt less politically constrained in the case of old age pensions and more willing to extend national administration of that program to the full extent permitted under the Constitution.114

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The idea that the Constitution was a constraint on the CES in its selection of the state-federal unemployment insurance device has its roots in two places. First, as discussed above, Eliot and Witte had briefly tried to mobilize the constitutional issue as a way of generating support for Roosevelt’s preferred political program, until the weight of authority for the opposite position grew too strong. Second, and far more important, was the effort by many of the individuals associated with the CES, including Eliot, Altmeyer, Hopkins, and Perkins, to avoid responsibility for the result. In the years immediately after the Social Security Act was passed, it became obvious that the CES had, in Barbara Armstrong’s inimical description, set up a real “boob system” in the area of unemployment.115 Even so strong a Roosevelt partisan as Arthur Schlesinger Jr. described it as an abject failure that often abandoned the unemployed to low benefits, poor administration, and a “crazy quilt” of varying state programs. In 1941, Altmeyer, by now the chairman of the Social Security Board, tried and failed to federalize unemployment insurance, and he reportedly considered this loss the biggest failure of his career.116 It is no wonder then that he says in his 1966 memoir that the decision thirty years before to leave the question to the states was due “first of all to the question of constitutionality.”117 Moreover, by the time Altmeyer wrote those words, the problem of racial injustice in the South had emerged as the signal issue of the postwar era. By the mid-1960s, when the Columbia oral histories were collected, the political terrain had shifted. Into this environment were spun all manner of self-serving memoirs, recollections, oral histories, and tales that sought to account for the Roosevelt administration’s capitulations on Social Security.118 In such a context, the Constitution—and with it the Old Court—was conveniently cast as the villain that had prevented Roosevelt and the Democratic Party from doing what it otherwise would have. The participants in these events sought to free themselves of whatever taint might now obtain from having made a voluntary political compromise with white southern racists rather than having been being forced to it by the Court. The credulous acceptance of this story in accounts by historians like Schlesinger, that (like the oral histories) date from the 1960s, are similar artifacts of the time in which they were offered.119 They should be properly seen as efforts to extricate not just Roosevelt, Hopkins, and Perkins, but by extension a new group of Democratic leaders including John Kennedy and Lyndon Johnson (himself a southern Democrat), from the same stigma by laying responsibility for the Social Security Act’s imperfections at least in part on the doorstep of the Court.

SIX

The Well-Beaten Path

In the legal fight to defend New Deal legislation we see most clearly the disconnect between our understanding of the New Deal as a break with the past and the contemporary insistence that the New Deal be cast, as Felix Frankfurter suggested, as just more of the same. The scope and scale of the policy changes that were made during the New Deal called forth a multifront legal counterattack from business interests and defenders of states’ rights. This attack in turn spawned a loosely coordinated defense by lawyers across multiple government departments. For the New Deal’s legal battalions the imperative of winning court battles propelled them to seek legal and factual precedents for New Deal programs. The administration’s lawyers were necessarily in a defensive crouch, searching for the firmest legal ground they could find to fend off well-financed court challenges and hostile judges. As we saw in the last chapter, their response was to try to craft legislation with an eye toward avoiding constitutional challenges. In what follows, I show how they continued to seek out well-tested grounds for arguing that their statutes were completely consistent with the Constitution once they found themselves in court. Faced with this imperative, legal defenders of the New Deal turned to the same history of federal disaster relief upon which proponents of such earlier innovations as the Freedmen’s Bureau and universal public education had relied. They enlisted disaster relief as support for the proposition that Congress had broad power to spend as it saw fit, and to respond to disasters that harmed victims through no fault of their own. The Supreme Court’s decision in Realty Company was a key resource in their argument for judicial deference to Congress’s spending power, and New Deal lawyers repeatedly cited it in their briefs to the Court. For example, Realty Company was cited numerous times on this point in the government’s brief in

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the AAA case, United States v. Butler, a tour de force by Assistant Solicitor General Alger Hiss and the Justice Department’s Tax Division. They relied on Realty Company, most relevantly for the principle that “Congressional application of the term ‘general welfare’ cannot be . . . subject to judicial review.” If courts could not scrutinize congressional appropriations for moral or honorary “debt,” a term “so familiar to our courts,” then, they argued, surely more exotic notions like the “general welfare” were beyond the competence of any court to decide.1 Realty Company was similarly cited in the government’s briefs in key New Deal cases, including those involving public power generation,2 federal savings and loan associations,3 slum clearance,4 and Social Security.5 As this chapter details, even Butler, in which the court struck down the Agricultural Adjustment Administration (AAA), gave New Deal lawyers reason for optimism about the ultimate usefulness of the spending power in defending their programs so long as they were carefully drafted to avoid constitutional problems arising from other grounds. The AAA imposed a tax on the processors of agricultural commodities and used the proceeds to make benefit payments to farmers who agreed to reduce their production. The idea was to constrict the supply of commodities and thereby raise depressed farm prices in order to restore rural purchasing power to prewar levels. As the CES did with Social Security, the government rested its case for the AAA on the capacious and generally unreviewable power of Congress to tax and appropriate for the general welfare. However, the majority discussed the issue just long enough to reject the processors’ claim that Congress could spend only for enumerated powers rather than in the general welfare, a field over which Congress had “a wide range of discretion.” The Court then explicitly sidestepped the question of whether spending in aid of agriculture was within the general welfare, despite the fact that the opinion termed this issue the “great and controlling question in the case.”6 Instead, the Court resorted to a tortured argument that the act was an improper attempt to regulate agriculture, a subject reserved to the states according to the Tenth Amendment. Rather than undertake the first-ever judicial review of Congress’s exercise of the spending power, the Court turned to another basis for invalidating the law. That the Court chose the alternative route is evidence for the power of the Realty Company precedent, and in fact Butler was subsequently cited in later New Deal cases for the proposition that Congress was entitled to nearly unlimited deference in spending under the General Welfare Clause.7 Judges’ decisions are the outcomes of a process in which lawyers mobilize precedents, cases, briefs, and rules of procedure. Court opinions,

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including Supreme Court opinions, tend to obscure this mobilization by placing the judge’s reasoning process in the foreground and the work of lawyers in the background, visible only in occasional references to briefs or to (usually rejected) arguments. But the view from the archives of the government agencies in which the government lawyers worked is instructive: yards and yards of boxes filled with memos, drafts of briefs covered with scribbled marginal notes, requests for copies of court filings, and so on. This chapter investigates this work of mobilization in order to understand how lawyers for the New Deal came to rely on arguments about federal spending and disaster relief in defending the New Deal. Even though the stakes were high, defending the New Deal was ordinary legal work, fundamentally concerned with winning today’s case. The New Deal lawyers discussed in this chapter did exactly what lawyers before and since have done: they drew on their law school training for basic legal concepts, paged through court opinions looking for precedents, read one another’s work looking for winning arguments, tried to curry favor with professors and supervisors, and sought to build careers by winning cases. The legal strategy that the New Deal lawyers pursued seems novel to us now, but at the time it represented the mainstream, particularly in the networks in which they worked.8 Conversely, as we saw in chapter three, many opponents of the New Deal were drawn from a different network, one with its locus in southern interests concerned about the potential of the General Welfare Clause to further the growth of an overweaning national power. In tracing these networks we benefit greatly from Peter Irons’s account of legal work during the New Deal.9 Irons’s riveting tale of the litigation strategies pursued by lawyers in various federal departments is revealing of how lawyers across the government differed in their approach to the New Deal litigation. However, at key points, as in his retelling of the preparation of the government’s argument in Butler, Irons succumbs too quickly to the temptation to see the AAA lawyers as innovating beyond the existing precedents. A central example, for Irons, is what he terms the “expansive” reading of the General Welfare Clause offered in support of New Deal spending programs, a reading that for Irons represented an effort to persuade the Supreme Court to recognize that changed circumstances supported the need for constitutional change. I show below that even in Butler the reality was nearly the opposite: the appeal of the General Welfare Clause for New Deal lawyers was that the expansive reading was actually the accepted one, and even in the heat of the most pitched legal battles of the New Deal its lawyers were convinced that they could cling to precedent.

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Reed Powell’s Hunch The lawyers at the Committee on Economic Security kept one eye on the Agricultural Adjustment Act, and in particular on the constitutionality of the tax imposed on food processors in order to raise money to pay farmers to reduce their crops because it also involved the scope of the General Welfare Clause. As Tom Eliot wrote to Edwin Witte during the CES dust-up over the proposed straight national unemployment insurance plan described in the previous chapter, he and Holtzoff at least agreed that the Supreme Court decision in the processing tax case would “shed much light” on the best way to proceed.10 Unfortunately, they were forced to move ahead without that guidance, since Roosevelt insisted that the final decisions on a constitutional basis for the economic security plan had to be made in the fall of 1934, long before the AAA made it to the Supreme Court, indeed before the government lawyers had settled on a legal strategy for the AAA’s defense.11 The CES lawyers also had to forge ahead months before Schechter Poultry and the Railroad Retirement cases were decided. Those Supreme Court decisions did not come down until May 1935, when the Social Security bill was already speeding through Congress. Moreover, the lower courts hearing the National Industrial Recovery Act (NIRA) cases were extremely divided at this time. It was by no means certain when the CES lawyers settled on the taxing and spending power that the Court would reject the administration’s Commerce Clause arguments in the NIRA and Railroad Retirement cases.12 Thus the general welfare power represented their best estimate of the least vulnerable strategy, even when the full range of options was still on the table. Nor is there any evidence to suggest that the legal opinions Holtzoff and the CES lawyers rendered influenced the later litigation strategy of the lawyers working on the Butler case over at the Justice Department. Instead, it appears that these two groups of government lawyers arrived independently at the conclusion that the General Welfare Clause provided their best hope of success. This conclusion was likely overdetermined, based as it was on their exposure to the subject from Thomas Reed Powell’s constitutional law class, the treatises and casebooks they read, their familiarity with cases like Realty Company and Massachusetts v. Mellon, and what Edwin Witte had called the “general consensus” at the time among the peers and professors they consulted.13 There was some concern that the Court would declare the AAA and the Social Security Act, particularly its unemployment insurance provisions, to be impermissible regulations of

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intrastate commerce masquerading as taxes, as it had in the Child Labor Tax case. But the view of most government lawyers in 1934 was that there was only one right answer to the question of how a host of programs including aid to farmers, mortgage assistance, rural electrification and resettlement, slum clearance, and social insurance for the elderly and unemployed should be designed and justified. This was nothing more adventurous than the conventional reading of the law at that time, as Thurman Arnold reminded Robert Jackson in connection with the Social Security cases.14 Not only Harvard men saw this opening. Although most renderings of the New Deal cases, notably that by Irons, reinforce the importance of the elite “boys with their hair ablaze,” this is at best a partial view.15 Most of the legal work in the AAA case was performed by the more anonymous lawyers of the Tax Division. These lawyers attended less rarefied schools, primarily those located around the capital, such as George Washington, Georgetown, and Virginia, and had never clerked in the Supreme Court, or in any court. Because most American law schools at this time relied on a very similar, Harvard-inspired curriculum and utilized the same treatises and casebooks it is very likely that these civil service lawyers had similar exposure to Realty Company and the unfettered spending power in their law schools.16 As noted in chapter three, Charles Collier, who subscribed to the permissive theory, taught constitutional law at George Washington, where a number of division attorneys matriculated. The Tax Division lawyers fed their copious research and drafts to Hiss, who with Paul Freund and Charles Horsky, another Harvard standout, assembled and signed the brief.17 For readers of Peter Irons’s important account of legal work in the New Deal, this story will be in turns familiar and foreign. In Irons’s view, the lawyers who defended the AAA in the Supreme Court were a “small, clubby” group of Frankfurter protégés who wrote the Supreme Court brief in “marathon drafting sessions” at the Solicitor General’s Office. These lawyers were, in Irons’s terms, “legal reformers,” who were engaged in an “aggressive attempt to lead the court to discard encrusted doctrine.” It seems that Irons misses the role of the Tax Division lawyers because of his more general commitment to the idea that the Supreme Court had to be persuaded to accept a “newer and wider vision of the Constitution” in order to sustain the government’s programs. This view does not permit the possibility that existing constitutional precedents could be sufficient to ground New Deal legislation, here the AAA. If defending the farm subsidy program indeed required novel legal arguments, then it is natural to focus on the

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extraordinary characteristics of the lawyers who could develop such arguments—and for this purpose Hiss and his fellow Harvard men were as impressive a group of lawyers as could possibly be found.18 The novel argument upon which Irons focuses is what he terms an “expansive” view of the General Welfare Clause, which rejected a strict “Madisonian” position that the General Welfare Clause was limited by the enumerated powers given to Congress in the Constitution. Irons implicitly assumes that the Madisonian position was closer to contemporary constitutional doctrine in the 1930s than the contrary “Hamiltonian” position that Congress could spend in the general welfare regardless of whether the object was within an enumerated power. In Irons’s telling, there were no cases or legislative precedents supporting the Hamiltonian position. The lawyers were left with only the urging of their former professor to push the envelope. Thomas Reed Powell, whom Irons describes as an “iconoclastic advocate of constitutional expansionism,” persuaded his former Harvard students to “take the plunge” of putting forth the Hamiltonian position in Butler. Irons goes so far as to style this argument a “legal Trojan Horse,” presumably because hidden within an argument made by a Founder was the key to reshaping the Constitution.19 No lesser witness than Thomas Reed Powell himself denied holding the view that Irons attributes to him. A month after Barbara Armstrong showed up at his door hopping mad at Tom Eliot, Powell delivered a lecture at Brooklyn Law School in which he discussed the fate of various New Deal initiatives in the Court. It was December 3, 1935, one week before the oral argument in the AAA case was to take place. As usual he was scathing in his critique of the Court’s conservative wing. He didn’t offer any predictions about how the Court would handle the various questions on the scope of the commerce power raised by the National Labor Relations Act and other legislation, because it was too hard to tell how the votes would line up. His general tone about these cases was muted and pessimistic. The justices “talk in high majestic terms about the Constitution and about principles. The decisions often turn on something more personal that the briefs do not feel free to mention.” Powell thought that in close cases “not controlled by precedents,” judges would inevitably be influenced by their own policy preferences.20 There was one area of constitutional doctrine, however, that was so “controlled by precedent” that Powell felt confident that he knew how the Court would handle it. He shared his “hunch” with the audience that the AAA was certain to be sustained. This seemed to Powell a very safe bet. The Court had allowed the sugar bounty and hundreds of other appropria-

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tions to stand without any interference, and in fact “there are no Supreme Court decisions that establish or even hint at any such restriction on the national spending power.” It seemed to Powell completely implausible that the Court would impose that kind of limitation now: If the Court sets itself up as the arbiter of questions whether a federal expenditure is for welfare or for the general welfare or for a national public purpose, it will reverse the development of a century and a half and will get itself into innumerable messy disputes. The Supreme Court has thus far shown every disposition to keep out of such messy questions. It has in the main done so by finding procedural difficulties rather than by expressing approval of expenditures, but this way of avoidance indicates still more clearly the judicial desire to stay aloof.

Although he acknowledged that the Court could yet rule against the administration, Powell observed that such a ruling would be so against the weight of the precedent that it would be obviously illegitimate and expose the political biases of the majority.21 As for Social Security, Powell thought that the only dicey question was whether the state-federal plan would be upheld or whether the Court would force the administration to fall back on Barbara Armstrong and Alexander Holtzoff’s “exclusively national plan.” Powell thought it was possible that the Court would conclude that the Wagner-Lewis model coerced the states into adopting unemployment insurance. He noted that the statebased plan had been chosen in order to allow the states to maintain some control over their unemployment systems. “Yet it will be a strange paradox if this should be called unconstitutional coercion on the states and thus drive us to a plan that neglects the states altogether.” Clearly, in Powell’s view, the straight national plan was constitutional, as he had said in the note to Tom Eliot he had written out for Barbara Armstrong the month before. He also agreed with Holtzoff and Armstrong that it was more clearly so than the Wagner-Lewis model. If the Court struck down the latter, he said, it would be forced by precedent to approve the former. It was just “unthinkable” to Powell that the Court would say that direct aid to the unemployed and elderly was not for the general welfare.22 Powell’s hunch was more than half-right. Although the AAA was lost, the Court once again found a way to “stay aloof” from the power of the purse. It refused, just as Powell had predicted, to get involved in determining whether or not aid to agriculture was in the general welfare, reiterating only that such questions were the province of Congress, and not the

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courts. This raised the possibility that Powell might also be right about Social Security.

A Natural Reading of the Unequivocal Language While Tom Eliot and the CES were hammering out the details of the Social Security payroll tax in the fall of 1934, at the Agricultural Adjustment Administration Jerome Frank worried that the processing tax would not pass constitutional muster because the statute “earmarked” it for rental and benefit payments to farmers. Frank and the other lawyers assigned to the case figured this would make it look less like a true tax and appropriation and more like a regulation, particularly to conservative judges.23 Despite their efforts to prevent litigation, the AAA was challenged in a series of cases brought in 1934 and 1935, the most consequential of which was United States v. Butler. In that case, processing interests set up a test case challenging Congress’s authority to enact the New Deal’s system of farm price supports. The litigation was handled by lawyers from the Justice Department’s Tax Division, who faced a high-powered team for the processors that included Bennett Sanderson, Edward Hale, and Malcolm Donald, all Harvard Law alumni, Tucker protégé John W. Davis, and George Wharton Pepper, a former US senator and law professor at the University of Pennsylvania. One of Pepper’s former students was the probable swing voter Justice Owen Roberts, on whom Pepper was said to exert a “lifelong influence.”24 The government had initially won on its general welfare argument in the district court, and as the Social Security Act flew through Congress in the spring and summer of 1935, things were looking up. “It is inconceivable,” Massachusetts District Judge Elisha Brewster wrote in response to the government’s citation of the extensive history of congressional spending outside the enumerated powers, “that all of these appropriations could have been illegal.” However, he also held that the purpose of the act had to be within an enumerated power, and he found that it was—but only barely—pursuant to the Commerce Clause.25 Then the Schechter decision came down, and in July, the AAA lost badly in the First Circuit. As Irons describes, the government had no choice but to appeal to the Supreme Court because hundreds of processors filed claims for the return of taxes already paid.26 The responsibility for the case at that point passed to Solicitor General Stanley Reed and the lawyers in his office, particularly Alger Hiss (a former Holmes clerk who had previously worked under Frank at the AAA)

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and Paul Freund, both Powell students from Harvard, with the help of the Tax Division and AAA lawyers. Before the 1932 election, the Tax Division had focused on Prohibition enforcement, but it was now absorbed with the problem of defending the New Deal social policies. Under the supervision of Assistant Attorney General Frank Wideman, the legal staff was comprised of career justice department lawyers including Sewall Key, the scion of an old Baltimore family and a 1920 Georgetown law graduate who had headed the Tax Division since 1922. By this time all the lawyers in the case, at AAA, the Justice Department Tax Division, and the Solicitor General’s Office agreed that the General Welfare Clause provided the best chance of success. Prew Savoy, the lawyer assigned by Agriculture to the case after Frank decamped for the Public Works Administration, sent over some suggestions for a brief in support of the cert petition featuring the argument that the general welfare is a legislative question not subject to review by the courts.27 Meanwhile, Wideman urged Hiss to avoid any suggestion that the processing tax was levied pursuant to any enumerated power, but just that it was “levied pursuant to powers granted by the constitution.”28 The government’s brief was over two hundred pages and painstakingly laid out the case that the AAA’s processing tax was legitimate because it was levied in order to make rental and benefit payments to farmers that were well within the permissible scope of the General Welfare Clause. Like earlier briefs by Taft, Choate, and Beck, Hiss described the early appropriations practices and quoted Story, Hamilton, and Monroe. He explicitly relied upon the history of “relief of distress caused by catastrophes,” including the Whiskey Rebellion and the Caracas earthquake, and he included a full table of disaster relief measures as an appendix. Hiss noted that since the Whiskey Rebellion, “many appropriations have been made to aid sufferers from earthquakes, Indian depredations, fires, war, or famine, tornadoes or cyclones, yellow fever, grasshopper ravages, and floods. Even today the Federal Government in its vast relief program is furnishing means of subsistence to those destitute by reason of unemployment.”29 The government brief argued that this history constituted an extensive “practical construction” of the clause by Congress to which the Court should defer, or at least, conclude that the appropriations were legitimate by analogy to what had been done in the past. Disaster relief was not the only precedent mentioned—others included aid to agriculture and various grants-in-aid to the states. However, it was featured very prominently, as it had been in Joseph Choate’s brief and Rufus Peckham’s opinion in Realty

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Company, in Taft’s brief in Field v. Clark, in Miles Dawson’s presentation to Sutherland’s commission, in Holtzoff’s defense of the Social Security Act to the congressional committees considering it, and in countless congressional speeches, treatises, and law review articles.30 Hiss’s brief relied on Realty Company for the idea that appropriations were not limited to the enumerated powers and were a political question that could “rarely, if ever, be the subject of review by the judicial branch.” The government asserted that Realty Company did not allow the Court to “substitute its judgment for the judgment of Congress in determining whether the appropriation will promote the general welfare.”31 This argument had been proving successful with some lower court judges in the public power cases. One district judge in Missouri had held in 1934 based on Realty Company that the question of the general welfare was for Congress to decide, and “with these decisions or their wisdom courts and judges have nothing to do.” Moreover, that court determined that Realty Company supported not only the unfettered power of Congress to determine the general welfare but also the government’s broad interpretation of that term. The Tenth Circuit had similarly held in August 1935, as Hiss and the Tax Division worked away on the brief, that whether the relief of unemployment was in the general welfare was a “question exclusively for legislative determination.” The court there had specifically mentioned Story’s approval of disaster relief for the survivors of the Caracas earthquake and the St. Domingo revolt.32 Although Hiss relied on Realty Company and cited Joseph Choate’s brief, he did not merely lift the table of disaster relief precedents from it.33 Key had assigned Arthur Jacobs, a young tax lawyer in the department, to research the history of appropriations for any that had a “bearing by analogy” to the AAA.34 Jacobs, who had been a law student at Virginia when Charles Warren had given his lectures detailing and decrying federal appropriations that later became Congress as Santa Claus, produced a twenty-twopage memorandum discussing a number of possible precedents that 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.” Jacobs’s table included all of the specific instances of disaster relief that he had culled from the congressional debates over the Blair Bill and unemployment and drought relief in 1930. He also explored federal spending for agricultural development, grantsin-aid to the states, and bounties, including the sugar bounty, noting that Hiss was already familiar with that subject and the case of Realty Company. The point of his memo, he wrote, was to provide precedents that would

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help to “stretch” the power of the federal government to act in the general welfare.35 Neither Hiss nor Reed thought the argument a stretch, however. Rather, they agreed that this “practical course of legislation” demonstrated that the Madisonian view (being pressed in John Davis’s brief) had been rejected.36 Jacobs’s memo was part of an explosion of legal and historical research on congressional spending conducted in the fall of 1935 by the Tax Division, at Hiss’s request. This research cast a broad net and canvassed the precedents, including those for disasters such as fires and droughts.37 Another, shorter, Jacobs memo listed appropriations of indeterminate amounts, primarily for foreign relations and defense, but Hiss marked the measures providing European famine relief for inclusion in the brief.38 Another memorandum on the constitutionality of the processing tax stated that “ancient and continuous practice under the Constitution will solve the question of legality,” and fortunately, “it is not difficult to supply evidence of the continuous practice here,” referring his superiors to Arthur Jacobs’s forthcoming list.39 Several memos noted that district courts around the country were embracing this argument in connection with the National Recovery Administration (NRA) program of grants for municipal power plant construction that Jerome Frank and Alexander Holtzoff were currently defending.40 One of the best efforts was by Helen Carloss, a highly successful litigator in the Tax Division and the first woman to argue in all of the US courts of appeals. Carloss had first worked in the department as a clerk and was promoted after her graduation from George Washington (where Charles Collier taught constitutional law) in 1923. She had been a principal author of the First Circuit brief.41 Carloss discovered Chief Justice Hughes’s role in the Federal Land Bank case, a fact that Hiss highlighted in the margin of her memo. Her memorandum, together with Jacobs’s, formed the basis for much of the eventual government brief. In it she notes that Hughes’s brief had “cited a long list of appropriations by Congress,” which Hughes doubted the court could review. Newly appointed Harvard law professor Erwin Griswold (who was not necessarily known for his liberal biases like Powell) also pointed out the Hughes brief to Reed, saying that while the chief justice was not exactly “estopped” by the arguments in his brief, they could be put in a footnote to remind the Court that the government’s argument wasn’t “wholly novel.”42 In another memo, Carloss similarly called out Taft’s brief in Field v. Clark, and James Beck’s brief in the Maternity Act cases, in which the Liberty Leaguer took “the position that we are now taking.”43

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It was becoming clear to Hiss and the team at Justice that the General Welfare Clause had an appeal that other possible strategies like the Commerce Clause lacked: that the business community had been receiving government largess for so long, for example through the sugar bounties, that they were less able, and probably less interested, in making full-throated objection than they were in the case of direct regulation. The lawyers and politicians who represented business could often be found somewhere in the pages of a brief or the Congressional Record advocating the broadest possible range of discretion for Congress in appropriations. For example, Seth Thomas, the Agriculture solicitor, sent Reed a copy of a Georgetown Law Journal article titled “The New Deal and the Public Money,” by Ollie McGuire.44 McGuire, counsel to the US comptroller general, had been a few years ahead of Carloss at George Washington. He had taken as his foil Roosevelt’s assertion that New Deal practices were within “the framework and in spirit and intent of the American Constitution.” He concluded unequivocally that with respect to appropriations, Roosevelt was right. Congress had always enjoyed “unlimited discretion” in appropriations, and the Founders had wanted it that way. His article was significant less because it concluded that the government’s position on the general welfare was correct than because McGuire was a New Deal opponent, a close friend of James Beck, and had been his assistant and collaborator in Our Wonderland of Bureaucracy. Hiss, who also heard about the article from Helen Carloss, found McGuire, like Choate, Taft, and Beck himself, to be a useful witness for the prosecution, and repeatedly cited the article in the government brief.45 Government lawyers, including the legal staff at the Agriculture Department, Jerome Frank, Adolph Berle, and Vincent Nicholson, general counsel of the Rural Electrification Administration, offered suggestions and comments on the draft brief.46 Nicholson, a former law professor, had published an article urging the government to make use of the broad and unreviewable spending power the previous year. Nicholson’s article quoted James Beck’s brief in the Maternity Act cases in which he “emphasized the long-established and extensive exercise by Congress of the powers asserted and contended that this body of precedent was binding on the Court.” He now wrote Reed: In all of the Government’s briefs relating to the spending power the position of the government has been referred to as a “broad” interpretation of the General Welfare Clause, and the opposing position as a “narrow” or “strict” interpretation. In view of the present temper of the courts, it may be better

The Well-Beaten Path / 163 strategy for us to avoid any intimation that we are trying to stretch the language of the clause beyond its obvious and literal import. It is the opposition who are trying to tamper with the Constitution and to twist the Clause into something other than what it says. I would regard our interpretation as neither broad nor narrow, but rather as a natural reading of the unequivocal language.

Hiss found this comment “very sound” and informed Reed that he had tried to term the government’s interpretation “literal” rather than broad.47 Others in the government agreed. One wire service story carried in newspapers around the country about the filing of the brief quoted Attorney General Homer Cummings that the government was merely resisting the “adoption at this late day of a narrower construction.”48 Lawyers and professors from around the country chimed in.49 Paul Freund, who worked with Hiss in the Solicitor General’s office and helped write the brief, sent a copy off to Thomas Reed Powell for his comments. Powell called the effort “first class” but said that he was shocked by their decision to concede that the phrase “general welfare” was a limitation on the taxing power. He urged them to argue instead that the words “for the general welfare were put in for the very purpose of suggesting that the restrictions in the other clauses were not to apply here.” He reminded his “disciples” of the Realty Company axiom that the “court is and should be reluctant to enter a field of which they cannot in fact be masters.”50 This position made some within the Justice Department nervous that the Court would not like the suggestion that it was frozen out of an essentially political question. Tax Division lawyer James Morris urged Hiss to tone it down regardless of the law because he did not “think the contention is necessary that the Court has no power of judicial review over appropriation acts to determine whether or not they are in the general welfare,” a concern Stanley Reed shared.51 A slew of briefs were filed replying to the government on behalf of processors. One was an amicus brief submitted by John W. Davis and William Perkins, both former students of John Randolph Tucker. Davis was the son of a congressman, and himself a former member of Congress, former US solicitor general, and unsuccessful Democratic presidential candidate in 1924. He became a New Deal opponent and leader of the Liberty League.52 In 1922 he turned down an appointment to the Supreme Court. A “living legend,” Davis was considered by Chief Justice Hughes to be the “clearest thinker and the best informed and prepared lawyer” he had seen before the Court.53 Davis was a long-standing opponent of federal spending; dur-

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ing his 1910 campaign for Congress he condemned social service spending as a “reign of extravagance in the disbursement of the people’s money.”54 Echoing their former professor, Davis and Perkins argued that Congress, in making appropriations beyond the enumerated powers, “usurps the reserved powers of the States” and threatens to destroy “the most sacred and cherished of our constitutional principles.”55 By now observers regarded the Tuckers as “somewhat biased,” probably due in part to Beck’s earlier efforts to discredit them in the Maternity Act cases.56 However, the narrow spending doctrine they had developed in defense of states’ rights in the aftermath of the Civil War was effectively repurposed by John Randolph Tucker’s former students in the service of their corporate clients. Malcolm Donald, a Boston lawyer who represented the cotton manufacturers, submitted an amicus brief regurgitating Charles Warren’s position on disaster relief, and quoting liberally from Congress as Santa Claus. Donald was one of the few lawyers who attacked the AAA and the other programs who had, like Hiss and Freund (and Warren), attended Harvard Law School (he had been Powell’s classmate) and been a member of the Harvard Law Review. Donald’s brief attempted to distinguish away every instance of disaster relief on a case-by-case basis, beginning with the St. Domingo refugees, through the Civil War, up to the Depression, claiming that “there is not a single act in the early Congresses which constitutes a precedent. . . . As to later action by Congress, it carries little weight. It does not indicate the view of the framers of the Constitution. Unless adopted without dissent and unless there has been opportunity to test it in the courts, it has no persuasive force.”57 Within the government, Donald’s brief raised alarm. He had submitted a similar brief in the First Circuit case that the lawyers thought had played an influential role in the government’s loss there. Donald was peppered with requests from government lawyers for additional copies as they prepared Reed for the argument.58 Francis LeSourd, a young Tax Division lawyer who would go on to work on the Social Security cases, wrote to division head Sewall Key two days before the Supreme Court session, alerting him that “the best brief filed on behalf of the opposition is that of Malcolm Donald and several parts of it may well merit Mr. Reed’s attention.” In particular, LeSourd warned that “Mr. Donald’s argument on the welfare clause is very good and should be read by Mr. Reed, especially for the reason that Donald attempts to explain away many of the precedents which we have cited.”59 Reed seems to have heeded this warning. His personal copy of Donald’s brief was well thumbed and annotated with marginal notes.60 LeSourd’s fear was realized at oral argument in early December 1935.

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Reed’s opponent, George Wharton Pepper, relied on Donald’s “most admirable” brief in order to rebut Reed’s assertion of the long history and broad scope of the General Welfare Clause. As spectators including James Beck and Senator Edward Costigan looked on, Reed replied that the administration’s interpretation of the power was supported by the history of disaster relief and “has met the approval of commentators from Story to Justice Miller. With but one exception that I can recall, they have been fully settled in the view that the appropriating power of Congress gave it the right to give money for relief, to aid those who were in distress, to lend where money was needed.” Relying on Realty Company, Reed reminded the justices “how hesitant the Court is to interfere with the appropriation by Congress of money defined by Congress to be within the public welfare.”61 Although Reed’s performance at the oral argument was regarded as a failure (he fainted midway through), he argued for a broad and unreviewable power of Congress to spend in the general welfare to relieve victims of catastrophe, and on this point he did not entirely lose.62 The Court’s opinion in United States v. Butler was a pivotal moment in the formation of the American welfare state, though not for the reasons usually thought. Most accounts treat it as one of the “horse and buggy” decisions that brought on the court-packing plan and led to the “switch in time.” Although the Court did invalidate the Agricultural Adjustment Act as an invasion of states’ rights (over a blistering dissent by Justice Harlan Stone), it did not shut the door to federal spending. Instead, as Powell had predicted the month before in Brooklyn, the Court sided with the administration’s view of congressional power in the field of appropriations. The editor of United States Law Week pronounced this the “most important ultimate consequence of the AAA decision,” one that would lead to ‘a whole new field of constitutional law.”63 Howard Lee McBain, who had succeeded Powell as Ruggles Professor of Constitutional Law at Columbia, wrote in a cover story for the New York Times magazine two weeks after the decision that the Court was forced to resort to its tortured construction of the Tenth Amendment because “it would have been palpably absurd to declare that nation-wide relief for the distress of agriculture was not for the general welfare, but possibly also because of the magnitude of the implications of such a doctrine as applied to numerous other laws of Congress, involving in retrospect and in prospect untold billions of dollars.”64 McBain, like Powell, understood that the Court’s acceptance of the government’s position on the scope of the clause cleared the way for the Public Works Administration and the Social Security Act to be upheld soon after.65

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In these subsequent cases, the lawyers had the benefit of the Court’s decision in the AAA case that Eliot and Holtzoff had lacked when they were struggling over the economic security bill. They also had a preview of the arguments on the other side, for example, in Malcolm Donald’s brief. A week after the conclusion of the Butler argument, Reed requested ten additional copies of that brief, and LeSourd and Key were again dissecting the arguments in it, probing for weaknesses, this time in connection with other, upcoming cases. John Davis sent in twenty more copies of his brief, requesting three copies of the government’s arguments.66 More importantly, every government lawyer now had the Butler brief, and many of the supporting memoranda.67 Some of them already had the brief because they had commented on drafts before it was filed. But now the demand for it both inside and outside the administration, including from the president, was so high that the government ran out of copies.68 Stanley Reed’s mailing lists for the brief included well over one hundred people, among them lawyers, professors, members of Congress, and reporters.69 Universities and public libraries around the country requested the brief, including the director of the New York Public Library, who said that it would be in “great demand in our reference collection.”70 Law journals planned articles and symposia on the appropriations power.71 Dozens of law review and magazine pieces pored over the administration’s arguments and puzzled over the majority opinion. For example, a student comment in the Cornell Law Quarterly reviewed the government’s brief, including many of the precedents on which it relied, including Realty Company. The author left no doubt that the editors thought that the New Dealers had it right, calling the decision “strange” and “embarrassing.” Arthur Cathcart of Stanford Law School agreed, calling the court’s opinion “far-fetched,”72 while Barbara Armstrong thrashed the decision as illogical and absurd.73 Powell denounced it as “literally unwarranted by anything in the Constitution.”74 The American Bar Association Journal published a synopsis of the brief in early 1936, which was read by a federal judge who wrote Reed requesting copies of both the government’s and Donald’s briefs.75 Newspaper coverage of the case further helped to disseminate what Nicholson and Hiss had called the “literal” general welfare argument, based in large part on the history of disaster relief. For instance, when the government brief was filed, the Times detailed its arguments that “adoption at this late day of the narrower construction” would prevent the federal government from relieving the Depression, and that “the determination of the general welfare, as a question of policy, was primarily the concern of Congress.”76 According to an editorial in the Nation, after Schechter, the

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country had “pinned all their hopes on the taxing and spending power of Congress under the ‘general welfare’ clause of the Constitution. The court did not dare through a frontal attack destroy this Congressional power. To do so would have run directly athwart the established law and usage of a century and would have constituted the most fatal decision since the Dred Scott case.”77 United States Law Week reported a few days after the decision that it was now “conceivable that expenditures for slum-clearance, housing, unemployment relief, and the like may be declared to be in the national general welfare.”78

The Least Controverted Precedents This argument now made its way into the briefs for virtually every pending New Deal case. This began even before the Butler brief was filed. Jerome Frank was assigned by Interior Secretary Harold Ickes to work on the public power cases on October 31, and by November 4, he had written to his co-counsel Alexander Holtzoff that he was working on revisions to Holtzoff’s Fourth Circuit brief “based upon the AAA brief.”79 The Supreme Court justices saw the general welfare argument, including Realty Company and the history of disaster relief, for the second time only a week after the Butler brief was filed. This was in a case involving the Home Owner’s Loan Corporation (HOLC), which refinanced the mortgages of over a million people facing foreclosure.80 Wisconsin officials had resisted the federalization of state building and loan associations under the Home Loan Act. The government submitted an amicus brief supporting federalization, which was drafted side by side in the Solicitor General’s Office with the Butler brief.81 The HOLC case was argued before Butler and therefore it provided the administration with an opportunity to test its general welfare argument on the Court and the public. The government defended the entire act, including the challenged provision, as an exercise of the spending power, based on the “uniform and long legislative practice” of “grant[ing] money and property for the relief of distress caused by catastrophes,” and replicated Arthur Jacobs’s list. The New York Times reported that the government compared the HOLC program to congressional spending for “earthquakes, fires, floods, and other emergencies, public health, education and science, social welfare and aiding agriculture.” According to the article, the government was urging to Court to interpret the clause in light of this long, practical construction by Congress.82 Lawyers for Wisconsin replied that “a supposed practice of Congress

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is frequently offered . . . but no practice no matter how frequent can legitimate an unconstitutional practice.” For support they turned to (and included in an appendix) a legal opinion offered by Newton Baker and James Beck to the president of Edison Electric on the scope and meaning of the General Welfare Clause. The pair had been retained by the Edison Electrical Institute to advise the industry on litigation strategy against the Public Utilities Holding Company Act and other efforts by Roosevelt to rein in the utilities.83 Although Beck and Baker were forced to concede that all modern treatise writers supported the government’s position on the spending power, they turned for authority in their favor to Baker’s mentor from Washington and Lee, John Randolph Tucker.84 Ultimately, the case went off on other grounds and the Court did not give away anything regarding its opinion of the government’s general welfare argument. Another way that the argument made the rounds of pending cases was through the personal networks of the lawyers involved. A case in point involved the slum clearance program, which like public power construction was another project of the Public Works Administration (PWA). The administration had moved to condemn four city blocks in Louisville, Kentucky, for the construction of low-income housing, which would create jobs as well as stimulate the local economy. One owner brought suit to stop the condemnation, and in July of 1935, the Sixth Circuit ruled 2–1 against the government that slum clearance and unemployment relief were not “public uses” for purposes of eminent domain.85 The government’s Supreme Court brief, submitted a month after the Supreme Court ruled in Butler, was written primarily by Alger Hiss’s younger brother, Donald, also a Harvard Law School graduate and former Holmes clerk, and looked in many respects identical to the brief his brother prepared. As Don Hiss and his boss, Interior Department Solicitor Nathan Margold (both former Powell students) were preparing the brief they received a copy of Malcolm Donald’s amicus brief in Butler from Hugh Cox in the Justice Department, who called it the “most elaborate and convincing attack on the government’s interpretation of the welfare clause that I have seen.” Cox went so far as to suggest that the government hire Princeton’s Edward Corwin as a consultant on the PWA cases, so that the spending power expert could figure out how to answer it.86 The brief that Don Hiss and Margold produced defended the government’s slum clearance program by arguing that the unemployment problem was national, not local, and “in these circumstances, it seems indisputable that Congress had the power to appropriate public funds to relieve the distress of the unemployed.” As in Butler and Hopkins, they included Arthur Jacobs’s disaster relief list for

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support.87 They then tried to expand the government’s beachhead in Butler by asserting that the power to appropriate under the General Welfare Clause naturally carried with it the incidental power of eminent domain in order to carry it into effect, an implication his brother Alger had been keen to avoid in Butler for fear of triggering an adverse reaction in the earlier case.88 The plaintiffs, led by Charles Middleton, a 1905 graduate of Virginia Law School where he doubtless absorbed Tucker’s view of the spending power, replied that slum conditions and unemployment were matters of purely local concern, like agriculture, and “the multiplication of things local does not nationalize them.” Perhaps owing to the awkwardness of defending “slums,” the plaintiff’s lawyers emphasized concerns over the legitimacy of the PWA’s public power projects and questions surrounding the legitimacy of government competition with private power companies and other businesses rather than with slumlords.89 Lower courts were split over the whether aiding municipal power plant construction was for local or national interest. Disaster relief often played a key role in these cases, as judges found that the history of these appropriations showed that Congress had discretion as to the general welfare, or alternatively attempted to distinguish the precedents away. As the district court opinion in one such case said, “the history of the country is replete with such appropriations.”90 A note in the Michigan Law Review on the case agreed, finding it “impossible” to view this history of expenditures for disaster relief, agriculture, and other things “without concluding that the tax power has long been used to provide for the general welfare in a broad sense.”91 But this, the Louisville plaintiffs wrote, proved merely that Congress was in need of “constitutional guidance” from the Court.92 According to the plaintiffs, “the fact that Congress may have exceeded its constitutional powers in many previous instances is no argument to sustain another usurpation.”93 The general welfare argument, and the disaster relief precedents supporting it, was also propagated through the reassignment of lawyers who had helped to develop it elsewhere. As noted above, Alexander Holtzoff, who had worked with Armstrong and Eliot on the Committee on Economic Security was reassigned to work with Jerome Frank on the PWA cases, where they were eventually joined by Paul Freund from the Solicitor General’s Office, and Assistant Attorney General James Morris, both of whom had worked on Butler. Sewall Key and his Tax Division lawyers moved almost immediately from the AAA to the Social Security cases, where they worked with Tom Eliot (who was by then general counsel to the Social Security

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Board) and Charles Horsky, who had worked with Alger Hiss and Paul Freund on the AAA case. Alger Hiss recalled that these elite young lawyers of the New Deal “were few enough in number and similar enough in backgrounds and beliefs to share common bonds.” They worked together informally across departments, meeting for lunch or dinner to share “the latest solution of one legislative or litigative problem.”94 Charles Horsky recounted working “like a dog” and going to cocktail parties at which everyone discussed what they were doing to “save the world.”95 This dense network of lawyers, connected by their law school and professional experiences, freely borrowed and recycled arguments and slices of text from one brief to the next, confident that they were in agreement with one another and on relatively safe terrain with the Court and the public. As Jerome Frank snapped at Felix Frankfurter while he worked on the public power case brief, they weren’t trying to advance any “bizarre theories” or even to offer any “displays of erudition.” They were entirely focused on bringing these New Deal programs “within the sanction of the least controverted precedents,” which in this case included the history of congressional appropriations for victims of calamities.96 One of the first things Frank did when Harold Ickes assigned him to the Duke Power case was to ask Holtzoff to get an extension on the Fourth Circuit brief so that he could get up to speed and digest Hiss’s draft of the Butler brief.97 Duke Power involved a grant and loan of nearly $3 million by the PWA to Greenwood County for a hydroelectric plant at Buzzard’s Roost, South Carolina. The Roosevelt public power initiatives, including the Tennessee Valley Authority (TVA), had enraged the utility companies, engendering what the New York Times characterized as “a fight as bitter as any precipitated by the New Deal.” The Carolina giant, Duke Power Company, sued to stop the county from constructing a competing plant and driving down rates, contending that the public power grants were part of a federal government scheme to regulate utility rates.98 The district court granted an injunction against both the PWA and Greenwood County, although the administration had won several similar cases in the lower courts around the country.99 Duke was represented in the district court by its general counsel, William S. O’B. Robinson, who had attended Columbia for a year with Reed and Holtzoff and then returned home to North Carolina to practice. He was joined by Duke’s New York counsel, William Perkins, a Virginia tobacco lawyer who had studied with Tucker at Washington and Lee, and then

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worked with Davis on an amicus brief in Butler, and John Hardin Marian, a former justice of the South Carolina Supreme Court who had resigned in the middle of his term to go to work for Duke. Frank and Holtzoff did not think much of their opponents’ Fourth Circuit brief. However, Frank advised Reed in mid-November 1935 that once the case headed for the Supreme Court, “the ablest counsel for the power companies throughout the country” would get involved in the case or submit amicus briefs.”100 He was right. As soon as it was clear that Duke Power would be a test case, Newton Baker took over as lead counsel for Duke. At first glance Baker seems an odd shill for utility interests. A Democrat who had served in the Wilson administration, Baker had been a two-term good government mayor of Cleveland, where he built a municipal power plant and opposed utility interests. Oliver Wendell Holmes called him the “outstanding lawyer of the 1920s,” and Coolidge named him to the World Court in 1928. In 1932 he was mentioned as a possible candidate for the Democratic presidential nomination. But Baker was also a southerner whose father had served in the Confederate Cavalry under Jeb Stuart. Like William Perkins and John W. Davis, he had studied law with John Randolph Tucker at Washington and Lee. He turned increasingly against his party and the New Deal, and at the end of his life spent most of his time representing private power concerns.101 After Frank finished his Fourth Circuit brief, he sent it off to Frankfurter, hoping to prove to his friend once and for all that he was expert at traditional legal reasoning. He explained that he had followed the Butler brief (but not the decision, as it was not yet out when the brief was prepared) in defending the act as an exercise of the spending power.102 Although Frank could not stand Holtzoff, whom he thought was a terrible writer, the two men agreed on the spending power argument.103 Like Beck, they cited Judge Tucker’s report on internal improvements, Calhoun, Hamilton, Story, and Monroe, the Caracas earthquake, and the St. Domingo refugees. Like Hiss, they relied on Realty Company, which they described as “the only decision of the Supreme Court directly involving this question,” and quoted Justice Peckham’s reference to Joseph Choate’s list of disaster grants “based on considerations of pure charity.” The heart of their argument, as in those earlier cases, rested on the “continuous practical construction” of the power by Congress, beginning with the Whiskey Rebellion. “Similar appropriations,” all detailed in the brief, “have been made from that time until the present day to aid sufferers from earthquakes, Indian depredations, fires, war or famine, tornados or cyclones, yellow fever, grasshopper scourges,

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and floods,” as well as others for social welfare and agriculture. They followed with approving commentary on this history from academics, including Hare, Willoughby, and Corwin.104 On February 21, 1936, the Supreme Court refused to strike down the TVA, a decision that Holtzoff reassured the lawyers for Greenwood County would have “a highly favorable moral effect” on the Fourth Circuit as it considered the government’s appeal in Duke Power. The next day, the Fourth Circuit handed the government “a sweeping victory all along the line,” as Cummings reported to Roosevelt. Holtzoff sent Cummings a memorandum about the decision (which Cummings forwarded to the president), noting that the court had given the General Welfare Clause a “broad construction, following the AAA case,” and including numerous quotes affirming the power of the government to relieve the national economic crisis. Although the lawyers were jubilant, they immediately began girding for the Supreme Court fight that was sure to follow. Stanley Reed assigned Paul Freund to work with Frank and Holtzoff on the high court brief.105 The 1936 Supreme Court brief in the Duke Power case was clearly indebted to Holtzoff’s experience with the CES and to the experiences of several members of the government team on the Butler brief.106 Holtzoff’s outline for the brief drew on his earlier research on the constitutional basis for national unemployment insurance. For example, in the section on the General Welfare Clause, he included a discussion of the history of appropriations under the clause, and “similar actions of Congress in the past.”107 These prior acts of Congress formed what the chairman of the House Committee on Appropriations had, when discussing the NIRA work relief programs, called a “well beaten path” for Congress to follow in providing aid to the unemployed, and the brief quoted this assessment.108 In June, Justice Alfred Wheat of the Supreme Court for the District of Columbia picked up this thread, ruling that in the case of federal grants to relieve unemployment through public works, “it is easy to find the ‘well-beaten path.’”109 Ultimately, the brief Reed filed in October 1936 included both Jacobs’s disaster relief list and an “Appendix D” that provided a more detailed list, twenty-one pages long, including such things as early acts providing work relief following floods, relief for the San Francisco earthquake, and aid following dozens of other disasters. The weight of these precedents made it “indisputable that Congress has the power to appropriate funds to relieve the distress of the unemployed.”110 Frank and Reed also emphasized this point in their oral argument. In Reed’s outline for the Court presentation, he wrote:

The Well-Beaten Path / 173 Under the conditions, then and now existing, is an appropriation for unemployment relief an appropriation for the general welfare? It may be safely assumed that no matter where the ultimate line may be drawn as to General Welfare, the relief of distress, widespread and material in scope will be held within constitutional powers. After recognizing the claims upon national bounty of sufferers from Indian Depredations, fires, wars, famines, floods, droughts, yellow fever, and grasshoppers, it is equally clear that alleviation of the distress from economic dislocation is in our powers.111

Fifty years earlier, during the last Great Depression, the identical claim by William Peffer was laughable. Now the distinction between natural and economic calamities had been so thoroughly dissolved that it could be “safely assumed” that even the anti–New Deal Court would grant the point. Indeed, Reed was so confident the justices would agree that he was even willing to concede that the matter was subject to judicial review.112 Baker responded, as Malcolm Donald had in the AAA case, by citing Charles Warren for the idea that the congressional practice of charitable appropriation did not really begin until after the Civil War. Baker argued that the history Holtzoff and Frank described proved nothing because the constitutionality of the grants had never been tested in the Court. Baker’s brief did not discuss Realty Company. In any event, he said, public power grants invaded the domain of the states under Butler.113 This was the real gist of his arguments, ultimately inspired by Tucker (though now without attribution, since after Butler, Tucker’s stock had fallen as Corwin’s rose). Roosevelt’s true purpose in making the grants for power plant construction was not unemployment relief, said Baker, but “to usurp the police powers of the state” in order to wage “warfare” on the nation’s utilities.114 As in Butler, lawyers and the general public paid a great deal of attention to the case, and demand for the brief was high.115 Due to procedural irregularities in the handling of the case in the lower courts, in December 1936 the Supreme Court remanded the case without reaching the merits. Although the government was now making its disaster relief argument at every opportunity—including aid to agriculture, slum clearance, home mortgages, and public power—the Court had not yet passed on it. That would wait for Cincinnati Soap and Social Security.

What General Means Invoking the disaster relief precedents in these cases was only half the job, since the citation of precedents, no matter how numerous, is of little help

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if they aren’t applicable. The government lawyers thus had to show that the conditions the challenged programs were intended to address were sufficiently widespread and bad that they could be considered a “catastrophe.” This might seem like a trivial task from our modern vantage point given our understanding of the Great Depression. At the time, however, it was not obvious that people were experiencing a single, national event, rather than their own particular, local troubles. As we saw in chapter four, aggregating these varied facts into a singular trauma was a central preoccupation of FDR and his administration throughout the 1930s. A similar effort was necessary in the legal realm in order to guard against the charge that the expenditure in question was not really in the service of the general welfare, but was in fact limited and local. One problem was that the money would have to be spent in individual locales—for the relief of unemployment, the construction of housing, the stringing of electric wires. This fact was a vulnerability, as New Deal opponents tried to break apart the notion of a national calamity into thousands of discrete local problems, their relief a matter of local, not general, welfare. As Newton Baker contended on behalf of the utility industry, the government’s power projects could not be “general” because they were built in local areas, in response to local conditions that were the exclusive domain of the states. “Some things,” he wrote, “are in their very nature inherently local. Their essentially local character is not changed by the circumstance that similar local objects may exist in every community in the United States.”116 The government lawyers thus faced the same problem as La Follette and Costigan had in the winter of 1930. They had to show that each local community was being simultaneously victimized by a national disaster, one that could only be met by the resources of the national government. While Roosevelt could rely on rhetoric and disparaging his opponents to achieve this effect, his lawyers faced a more demanding and potentially skeptical audience in the form of federal judges. The Court had created this worry in part by language in Butler and in Carter v. Carter Coal, which struck down the Bituminous Coal Conservation Act. In Carter Coal, the Court had refused in May 1936 to recognize that a strike in one location affected commerce, saying “the evils are all local evils over which the federal government has no legislative control.”117 At least with respect to regulation, the Court was unwilling to agree that the government could regulate employment or agricultural relations no matter how widespread the difficulties in those fields. The question was whether this principle would apply as much to the determination of the “general welfare” as it did to the existence of “interstate commerce.” Language in

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Butler suggested that it would: “It does not help to declare that local conditions throughout the nation have created a situation of national concern; for this is but to say that whenever there is a widespread similarity of local conditions, Congress may ignore Constitutional limitations upon its own powers and usurp those reserved to the states.”118 Although commentators ridiculed this suggestion as nonsensical,119 Baker pushed the Court hold that “the mere multiplication of its excursions into matters of strictly local concern can not concert them into matters of National concern or general welfare, and hence, objects of National appropriations.”120 Part of the government’s response to this threat took the form of argument, as when Holtzoff and Frank responded sharply to Baker that “were plaintiff’s contention sound, the power to expend for the national general welfare would lack virtually all substance, since it is all but impossible to conceive of expenditures which must not be made locally.” This gently pointed out the logical flaw in Butler and attributed it to Baker rather than to Justice Owen Roberts.121 Generally, however, the government’s response to this challenge came in the form of “economic briefs,” such as that prepared at the request of Alger Hiss by Agriculture Department economist Mordecai Ezekiel laying out the extent of the national farm crisis. Ezekial’s research was ultimately incorporated into the Butler brief in a sixty-page section intended to show that farm problems were due in large measure to a “precipitous fall in farm prices after 1929.”122 This part of the government brief, which included charts, tables, and graphs aggregating the farm sector and demonstrating its problems relative to manufacturing, concluded that the AAA was “part of a group of Congressional measures designed to relieve the widespread distress of the greatest depression the nation has experienced. . . . The appropriation made to finance this purpose plainly met what Hamilton called ‘the only qualification’ of the power conferred by the welfare clause,” that the object was general and not local. Obviously, if the entire farm sector was suffering, and in turn unable to purchase industrial goods, as Ezekiel’s tables attested, the problem was not “local” regardless of the fact that the benefit payments were made only to certain people who lived in rural areas.123 Jerome Frank emulated Hiss’s approach by obtaining a similar economic brief from a PWA economist showing the need for a national public works program to address unemployment around the country, as well as the number and type of such projects undertaken by the government.124 The Fourth Circuit, like most courts addressing the question, found this evidence highly persuasive, saying that “the expenditure of public funds for the relief of nationwide unemployment is within the power of Congress,

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as being an expenditure in furtherance of the general welfare of the United States,” and “it necessarily follows that expenditures for a nationwide program of public works for the purpose of providing employment in such an emergency is within the Congressional power.” The court ridiculed Baker’s argument that a program in which projects were underway in virtually every county of the country was for local, rather than general, benefit. “The money cannot be expended in vacuo and no project can be imagined, even though part of a national program, which will not have a local situs.”125 Another court bluntly put it, “obviously there is no other way to relieve unemployment than to relieve it in the localities where it exists.”126 As Stanley Reed told the Supreme Court during oral argument a few months later, Congress “can appropriate for a general condition that results from an aggregation of those local needs. That is what *general* means, we think.”127

The Silver Lining Two weeks after the Court’s decision in Butler, Reed predicted to an audience of lawyers in New York that there would be a silver lining. Although he deeply regretted the result of the Butler case, he told the gathering that he found “very real cause for hope in the future in the language of Justice Roberts upon the welfare clause,” which he quoted. He said that “it would not be surprising if from this holding of US v. Butler, supplemented as it is by the vigorous and cogent reasoning of Justices Stone, Brandeis, and Cardozo, there will flow an important line of decisions validating Federal legislation in the fields of agriculture, social welfare, and labor relations.”128 In this remarkable effort to snatch victory from the jaws of defeat, Reed correctly predicted the importance of Butler to history. This was obviously not just a shot in the dark, since Reed knew that Eliot and Frank and their teams of lawyers would shortly be bringing cases to the Court making just this point. But as he said with growing confidence a few months later, “the uniform recognition by the Supreme Court of the fiscal powers of the federal government makes it improbable that these attacks can meet with success.”129 Reed understood that the Court had recommitted itself in Butler to its course in Realty Company, and that it would now be possible for the government to prevail in those cases so long as it stayed within the ambit of those decisions. Sewall Key and the Tax Division lawyers began preparing for the Social Security cases almost immediately after they finished with Butler. First, though, there was another processing tax case to deal with. In addition to the processing taxes at issue in the AAA case, in 1934 Congress had also im-

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posed a tax on processors of Philippine coconut oil of three cents a pound. The proceeds of this tax were earmarked for the benefit of the Philippines, which had been, prior to November 15, 1935, an insular possession of the United States, but after that date became an “independent” commonwealth. Taking heart from the Court’s decision in Butler, the Cincinnati Soap Company, together with other manufacturers of soap products using Philippine oil, sued to recover the taxes, totaling less than $100, that they paid under the act, alleging that the appropriation for the benefit of the Philippines was unconstitutional. In general, the processors alleged that Congress lacked the power to make appropriations for the benefit of the islands, a purpose the plaintiffs said was “local” not general.130 Key’s team, together with Horsky and the new assistant attorney general assigned to the Tax Division (and future Supreme Court justice) Robert H. Jackson, responded that the government had plenary power to appropriate for its possessions. Even after the islands became nominally independent, however, Congress could still appropriate for their benefit because under Realty Company, Congress could recognize a moral obligation “irrespective of the status of the Philippines.”131 Like Joseph Choate in the earlier case, Jackson referred the Court to the history of appropriations for “the amelioration of disasters” and furnished the Court with a lengthy list of examples.132 Perhaps because the ruling in Butler implicitly rejected the government’s position on judicial review, Jackson’s brief shied away from suggesting that the Court had no power, saying only that Congress should not be overruled by the Court, particularly in an area touching on foreign relations.133 The case was a complete rout for the government. The Court’s unanimous opinion in Cincinnati Soap Co. v. United States in May 1937, authored by Justice George Sutherland, went even further than the government’s brief had urged. Sutherland cited Realty Company for the principle that congressional appropriations for “high moral obligations” are virtually always “a matter of policy and discretion not open to judicial review.” As we saw in chapter three, Justice Sutherland had previously learned of this doctrine and the precedents supporting it from Miles Dawson and James Beck. Now his opinion explicitly relied upon the history of disaster relief for “earthquakes, fires, and other events.” Sutherland explicitly credited Jackson with providing “an impressive list” of disaster precedents, saying that “legislation of this character has been so long continued and its validity so long unquestioned that . . . a legislative practice such as we have here . . . marked by the movement of a steady stream for a century and a half of time goes a long way in the direction of proving the presence of unassailable ground for the constitutionality of the practice.”134

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As the Cincinnati Soap decision illustrates, the government lawyers continued to rely on Realty Company and the history of disaster relief for a simple reason: it worked. Similar arguments and cross-references to disaster relief appropriations sprang up in the briefs for countless other cases. One of the earliest challenges to the federal unemployment insurance law involved a collusive suit from New Jersey filed in the summer of 1936, before the law even went into effect.135 Despite Jackson’s efforts to get rid of the case on standing, in September the district judge ordered him to respond to the plaintiff’s constitutional arguments, which bordered on hysteria with allegations that “complete power would be surrendered to the central authority and people would be subjects and not citizens.”136 The next week, Jackson hired Princeton professor Edward Corwin to assist in the preparation of the government’s brief, which relied heavily on the precedent of disaster relief, as did an amicus brief in support of the state of Washington’s unemployment law prepared by Eliot around the same time with the assistance of Jackson and the Tax Division.137 Both of these briefs, with their long lists of disaster appropriations, were cribbed in large measure from the Butler and Duke Power briefs. But there was a difference. In those cases, disaster relief was a prominently featured example of federal expenditures in a list that included other types of aid. Now it was the only example. In the New Jersey case, Jackson argued that it was indisputable that the expenditure of moneys to aid millions in distress throughout the Union is an appropriate use of Federal Funds and for the general welfare. From the very beginning of our Government it has always been deemed the proper duty and function of the Federal Authority to lend financial aid to relieve distress in substantial sections of our population. As early as 1790 (c.33, 1 Stat. 423) Congress provided relief to citizens sustaining losses due to the destruction of their property by insurgents in western Pennsylvania, and since that time many appropriations have been made to aid sufferers from earthquakes, Indian depredations, fires, war or famine, tornados or cyclones, yellow fever, grasshopper ravages, and floods. And today millions are being spent by the Federal Government to aid those made destitute by the depression.138

A lengthy listing of well over one hundred separate instances followed. A similar treatment is found in Eliot’s amicus brief in Johnson v. Washington for the Washington Supreme Court, though the list was somewhat abbreviated because “limitations of space preclude the mention of more than a few

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examples,” which included the Whiskey Rebellion and Madison’s agreement to the appropriation for the Caracas earthquake. Eliot concluded that “the list might be extended almost indefinitely.”139 By this time the wide dissemination of these arguments had impressed lawyers outside the government with the importance of these arguments as well. A brief in the New Jersey case by two local lawyers, who defended the owners of the Newark Milk Company against the charge by the plaintiffs that it had unlawfully paid the unemployment tax, argued that “an examination of the early statutes indicates that from the outset of our federal government large sums of money were appropriated . . . [for] the relief of distress due to catastrophe to substantial sections of our population as well as for such things as the eradication of disease and the construction of internal improvements.”140 The utility of the disaster precedent was not limited to cases involving the General Welfare Clause or even to questions of federal power. For example, the Supreme Court held in Home Building and Loan v. Blaisdell that Minnesota’s mortgage moratorium law did not unconstitutionally interfere with contractual obligations because “if state power exists to give temporary relief from the enforcement of contracts in the presence of disasters due to physical causes such as fire, flood, or earthquake, that power cannot be said to be nonexistent when the urgent public need demanding such relief is produced by other and economic causes.”141 The Alabama Supreme Court then explicitly relied on disaster relief and Blaisdell in holding that the Alabama unemployment compensation law was within the state’s police power to enact because the suffering caused by large-scale economic difficulties, like that caused by “fire, flood, or earthquakes” was a “proper subject of government action in the interest of the general welfare.” The state’s briefs to the Alabama Supreme Court were prepared by Tom Eliot and John Paul Jackson, of the Tax Division, and included a disaster relief argument that persuaded the Alabama court to hold that “starvation, or the tendency to it, due to economic depression, is as alarming and dangerous to the state and its people as that condition due to flood, drouth, or earthquake.”142 As in the effort to draft and pass the act the previous year, the chief concern of the lawyers was not, strictly speaking, legal. About the law, the lawyers were confident. Tom Eliot sent Stanley Reed a draft of the general welfare section for the old age insurance brief with the message that the “wide sweep” of the argument might be surprising but it reflected “a new optimism with regard to the strength of our position.”143 Thurman Arnold wrote to Robert Jackson in September after New Jersey federal district Judge

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Guy Fake had ordered Jackson to respond in Pulaski Trucking that “the real substance of the argument against the Act does not lie in legal authority. On such an argument, the government’s case is almost conclusive. There are no cases which have to be overruled to sustain the constitutionality of the Act.” Rather, according to Arnold the danger to the act lay in provoking “deep-seated” conservative fears that “in some vague way this will extend the power of the Federal Government over all economic activity.” He called this the “what are we coming to argument” and it, in contrast to the legal challenge, was “most dangerous.” Arnold, a Yale law professor serving as a special assistant attorney general under Jackson in the Tax Division, was working on a book about manipulating the symbols of capitalism and suggested pitching the briefs in such a way as to reassure the business community that the act involved no “direct control of local industry” and would not “engulf and destroy the reserved powers of the states.”144 Arnold analyzed past decisions and showed that where the challenged legislation tended to interfere with private business, courts were more likely to find that it transgressed the Constitution. By contrast, the cases that had permitted the broadest use of federal power were those that left private profit alone, particularly those involving such ideals as morals, health, general welfare, and relief. “They include roads, education, pensions, and assistance to states in times of disorder or national calamities such as drought or floods.” These sorts of activities resonated well with “accepted attitudes” of the role of the federal government and posed no threat to organized capital. Arnold distinguished the AAA and the Maternity Act cases, saying that the former was seen as a regulation of private industry, while the latter was merely charity for a valid public purpose. Clearly, he urged Jackson, the way to win the Social Security cases was to ensure that the Court saw it on the right side of that line and understood the problem of old age dependency and unemployment as so widespread that a national solution was required.145 As might have been predicted from the political travails of unemployment insurance in the CES and Congress, the court challenges often originated in the South, primarily from Alabama. In that section of the country, even (and especially) relief and charity raised “what are we coming to” problems for a white elite that badly wanted to maintain local control over what Roosevelt in 1938 attacked as its “feudal” labor system.146 In addition to the solid southern suspicion of the law, Alabama seemed to have what the Birmingham US attorney called a “battery” of anti–New Deal corporate lawyers there that included Forney Johnston and Borden Burr.147 Burr was another Washington and Lee alumnus and had been a student of both

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Tucker and John W. Davis when he briefly taught there after his graduation. Like Davis and Newton Baker, Burr was a conservative southern Democrat who resented Roosevelt’s transformation of the party. In his brief against the federal-state unemployment insurance plan, Burr recounted the entire legislative history of the Social Security Act in order to prove that it was a “plan and scheme” by the administration to usurp state power.148 For the Supreme Court argument the southern New Deal opponents strategically added Justice Brandeis’s Boston firm of Nutter, McClennen & Fish as cocounsel with the Alabamians.149 The Fifth Circuit, in upholding the law, had agreed with the government that “for many years and in numerous instances Congress has recognized with complete public acquiescence that calamities such as floods, droughts, earthquakes and pestilences which though local exceed the resources of local government to meet, are matters affecting the general welfare of the United States,” for which it might tax and spend.150 This passage was quoted in the New York Times, which took the case as portending well for the statute in the Supreme Court.151 But to Burr, none of the grants for disaster relief or anything else the government cited was truly a precedent because none of the conditions on those other grants interfered with matters so local and internal to the states, and certainly not in the way that unemployment payments to the local workforce would.152 Jackson, aided by Eliot and Charles Wyzanski, another protégé of Thomas Reed Powell, responded by again using disaster relief as the explicit foundation for relief work, unemployment compensation, and old age pensions, arguing that no informed person suggests that in the majority of cases the individual worker loses his job through his own personal incapacity or dereliction. The loss comes to him as a disaster over which he has and can have no control. The disaster is not merely a personal misfortune, for when the breadwinner stops earning money his family, and ultimately society, suffer.153

In a similar case in the First Circuit, the government had cited the disaster precedents to the court, which rejected them, saying essentially that those appropriations had also been unlawful but had never been challenged.154 In their briefs and oral argument to the Supreme Court in the Social Security cases, Wyzanski and Jackson thus leaned hard on Realty Company, repeatedly saying that questions of the general welfare were not generally subject to judicial review. “If it were otherwise,” they said in their brief, “the Court would repeatedly be called upon to decide matters of policy

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and expediency—matters which it has often stated that it has no power to review.”155 Jackson’s notes for his oral argument emphasized that appropriations are “particularly immune from review,”156 and Wyzanski repeatedly pointed to the Court’s recent reaffirmation of that principle in Cincinnati Soap, which had been released just a few days before the argument.157 They also followed the lead of Hiss and Frank by including extensive statistical and other evidence within the briefs of extent of the problems of unemployment and old age dependency. A memorandum from Peter Seitz, a lawyer for the Social Security Board, written in May 1936, tried to anticipate the attacks that were likely coming and plan for the act’s defense. The claim that the spending on old age pensions was for the general welfare would have to be backed up, Seitz said, with a “comprehensive economic and actuarial survey and study” showing that the problem was beyond the capacities of the states to address. Seitz’s advice was apparently well taken, because the briefs in the cases were overflowing with material of this sort.158 For example, the old age insurance brief contained a twenty-five-page section extensively documenting both the growth of the elderly population and the decline of their sources of support, as well as how they were subject to a number of disasters beyond their control, including urbanization, bank failures, labor market transformations, and “the ravages of economic depressions.” It concluded that “in the light of the above facts” the old age benefits were for the general welfare.159 The brief in the unemployment case was even more direct. The brief opened, “Before addressing ourselves to the question of the power of Congress to enact the tax under review, we here summarize the circumstances which ‘furnish the occasion for the exercise of power.’” This was followed by a twenty-page section that was condensed from a longer version of an “Economic Brief,” written by a group that included Seitz and other Social Security Board lawyers who had been included in the another case that term challenging the New York state unemployment insurance statute.160 This section was intended to demonstrate that unemployment was not the fault of the individual worker “who cannot by taking heed in advance, protect himself against his future days of unemployment,” and was such a massive problem that it was beyond the power of the states to remedy. It was, the government argued, a widespread disaster.161 Virtually all the government briefs defending the fledgling welfare state against constitutional attack contained some sort of reference to the disaster relief precedent, and usually claimed that these programs were drawn

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from that tradition.162 The Court had now seen these arguments in a steady stream of cases for over a year, beginning with Butler. As Cincinnati Soap showed, the message was getting across. Moreover, it could not have hurt the government that the waters of the 1937 flood had not yet receded and Hopkins’s WPA “shock troops” were still cleaning up towns across the southern United States as the Supreme Court began to consider what to do about the president’s Social Security program in the spring of 1937. Three weeks after its decision in Cincinnati Soap, the Supreme Court upheld Barbara Armstrong’s “straight national” old age insurance plan in Helvering v. Davis as a remedy for the “purge of nationwide calamity.” Justice Benjamin Cardozo’s majority opinion relied on Realty Company and Cincinnati Soap for the proposition that Congress has a “wide range of discretion” to spend in the general welfare, “unless the choice is clearly wrong, a display of arbitrary power, not an exercise of judgment.”163 By this point any distinctions among “debt,” “high moral obligation,” and “general welfare” had been submerged, and Realty Company now stood, with Cincinnati Soap, for the simple proposition that Congress could spend as it saw fit so long as its determinations were not utterly arbitrary.164 It is worth noting that Justice Sutherland, who was one of the conservative “four horsemen” and author of the despised 1923 opinion in Adkins v. Children’s Hospital striking down the women’s minimum wage law, wrote the majority opinion in Cincinnati Soap and then went on to vote with the majority to uphold appropriations for aid to the elderly rather than join the dissent by his fellow horsemen James McReynolds and Pierce Butler. The New York Times declared that the historic decision thoroughly adopted the administration’s “broad view” of the General Welfare Clause.165 As Thomas Reed Powell had predicted in his December 1935 speech, unemployment insurance had a somewhat harder time, owing to the terms of the awkward Wagner-Lewis tax-offset scheme that had been necessary to get the Social Security Act through Congress. Although Justice Cardozo’s majority opinion adopted both the metaphor and the rationale of the administration, holding that it was in the general welfare to mitigate the “disaster” of unemployment, the margin of victory was slimmer. Ironically, Justice Sutherland indicated in his dissent that he would have voted with the majority, as he did in Helvering, if the unemployment insurance program had “been accomplished, as is done by this same act for the relief of the misfortunes of old age, without obliging the state to surrender, or share with any other government, any of its powers.”166 Any satisfaction that Armstrong might have taken from Sutherland’s stance was probably

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dulled by the realization that the nation was now stuck, probably forever, with the inadequate system of unemployment aid run by the states that she had so strongly resisted.

The centrality of disaster relief to the New Deal welfare state, which at first may seem accidental, even exotic, was in fact the mundane result of ordinary lawyering. Government lawyers sought to render the New Deal consistent with past precedent, beginning in the legislative drafting process, and then again in defending statutes against legal attacks. This goal, which arose directly out of their bedrock professional goal of winning cases, led them directly to the spending power and the General Welfare Clause. This step required little more than recalling their law school training and several prominent Supreme Court cases of the last few decades. In the course of their extensive research, the lawyers hit upon appropriations for the direct relief of citizens stricken by calamities. Disaster relief played a useful triple role, more than enough to recommend itself to the brief writer: it served as one of the key bases for the spending power; it represented a history of government spending with which few could quarrel, and even fewer would want to forbid; and it resonated well with the political justification of a welfare state as disaster relief.

SEVEN

We Lost Our All

In April 1934, Matilda Esveldt decided to get some help. She didn’t need much, just a hand, really, to get on her feet again. In her letter requesting assistance, Matilda poured out a litany of troubles. Despite all of her hard work, Matilda wrote, she always seemed to “get the knocks,” starting with her divorce from an alcoholic lout of a husband who refused to support her or their two children. Then came the deaths of her father, sister, and sister-in-law, which left her with the need to support her aging mother, a brother disabled by the war, and the orphaned children of her siblings. She lost her savings in crashes and swindles. Although Matilda had a secure position as a stenographer, the medical and funeral expenses were overwhelming. She fell behind on her mortgage and had two weeks to pay the balance or face the loss of the home. Her son was about to graduate from high school, and she had no way to send him to college. Plus there were the taxes to think about. She really could not see how she would make it. In the face of these hard times, it seemed that the “only thing left” for her to do was to ask Eleanor Roosevelt to arrange for a loan from government relief agencies.1 Matilda had tried hard in spite of the hand fate had dealt her. After leaving her husband when her children were young, she went to work. Although her salary was small, she owned a home, had been able to help members of her family who had been less fortunate, and had even accumulated some savings before the crash. She saw herself as a “business woman” who was down on her luck but would be able to repay in fairly short order the $1,000 she hoped to borrow from the government. Indeed, she felt that she could be “trusted to the extent of just simply signing a note” for the full amount based on her standing. She took some heart from Mrs. Roosevelt’s involvement in establishing a home for unemployed stenographers, but

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she reassured the First Lady that this was no “begging letter.” She might be at the end of her rope but she still had her pride, and she hoped the whole thing could be kept secret from her neighbors, who could be told she had received a bequest rather than government relief. Right around the same time, the notion that Mrs. Roosevelt might be a source of assistance also occurred to Emory Ward of Des Moines, Iowa. Like Matilda, Emory had been subject to a series of setbacks that were not his fault. Emory suffered from polio, which had rendered him deaf, weak, and incapable of hard work. In spite of his disability he had been doing well until he lost his job in the Depression. Then, when he couldn’t find work, he lost his house, his wife, and all he had. Still, he thought that he could succeed if he could just get a start with Fireside Industries, an athome business making decorations and trinkets; he even enclosed the brochure for Mrs. Roosevelt to look over. Emory proposed starting a little shop and maybe even hiring someone to run it while he handled the production. He figured out that he could do it all with a loan of $500, which he would repay just as fast as possible. In this regard he was quick to point out that although he lacked security for a loan, he did not drink at all, as “it is hard enough to keep on my feet right now” due to the effects of his struggle with infantile paralysis.2 Some requests the First Lady received were simpler. A doctor’s wife from Philadelphia wrote to ask whether Franklin Jr. had any cast-off clothing that Mrs. Roosevelt might send to her son. Mrs. Mildred Battis coolly explained that she was “the wife of a physician and you are well aware of the fact just how we have suffered during the depression.” As a result, she had not been able to get appropriate clothing for her son for several years, “as I must have his suits made and his father can’t afford it just now.” Mildred had learned from the newspaper that Franklin was just the same height and size as young Frisby C. Battis III, who was eighteen and in high school (though home right now due to his embarrassment over a severe case of acne). Knowing of Mrs. Roosevelt’s “liberality” she hoped that she might be willing to send some things along.3 These letters draw us deeply into the orbit of sympathy. Reading them against the backdrop of the Great Depression it is difficult, if not impossible, to resist the impulse to imagine Matilda’s tears and anxiety over losing her home or Mrs. Battis’s desperation and humiliation at her family’s sudden downward mobility. As modern readers at a safe distance we can take some comfort from the fact we, unlike these writers, know that in a few short years the military build-up to World War II will spark the economy. Perhaps Emory will find a desk job in the munitions industry and will be

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able to afford the medical treatment he needs. Matilda might find a new home in one of the postwar suburbs that we know will soon be built. But these developments are still some distance off in 1934, and there’s nothing wrong with our feeling sorry for the writers or hoping that Mrs. Roosevelt was able to send them a little bit of money to ease their misery. After all, that was the result that they hoped to achieve. This chapter is about the efforts of these writers and ordinary people like them to generate sympathy and solicit financial aid in the 1930s from President and Mrs. Roosevelt. Unlike the judges, politicians, lawyers, artists, writers, and PR men we have encountered to this point, these writers—hundreds of thousands of them—had only those persuasive resources they could mobilize at the kitchen table. Using a close content analysis of a random sample of 529 such letters, combined with detailed information about 267 of these writers for whom I was able to locate census forms from the 1930 enumeration, this chapter investigates the way ordinary people understood the moral economy of public assistance in the 1930s. These letters thus provide a way to gauge the extent to which the moral economy of need and desert that I have traced to this point was widely understood beyond the confines of Congress and the courts.4 These writers might not have been the keenest observers of their social and political context and might not have had the facility with argument and evidence that the New Deal lawyers—engaged in a similar project with different institutions as their intended targets—did. But with the stakes high, we can be sure the authors of these letters were as keen as they could possibly be, and that they were deploying those arguments that they considered, probably after much agonizing and rewriting, to exhibit the most effective blend of storytelling, moral appeal, and responses to possible objections from Mrs. Roosevelt. Matilda Esveldt, for example, emphasized that she had been forced to divorce her alcoholic husband and go to work in order to care for her children and extended family. The cause of her trouble, she said, was hard luck, brought on by a bad marriage, accident, illness, and large-scale economic forces. Similarly, Emory Ward pointed out that he had held a job and had owned “a nice $5,000 home” before he was laid low by forces beyond his control. It is plain that that were it not for the Depression, an upper-class woman like Mildred Battis would never write such a letter. These are complete accounts of desert, and they strike us with tremendous narrative force. They do not appear to be partial or even strategic. If anything, the welter of details about car accidents and diseases, dismissals and debts, failed crops and lost dreams is overwhelming.

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Yet every story necessarily includes some facts and omits, elides, or even distorts others. A few years before writing this letter a census taker found Matilda living with her husband, Fred, a laborer in a local magnesite mill, but neither her parents nor any children lived with them. Her family and marital history was somewhat more complicated than her letter to Mrs. Roosevelt let on: she was married for the first time when she was seventeen and then again to Fred in 1928, at the age of thirty-two. In terms of resources, Fred and Matilda’s $4,000 home was by far the most expensive in their neighborhood and more than double the median home value in the county.5 Matilda also worked at the mill, but as a bookkeeper rather than a stenographer.6 Emory Ward, the deaf polio survivor who was “incapable of any hard work” because he could not walk and keep his balance was three years earlier tending an open-hearth furnace at a steel mill, probably the single most physically demanding job in the US labor market at that time, requiring nearly superhuman strength and agility. His “nice $5,000 home” was actually valued at $3,500 in 1930, and had almost certainly depreciated since that time along with real estate values in Des Moines and the country as a whole.7 Mrs. Battis’s letter leaves the strong impression of an upper-class professional family used to such luxuries as hand-tailored suits without disclosing the fact that the family is black.8 All of this is not to say that writers were dishonest when they shaded certain aspects of the family’s history or decided not to reveal their race. It is to suggest that the stakes for them were high enough that a completely realistic depiction of circumstances yielded to the need to craft a persuasive case. It is precisely for this reason that these letters are valuable. Although clearly unreliable as a record of their authors’ circumstances, the letters are highly informative about the moral economy in which they wrote, and in which they expected their requests to be evaluated. It is in the distortions and elisions that we can see most clearly the ways in which the writers felt that their own stories fell short, the narrative rough patches demanding repair, the efforts to answer the objections they imagined Mrs. Roosevelt might make. As we will see in this chapter, the main elements of these stories are remarkable for their clarity and consistency: individuals blamelessly stricken by disaster, who had, in the words of one correspondent, “lost our all through channels we could not help or prevent.”9 Mrs. Roosevelt commented on the strikingly similar stories in the “avalanche” of mail she received. Writing in the spring of 1940 in an article intended for publication in Vogue magazine, she sketched for readers some typical examples of her mail to give them “some idea of the type of thing

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which comes to my desk.” She described “a letter written on six sheets of cheap pad paper”: It was a mother’s story of her family. She spoke well of her husband, but he had been unfortunate. They lived in a poor part of the country; a part time job which the father held had been lost; the land was poor and produced little; their cow died, and there were five children to be fed and clothed and then one of them, a little fellow of some five years old, had infantile paralysis. He lived, but one leg was badly crippled. How was he going to meet life?10

She received “letters, letters, and letters” that followed an identical story line, tales of good women married to hardworking men who had been laid low by “sorrow and hardship and disappointment” that was not their fault. The trouble, of course, is that causation in human affairs is rarely so simple. If getting some help depends on having no part in bringing on your own troubles, well, that is a pretty hard standard for anyone to meet. So if Matilda Esveldt’s letter left the impression that she left her alcoholic husband and was supporting her children and extended family on her own, she never directly says that she had not remarried, or even that her children had been living with her in 1930. Since she never discussed the value of her home, she avoided any question of how she afforded such an extravagance on her small salary or whether she might best sell it in favor of a less pricey one. Perhaps Emory Ward did have a mild postpolio syndrome that had grown more severe in the past couple of years. Still, he may have felt that his recent employment at the furnace of a steel mill would make his claim of disability less credible and chose to leave out the type of work he had done. Or maybe he just made the whole thing up because he thought that the story of a formerly middle class man stricken with the same ailment as the president himself and abandoned by a faithless wife would be more likely to generate help than a more ambiguous tale of an unemployed steelworker who lost his house in a messy divorce. It could be that Matilda didn’t even have children but thought Eleanor Roosevelt would be more likely to respond to a plea from a mother. Likewise, perhaps Mildred Battis could not be sure whether revealing her family’s race would hurt or help her chances, and so she elected to remain silent on the issue. Rather than feeling disappointed by these discrepancies or seeing them as lies or manipulations, we can use them to reveal both the workmanship of the writers and, more importantly, the moral economy into which they spun their tales of woe.

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Mrs. Roosevelt’s Problem Matilda, Emory, and Mildred had plenty of company (or more sharply, competition). Over the course of the 1930s hundreds of thousands of people wrote very similar letters to Franklin and Eleanor Roosevelt.11 While the writers of the letters to Eleanor Roosevelt analyzed in this chapter vary along such dimensions as region, race, class, and gender, they all shared a common goal: convincing Mrs. Roosevelt to send them something of value, whether a gift of cash, intervention with a government agency, a loan, or a cast-off dress. Achieving this goal required constructing an account Mrs. Roosevelt would find compelling. In doing this work, the writers could not draw on personal knowledge of the First Lady. Further, because they were asking for aid outside the context of a particular government program, they had no eligibility criteria to guide them. Instead, they were left to piece together a claim from their more general sense about what constituted a persuasive case for assistance. From the perspective of Eleanor Roosevelt, this general sense was a source of frustration. Her role was to sift the deserving from the undeserving and offer aid to the former. But the letters were so similar it was difficult, if not impossible, to distinguish among them. She was acutely aware of this difficulty and wrote repeatedly about apparently sympathetic letters that turned out on investigation to be fabricated. She described one such plea from a young wife with a baby on the way who in her desperation over “hard times” had spent her step-mother’s coin collection and needed Mrs. Roosevelt’s help to replace it before she was found out. Mrs. Roosevelt wrote that she asked a friend to investigate and discovered that the writer was a middle-aged woman who had made up the story “out of whole cloth.”12 Another frequently recounted story involved a woman who wrote me, or thought she had written me, a real sob story. At the same time she wrote to her friend, telling her that she had written to me asking for money. If the money came, would the friend please hold it for her and corroborate her hard luck story if any inquiries were made, because she had used her friend’s address. Unfortunately for her she put the letters in the wrong envelopes and I received the letter intended for her friend.13

If the point of these stories was in part to lay out the case that Eleanor Roosevelt was a vigilant investigator rather than a soft touch, they also reveal the very serious trouble she faced in reading these letters. Had the

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writer correctly addressed the envelopes, it might have been hard to tell that her “sob story” was a hoax. Mrs. Roosevelt’s consequent skepticism meant that most requests were summarily denied and a form letter issued to the correspondent.14 She simply threw up her hands in the face of the nearly universal ability of writers to produce plausible claims on resources, combined with the impossibility of easily verifying those claims given their sheer volume. For our purposes, however, Mrs. Roosevelt’s problem sorting truth from falsehood in these letters is a significant advantage. If writers found themselves relatively unconstrained by facts and were by and large good at constructing claims, then in reading these letters we are observing as nearly as possible the moral order in which they were written. The evidence for this moral order is indirect, to be sure, but compelling nonetheless. Whatever doubts we might bring to the accuracy of the facts the letters report, we are entitled to assume that they are sincerely designed to yield results. So if we see common elements in how the letters tell their stories of loss and need, and defend against anticipated attacks on their writers’ moral worth or veracity, we can conclude that those common elements are rooted in a general understanding of what constitutes a good and defensible claim. Implicit in these letters is thus a practical sociology of the moral order based on close observation and motivated not by academic interest but by need and desire. In using the letters to recover an underlying moral order I am treating them as what Marvin Scott and Stanford Lyman called “accounts”—that is, as efforts by social actors to explain otherwise discrediting or inexplicable situations in a way that will make sense to their audience and purge their behavior of troublesome aspects. Accounts are indicators of what Harold Garfinkel, influenced by the philosopher and sociologist Alfred Schutz, termed “background expectancies,” or shared understandings about what constitutes a good explanation of behavior, and indeed of what requires an explanation in the first place. In this case the fact that so many writers felt they had to provide some account for the fact that they could not support themselves is important, in that it shows that even in the midst of the Great Depression need alone was still quite discrediting and required an explanation. In general the poor were assumed to be at fault for their own problems, but this ascription of responsibility was “defeasible,” in H. L. A. Hart’s term, and depended upon the presence or absence of an acceptable excuse.15 The fact that so many writers, almost regardless of their social context, offered nearly identical accounts for their need is strong evidence that there

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was a widespread expectation that these were the excuses and justifications that would be “honored,” in Scott and Lyman’s terms.16 Writers’ persistent use of the disaster narrative to justify their requests evidences what Garfinkel described as a shared “common sense knowledge of social structures” governing aid.17 For this purpose, it does not matter if Eleanor Roosevelt shared these background expectancies (although there is substantial evidence that she did), or whether the writers thought as a normative matter that questions of fault should govern requests for relief. What matters is the near-unanimity among writers about the explanations that their audience would understand and respond to favorably. Adopting C. Wright Mills’s famous phrase, requests for help invoked a “vocabulary of motives” that defined a set of appropriate answers to the objection, “Why should this request be granted?”18 Moreover, given the “one-shot” nature of these letters, writers had to answer all of the objections they imagined Mrs. Roosevelt might raise. For this reason we should expect to see on display in these letters a particularly full exploration of this vocabulary of motives. If a consistent vocabulary emerges from these pleas—one that routinely includes certain kinds of explanations and excludes others—then we are observing directly, as Mills suggests, a feature of the social situation in which individuals find themselves as they attempt to craft persuasive claims. In this case, for example, if we see writers working to show how their misfortune is not their fault while making far less of their connections to military service or Democratic politicians, we can conclude that establishing blamelessness was more critical to securing relief than invoking veteran status or political patronage in the United States in the 1930s.19 This methodology, in which the letters are treated as a sensitive instrument for detecting the moral economy of need and blame, should be contrasted with two alternative, perhaps more natural, strategies: seeing the letters as evidence for the actual conditions facing their writers and trying to establish causal links between characteristics of the letters and characteristics of the writers. The first, a historical approach, is tempting, since the letters appear at first to be direct testimony about living conditions in the Depression. Upon reading the letters this temptation only grows, precisely because the letters are designed to present a compelling narrative of loss. In fact, the few scholars who have previously looked at these letters have tended to treat them as direct evidence for the hardships ordinary people endured during the 1930s. One example is Robert McElvaine’s 1983 edited collection of letters to Eleanor Roosevelt asking for relief. To McElvaine, the letters are transparent renderings of reality, and he presents the letters

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essentially without analysis because he hopes to give the reader an unmediated experience of being “directly in touch” with the writers and the conditions of their lives. Similarly, Cohen’s volume, titled Dear Mrs. Roosevelt, treats letters from children to Eleanor Roosevelt as a species of autobiography that “open a window into the lives of Depression youths,” and tell us “how America’s needy young people lived.”20 Lawrence Levine likewise described his edited collection of letters to FDR as “direct, unmediated” evidence not only of the external circumstances but also of the internal thoughts of writers—in his view, the letters are “keys to the lives of millions of men and women.”21 Still another edited collection (also titled Dear Mrs. Roosevelt) describes the letters as “unvarnished and candid appeals that provide a unique history of the time.”22 But reading these letters as unproblematic reflections of reality creates the same problem that reading legal briefs, government press releases, or documentary photographs in this way would: they certainly do contain empirical statements, most probably true, but not selected and presented in a way likely to produce an unbiased view of reality. Autobiography is not merely the act of stringing together events in chronological or other order, but of selecting, editing, and polishing particular versions depending upon the social context in which the history is produced and told.23 The second alternative, looking for variation in the letters and linking them, statistically or otherwise, to characteristics of the writers, does have value for my purposes, although it operates more as a check to ensure that the letters represent a shared understanding of the moral economy than as an end goal. As I show below, variation in the writers’ circumstances such as sex, location, date, and class status doesn’t help much to explain the (rather limited) variation in the features of the letters.

Two-Thirds of a Nation In looking for consistency in the letters—for shared assumptions about need and desert that underlie the claims they contain—we need to be sure that the commonalities we find reflect a broadly held understanding of the moral economy governing claims for relief, rather than the view of a narrow segment of society. For this purpose the letter writers need not represent a random sample of the population (which of course they do not, since we only have letters from those who chose to write to Mrs. Roosevelt). But they should be sufficiently diverse that we can attribute their areas of agreement to widely held beliefs about how claims for assistance would be evaluated rather than to the notions of some narrow group. If the letters

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were primarily from one region of the country, or only from large cities, or drawn chiefly from cranks or foreigners or prisoners or the mentally ill then they would not be useful as an instrument for detecting a shared national sense about what constitutes a compelling case for relief. Even if the letters represent, as may seem likely, the view of the forgotten man at the bottom of the economic pyramid, we might be skeptical of their general import. The letters provide some basic demographic information about their writers. They all include the writer’s name (accompanied by other clues to gender, such as titles or references to a spouse) and address. From this information we can also know whether the writer’s home was classified in the 1930 census as urban or rural.24 In order to obtain a still richer picture of the social context for these letters, I attempted to locate the 1930 manuscript census form for each writer, and was successful in just over half of the cases. For this subset of 267 of the 529 writers the census forms contain basic demographic characteristics such as age, marital status, number of children, and whether the family lived on a farm, as well as clues to economic status such as occupation, unemployment, home value or monthly rent, and even whether the family owned a radio set. As I showed in the introduction to this chapter, this information can be quite useful for comparing the writers’ accounts of their own circumstances with a fuller, and in some cases differing, view census takers gathered. The richer census information also provides additional evidence for assessing whether the letter writers represented an unusual and therefore unreliable slice of the American population on dimensions other than the basic demographic characteristics that can be gleaned from the letters. This use is not perfect, since the subset does not represent a random selection from all the letters to Eleanor Roosevelt or even from the random sample of 529 letters I analyzed. I was probably more likely to find writers whose names had not changed since 1930 (i.e., men, as well as women who had not changed their marital status), who had not moved, and who wrote their letters early in the decade rather than later. I was somewhat more successful in locating census forms from writers in rural areas than from urban areas. It is impossible to know about other differences that may exist but for which we lack information from the letters. For these reasons, the census subset of 267 may be unrepresentative of the larger sample of 529 (and hence, of all the letters).25 But if we bear these limitations in mind, we can use this “census subset” to flesh out the overall portrait of the writers gleaned from the letters with some additional economic and demographic information. Fortunately, if somewhat surprisingly, few of the letter writers were at the

We Lost Our All / 195 Table 7.1. Population distribution by region for 1930 US census, letter writers in census subset, and all letter writers

New England Middle Atlantic E.N. Central W.N. Central South Atlantic E.S. Central W.S. Central Mountain Pacific Other Territories Outside United States Silent

1930 US census

Letter writers in census subset

6.7% 21.4% 20.6% 10.8% 12.9% 8.1% 9.9% 3.0% 6.7% 0.3% 0.0% 0.0%

3.8% 21.4% 20.6% 13.5% 13.5% 9.0% 7.5% 4.9% 5.2% 0.4% 0.4% 0.0%

All letter writers 4.4% 21.7% 18.5% 12.9% 14.9% 8.9% 6.6% 4.0% 5.5% 0.4% 1.0% 1.3%

margins of social and economic life. These letters were not, by and large, from the forgotten man. If the writers did not represent the whole upper two-thirds of a nation, they were more likely to be found there than in the bottom third. Before exploring their economic circumstances, though, let us begin with their basic demographic characteristics. First, as table 7.1 shows, the letters came from all over the United States, in a remarkably close approximation of the geographic distribution of the US population in the 1930 census. For example, 21.4 percent of the letters originated in the Middle Atlantic region (including New York, New Jersey, and Pennsylvania); the 1930 census reports that 21.7 percent of the US population was concentrated in that region. The census subset also closely tracks the regional distribution of the overall US population.26 There are some areas of difference at a more detailed level. Most significantly, writers from certain regions, primarily the South and West, were somewhat more likely to live in urban than rural areas. Overall, 67 percent of writers lived in urban areas, compared with 56 percent of the national population in 1930 and 1940, and this disparity was generally consistent across the decade. In the South the difference was greater. For example, in the region that includes Arkansas and Louisiana, 69 percent of writers, but only 36 percent of the population, were urban dwellers.27 On examining the more detailed census records for the subset of writers for whom they are available, this discrepancy appears to be largely driven by the almost complete lack of letters from rural southern blacks, probably due to their relatively low literacy rate.28

196 / Chapter Seven Table 7.2. Percent urban dwellers by region for US census, letter writers in census subset, and all letter writers

United States New England Middle Atlantic E.N. Central W.N. Central South Atlantic E.S. Central W.S. Central Mountain Pacific

1930 US census

Letter writers in census subset

All letter writers

56.2% 77.3% 77.7% 66.4% 41.8% 34.2% 28.1% 36.4% 39.4% 67.5%

61.4% 80.0% 68.4% 74.5% 47.2% 59.5% 29.2% 55.0% 61.5% 78.6%

67.0% 73.9% 77.4% 84.7% 55.9% 58.2% 42.6% 68.6% 57.1% 69.0%

The majority of writers (82.6 percent) were women, although a fairly large number of letters (seventy-five) also came from men. The majority of adult female writers (58 percent) said that they were married, a proportion that was very close (61.1 percent) to that for adult women in the general population in 1930.29 The census subset is also disproportionately (80 percent) female. This raises the question whether the letters represent a peculiarly “female” set of values, separate and apart from the broader polity, a possibility that is amplified by the fact that the letters were sent to a woman, Eleanor Roosevelt. If this was the case, letters from women and men should look quite different from one another.30 But as I show more fully below, there are few relevant differences in their letters. Men and women were both absorbed in the task of establishing that they were not at fault for their hard times, and they tended to rely, in nearly equal measure, on the same mitigating factors, such as illness, children, and general economic conditions in making that case. Further, they were both extremely unlikely to request assistance based on nothing more than need; fewer than 3 percent of writers, male and female, adopted this strategy. Even more surprisingly, men were no more likely than women (and neither were very likely at all in any event) to discuss the fact that someone in the household was a veteran. Men and women in the 1930s may have inhabited separate spheres, but they seem to have shared a common moral sensibility with respect to need and desert. This is not to say that women and men were equally well suited to the task of asking for help. One key strategic advantage female aid seekers possessed was that in the gendered labor market of the 1930s, married women did not have to account for their own unemployment. Hardly any of the

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wives in the census subset, like those in the United States generally, worked outside the home and saw no need to explain that fact.31 It was the male breadwinner’s unemployment or inability to support his family that required explanation, and here women had an edge because they could serve as witnesses testifying to a husband’s hardworking nature and earnest efforts to support the family. In a typical example, Mary Barton of Phalanx Station, Ohio, explained to Mrs. Roosevelt that her husband had been a “city man” who was trying his best to farm some land she had inherited, but that he was “handicapped by lack of experience and equipment.”32 Another woman stressed that her husband was “always ready to work,” but wages were so low it was impossible to get ahead.33 Faced with a decision within married couples about whether the letter should be sent by the wife or by the husband, it seems probable that they chose wives as most likely to evoke sympathy—or what amounts to the same thing, to avoid blame for the family’s misfortune. The structure of the disaster narrative thus helps to explain why so many of the letters were from women, beyond obvious factors such as the established female tradition of letter writing,34 or the fact that Eleanor Roosevelt was a woman, and that she frequently published chatty articles in women’s magazines.35 It was simply easier for writers to depict women as blameless for their family’s economic problems. In this regard the overrepresentation of women as letter writers is exactly analogous to the dominance of women as subjects in the New Deal photographs I discussed in chapter four. Women, particularly mothers, were far more common than men in those pictures not because they were more numerous among the sharecropping or migrant farm labor populations but because they made for better pictures of blameless loss. In the same way, the opportunity for strategic crafting of these letters that I described above extended not just to the writing of the letter but also to the choice of writer, when such a choice was possible. This argument finds strong support in the fact that most of the letters signed by married women were actually sent on behalf of the couple and clearly represented a joint effort. In a typical example, Mrs. William Biglow described her husband’s difficulty finding permanent employment in Trinity County, California, and requested a loan to enable the couple to go into business raising frogs. Her letter asked Mrs. Roosevelt to “please let us know if you would kindly consider lending us $1,500? We would be glad to pay a reasonable rate of interest, and return the principle as soon as our business would permit of us doing so.” She added that the couple would be glad to furnish references, including Mr. Biglow’s service record from

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his stint in the military, and that they would be very grateful if the First Lady would “grant our request.”36 Similarly, Mrs. Ray Taylor asked for a few hundred dollars to help her and her disabled husband to open a store. The couple had “worked in stores and like to work and we would be willing to pay the money back to you.” These letters tacked back and forth between the wife’s first person singular, driven by the desire to claim sympathy (“My husband is a cripple”) and the couple’s plural, reflecting the fact that these letters represented a serious family effort to gain resources (“we want to get enough money to start a small grocery”).37 Seventy-two percent of letters from married women followed this pattern. It appears that when there was an adult female member of the household men stepped back from signing letters, if not from helping to draft them.38 We can see evidence of a similar strategic crafting of the writer’s identity at work in the self-identification of writers as black. Only 5 percent of the letter writers identified themselves as black, compared with a national population that was 9.5 percent black. At first glance this suggests that blacks were dramatically underrepresented among writers. However, within the census subset, blacks sent 8.6 percent of the letters, and outside the rural South blacks wrote to Mrs. Roosevelt at or above their representation in the regional population. Approximately half of those writers whom the census recorded as black chose to reveal their race; the rest did not. This evidence strongly suggests that in general black writers were not underrepresented within the body of letters, though as many as half of them may have worried, like Mildred Battis, that revealing their race would weaken their case for assistance and kept it to themselves.39 Looking more closely at the fuller economic and demographic profile provided by the subset of letters for which I found census forms, these writers look very similar to the US population on a range of characteristics, from regional distribution to occupation to home and radio ownership. Of course, as I noted above, we cannot use the census subset to reach definitive conclusions about the group of letter writers as a whole. It could be that writers for whom no census form could be found differed systematically in unknown ways that might have made them harder to find, for example that they had less stable housing. Nevertheless, the availability of census forms for half the sample makes possible a number of more fine-grained comparisons between this group and the US population as a whole, and those comparisons indicate that the census subset has sufficient variation and is similar enough to the national population that it is very unlikely that any group—with the possible exception of southern rural blacks—was systematically omitted from the subset.

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While the 1930 census did not ask about income, there is information from which some measures of economic circumstances can be inferred, such as occupation, unemployment, home ownership, and radio ownership. The distribution of occupational status among the writers’ heads of household was very similar in 1930 to that in the national population.40 The single notable exception is a dearth of farm laborers, particularly in the South where agricultural workers made up approximately 16 percent of the population but none of the letter writers. This is consistent with my general observation that the census subset does not include many letters from the southern black rural-farm population. But in all other areas—for example, the proportion of professionals, skilled and semiskilled workers, laborers, and servants—the census subset closely tracks the US labor market, though the unemployment rate for the heads of writers’ households was somewhat higher than in the general population.41 Similarly, the proportion of writers in the census subset who owned their own homes rather than rented was very similar to that in the US population as a whole (47.2 percent in the census subset, versus 46.8 percent in the whole population), as was the proportion of writers’ families with their own radio (37.5 percent in the census subset, versus 40.3 percent in the whole population).42 The 1930 census also included information about home values and monthly rents for the nonfarm population.43 In order to use this data, I compared the census data for writers to the median home values and rents in the writers’ county (the smallest geographic unit for which housing cost data is available), since housing costs vary dramatically even within regions. On this indicator, writers were slightly better off than the general population: on average, renters paid 113 percent of the median rent for their county in 1930, while owners had homes worth 131 percent of the county median home value. The fact that writers in the census subset had more expensive housing than their neighbors was independent of the number of people in their households (that is, their houses were not more expensive merely because they were accommodating larger families).44 Nevertheless, the fact that writer’s families were, on average, quite a bit larger than normal may tend to offset the relative comfort suggested by the housing figures. Although the national median family size in 1930 was 3.4 people, the median family size for writers was 4.83.45 As a 1940 White House conference on children reported, “the high cost of meeting the needs of numerous children often proved economically devastating.”46 In sum, while the letter writers were in most ways quite typical of the country’s population, there were some areas of difference: they were disproportionately female and more urban, particularly in the South. They may

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have been slightly better off than their neighbors prior to the Depression, though the evidence for this is mixed. Taken as a whole, the demographic and economic information contained in the letters and census forms provides confidence that the writers of these letters were similar enough to the population as a whole, and sufficiently diverse in their circumstances, that we can treat similarities in their claims on resources as reflecting a shared understanding of the way requests for assistance would be evaluated. We can now return to the fact that bedeviled Mrs. Roosevelt—that these letters were remarkably similar to one another in their ability to state a compelling case for relief—and turn it to our advantage as a test of how salient a role the disaster narrative played in the American moral economy of relief in the 1930s. This broad diversity in the backgrounds of the writers makes the essential similarity among the letters even more surprising. We may quite reasonably expect that a group that was nearly as varied as the population of the whole country would have adopted letter-writing strategies that reflected those differences. The demographic characteristics of the writers, such as whether they were male or female, from the city or the country, rich or poor, and so forth, should help to explain the kinds of things the writers said, or the precision with which they said them. But, as I show below, information about writers is of little or no help in predicting the features of their letters, for example, the length, the number of different explanations for the writer’s situation, or whether or not a letter will include a particular justification, such as a history of sickness or unemployment. For that, we have to turn to features of the requests themselves.

Imagining Mrs. Roosevelt The most obvious fact about these letters is that they were all written to Eleanor Roosevelt. But who was Eleanor Roosevelt to these writers? Most obviously, the writers had an expansive and apparently widely shared view of Mrs. Roosevelt’s resources and connections. Few letters expressed any doubt that Mrs. Roosevelt could, if she wished, comply with the request being presented. As Mrs. Roosevelt later recounted, writers asked her to “change everything but the weather.”47 This conviction seems to have been well founded in reality. Mrs. Roosevelt was the wife of the president, and in fact was known to select particularly compelling letters that she received and to place them in a wire basket the president read from at night.48 One-third of writers indicated that they saw her as an important government official, a status that the press and commentators at the time

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frequently reinforced, dubbing her half of the “political partnership of Roosevelt and Roosevelt.”49 Writers addressed their letters to “President and Mrs. Roosevelt,” they asked her to show their letter to the president, they requested government loans, and they complimented her on the fine job she was doing, along with the president, to run the country.50 “I feel that you & our dear President is a poor man’s friend,” wrote a woman from a Birmingham rooming house.51 Several told her that they saw her as essentially a copresident, a partner with her husband in running the government. These writers addressed her in ways that signaled this belief: “Dear Lady President,” began one letter; another was addressed “Dear Presidents.”52 While a few writers told her they were writing because she was the only wealthy person they felt that they “knew,” it is unlikely that her status at the head of the government was irrelevant to the vast majority of people who wrote. More than simply reporting the writers’ understanding, passages like these indicate that descriptions of Eleanor Roosevelt played a more active role in these letters, as efforts to define Mrs. Roosevelt’s qualities in a way that would make her more likely to grant their requests. This alters the question slightly: in addition to asking who Eleanor Roosevelt was to these writers, we can also ask what kind of character “Eleanor Roosevelt” was as one element in the narrative of the letters. Framed in this way, an amalgam of the letters yields this rough description: “Eleanor Roosevelt” was a kind, generous, but very busy high government official who was committed to helping those in need and with whom the writer feels a close sense of connection. This should not grate on our ears, as Eleanor Roosevelt has long been represented as a kind of modern Saint Theresa or “Lady Bountiful”53 who, in the words of her close friend and biographer Joseph Lash “showed compassion for all living things.”54 The journalist (and Roosevelt friend) Martha Gellhorn described Roosevelt as a kind of angel who “gave off light” and was “always kind.”55 But what is interesting about these letters is not the content of their description of the First Lady, but that they are reminding Eleanor Roosevelt that she has those characteristics, and therefore (presumably) that she should act in accordance with them.56 For example, Mrs. Coy Wadsworth and her husband wrote: “I believe you understand humanity and appreciate the humanity and appreciate the hardships and heartaches of the less fortunate.”57 The suggestion that Mrs. Roosevelt was particularly kind was a common one, with writers describing her as a “great humanitarian,” “always hav[ing] the welfare of every one at heart,” and a “friend to the unfortunate.”58 Some writers scripted a conversation with Mrs. Roosevelt in which they asked (and received) per-

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mission to take the time to make their request, as did Lilla Seals of Mountain Creek, Alabama: “May I borrow a few minutes of your time? Feeling sure that you will I’ll not hesitate to say I’ve known you through papers and radio so long until it seems we are well acquainted.”59 Sometimes the casting of Mrs. Roosevelt as kind and generous is tied explicitly to what she is to do as a result, as in this letter from Lucile Todd of Due West, South Carolina: “You are a broad-minded woman with wide sympathies, and above all you are a mother, and for that reason I am asking you to at least read this letter.”60 In all, 187 writers told Eleanor Roosevelt that she was kind. In parsing these avowals, separating the writer’s “true” beliefs from their work in crafting a successful appeal is impossible and, in the end, not even necessary.

Hear One More Distress Story Mattie Wells-Tabor opened her 1935 letter to Eleanor Roosevelt with this plea, showing that she knew two important facts. First, she was aware that a lot of people were asking the First Lady for help. Second, and perhaps more significantly, she suspected that those other letters followed a particular formula and that she would need to conform to it if she had any chance at all. Hers would have to be just “one more distress story” like all the others, though she tried to make it stand out anyhow.61 Mattie was by no means the only correspondent with these insights. Many writers suspected that Mrs. Roosevelt received lots of “letters such as this.” Or, as Mrs. Otis Roberson put it more bluntly, hers was just “another sob story.”62 “I’m sure you have lots of calls for assistance. But this is different,” began Ella Wheat of Pine Bluff, Arkansas.63 Mattie forged ahead: I have reared three children and now for the past eight years I have been alone with a saddened home and a crippled husband. Hospital bills have taken all I had and left me in debt for $700.00 on my farm home although it is in the farm loan, those bi-annual payments are hard to meet. I came from one of the South’s best families and never before failed to pay my bills, but I am old now and have no relatives of whom I can ask aid.64

Mattie correctly supposed that her letter would look typical. The length of the letter, the number of reasons she gives for her need, and the reasons themselves—medical problems, a disabled husband, agedness, caring for children, and the loss of a cherished middle-class status—all were common to the pool of letters. In this section I detail these commonalities and

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show, using simple statistical procedures, that writers thought their best hope at success lay not in claims of need, or service, or citizenship but in deflecting ascriptions of blame and responsibility. Like Mattie, the large majority of writers asked for direct financial assistance, whether from the government, Mrs. Roosevelt, or some other source. Most writers requested help with the payment of debts, or for money to pay for current subsistence needs such as clothing or shelter. Another substantial group of writers, like Mildred Battis, asked for cast-off clothing from the Roosevelts. Still others asked for the First Lady’s intervention with the president or some lesser organ of government or charity, as did Antonett Battafarano of Youngstown, Ohio, who hoped that Mrs. Roosevelt would “interceed with the home loan” [sic] so that she could pay off her bills and get some clothes and coal.65 Around 40 percent of writers requesting cash promised to repay any aid they received, and this proportion was higher among those asking for help with debts. Many of these sent elaborate promissory notes with repayment terms, such as a woman who promised to repay the $70 loan she hoped to receive at “$10 a month for 7 months with interest” set by Mrs. Roosevelt, and offered her “treasured” statue of a water girl as security.66 Surprisingly, hardly anyone said they were seeking relief because they were impoverished. Fewer than 10 percent of writers even mentioned that they were “poor,” and only a bare handful (14 out of 529) relied on need alone—without any explanation of how they came to be needy—as the basis for their request. These were mostly “Santa Claus” letters from children. Similarly, there was only slight mention of military service, citizenship, or anything resembling social class, which rarely amounted to more than an effort to prod Mrs. Roosevelt with the reminder that she was rich and would “never miss” the small amount requested.67 One or two writers lamely noted the inequitable distribution of wealth in society, like Ruby Babel who wrote that “some people have millions and for the sake of $100 we could get our bills up to date & continue our payments and stop all the garnishees.”68 Fewer than 20 percent of writers mentioned that they were Democrats or supported FDR. Furthermore, no one who raised these factors left it at that. Instead, these statements appeared literally as afterthoughts, often tacked on in a “P.S.” to the writers’ primary strategy of accounting for poverty: offering explanations aimed at establishing virtue and exonerating the writer, and mostly her husband, from fault for the family’s hard times. The overwhelming majority—over 95 percent of writers—took this tack. Most, like Mattie Wells-Tabor, used several different excuses.

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Every Girl’s Due In order to look for patterns, I coded each letter for the presence or absence of a large number of elements of their content, derived from inspecting the letters. These features included such things as how the writer characterized herself, her letter, and Mrs. Roosevelt; whether a writer offered references or other supporting materials; and the reasons given for seeking help. Here I coded for the strategies the writers used to explain the inability of the family to get along on its own, as well as referencing such things as veteran status and political loyalty. I identified twenty-nine broad categories of statements that make up the “emergent category” of excuses or explanations for the writer’s situation.69 More information about coding, along with the complete list of excuses can be found in the appendix. The justifications for asking for help that writers used most often are shown in figure 7.1, along with the frequency of their occurrence in the letters: The three most common excuses, each occurring in well over two hundred letters were the threatened or actual loss of middle-class status, illness in the family, and the needs of children. Other frequent rationales were an inadequate salary, unemployment and underemployment, the Depression, aging, and death in the family. In addition, writers also frequently included descriptions of characteristics or behaviors that spoke more directly to their moral character and economic position—writers were too proud to seek charity, they were “hardworking,” they offered copies of bills and the names of doctors and clergymen as character references. These accounts were by no means mutually exclusive—to the contrary, writers applied them liberally and in combination. The average letter was around four hundred words long, and contained 4.3 excuses. Eighty-four percent of writers explained their situation with reference to at least one of the three most frequently given excuses, and nearly 70 percent used two or more of the top five. In addition to these frequently used excuses, figure 7.1 includes the frequencies for references by writers to being citizens, veterans, and to social class for purposes of comparison. These summary statistics show that there was broad agreement among these writers that an effective letter had to tell a sob story that evoked sympathy and at the same time guarded against the implication that the writers’ circumstances were their own fault. The prevalence of letters mentioning health or children’s needs (or both) is a strong indicator that writers were selecting aspects of their biographies for display that would defend against the conclusion that no matter how dire the writer’s need, it was due to the writer’s, or more usually, her husband’s own sloth or bad character rather

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Fig. 7.1. Number of writers mentioning excuses.

than external circumstances. Writers cited every imaginable kind of physical malady, with very severe consequences. Like Emory Ward, a great many writers claimed to be disabled (even if only temporarily so), such as one woman from Frankfort, Indiana, who began her letter by telling Mrs. Roosevelt that she was a “shut in—for the time being.” Another described herself as “partially a shut in.”70 This sort of story was particularly helpful for those writers who were asking for help with indebtedness, a status that constantly threatened to collapse into recriminations for having voluntarily assumed the risks of borrowing money without the ability to repay it. Ruth Chrest, a teacher from Baltimore, skillfully navigated this danger by first reeling off her family’s various afflictions: she had an invalid father with a tubercular spine, a “semi-invalid” mother with a bad heart, and an older sister with a nervous breakdown. As a result the family had been forced to take a number of loans at usurious rates of interest, all listed in the letter. The result was that they could not afford to pay their bills, “some of which were standing when all this sickness overtook us,” including two years of taxes. Ruth now hoped for another loan of $1,000 “at straight 6% interest to be paid back at $50 plus interest for twenty months, excepting August and September,” when she was not teaching (though she would settle for $500 to be repaid at $25 per month instead).71 In most cases these helpful biographical details about disease and dependents were completely unconnected to the reason for the request. Although Chrest did include small bills from a doctor and druggist among her many creditors, most people did not bother to relate their tales regarding

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health crises or children’s needs to their present request. Of the 240 people whose letters mentioned health problems, only fifty-nine asked for help that was related to illness; of the 224 writers mentioning their children, only eighty-nine asked for help having anything to do with their children. For instance, a young woman named Audra Steeve wrote asking for help with clothing. She told the First Lady that she had never finished school because “I was ill. My heart was bad.” By the time she wrote her letter in 1934 she had been well for over two years, but now she claimed that her father could not afford books and school clothes because he was supporting a large family on a government pension.72 Similarly, nineteen-year-old Jean Gordon of Ashland, Ohio, wrote of her father’s “gravel stones” that might require an operation. She hoped that Mrs. Roosevelt could provide $50 for her to take a complete course in “beauty culture.” She chattily informed Mrs. Roosevelt she had always dreamed of taking the course and setting up a little shop of her own. Plus, once she got established she might also be able to help her father get that operation.73 The presence of children, like sickness, invoked images of innocent victimization that helped to defend against the conclusion that the situation was the writer’s own fault. After all, children should not be made to suffer for their parents’ poor judgment, or so writers hoped Mrs. Roosevelt might think. Julia Mae Pendell emphasized her sick child’s needs when she wrote in December of 1935 that the previous summer her only daughter was stricken by a mysterious illness and lost the ability to walk and talk. Although her girl was now under the care of a “carapracter” and was coming back “very slowly,” she had bad teeth and was terribly “nervous” about her mother’s financial troubles. Meanwhile, the crop on Pendell’s rented farm had been lost (due to heavy rain), and now it was winter, she had very little provision laid back, the rent was past due, and she needed help to pay her bill at the grocer’s or she would not be allowed any more credit there. These facts raised the uncomfortable prospect that Mrs. Roosevelt might conclude that Pendell had failed, literally, to save for a rainy day. Pendell seemed aware of the tenuous connection between her daughter’s illness and her request for money to pay her grocery tab, and threw out that she couldn’t possibly “leave her girl to go out” to work. But according to the 1930 census, Pendell’s “girl” was twenty-three years old by the time of her letter, and while she doesn’t exactly lie about her daughter’s age, she certainly works hard to leave a different impression, one that she hoped would elicit sympathy rather than scorn.74

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Death, like health and children, could sometimes explain past-due bills, but seemed most often to be part of a litany of travail. For example, a writer told of how she and her husband had lost their “only child a boy 17 years old. It took a lot of courage to keep going,” but she had to because her mother-in-law was an invalid and her husband in poor health, and the family had lost the farm and everything it owned due to the Depression. She wrote to ask whether Mrs. Roosevelt could arrange a loan to enable her to start a restaurant.75 The popularity of the implication that the writer is, or was in the past, a member of the middle class militates against concluding that these stories of illness and children were purely intended to demonstrate need rather than to deflect blame. If letter writers were exclusively bent on demonstrating need, then mentioning membership in the middle class, as did Mattie Wells-Tabor when she claimed to come from “one of the South’s best families,” would seem an unlikely strategy, since their letters would be overshadowed by letters from the genuinely poor. If this thought occurred to Beatrice Faye of Portland, Maine, there is no trace of it in her letter in which she proudly said that her family lived not in poverty but in “an ordinary home with the best an ordinary working man can provide.” Her husband earned what some people might see as a “very good” salary, but it was not enough to provide for a regular maid and nurse for her children. She asked that Mrs. Roosevelt help arrange for a woman to come in at least two days each week so that she could have her house cleaned and everything ready for her sixth child, due in a few months.76 Lest we think Beatrice Faye was unusually grasping, there were many other similar requests, such as that from Lucile Todd, who had “won local fame” as a hostess in Due West, South Carolina, but had been forced by circumstance to give up entertaining entirely. She said that the Todds were “educated people, our ancestors before us were cultured, refined, and honest. We have background—but alas no money!” Although they had of course never dreamed of asking for help in the past, she lacked the money to give her talented eleven-year-old daughter a “lovely summer” at Camp Greystone, where the best local families sent their children. If not to Greystone, then she hoped for just $50 to send her to Girl Scout camp. She was sure the First Lady would concur that “she will never live these years again, and so I want her to have some of the simple pleasures that seem every girl’s due, and that this girl so richly deserves, and that our lack of money prevents her having.”77 Dozens of writers said they had recently lost or were teetering on the brink of losing class-linked possessions such as fine furniture and homes. Like Faye and Todd they described their fear and

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disappointment at losing cars, radios, appliances, pianos, china, paintings, antiques, rugs, vacations, art and music lessons, silverware, golf clubs, diamonds, nice clothing—virtually all kinds of material wealth. Others asked for funds to pay for college or postgraduate education for themselves or their children. It is possible these writers mentioned their economic status in order to guard against the charge of lying by omission if their claims were investigated. Perhaps it was better to confess to owning expensive furniture or sending the children to French lessons before the hoped-for knock at the door from Mrs. Roosevelt’s friendly visitor. But the apparent appeal of claiming middle-class status was not limited to the relatively affluent. As discussed above, the 1930 census did not contain any information about income. It did, however, contain some referents to class status. For those writers for whom we have census data, I constructed an index of social class using the 1930 information on occupational status, home and radio ownership, and home value or monthly rental as a proportion of the county median home value, that is, living in a good neighborhood compared with others in the writers’ county of residence.78 More than half (59 percent) of those in the top quintile of this index mentioned their middle-class status as an aspect of their desert. However, so did nearly half of the rest of the people, including 39 percent of the people in the bottom fifth. Of these four variables (having a high status occupation, owning a home, owning a radio, and neighborhood quality), only living in a relatively good neighborhood was associated with claiming to be middle class (see table A.3). This was most likely due to the fact that the nature of the request required writers to disclose their address to Mrs. Roosevelt so that she could send a check. Because the writer’s address necessarily revealed the neighborhood in which she lived, it carried with it the potential to refute a claim to be well to do, particularly if the letter were to be forwarded to local relief officials for investigation. For certain writers, such as those who resided in slums or poor rural districts, this prospect may have inhibited claims to being from the middle or upper class. But for the majority of writers, middle-class status was useful as a sign that they were “good people” struck by forces beyond their control, rather than chronic members of the underclass. Claiming membership in the middle class was an indicator that the writers had in the past held steady jobs and provided for their own needs, and hence that their current deprivation was not indicative of an underlying character flaw. This included abjectly poor writers such as Bulah Dowell, the wife of a blacksmith from Russellville, Kentucky, who needed $50 to have her rotten

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teeth pulled and replaced with dentures. The Dowells were already poor before the Depression due to the effects of mechanization on smithing; they had no radio and rented a shack for $7 per month, which was 30 percent less than the local median rent. Still, Bulah wrote that they had “always helped those who were more unfortunate than ourselves.”79 Likewise, the wife of a roadhouse cleaner from Springfield, Oregon, wrote to ask whether Mrs. Roosevelt might send one of her cast-off “dinner dresses” to wear to parties and engagements that included the Klamath Falls dinner of the Masonic Order of the Eastern Star, and the Convention of the Daughters of Union Veterans of the Civil War.80 A related approach involved describing the character of the writer and her family. Writers were eager to make the case that they were not the ordinary poor but were, on the contrary, “known and respected” members of their communities.81 Some did this through mean distinctions, such as Suzanne Faure, who said she hated the thought of having to go to the poorhouse and “associate with the low class living there,” and Nellie Kelly, who did not feel that people like herself who had “in the twinkle of an eye lost all their worldly goods” should be made to stand in the bread line with “every race and color.”82 Others recounted arcane details of “blue blood” lineage: one woman seeking to prevent an imminent eviction informed Mrs. Roosevelt that she was a direct Descendent of Charles Caroll—barrister (not Carrollton) the oldest branch of the Carroll family and on my mother’s side I have an ancestor Peregrine White who was born on the Mayflower in the harbor of Cape Cod, another Major General William Heath (one of Washington’s favorite men) and Joseph Barclay, Royal Governor of N.J.83

Another asked for funds to help bring her sick mother from Canada to live with her in Chicago. She noted that her mother “came from good lineage,” which she detailed, along with citations to a genealogy reference book, in the hopes that it might help her case.84 Maude Stanley wrote to Mrs. Roosevelt while one the Roosevelts’ sons was being treated at the Mayo Clinic asking for funds to be evaluated there herself for a similar ailment. She offered that she was a “member in good standing in the Rebekah lodge” where she and her husband had served as “Grands,” a fact that “in itself, should be proof enough” of their respectability, though she went on to include numerous character references.85 “I want you to know that I am not a beggar—but that I have had something but am without now,” wrote Rosa Newton, a black professional

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woman from Chicago. According to the 1930 census, Newton and her husband, Charles, an electrical engineer, owned an expensive home and had been doing pretty well before the Depression, but she said that things had been bad lately. Charles had only part-time work, and Rosa wrote asking for cast-off but nice dresses so that she could go out. Newton, like other writers, said that she was “well-thought of” in her neighborhood, and like others included references. She concluded her letter by assuring the First Lady that she was not actually poor, just temporarily reduced: “I have not always been like I am today.”86 In a similar vein, writers very often contended that they, and most especially their husbands, had “too much pride” to ask for help or take relief.87 “The very thought of relief was so humiliating that it seared our faces like steak over a broiling fire,” wrote one woman in a very lengthy plea for help refinancing her furniture and home. She and her husband eventually surrendered to the necessity of accepting relief but only “for the sake of our children.” Still, the writer recounted how when the relief truck arrived she “hid” and was so humiliated that she “could not step outside my door for days.”88 Maude Stanley, of Mound City, Missouri, declared that she would not take relief “even if my life is at stake.” It was typical to deny having ever taken relief in the past “for even one dime” or that this was a “begging letter.”89 A few writers went so far as to say that their husbands were not only “too proud to ask for help” but were entirely unaware that the letter was even being written, shielded from a blow to their pride, though not so severe a blow that Mrs. Roosevelt should refrain from giving offense by sending the cash.90 Henrietta Edwards of Ebenezer, Mississippi, said that her “husband’s pride would repel the thought I am sure but he will be happy if surprised by a registered letter of currency or a check or money order” for $450 to clear off some of the couple’s debts.91 Hazel Aldrich said that her husband probably wouldn’t allow her to write if he knew about it, but like Henrietta Edwards’s husband he wouldn’t have to know unless Mrs. Roosevelt came through.92 Husbands and fathers were often described as “hardworking” and worried sick the about family’s financial problems.93 The men’s prior work histories, including owning businesses or operating farms, were recounted in minute detail. This characterization of breadwinners was itself carefully crafted to forestall the threat to the claim posed by the implication that an unemployed head of the household was content to let his family live on charity. The majority of wives did not face the extreme version of this problem because most of them did not have an unemployed husband. Married

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women made up around half (248) of the sample, but only forty-seven of those writers (19 percent) reported having an unemployed husband, which seems oddly low given the point of the letters and the time when they were written.94 Moreover, those women who admitted that a husband was out of work rarely left it at that. Instead, they elaborated on their situation to make certain that Mrs. Roosevelt would know that it was not by choice. “My husband has hunted for work and cant find work he is a Real smart man if he had a little start he would make good,” wrote Vada Richard. Half of these women, like Richard, described their husbands’ unsuccessful efforts to find employment.95 Others attributed a husband’s unemployment to poor health or the Depression, or both, like this writer from Brighton, Alabama, who said in 1935 that “my husband has had very little work for the past three years and on March first he had a light stroke and hasn’t been able to do much work since.”96 Mathilda Gangemi, of Brooklyn, New York, wrote glowingly of her unemployed husband’s good character and hardworking nature, attesting that he was “a person of great industry and ability, of undoubted honesty and one who sets himself diligently efficient manner.”97 In fact, only a third of writers, including men and unmarried women, cited present unemployment as a reason for their financial problems, though an additional eighty-six writers said that although the family’s breadwinner was working he had suffered a period of past unemployment that was not his fault and from which the family had yet to recover. Few married women writers discussed their own employment or unemployment, and only one of the thirty-five married male writers even mentioned his wife’s participation in the paid labor market.98 In that case, the fact that Corwin von Milles’s wife had to go to work to help out when he was forced to retire due to illness was the main reason he was asking for help. “I know you have many demands on your generosity, but I believe you will see my great desire to help my wife” to stop working. He asked for a loan of $300 for a house down payment because they had found an “exceptional bargain” on a nine-room home that would allow them to take in a boarder to replace his wife’s income.99 The vast majority of married women were simply out of the waged economy and, unlike men, no explanation for that fact was required. Somewhat more common than unemployment was the complaint that the writer’s husband (or the writer himself, if male) had work but his salary was insufficient. Mary Kane, of Woonsocket, Rhode Island, explained in 1934 that her husband earned $38 per week but the interest alone on the couple’s debts (due chiefly to a variety of serious illnesses and the death of

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one of her children) was piling up so fast that they could not pay down the principal and meet their living expenses. The Kanes were renters but she felt that they were “as badly in need of financial assistance at the present time as a great many Home Owners” who were receiving help from HOLC. She hoped Mrs. Roosevelt could arrange a loan that would allow the family to consolidate its debt at a lower rate of interest.100 Ruth Koch’s husband was also working but his wages were “so meager that it is utterly impossible to do more than just pass from day to day.” She requested a loan of $200 to start a small business selling home baked goods to the “great numbers” of tourists who passed by her home on an Arizona highway.101

Going Downhill This reading of the “average” letter is based on the argument that the writers privileged persuasive force over documentary completeness (or perhaps even accuracy), and that the letters are similar to one another because their writers shared a common understanding of the moral economy in which their letters would be read. Testing this argument fully requires going beyond summary statistics and the average letter, and looking more closely at the factors that seem to have determined writers’ choices about questions such as which excuses to use, how much time to devote to each excuse, and how long the letter should be in order to have maximum effect without trying Mrs. Roosevelt’s patience. If the letters are best read as claims on resources, as I have argued, any differences that exist in these characteristics of letters should reflect variation in writers’ ability to use their biography to tell “one more distress story” rather than to external factors such as gender, region, or even such biographical details as party affiliation. This investigation requires using statistical techniques beyond the summaries and examples I have presented to this point, since it is impossible to reliably detect systematic variation in a set of 529 letters simply by reading them. In what follows I draw on a series of statistical analyses that allow for testing differences among groups of letters and estimating the direction and strength of association between independent variables, such as the gender of the writer, and dependent variables, such as the number of excuses contained in the letter. In order to avoid distracting the reader with the details of the models, I have included them in the appendix in tables A.1–A.10. The most promising avenue for finding connections between characteristics of writers, on the one hand, and characteristics of letters, on the other, should be in the particular excuses that writers offer for their circumstances.

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For example, we might think that women would write about children more often than men, or that men would be more likely to demand money not as charity but as workers’ due, or that homeowners would be more likely than renters to claim to be middle class. However, I found just the opposite: with few exceptions the statistical models that use background and demographic characteristics to predict the presence or absence of a particular excuse in the letters generally fit the data poorly. Moreover, none of the writers’ characteristics were significant predictors of the most common excuses. This result suggests that the excuses writers offer are more like tactics in the service of the more general strategy of telling a sad story rather than facts tightly coupled to writers’ biographies. As table 7.3 shows, writers’ characteristics are not strongly connected to the personal details offered in the letters. In fact, none of the most frequently given excuses, including health, children, middle-class status, unemployment, and low wages, were predicted by known aspects of the writer’s situation, including the writer’s gender or the region of the country where she lived (for more detail, see table A.1). Similarly, as discussed above, most of the factors that are consistent with high socioeconomic class are generally not associated with making middle-class arguments (see discussion in the appendix and table A.3). However, writers frequently tailored their excuses to the purpose of the aid they were asking for and the form in which they wished to receive it, at least if they were asking for money to repay a debt or asking for a loan. The admission of the existence of unpaid debts, more than any other factor, predicted many features of the content of the letters. This makes sense, because requesting debt relief—as opposed to subsistence or a job—is potentially discrediting. It raises the question whether the debt represents a flaw in the debtor’s moral character. Certainly, indebtedness suggests the writer’s willing participation in spending beyond her means, and the 107 writers who found themselves in that position had to mobilize accounts of circumstance and misfortune in order to combat this impression. The odds that writers requesting help with unpaid debts would mention the Depression or recount their previous efforts to avoid relief were three times greater than the odds that others would do so. The odds that debtors would contend that they had been doing fine and had then experienced a sudden reversal of fortune were more than double those of other writers. Debtors were also more likely to mention the breadwinner’s prior successful work history, as well as any past spells of unemployment that had caused the family to get behind on the bills. The wife of an Indiana linotype operator named Waldo Freeman wrote

0.85 0.77 0.77 0.90 0.78 1.41+

0.97 1.49 0.91 0.99 1.54+ 0.77

11.55 8

LR Chi-Square v. Null Model Degrees of Freedom

p < 0.1, * p < 0.05, ** p < 0.01, *** p < 0.001 1 The reference group is “North East.” 2 The reference group is “1933–36 Period.”

9.62 8

1.19 0.74

1.38 0.83

Middle class

Urban Female Region1 North Central South West 1937–40 Period2 Pay back debt Loan

Health

5.03 8

1.12 1.30 1.07 1.00 0.94 1.09

0.85 1.47

Children

20.84** 8

1.72* 1.55+ 1.18 1.23 1.42 1.69**

1.30 1.07

Working but not enough salary

1.74* 1.44 1.52 0.99 1.42 1.79**

1.29 1.49

Pride

18.35** 8

Table 7.3. Odds ratios from logistic regression on various excuses (N = 502)

6.38 8

1.33 0.96 1.02 0.79 0.87 0.98

1.34 1.11

Unemployment

27.20*** 8

1.30 1.18 1.02 0.42** 2.93*** 0.84

1.15 1.38

Macroeconomic conditions

8.89 8

1.42 0.99 1.00 0.79 1.18 1.84*

2.13+ 1.41 1.42 1.64+ 1.72 0.73

13.33 8

0.93 0.86

Hard-working 1.03 2.20

Agedness

Urban

+

8

27.86***

1.52+ 23.44** 8

1.53 1.05 1.47 0.43*** 1.80* 1.43

1.07 0.99 0.69 1.44

2.85***

1.09 1.01

1.14 0.72

Prior successful work history

p < 0.1, * p < 0.05, ** p < 0.01, *** p < 0.001

LR Chi-Square Degrees of Freedom

Female Region North Central South West 1937–40 Period Pay back debt Loan

Previous efforts to avoid relief

29.89*** 8

1.72+ 1.90* 1.03 0.50*** 1.70* 0.95

1.74* 0.51*

History of unemployment

8

14.21+

1.15

1.05 1.36

0.61

1.41

30.08*** 8

1.32 1.12 0.73 0.34*** 2.68** 1.34

0.84

1.23

1.09

1.86*

Sudden reversal of fortunes

1.38

Death

Table 7.3 (continued). Odds ratios from logistic regression on various excuses (N = 502)

8

4.26

0.82

1.00 1.15

1.41 1.26 0.78

0.94 1.26

9.96 8

0.37 1.01 1.01 0.65 2.20+ 0.48

1.28 0.52

13.61+ 8

1.02 0.55 0.50 1.05 1.53 0.53

3.37 0.29*

Veteran Politics status Citizenship

4.01 8

1.77 1.77 0.95 1.31 2.52+ 0.82

1.00

0.94

2.58 8

1.11 1.05 0.88 0.85 1.19 0.78

1.06 0.99

Class Entitlement

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in 1935 that she needed help getting out of debt. “During the depression, we were hard hit like so many poor unfortunate ones,” she wrote. In addition, she needed an operation, she had a “very sick boy” with inflammatory rheumatism, her furniture had been repossessed (several times) leaving her credit in shambles, “which no doubt will look bad in my part to you.” Another thing that she thought might look bad was the fact that her husband had been steadily employed for the last fourteen years, and earned $35.65 per week. Although this testified to his work ethic, it was hard to square his employment and salary history with the idea that they had been “hard hit” and had no choice but to go into debt.102 Mrs. Freeman decided to tackle this problem head on: “please don’t think we don’t try to make it reach as we do but it’s 1.00 here and 1.00 there and we don’t have anything left.” She went on to lay out a lengthy list of her debts and her weekly bills. Seemingly without reason she suddenly interjected that her sister had cancer and had “96 hours of radium.” Then, sensing that perhaps it had not been good enough to explain where the pay envelope had gone, she added a postscript that “for 2 years and a half Mr. Freemen got in 2 days 1/2 a week and being in debt we kept going downhill instead of progressing. Well here is my story and am hoping that you will take this into consideration and give us a fresh start on life.” Although she hoped that the First Lady could convince the president to give them $500 in government aid, she concluded that “if you want to loan us this money on a payment plan will be glad to do it anyway, but it is just impossible to get ahead in this city.” While writers continued over time to attribute periods of unemployment and underemployment to external events, specific references to the Depression declined. The odds that writers between 1933 and 1936 would mention the national economic situation were nearly 2.5 times greater than the odds that those writing between 1937 and 1940 would do so, holding constant a variety of other demographic and content features. The odds that writers in the first half of the decade would discuss the breadwinner’s prior successful work history were more than twice the odds that later writers would do so. Earlier writers also had much greater odds that they would attribute their problems to a sudden reversal of fortune, or mention past periods of unemployment, than those writing later on (see table 7.3). It seems that as the decade progressed, the idea (directly promoted by the PR men and politicians in the administration) that the Depression, rather than some personal flaw, was the likely cause of any instance of unemployment gained currency in the general population. As a result, writers in the first half of the decade used 13.6 percent more excuses than those

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writing later on when the connection between the Depression and unemployment was more broadly accepted and hence could safely be assumed (see table A.4). Where writers had previously been careful to draw out the connections between their own woes and those of the national economy, they now felt safe merely to declaim, like Hilda Knotts of Doniphan, Missouri, that “my husband has no job.” Evidently by 1938 writers such as Knotts felt comfortable that a married father of nine children could be idle with little fear of being thought lazy.103 In addition to explaining how circumstances had forced the family into debt, writers often described themselves as having resisted taking on these obligations and as horrified to the point of physical illness at the outcome. So Helen Mernin described how she and her husband were persuaded by her sister to buy a home because people were gossiping about how “6 of us were living in 4 rooms.” They borrowed the money from friends. “It goes without saying that many times I doubted the wisdom of going into debt to obtain this house . . . the expenses were the cause of many fits of hysterics and heartaches for me.” Like Mr. Freeman, her husband earned a fine living, and her family enjoyed a nice, middle-class lifestyle: “I keep a nice home, keep my children clean and well dressed. I get in a food & butcher order each Saturday & get butter, eggs & Bordens milk. . . . I pay my bills but very seldom have any money to buy anything extra.” Still, she was somehow constantly “reborrowing” in order to stay afloat. She described crying herself to sleep over her fear and worry at the situation. She hoped that Mrs. Roosevelt could arrange a $2,000 loan that she could repay at $40 per month that would enable her to stop borrowing. As these examples show, debtors found themselves somewhat at cross-purposes, caught between the need to demonstrate that they were not paupers but people of good character yet making a request that cast doubt on that very thing.104 Asking for a loan, as both Helen Mernin and Mrs. Freeman did, raised a related problem: countering the objection that the recipient was not really going to repay the loan, and hence that it was a disguised gift. Since one of the benefits of asking for a loan is that it is not a gift, it was important for writers to forestall this concern. Some did this directly, like the writer from Little Rock who reassured Mrs. Roosevelt that she was not “a moocher trying to get something for nothing for I am not,” while asking for a loan of $100 to retrieve her piano (which she only bought for her children) from repossession.105 Bonnie Hale MacDonald likewise declared, “I am not asking for a donation. I am asking for a loan” to catch up her HOLC payments.106 Such assertions seemed to many writers to call for proof, and writers

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worked to show that they were good bets to repay the money. This was challenging given that they had often been turned down by lending institutions for poor credit history, or were asking for loans to cover other unpaid debts. As MacDonald bluntly put it, “I couldn’t begin to get a loan at a bank or elsewhere.” Writers who asked for loans were more likely than other writers to claim that they were working but had an inadequate salary to meet their obligations, and that they were middle class (though this difference was only marginally statistically significant). Moreover, asking for a loan nearly doubled the odds that writers would say that they had struggled with their pride in deciding to write the letter. These excuses addressed both aspects of credit risk: that the borrower had both the means and the will to repay the loan. The evidence from examining how writers used particular excuses is consistent with the argument that the writers were crafting their letters to make a persuasive case for their own lack of fault for their circumstances and to defend their claims against potential objections, particularly objections to the core claim of blamelessness. This practical imperative seems to have overwhelmed any systematic differences in the background of writers, producing more agreement on what constituted a good letter than would seem likely given the high degree of regional, class, gender, and racial diversity among the writers. This agreement is a signal of the underlying moral economy in which these writers expected their letters to be read. But perhaps cultural and demographic differences appear not in the choice of excuses, but in characteristics of the letters taken as a whole. For example, we might suppose that women might write longer, more fulsome letters because of some general female epistolary tradition, including writing “begging letters” in earlier historical periods.107 Or perhaps urban writers or those from the North might have been better educated and thus more facile with language than rural southerners. In order to address these possibilities, I developed a series of statistical models, found in tables A.4– A.10, in which I looked for predictors of features of the letters, such as the number of excuses they contained and their length (in number of words). If variation in these features of the letters reflects writers’ backgrounds rather than differences in the nature of the task they faced in convincing Mrs. Roosevelt to help them, we should be more wary of treating these letters as evidence of an underlying moral economy of blame and fault. In fact, however, paying attention to the overall characteristics of letters yields more evidence that writers approached the task of writing to Mrs. Roosevelt as one of building and defending a case for relief that would demonstrate their blameless loss. Writers whose biographies con-

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tained potentially discrediting information—most importantly, debt and husbands—compensated for these problems not only in the particular content of their letters but also in the number and length of the excuses that they offered. In order to isolate the factors determining the number of excuses that writers used, I included in the statistical models a variety of background characteristics, such as the author’s gender, region, urban or rural residence, and the year the letter was written. When these background characteristics are held constant, writers who claimed to be indebted still used 31 percent more excuses than those who were not asking for help in getting out of debt. Similarly, those asking for loans used 15 percent more excuses than writers asking for other forms of aid (see table A.4). Among female writers, married women used nearly 18 percent more excuses than those who were unmarried, even when controlling for other background characteristics as well as whether the writers asked for loans or debt relief (see table A.5). This suggests that for married women having a husband was a problem similar to that posed to debtors: it opened up a weakness in the form of a suggestion that the claimant’s husband was in fact responsible for the family’s situation, one that had to be countered with more excuses. Omitting mention of the husband altogether was probably not a viable option, particularly for women who wanted to talk about their children. Instead, the vast majority of married women (80 percent) attempted to explain their husbands’ failure to support the family. As we have seen, this took the form of recitations of his work history, health problems, and elaborate character defenses, including the proffer of references. Although it is likely that the literacy of the writers had an effect on the number of excuses used, there is no direct way to measure it. The available data does not contain information about education levels (even for those writers in the census subset). However, some of the demographic characteristics included as controls in these statistical models, such as living in an urban area as opposed to a rural one, or in the Northeast as opposed to the South, might be treated as crude proxies for education.108 Additionally, within the census subset, high socioeconomic status due to such factors as radio and home ownership, residence value, and occupational status could also be treated as a marker for education and language ability. The length of the letter might be an indicator of the writer’s facility with language (though it could also indicate the opposite—a writer who was uncertain what to say or unable to edit for clarity or brevity). These various proxy variables do not help much to predict the number of excuses and do not diminish the importance of debt, type of relief re-

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quest, and marital status among women. In particular, within the smaller census subset, writers who asked for help with their debts still used 21 percent more excuses than others when controlling for length of the letter and the socioeconomic indicators (see table A.6). Within the full sample there are significant regional effects on the number of excuses controlling for the length of the letter, but these are in the opposite direction to that predicted based on literacy rates: southern writers (and those from the Midwest) used more excuses, not fewer, than those from the Northeast (see table A.7). Married women still used 18 percent more excuses than unmarried women, even controlling for the length of the letter (see table A.8). These results allow us to rule out, so far as is possible, differences in facility with written language as an alternative explanation for differences in the letters. The number of excuses used in a particular letter is thus best seen as an index to weaknesses the writer sees in the features of her story that cannot be easily omitted or glossed over. A failed husband, a mountain of debt, a ruined credit rating—all were vulnerabilities that threatened to bring opprobrium rather than aid. Writers could not turn to a particular formula in order to guarantee a successful response to this problem, because the source of their weakness was a failure to meet a moral standard of blamelessness rather than a factual standard such as an income test. In response, writers piled on excuses. Because eliciting sympathy is essentially cumulative, writers struggled for the right number of excuses as well as for the right excuses themselves. This calculation was made more difficult by the sense that it was important to be brief because the First Lady had many demands on her time and attention and so might never read a story that was too long-winded. There was little point in loading up a letter with excuses and details that Mrs. Roosevelt would simply skip over, or worse, put down in favor of a shorter letter. To some extent, then, the length of the letter acted as a brake exerting an independent effect on the number of excuses a writer could include. Some writers addressed these countervailing pressures directly. In a typical example, Bonnie Hale MacDonald wrote, “I don’t want to take up much of your time boring you with my troubles. Tho I have a lot of them to relate, but as I have said I won’t do that. I know that your time is very valuable.”109 A Texas widow named Frances Abernathy hoped to write so that Mrs. Roosevelt could “read between the lines” since it would take far too long to tell all that she wished the First Lady to know about her request for help in caring for three children who had come to live with her under undescribed circumstances (“and I wish I could tell you the interesting story about that”).110 Of course, these intimations of troubles too numer-

We Lost Our All / 221

ous to mention also acted as a kind of shadow excuse even as they signaled the writers’ respect for Mrs. Roosevelt’s time. Most writers in discrediting circumstances dealt with this challenge by packing more excuses into the same number of words. Debtors, people looking for credit, and married women used more excuses than others even when the length of the letter is held constant (see tables A.7–A.8). Curiously, however, men wrote longer, not shorter, letters than women, even though being male was likely a potentially discrediting characteristic in the arena of charity. Letters from men were 18 percent longer than those from women, even when they used the same number of excuses (see table A.9). This is most likely because men used more words on each excuse than women: Although they used the same number of excuses in their letters, on average, men had a rate of 1.14 excuses per one hundred words in their letters, compared with an average rate for women of 1.36 excuses per one hundred words (in other words, men devoted an average of eighty-eight words to each excuse, while women spent seventy-four words per excuse), and this difference persists even when the number of excuses and other factors are held constant (see table A.10). While it is impossible to be sure about the source of this difference, it is possible to speculate. First, it could be that women were more concerned to limit the length of their letters than were men, for reasons that might have been related to gender differences in expectations of Mrs. Roosevelt’s willingness to be imposed upon, or perhaps to a greater familiarity by women with letter writing in general. Second, men might have felt the constraint of letter length but responded differently because of the magnitude of the inherent disadvantage they had to overcome. Unlike women, men had to dispel the assumption they were lazy or malingering. Because they suspected that Mrs. Roosevelt would think they should have been able to provide for themselves and their families absent some extenuating circumstances, they had a disqualifying responsibility for their own need. This may have meant that rather than including more excuses, they had to devote more effort to shoring up the excuses that they incorporated into their letters, a difference reflected in the larger number of words they devoted to each excuse.

Making the Same Old Deal The fact that men wrote letters that were just like those from women, save for the fact that they seem to have included even longer explications of the ways their troubles were not their fault, is surprising. For one thing, it challenges our sense of the politics if not the masculinity of the Ameri-

222 / Chapter Seven

can worker of the 1930s. If female supplicants spun tales of victimization and loss, of children and china, silverware and sickness, that would be one thing. But men we think would surely make demands, would express entitlement based on their status as workers, or veterans, or citizens. Indeed, historian Lizabeth Cohen has argued that workers in the 1930s adopted a “statist” orientation and very quickly came to expect benefits from the federal government “as citizens and more specifically for supporting FDR and the Democratic Party.”111 Doubtless many workers, particularly those Cohen studied from the patronage center of Chicago, did feel that way. Huey Long, Father Coughlin, and the Townsend Clubs had millions of adherents, the Bonus Army camped out, and workers at Ford sat down. This makes it even more puzzling that their letters to the president’s wife asking for help betray no trace of this sentiment. As noted earlier, few writers mention veteran status, political party affiliation, or social class, and virtually no one rests their case on these points. Even among the minority of writers who do mention these things, men are no more likely to do so than women. While men may have been more likely to say that they were citizens than women, only 5 percent of writers mentioned it (see tables 7.3 and A.1). It appears that whatever the workers of the 1930s may have thought about their entitlement to state benefits, they expected the decision about whether they would receive them to turn on other considerations. More to the point, the fact that writers did not talk about citizenship, party affiliation, or military service does not mean they did not feel entitled to help. These letters are replete with evidence of a shared sense of entitlement, if a peculiarly American strain. In order to qualify for help in this system, the test is neither loyalty nor need but losing out through no fault of one’s own. As noted above, most writers had an employed breadwinner. They asked not for food or shelter but often for quite frivolous things: nice clothing, vacations, summer camps, help paying off chattel mortgages so that they would not lose their rugs and furniture to repossession. They wanted to get out of debt, start businesses, and send their children to college. While many asked for loans, most expected to receive a gift and expected to be able to spend it as they saw fit, free from the scrutiny of gossipy neighbors and the interfering do-gooders down at the local relief board. From the perspective of these writers, disaster had struck, the government’s obligation to bring relief was activated, and the citizen correctly sought to enforce the social contract. At that point need was all but irrelevant. In reading these letters to Eleanor Roosevelt we can see writ small the

We Lost Our All / 223

same moral economy of disaster that proponents of the New Deal sought to harness for their legislative agenda. We cannot reason from these letters to the private moral convictions of their writers; in their focused effort to stake a claim on resources they are more like legal briefs than heartfelt confessionals. But for this very reason they provide powerful evidence that in narrating the Depression as a disaster that called for a national response, proponents of the New Deal were calling on a very broadly held understanding of the American moral economy of social welfare provision.

POSTSCRIPT

Living in a Sympathetic State

Disaster relief is important to the American state in ways that go far beyond the logistics of responding to floods, fires, and hurricanes. In the American context disaster has a moral dimension. Disaster turns on its head the ordinary American moral economy of individualism and fate in which we feel comfortable leaving people to the circumstances in which they find themselves, no matter how deprived. For disaster victims it is enough to show blameless loss; for others, it is not enough even to show great need if blamelessness is in question. For evidence of the political potency of this formula we need look no further than the failed presidency of George W. Bush. Bush’s fate was finally sealed not by a war in Iraq gone off the rails, but by his administration’s inability or unwillingness—in the politics of disaster relief, it doesn’t matter which one—to respond with overwhelming generosity to the destruction of New Orleans by Hurricane Katrina in August 2005. As I noted in the introduction, Bush and his lieutenants seem to have been caught flat-footed by the transformation of the poor black residents of New Orleans, who are usually safely ignored, into disaster victims for whom a generous response was a moral imperative. Bush compounded his initial mistake by turning on the aid spigot only fitfully, perhaps trusting that blacks in New Orleans would at some point have to resume their spot at the bottom of the American moral and racial hierarchy. Unfortunately for this strategy, the route back to the bottom for poor disaster victims runs through generous disaster relief, because only compensation can quickly restore the judgment that the poor are responsible for their own deprivation. Unlike Hoover in 1930, Bush could not argue in response to his critics that Hurricane Katrina was the sort of disaster that was outside the scope of federal powers or responsibility, and instead should be left to private

226 / Postscript

agencies. Of course, Hoover discovered that he could not make this argument very persuasively either, and he suffered the fate of becoming a political poster child for stinginess and aloofness. In this Hoover was in fact no “Hoover” himself, as his relief activities during and after World War I, in the Mississippi River flood of 1927, and even his program of tax increases, farm price supports, and increased government spending in response to the economic downturn of 1929–30 demonstrate. That “Hoover” became a political millstone to hang around the neck of the Republican Party for generations is testimony that disasters are the real third rail of American politics: dangerous in the extreme, but also a source of great power for those who can tap into them. This history raises two related questions: what sort of welfare state do we have as a result of the importance of disaster relief, and what are the implications for the American state in general of the role of disaster relief in its history?

Fish Stories On February 10, 1995, William Weld, then governor of Massachusetts, drew headlines when he became the first US governor to sign a welfare reform bill that was then almost unthinkably restrictive. The new law imposed a two-year limit on benefits, required all recipients to work within two months of receiving benefits, and denied assistance to teenage mothers and to women who give birth while on aid. It also reduced the checks of mothers if their children skipped school. The law carried an explicit message to welfare mothers: “Get a job.”1 Advocates for welfare recipients strenuously objected that the poor wanted jobs but there was no real labor market for the unskilled and inexperienced women. Responding to critics, a jubilant Weld proclaimed: “This bill screams individual responsibility.”2 Less well publicized was Weld’s effort, only a few weeks later, to pressure President Clinton into declaring the entire Massachusetts fishery a natural disaster. Weld desperately wanted his state to be declared a disaster area so that he could obtain millions of dollars in federal unemployment benefits, food stamps, interest free loans, housing assistance, and a raft of other disaster relief programs for fishermen hurt by the demise of New England groundfish stock. The popular governor pleaded for the funds to relieve conditions “more disastrous than the winds of a hurricane.” He attributed the lack of fish in the ocean to sudden, natural causes beyond the fault of the unemployed fishermen, who were “taken by surprise.”3 Many people, however, were unmoved. The New York Times noted

Postscript / 227

that “scientists and government experts generally agree that overfishing is the main reason for the reduction of the fish populations.” According to the Times, the fishermen were at fault for their own unemployment and could not be the victims of a disaster. Other newspapers were even less sympathetic: Massachusetts Gov. William Weld, requesting federal aid for his state’s fishing industry, reminds us of the man who murdered his parents asking the judge for mercy because he’s an orphan.4

The paper concluded that “it is sad to see an industry that dates to the earliest colonial period suffer so. But who is to blame, and what’s to be done about it?” The Boston Globe also weighed in against the notion that the fishermen experienced a disaster, quoting former state fisheries commissioner Walter Bickford, who stated: “The decline of the fisheries is no more a natural disaster than someone burning down their own house.”5 Weld, eager to obtain federal relief for this depressed segment of the state’s economy, insisted that the benefits were justified by the fact that the fishermen were the innocent victims of circumstances beyond their control. State officials, such as Trudy Coxe, the state secretary of environmental affairs, blamed a host of natural factors for the depleted stocks, from warmer-than-average water temperatures to a proliferation of mackerel and sea herring, predators of young haddock and cod. Coxe told reporters: “We are claiming that this is a natural disaster. . . . Yes, there has been overfishing. Yes, the federal government encouraged fishermen to go out and buy larger boats. But there are legitimate natural reasons why fish stocks are depleted.”6 Fishermen and boat owners also proclaimed their innocence, blaming Japanese competitors, pollution, technology, and climatic changes. The previous year, President Clinton had ceremoniously granted Weld’s fishermen a $30 million disaster relief package, carved out of the $550 million Los Angeles earthquake fund.7 Now they were back for more, attempting to narrate their loss of livelihood against a backdrop of increasing skepticism. At stake was whether the fishermen’s unemployment and poverty resulted from a “disaster,” which entitled them to generous federal welfare benefits. This claim was resisted with arguments that fishermen, like welfare mothers, made their own beds. As one newspaper editorialized, “since there is no indication that anything other than overfishing is to blame for the problem in Massachusetts, federal money is simply not appropriate for the situation.”8

228 / Postscript

Juxtaposing Weld chastising welfare recipients for their “dependency” with his solicitude for the fishermen is not merely a wry reflection on political duplicity. Instead, we should view Weld as an incisive sociologist of the moral order, discerning that in 1995 fishermen were plausible candidates for sympathy while welfare mothers were not. Weld’s fishermen, like drought-plagued farmers in the 1930s, could attribute their injury to the hand of fate. Weld was no “Hoover,” despite the fact that he denied relief to women and children with far more relish than Hoover ever would. Weld understood the persistent moral economy that has governed the response to loss and need for virtually the entire period of the American state. In this moral economy, need alone is not a sufficient cause for compensation from the national treasury.9 As I have pointed out throughout this book, the moral logic of relief requires that claimants represent themselves as blameless victims of forces entirely beyond their own control. Conversely, unsuccessful claims are those for which this narrative of blamelessness collapses into an account of self-interest and will in which claimants can be held responsible for their own conditions. Of course, Weld did not have special powers of discernment: as the last chapter shows, hundreds of thousands of letter writers to the Roosevelts grasped the same logic and told their own stories of woe, some more fishy than others. Why in the 1990s was it politically safe to withdraw benefits from single mothers, while in the 1930s mothers depicted singly were iconic Madonnas turning relief opponents into “Hoovers”? While there are many answers to this question—racial politics and the conservative turn in American politics beginning in the 1980s are obvious candidates—there is also the contradiction at the heart of the disaster-based welfare state between compensation and blamelessness, a contradiction that becomes more intense as time passes. Relief turns victims into recipients, making it progressively easier for relief opponents to argue that if recipients are still poor it is their own fault, and hence not the responsibility of government to ameliorate. The limit in this regard is, of course, Aid to Families with Dependent Children (AFDC), which was one of the state-federal cooperative programs of the Social Security Act. Before Bill Clinton partially dismantled it in 1996, AFDC had built the suspicion that single mothers were responsible for their own fates into a large-scale bureaucracy of distrust and moral opprobrium. Relief programs thus become more vulnerable to criticism the longer they last. Therefore, permanent relief programs require constant political protection and renewal in order to survive. As chapter four amply demonstrates, Roosevelt and the New Dealers understood this well, and continued to work to represent farmers, the unemployed, and the elderly as

Postscript / 229

victims long after relief programs passed Congress and avoided Supreme Court censure. Thus many of the most vivid New Deal representations of the poor, among them Lange’s Migrant Mother, stem from the late 1930s, when they served to defend existing programs against the potentially spoiled identities of their beneficiaries. Similarly, Lyndon Johnson’s War on Poverty, with his visits to Appalachia and the program’s focus on the plight of innocent children in urban slums, expended significant resources in the effort to represent the poor as continuing victims of racism and regional economic inequities rather than as being responsible for their own fate. As a former New Dealer, Johnson recognized that in America need is not enough to sustain political support for permanent relief programs, and that the well of political willingness must be constantly renewed with fresh infusions of images of blameless victims, white or black and preferably both. Hence, Johnson declared War on Poverty on April 24, 1964, from Tommy Fletcher’s porch in the Appalachian hamlet of Inez, Kentucky, as Fletcher’s eight towheaded children played in the dirt as if they had just stepped out of a Dorothea Lange or Walker Evans photo. Thirty years later, Bill Clinton—said by many to be the best politician since FDR—faced with the same imperative as Johnson but with a weaker political hand and competing demands for resources, decided not to invest in defending welfare against attacks on its recipients. Instead he acquiesced in the Republican insistence that poor beneficiaries of welfare are corrupted by relief, and supported a “reform” of welfare that portrays being dropped from the rolls as a form of moral redemption.10 Such a result, as reprehensible as it is to those who see human need as an overriding moral imperative, is completely consistent with the moral economy of disaster relief that I have traced in this book.

APPENDIX

Data, Methods, and Supplementary Tables for Chapter Seven

Chapter 7 is based primarily on a sample of letters to Eleanor Roosevelt from the collection Eleanor Roosevelt: Papers 1884–1964, Series 150.1: Material Assistance Requested, housed at the Franklin D, Roosevelt Library in Hyde Park, New York. The records span the period 1934–45 and contain approximately 40,000 letters. There are approximately 25,000 letters in the section from which I systematically sampled 529, essentially at random. Mrs. Roosevelt’s mail was “colossal” during the 1930s and was exceeded in volume only by that addressed to her husband.1 There is no similar surviving collection of letters to President Roosevelt requesting financial assistance.2 The letters to Mrs. Roosevelt sampled for this chapter are requests for financial or other material assistance, most commonly for loans and gifts, but also for in-kind donations of clothing or other items. I used the following sampling method: The letters were grouped by year in boxes, with the general number of letters fairly consistent across time (the archives staff has since reboxed them). I selected every fourth box, which yielded several boxes per year. This weighted the sample appropriately for variation in the number of letters per year. From each box sampled, I selected twenty-five letters by taking every tenth letter, beginning with the tenth so that if there were a few letters that had been placed on the top of a file by a prior researcher or archivist because they were thought to be especially interesting or otherwise anomalous they would be not be included. I also excluded one letter that was totally illegible and three in foreign languages. One sampled letter was excluded from most statistical analysis because it was an extreme outlier in its length. I did not sample letters written after 1940 because my preliminary investigation revealed that beginning in 1941 the letters were related to World War II rather than to requests for economic aid. Mrs. Roosevelt confirmed this; she wrote in her

232 / Appendix

autobiography that the mail received during the war years was of “an entirely different character” than it had been during the Depression.3 These 529 letters were coded for hundreds of aspects of their content, including basic demographic information such as the writer’s name, gender, race, address, region, date of writing, and whether the 1930 census classified the writer’s home as urban or rural.4 Using Ancestry.com, a commercial genealogy website, I located the 1930 manuscript census forms for over half (267) of the letters and was able to code the letters for aspects of the writers’ households that were included in the census, including age, race, marital status, number of children, and various economic indicators. As shown in table 7.1, the 267 writers in the census subset were largely similar to both the general population in 1930 and to known features of the writers of the overall sample. However, there were some differences that appear to be primarily attributable to the ease or difficulty of locating writers in the census database. I found a census form for the writers of 56 percent of letters written between 1933 and 1936 and 45 percent of those written between 1937 and 1940. Because of the time lag between the 1930 census and the time of writing of the letter to Eleanor Roosevelt, in some cases the census form pertains to a different household than the one in which the writer was living at the time he or she wrote the letter (for example, the writer’s family of origin or, in a few cases, the writer’s husband’s family of origin). Married women were overrepresented in the census subset (79 percent of female writers age fifteen and over) compared with the 1930 census enumeration (61.1 percent) and with the number of adult women in the overall sample who self-reported that they were married (58 percent), suggesting that women who were already married in 1930, and hence did not change their names between the 1930 census and the writing of their letter, were easier to find.5 Similarly, 14.2 percent of the writers were male in the overall sample of 529 letters, compared with 20 percent of the census subset, again suggesting that men may have been easier to locate than women because they did not change their names between 1930 and the date that they wrote Mrs. Roosevelt. A logistic regression, reported in table A.2 below, shows that among writers in the census subset, men were only 38 percent as likely to be married as women even after controlling for age, adding support for the theory that women who were already married in 1930 were easier to locate than those who were not. In addition I was somewhat more likely to find the census forms of writers from rural than from urban areas. Nationally, I located a census form for 60 percent of rural writers and 47 percent of those from urban

Appendix / 233

areas, and this pattern was consistent across regions, with the exception of the West, where it was reversed. This could be because rural dwellers were less geographically mobile in the 1930s than those living in cities. While there was extensive rural-urban migration during the 1920s, the population movement out of rural areas slowed during the 1930s, presumably due to the lack of employment opportunities in cities during that decade, and then accelerated during the 1940s.6 The writers in both the full sample of 529 letters and the census subset of 267 were disproportionately female (85 percent and 80 percent, respectively). This overrepresentation of women was stable over time and did not vary by year. As noted above, 58 percent of adult female writers stated that they were married. Only 47 percent of men said that they were married (compared with 60 percent in the general population);7 however, it is not certain that a lower proportion of male writers were married because men were nearly twice as likely as women to remain silent about their marital status (27 percent versus 14 percent). Male writers in the census subset were younger than female writers,8 but as table A.2 shows, women in the census subset were much more likely to be married, even taking age into account. Two-thirds of married women writers in the full sample made no mention of their own employment or lack of it, while 13.3 percent described themselves as unemployed for various reasons such as the Depression, pregnancy, or disability. Only 12 percent said they were working in the waged labor force. The remainder included women who said they worked together with a husband in a family farm or business. The number of employed married women writers in the census subset was also very small (5.2 percent), and not significantly different (p > 0.1) from the comparable proportion of working married women in the general population (9.3 percent of married native white women age fifteen and over).9 Both the full sample of letters and the census subset originated from areas of the country that closely approximated the US population distribution in 1930. The geographic distribution of the full sample of letters and the census subset tracks the regional divisions of the 1930 census distribution so closely that a chi-square goodness of fit test shows that a hypothetical random sample of this size from the 1930 US population with the geographical characteristics of the letters would not be statistically significantly different from the distribution in the 1930 census enumeration.10 Because the large number of regions used in the 1930 and 1940 censuses may lead to misleadingly large chi-square values, I also performed these tests using the four-region geographic division from the 1950 census, which yielded

234 / Appendix

the same results. This four-region division was used for the analyses in chapter seven unless otherwise noted.11 As table 7.2 shows, writers from urban, as opposed to rural, areas were somewhat overrepresented in both the full sample and the census subset, particularly in the South and West. Similarly, rural writers in the census subset were less likely to live on a farm in 1930 than the overall rural population in their regions, again particularly in the South and West. For instance, in the South Atlantic region that included Georgia, the Carolinas, and Virginia, there were very few letters in the census subset from ruralfarm dwellers, despite the fact that over 37 percent of the population in that region was classified as rural-farm.12 This gap, like the general overrepresentation of urban writers, is probably due to the almost total lack of letters from rural blacks in those regions, many of whom lived on farms as tenant farmers, sharecroppers, and field hands. It could be that rural southern blacks did write but were so transient they were impossible to locate in the census; however, it is unlikely that if they had written in proportion to their numbers in the population that there would be virtually no such writers in the entire census subset. Moreover, the likelihood that half of black writers did not identify their race in their letters makes it impossible to test this proposition.13 It seems more plausible that rural southern blacks did not write very many of the letters. Although literacy was nearly universal among whites (both urban and rural) by 1930, among rural blacks, the rate of illiteracy was over 20 percent (26.5 percent for those living on a farm). In the south, black illiteracy was between six and ten times higher than that in other regions. Illiteracy was a problem chiefly but not only because it prevented people from writing letters; the illiterate population also did not read Mrs. Roosevelt’s various newspaper columns and magazine articles about her mail and her philanthropic activities and was likely less motivated to write as a result. Rural southern blacks in 1930 also had the lowest rates of radio ownership in the country and were more isolated and poorer than others. The rural south in general lagged far behind the rest of the country in radio adoption due to the fact that sets and batteries were expensive and electricity was unavailable. The lack of a radio set, like literacy, may have impacted the relative rate of writing to Mrs. Roosevelt since she frequently mentioned both her mail and her charitable activities in her radio addresses.14 The occupational distribution of the heads of households in writers’ families in the census subset was very similar to that in 1930 for the general population, except for the absence of farm laborers. The 1930 census did not use socioeconomic occupational categories, but instead divided US

Appendix / 235

workers by occupations within industries. Beginning with the 1937 unemployment census, the government began to develop socioeconomic categories (e.g., professionals, semiskilled workers, clerks and kindred workers, farmers, farm laborers, etc.) for workers across industries. In 1938 a Census Bureau researcher, Dr. Alba Edwards, revisited earlier censuses, including 1930, and recalculated occupational statistics using the new categories. Using Edwards’s methodology for assigning occupational status, I applied the 1937 categories to the occupations of the heads of household of writers in the census subset, and then used Dr. Edwards’s statistics to make comparisons between the occupational distribution in the census subset and the general population in 1930. These categories were further refined as part of the 1940 census, which explained the adoption of the new occupational categories and provided a guide to the occupations included in each major occupational group, similar to that used in 1937 and 1938.15 One difference between the writers and the country as a whole in terms of occupation is that the heads of writers’ households in the census subset had an unemployment rate of 7.5 percent in 1930 compared with a national rate at that time of 4.7 percent, and this difference is significant (p < 0.05). These rates are for Class A and B unemployment, which, according to the Census Bureau, includes practically all those who would be considered unemployed “in the practically accepted meaning of the term.” Figures for head of household unemployment for classes C–G are not available; however, these groups were extremely small and would be unlikely to change the overall calculation much if at all.16 Writers in the census subset were similar to the general population with respect to home and radio ownership. Although the national radio ownership rates among writers were similar to those in the general population, urban writers were somewhat less likely to own a radio in 1930 than urban dwellers generally, while writers from the South were much more likely to own a radio in 1930 than the general southern population (28 percent of southern writers versus approximately 5 percent of southern families). This probably again reflects the lack of writers from the southern rural-farm population generally and African Americans in particular, who had the lowest rates of radio ownership in the country.17 As discussed in chapter seven, nonfarm writers’ home values and rents were somewhat higher than writers’ county average. It was not possible to make the same calculation for farm values because the Census Bureau lost this data.18 Writers also had a larger median family size than that in the 1930 census (4.8 versus 3.4);19 however, the difference in nonfarm housing cost was independent of family size.20

236 / Appendix

Although the 1930 census did not contain income information, it did include other socioeconomic indicators from which an estimate of class status can be derived. An index was constructed out of the four socioeconomic variables, in which writers received one point for each of four designations: (1) writers whose 1930 head of household was in one of the top three occupations according to the classifications used in the 1937 unemployment census and in Alba Edwards’s 1938 reanalysis of the 1930 occupational categories (professionals, skilled workers, and proprietors); (2) writers whose 1930 head of household owned rather than rented their homes; (3) writers whose 1930 head of household owned a radio; and (4) writers who lived in households with homes that ranked in the upper third of the scale created by the ratio of their home value or rental to the median county value or rental. Writers who scored three or four total points on this index (37/207, or 18 percent of those for whom census data on these variables was available) were coded as “high index.” The index for low status was similar, except that it used the bottom three occupations (laborers, servants, farm laborers). Those who rented rather than owned, those who lacked a radio, and those who ranked in the bottom third on the home or rental value scale each received one point, yielding forty-six writers (22 percent) who were coded as “low index.” As discussed chapter seven, chi-square tests revealed no relationship between being “high index” and making middle-class arguments (p = 0.15) or between being “low index” and making middle-class arguments (p = 0.14). In addition to the demographic information given by the letter itself and the census, the letters were also extensively coded for elements of their content, including the writer’s description of her life and family, the type of aid requested, the various reasons the writer gave for the request, the number of words used, whether she mentioned the Depression, whether someone in the household was a veteran, or how she described Mrs. Roosevelt. In performing the analyses reported in this chapter, I constructed twentynine dummy variables, coding each letter for the presence or absence of one of twenty-nine different excuses or mitigating factors. These excuses were identified and coded through an inductive process of reading the letters in order to determine how the writers “defined the categories in practice.”21 Examples of various excuses are given in chapter seven. Each letter received a code of 0 or 1 for each of the excuse dummy variables. The “excuse count” used as a dependent variable described in tables A.4–A.8 is the sum of the values on these twenty-nine dummy variables. Theoretically, the range for this variable is from 0 to 29; however, in the real distribution

Appendix / 237

the range is from 0 to 12 with a mean of 4.3 and a median of 4. The mean rate of excuses per one hundred words is 1.3. Only fourteen letters out of 529 (2.6 percent) received a score of 0 on this variable. The list of excuses in the count is as follows: 1 health 2 middle-class status 3 children 4 pride 5 sudden reversal of fortunes 6 macroeconomic conditions 7 death 8 agedness 9 divorce 10 writer’s prior successful work history 11 husband’s prior successful work history 12 writer employed but salary too low 13 husband employed but salary too low 14 writer unemployed 15 husband unemployed 16 writer’s history of unemployment 17 husband’s history of unemployment 18 unemployment of others in the household 19 previous efforts to avoid relief 20 hardworking 21 inclusion of supporting documentation or references 22 writer has only part time work 23 husband has only part time work 24 husband’s pay cut 25 writer’s pay cut 26 writer or husband is a student 27 aged parents 28 other dependents 29 writer or husband just recently reemployed

For the logistic regressions described in tables 7.3 and A.1, some of the variables referring to a single excuse (e.g., unemployment) were collapsed into a single variable regardless of which member of the household was referenced. The three variables for unemployment (writer, husband, and other member of household) were combined into “unemployment,” as

−0.03 0.40 −0.10 −0.01 0.43+ −0.26 −0.32 11.55 8

−0.05 0.38 −0.12 −0.01

−0.42 6.92 6

4.63+

0.32 −0.18

0.35 −0.08

2

1

The reference group is “North East.” The reference group is “1933–36 Period.”

+ p < 0.1, * p < 0.05, ** p < 0.01, *** p < −.001

LR Model 1 vs. Model 2 (df2)

Urban Female Region1 North Central South West 1937–40 Period2 Pay back debt Loan Constant LR Chi−Square D.F.

A.2

+

A.1

Health

0.29 5.77 6

−0.15 −0.24 −0.24 −0.11

0.17 −0.40

B.1

3.84

−0.17 −0.26 −0.26 −0.11 −0.24 0.34+ 0.13 9.62 8

0.18 −0.30

B.2

Middle class

−0.61+ 4.78 6 .25

0.11 0.26 0.06 0.00 −0.06 −0.09 −0.65+ 5.03 8

−0.16 0.39

−0.16 0.36 0.12 0.26 0.07 −0.01

C.2

C.1

Children

Table A.1. Log odds from logistic regression on various excuses (N = 502) (page 1)

−1.01** 9.62 6

0.54 0.44 0.15 0.20

0.33 −0.00

D.1

11.22**

0.54* 0.44+ 0.16 0.21 0.34 0.52** −1.32*** 20.84** 8

0.26 0.07

D.2

Working but not enough salary

−1.79*** 7.02 6

0.54* 0.36 0.39 −0.03

0.33 0.31

E.1

Pride

11.33**

0.55* 0.36 0.42 −0.01 0.35 0.58** −2.16*** 18.35** 8

0.25 0.40

E.2

.38

0.28 −0.04 0.02 −0.24 −0.14 −0.02 −0.82* 6.38 8

0.28 −0.04 0.02 −0.24

−0.84* 6.00 6

0.30 0.10

0.28 0.09

−2.06*** 13.34* 6

0.23 0.15 −0.03 −0.83**

0.26 0.47

2

1

The reference group is “North East.” The reference group is “1933–36 Period.”

+ p < 0.1, * p < 0.05, ** p < 0.01, *** p < 0.001

LR Model 1 vs. Model 2 (df2)

Urban Female Region1 North Central South West 1937–40 Period2 Pay back debt Loan Constant LR Chi−Square D.F. 13.87**

0.26 0.17 0.02 −0.87** 1.07*** −0.17 2.08*** 27.20*** 8

0.14 0.32

G.2

G.1

F.1

F.2

Macroeconomic conditions

Unemployment

3.07

0.76+ 0.35 0.35 0.50+ 0.54 −0.32 −3.52*** 13.33 8

0.74+ 0.34 0.34 0.51+

−3.66*** 10.25 6

0.03 0.80

H.2

0.08 0.94+

H.1

Old age

Table A.1. Log odds from logistic regression on various excuses (N = 502) (page 2)

−1.68*** 3.16 6

5.73+

0.35 0.01 0.00 −0.24 0.16 0.61* −2.03*** 8.89 8

−0.07 −0.15

−0.02 −0.25 0.36 0.01 0.01 −0.25

I.2

I.1

Hardworking

−1.56*** 6.17 6

0.03 −0.02 −0.40 0.34

0.30 −0.25

J.1

21.69***

0.07 −0.01 −0.37 0.36 1.05*** 0.42+ −1.84*** 27.86*** 8

0.13 −0.33

J.2

Previous efforts to avoid relief

7.89*

0.43 0.04 0.38 −0.84*** 0.59* 0.36 −1.67*** 23.44** 8

0.42 0.05 0.36 −0.83***

−1.43*** 15.55* 6

0.08 0.01

0.17 0.01

2

1

The reference group is “North East.” The reference group is “1933–36 Period.”

+ p < 0.1, * p < 0.05, ** p < 0.01, *** p < 0.001

LR Model 1 vs. Model 2 (df2)

Urban Female Region1 North Central South West 1937–40 Period2 Pay back debt Loan Constant LR Chi−Square D.F. 4.39

0.54+ 0.64* 0.03 −0.69*** 0.53* −0.06 −1.02** 29.89*** 8

0.52+ 0.63* 0.01 −0.68**

−1.02** 25.50*** 6

0.55* −0.68*

0.61* −0.60*

L.2

L.1

K.1

K.2

History of unemployment

Prior successful work history

−2.22*** 12.16+ 6

0.21 0.34 −0.52 0.05

0.67* 0.33

M.1 0.62* 0.32

M.2

2.05

0.21 0.34 −0.50 0.05 0.31 0.14 −2.31*** 14.21+ 8

Death

Table A.1. Log odds from logistic regression on various excuses (N = 502) (page 3)

−1.57*** 16.69* 6

0.25 0.11 −0.35 −1.05***

0.23 −0.09

N.1

13.39**

0.28 0.11 −0.32 −1.07*** 0.99** 0.29 −1.80*** 30.08*** 8

0.09 −0.17

N.2

Sudden reversal of fortunes

−1.78*** 3.45 6

.8

0.34 0.23 −0.25 0.00 0.14 −0.19 −1.68*** 4.26 8

−0.06 0.23

−0.06 0.29 0.33 0.22 −0.26 0.01

O.2

O.1

Politics

4.45

−0.99 0.01 0.01 −0.43 0.79+ −0.73 −2.12** 9.96 8

−1.02+ −0.03 −0.07 −0.41

−2.32** 5.51 6

0.25 −0.65

0.26 −0.44

P.2

2

1

The reference group is “North East.” The reference group is “1933–36 Period.”

+ p < 0.1, * p < 0.05, ** p < 0.01, *** p < 0.001

LR Model 1 vs. Model 2 (df)

Urban Female Region1 North Central South West 1937–40 Period2 Pay back debt Loan Constant LR Chi−Square D.F.

P.1

Veteran status

−3.19*** 11.67+ 6

−0.02 −0.65 −0.81 0.03

1.23 −1.09*

Q.1

Q.2

1.94

0.02 −0.60 −0.70 0.04 0.42 −0.64 −2.96*** 13.61+ 8

1.22 −1.25*

Citizenship

Table A.1. Log odds from logistic regression on various excuses (N = 502) (page 4)

−4.13*** 1.42 6

0.53 0.55 −0.09 0.27

0.08 0.18

R.1

Class

2.59

−1.15** 1.03 6

0.09 0.04 −0.14 −0.16

0.06 0.06

−0.06 0.00 0.57 0.57 −0.05 0.27 0.92+ −0.20 −4.08*** 4.01 8

S.1

R.2

S.2

1.55

0.10 0.05 −0.13 −0.16 0.18 −0.25 −1.03** 2.58 8

0.06 −0.01

Entitlement

242 / Appendix

were the variables for “working but salary not enough,” “prior successful work history,” and “history of unemployment.” For those analyses I was less interested in the number of excuses in a particular letter than in testing whether writers with particular characteristics might be more or less likely to discuss unemployment, perhaps due to gender or to regional or temporal fluctuations in the unemployment rate. Claims concerning farm conditions were coded as follows: claims to having owned or operated a farm in the past were coded as “prior successful work history,” farm and crop failures were generally coded as “sudden reversal of fortune,” past farm losses were coded as “history of unemployment,” and claims that an operating farm no longer produced sufficient income were coded as “working but salary not enough.” Table A.1 is an expanded version of table 7.3 (table A.1, above, displays coefficients rather than odds ratios as shown in table 7.3). Findings from this table are discussed in chapter seven. The dependent variables are eighteen of the various excuses that writers use in their letters and are displayed across the top of the table. Included are the fourteen most frequently used excuses, as well as justifications for aid that rely on politics, veteran status, citizenship, and appeals to class, and one additional dependent variable, “entitlement” (S.1, S.2 in table A.1), which is a combination of the dependent variables veteran, citizenship, and politics such that a letter was coded as “1” on “entitlement” if it contained any of these three excuses.22 For each dependent variable, the first model (A.1, B.1, etc.) is a baseline model including variables for whether the writer was from an urban or a rural area according to the 1930 census, the writer’s gender, the writer’s geographic region,23 and the time period in which the letter was written.24 The second model (A2, B2, etc.) for each dependent variable adds two explanatory variables: (1) whether a writer was requesting a loan and (2) whether a writer was requesting money to get out of debt.25 Logistic regression was used because the dependent variable (odds of using a particular justification in a given letter) is a binary variable with a binomial distribution. These logistic regression models take the form: logit (Y) = log (π/(1 − π )) = α + β1x1 + β2x2 + . . . + βix i Where log represents the natural logarithm, π is the probability that the dichotomous outcome variable Y = 1 (e.g., that a writer used the justification for aid that her husband was working but his wages were too low to support the family); α is the Y intercept; βs are regression coefficients; and x1 to x i are vectors of the independent variables (e.g., gender, urban, region, debt) included in the model.

Appendix / 243

As table A.1 indicates, the models are nested. Tests of the goodness of fit of these models compared a relatively more complex model with a simpler model to see if the more complex model fit the dataset significantly better. In most cases, neither model offered an improvement over the null model. For example, neither model fit the data well in predicting whether a writer would discuss health, middle-class status, or children, possibly because these justifications appeared nearly universally in the letters. In many cases the expanded model with the two additional variables (e.g., D.2) fit the data significantly better than the baseline model (e.g., D.1). In these cases both the significant coefficients for the explanatory variables and the significant likelihood ratio chi-square statistics supported the conclusion that the model containing the explanatory variables better fit the data than the baseline model. This was the case in predicting whether a writer would discuss: working but salary not enough (D.1 v. D.2, p < 0.01); pride (E.1 v. E.2, p < 0.01); macroeconomic conditions (G.1 v. G.2, p < 0.01); previous efforts to avoid relief (J.1 v. J.2, p < 0.001); prior successful work history (K.1 v. K.2, p < 0.05), sudden reversal of fortunes (N.1 v. N.2, p < 0.01). In the case of history of unemployment, both models fit the data well, and the explanatory variable for loan was significant (p < 0.05); however, comparing model L.1 and L.2, the likelihood ratio is 4.39 with 2 degrees of freedom, and shows that the addition of the explanatory variables was not a significant improvement (p > 0.1) over the baseline model. The model containing the additional two explanatory variables (e.g., D.2) tests the effects of known demographic information about writers as well as features of the letter (asking for loans or debt relief) as predictors of whether a particular excuse was used to seek aid in a given letter. Generally, coefficients for the variables representing demographic characteristics were not significant. However, there were a few exceptions. Men were more likely to mention a history of unemployment than women, and writers living in urban areas were more likely to discuss a history of unemployment than writers from rural areas. As discussed in chapter seven, letters written in the second half of the decade were less likely to mention macroeconomic conditions, prior successful work history, a history of unemployment, and a sudden reversal of fortune. The dependent variable in table A.2 is the odds of being married in 1930 for writers in the census sample who were over age fifteen in 1930. The explanatory variable is the writer’s gender, and the control variables are the writer’s age (in years) in 1930 and an age squared term to control for the possibility that the relationship between age and marriage is curvi-

244 / Appendix Table A.2. Odds ratios from logistic regression of gender and age on marital status (N = 228) Model 1 Male Age Age Squared LR Chi-Square Degrees of freedom

Model 2

1.69*** 0.99***

0.41* 1.66*** 0.99***

57.91*** 2

62.21*** 3

*p < 0.05, ** p < 0.01, *** p < 0.001

linear. Logistic regression was used because the dependent variable (odds of being married) is a binary variable with a binomial distribution. The logistic regression models in table A.2 take the form described in the discussion for table A.1 above: Where log represents the natural logarithm, π is the probability that the dichotomous outcome variable Y = 1 (e.g., that a writer is married); α is the Y intercept; βs are regression coefficients; x1 is the vector of the independent variable gender, and x2 is the vector of the independent variable age, and x3 is the vector of the independent variable age squared.

The chi-square statistics suggest that both models are significant improvements over the null model. As the table indicates, the models are nested. Comparing model 2 with model 1 resulted in a LR chi-square statistic of 4.30 with 1 degree of freedom indicating that model 2 fits the data significantly better than model 1 (p < 0.05). Model 1 is a baseline model and includes age as a predictor for marital status. The log likelihood of this model is −99.257481. Not surprisingly, the coefficient for age is positive and significant and the coefficient for age squared is negative and significant, indicating that the relationship of age to marriage is curvilinear. Model 2 tests the effect of gender on marital status and adds the writer’s sex to the baseline model. All three coefficients in the model are significant (not shown). The log likelihood of model 2 is −97.105302. In this model, being older and being female both significantly increased the probability of a writer being married. Holding age constant, being male decreased the odds that a writer would be married by a factor of 0.41, or 59 percent. Conversely, being female more than doubled the odds that a writer would be married. In table A.3, logistic regression was also used to test whether features

Appendix / 245

of the writers’ circumstances gleaned from the census data were related to making certain arguments. Here I tested whether writers within the census subset who had some indicators that they were better off financially were more likely to make arguments and excuses tied to being middle class. The logistic regression models in table A.3 take the form described in the discussion for table A.1 above: Where log represents the natural logarithm, π is the probability that the dichotomous outcome variable Y = 1 (i.e., that a writer will claim to be a member of the middle class); α is the Y intercept; βs are regression coefficients; and x1 to xi are vectors of the independent variables (e.g., gender, urban, region, socioeconomic factors) included in the model.

The four socioeconomic variables available from the 1930 census used as proxies for class status are: (1) writers whose 1930 head of household was in one of the top three occupations according to the classifications used in the 1937 unemployment census and in Alba Edwards’s 1938 reanalysis of the 1930 occupational categories (professionals, skilled workers, and proprietors); (2) writers whose 1930 head of household owned rather than rented their homes; (3) writers whose 1930 head of household owned a radio; and (4) writers who in 1930 lived in households with homes with a value or monthly rent above the median for their county of residence, i.e., those living in a better neighborhood. The dependent variable in table A.3 is the odds that a writer will make an argument or excuse related to being middle or upper class. Examples of such excuses are given in chapter seven and include such things as stating that “we are one of the South’s best families” or referencing objects and practices associated with class status such as professional standing, servants, and expensive furnishings. The explanatory variables are the four socioeconomic factors relating to financial circumstances of the writer’s 1930 household. The control variables are for the writer living in an urban, as opposed to rural, area at the time of writing (as designated by the Census Bureau), the writer’s gender, the region in which they resided at the time of writing, and whether the letter was written in the first or second half of the decade. The two models are nested. Model 1 is a baseline model, containing the control variables for urban/rural residence, sex, region, and time of writing. None of the coefficients were significant. Model 2 tested the effect of the four dummy variables for socioeconomic status on making excuses and arguments connected to middle-class status. Only the coefficient for having a high relative home or rental value was significant (p < 0.05). None of

246 / Appendix Table A.3. Odds ratio from logistic regression on the making of middle-class arguments and excuses (N = 203) Model 1

Model 2

Urban Female Region1 North Central South West 1937–40 Period2 Socioeconomic Factors High Status Occupation Owning a Home Owning a Radio Above Median Home or Rental Value

1.38 0.82

1.27 0.78

0.66 0.68 0.89 0.83

0.65 0.54 0.83 0.87

LR Chi-Square Degrees of Freedom

3.89 6

1.26 0.92 1.16 2.04* 9.35 10

*p < 0.05 1 The reference group is “North East.” The four-region system established in the 1950 census was used rather than the 7-region format in use in 1930 in order to reduce the degrees of freedom used in the analysis. The reference group for region is “North East.” The overall effect of the four dummy variable set for region was tested using a LR chi-square test between a model containing the region dummies and one that did not. The inclusion of the variables for region did not significantly improve the model fit. 2 The reference group is “1933–36 Period.”

the other variables that are indicators of being better off, such as owning a home or having a professional occupation, were associated with claiming to be middle class. As the nonsignificant LR chi-square tests in table A.3 indicate, neither model fit the data well. The difference in LR chi-square between model 1 and model 2 is 7.72 which was not significant (p > 0.1), showing that adding the four socioeconomic factors did not improve the model fit. Overall, writers who were objectively better off (based on the available information about writers’ class status) were no more likely than other, less welloff, writers to mention their class status as a basis for seeking assistance. However, as indicated by the significant coefficient for high relative home or rental value, the odds that writers who lived in a better neighborhood compared to the rest of their county of residence would make middle-class claims were twice as high as those of other writers (p < 0.05). This may be due to the fact that the nature of the request required writers to disclose

Appendix / 247

their address to Mrs. Roosevelt so that she could send a check. Because the writer’s address necessarily revealed the neighborhood in which she lived, it carried with it the potential to refute a claim to be well-to-do, particularly if the letter were to be forwarded to local relief officials for investigation. For certain writers, such as those who resided in slums or poor rural districts, this may have inhibited them from claiming to belong to the middle or upper class. In table A.4, the dependent variable is a count variable consisting of the number of excuses used in each letter. This variable consisted of twentynine excuses, constructed as described above. The control variables include the same demographic variables used in the logistic regressions discussed above: residing in an urban as opposed to rural area, the writer’s gender, the region of residence, and the time period in which the letter was written. The explanatory variables related to debts and loans are also included in order to test their effect on the number of excuses. Because the outcome variable, the number of excuses in a given letter, is a count variable, event count models rather than linear regression models were used. The Poisson distribution is a discrete probability distribution that expresses the probability of a number of events occurring in a fixed period of time. In this distribution the mean number of occurrences is equal to the variance. Where, as here, the variance is greater than the mean, then the data suffer from overdispersion, and the negative binomial distribution is preferred because it includes an ancillary parameter α that reflects unobserved heterogeneity among observations.26 Where α is zero, negative binomial regression is simply a Poisson model. Where α is greater than zero, the negative binomial model is more suitable. The negative binomial distribution is also a discrete probability distribution: Pr ( y|x ) =

(

) y|Γ (α −1 )

Γ y + α −1

( ) ( ) α −1 α −1 + λ

α −1

λ α −1 + λ

y

For each of the models displayed in table A.4, the LR test of α suggests an alpha greater than 0 (p < 0.001). Therefore, the negative binomial model is preferred over the Poisson. As table A.4 shows, the models are nested such that model 1 is nested in model 2, in order to compare a relatively more complex model to a simpler model to see if the more complex model fits the dataset significantly better. Between model 1 and model 2, the likelihood ratio is 30.54 with 2 degrees of freedom, and is statistically significant (p < 0.001). This means that adding the two explanatory variables (debt and loan) significantly improved

248 / Appendix Table A.4. Incident-rate ratios from negative binomial model on the number of excuses (N = 502)

Urban Female Region1 North Central South West 1937–40 Period2 Pay back debt Loan α LR Chi-Square Degrees of Freedom LR chi-square test Model 1 vs. Model 2

Model 1

Model 2

1.16* 1.02

1.11 1.01

1.17* 1.14 1.03 0.88*

1.17* 1.14 1.04 0.88** 1.31*** 1.15**

0.11***

0.08***

17.86** 6 30.54(2)***

48.41*** 8

* p < 0.05, ** p < 0.01, *** p < 0.001 1 The reference group is “North East.” Writers from the Midwest may have used more excuses than those from the northeast, as the coefficient for the control variable “north central” was significant (p < 0.05). The overall effect of the four-dummy variable set for region was tested using a LR chi-square test between a model containing the region dummies and one that did not. The inclusion of the variables for region did not significantly improve the model fitting. In that case, the likelihood ratio is 6.67, with 3 degrees of freedom and is not statistically significant. The coefficients for the explanatory variables of debt and loan were essentially identical in the model without the region dummies and in the model that included them. 2 The reference group is “1933–36 Period.”

the model fitting. Both the significant coefficients for these variables and the significant likelihood ratio statistic support the conclusion that model 2 is the model that best fits the data. As table A.4 indicates, both of the explanatory variables are strong predictors of the number of excuses even when the control variables are included in the model. Asking for debt relief and asking for a loan rather than another form of aid increased the number of excuses by 31 percent and 15 percent, respectively, holding the control variables constant. Consistent with the findings reported in tables 7.3 and A.1 showing that writers in the latter half of the decade were less prone to use certain excuses, writers in the second half of the decade used 12 percent fewer excuses than those who wrote earlier. Table A.5 uses letters from female writers only, and tests (in addition to the demographic and explanatory variables used in table A.4) the effect

Appendix / 249 Table A.5. Incident-rate ratios from negative binomial model on the number of excuses, for female writers only (N = 415)

Urban Region1 North Central South West 1937–40 Period2 Pay back debt Loan Married women α LR Chi-Square Degree of Freedom LR chi-sq (df)

Model 1

Model 2

Model 3

1.14*

1.09

1.10

1.13 1.12 1.04 0.90

1.14 1.13 1.05 0.90 1.34*** 1.12*

1.13 1.14 1.04 0.90 1.32*** 1.13 * 1.18**

0.12***

0.09***

0.09***

10.41 5

38.51*** 7 28.10(2)***

46.93*** 8 8.42(1)**

* p < 0.05, ** p < 0.01, *** p < 0.001 1 The reference group is “North East.” The overall effect of the four-dummy variable set for region was tested using a LR chi-square test between a model containing the region dummies and one that did not. The inclusion of the variables for region did not significantly improve the model fitting. In that case, the likelihood ratio is 3.99, with 3 degrees of freedom and is not statistically significant. The coefficients for the explanatory variables of debt, loan, and marriage were essentially identical in the model without the region dummies and in the model that included them. 2 The reference group is “1933–36 Period.”

of being married on the number of excuses deployed in each letter. Married women have a mean number of excuses of 4.69, compared with 3.95 for unmarried women, and that difference was significant using a t-test for samples of unequal variance (p < 0.01). Since Levene’s test suggests unequal variances, Satterthwaite’s estimates that do not assume equal variance were used. The dependent variable is a count variable consisting of the number of excuses used in each letter. The control variables include the same demographic variables used in the logistic and negative binomial regressions discussed above: residing in an urban as opposed to rural area, the region of residence, and the time period in which the letter was written. The explanatory variables related to debts and loans were included. In addition, because table A.5 tests the effect of marriage on the excuse count of female writers, a dummy variable for “married” was added as an additional explanatory variable. As in table A.4 above, the outcome variable, the number of excuses in a given letter, is a count variable. Therefore, event count models rather than

250 / Appendix

linear regression models are used. For each of the models displayed in table A.5, the LR test of α suggests an alpha greater than 0 (p < 0.001). Therefore, the negative binomial model is preferred over the Poisson. As table A.5 shows, the three models are nested. The chi-square statistics suggest that model 2 and model 3 are significant improvements over the null model (p < 0.001). Model 1 is the baseline model, containing the control variables for urban/rural residence, region, and time of writing. Model 2 adds the explanatory variables of asking for debt relief or a loan, both of which are positive and significant. Model 3 tests the effect of marriage on the number of excuses deployed by female writers and adds to model 2 a dummy variable for marriage, which along with the variables for debt and loan, is also positive and significant (p < 0.01). Comparing model 2 with baseline model 1 resulted in a LR chi-square statistic of 28.10 with 2 degrees of freedom (p < 0.001). Comparing model 3, which added marital status, with model 2 resulted in a LR chi-square statistic of 8.42 with one degree of freedom (p < 0.01). As shown in table A.5 above, the results of the LR chi-squared tests show that model 3 fits the data significantly better than the other two models. Table A.5 displays the incident rate ratios for all three models. The results of model 3 show that for female writers, describing themselves as indebted, asking for loans, and being married all predicted an increase in the number of excuses. Writers requesting debt relief used an average of 32 percent more excuses than others, while those asking for loans (as opposed to other forms of aid, such as gifts) used 13 percent more excuses. Holding constant all of the control variables and other explanatory variables, being married increased the number of excuses deployed by female writers by 18 percent. Table A.6 uses letters from the census subset because these are the only writers for whom the 1930 census occupational data are available. As in tables A.4 and A.5, the dependent variable is a count variable consisting of the number of excuses used in each letter. The control variables include the same demographic variables used in the logistic and negative binomial regressions discussed above: residing in an urban as opposed to rural area, the region of residence, and the time period in which the letter was written. Table A.6 tests the effect of the explanatory variables loan and debt on the excuse count of these writers when considering the effect of covariates for both the length of the letter and having a high occupational status as proxies for literacy. A letter received a “1” for high occupational status if the writer’s 1930 head of household was in one of the top three occupations according to the classifications used in the 1937 unemployment census

Appendix / 251 Table A.6. Incident-rate ratios from negative binomial model on the number of excuses for census subset only (N = 203)

Female Urban Region1 North Central South West 1937–40 Period2 Word count High status occupation Pay back debt Loan α LR Chi-Square Degrees of Freedom LR chi-sq test M.1 vs. M.2

Model 1

Model 2

1.08 1.11

1.10 1.09

1.34** 1.22* 1.06 0.86* 1.00*** 1.14+

1.33** 1.22* 1.06 0.87* 1.00*** 1.12 1.21** 1.12+

0.05**

0.04*

50.34*** 8

60.76*** 10 10.42(2)**

+ p < 0.10, * p < 0.05, ** p < 0.01, *** p < 0.001 1 The reference group is “North East.” The overall effect of the fourdummy variable set for region was tested using a LR chi-square test between a model containing the region dummies and one that did not. The inclusion of the variables for region significantly improved the model fit (p < 0.01). In that case, the likelihood ratio is 11.72, with 3 degrees of freedom. The coefficients for the explanatory variables of debt and loan were essentially identical in the model without the region dummies and in the model that included them. 2 The reference group is “1933–36 Period.”

and in Alba Edwards’s 1938 reanalysis of the 1930 occupational categories (professionals, skilled workers, and proprietors). Because the outcome variable is a count variable, event count models rather than linear regression models are used to analyze the relationship between the covariates. For both model 1 and model 2, the LR test of α suggests an alpha greater than 0 (p < 0.01). Therefore, the negative binomial model is preferred over the Poisson. As table A.6 shows, the two models are nested. The chi-square statistics suggest that both models are significant improvements over the null model (p < 0.001). Model 1 is the baseline model, containing the control variables for urban/rural residence, region, and time of writing, as well as the additional controls for high status occupation and word count. Model 2 adds the explanatory variables of asking for debt relief or a loan. Comparing model 2 with baseline model 1 resulted in a LR chi-square statistic of

252 / Appendix

10.42 with 2 degrees of freedom (p < 0.01). Thus adding the explanatory variables (debt and loan) significantly improved the model fit. Table A.6 displays the incident rate ratios for both models. The results of model 2 show that for the smaller group of writers in the census subset, having a high status occupation is not significant, while the length of the letter is positively and significantly associated with the number of excuses. But even when all of the controls intended to approximate literacy, as well as the other controls, are held constant, writers requesting debt relief used an average of 21 percent more excuses (p < 0.01) than other writers, and writers asking for a loan used 12 percent more excuses on average than those requesting aid in the form of a gift, though this result was only marginally significant (p < 0.1). Table A.7 tests the effects of literacy on the number of excuses for the full sample. As in tables A.4–A.6 above, the dependent variable is a count variable consisting of the number of excuses used in each letter. The control variables include the same demographic variables used in the logistic and negative binomial regressions discussed above: gender, residing in an urban as opposed to rural area, the region of residence, and the time period in which the letter was written. An additional control variable for the length of the letter (word count) is included. Because the outcome variable is a count variable, event count models rather than linear regression models are used. For both models, the LR test of α suggests an alpha greater than 0 (p < 0.001). Therefore, the negative binomial model is preferred over the Poisson. As table A.7 shows, the two models are nested. The chi-square statistics suggest that both models are significant improvements over the null model (p < 0.001). Model 1 is the baseline model, containing the control variables for urban/rural residence, gender, region, and time of writing as well as an additional control for word count. Model 2 adds the explanatory variables of asking for debt relief or a loan. Comparing model 2 with model 1 resulted in a LR chi-square statistic of 21.62 with 2 degrees of freedom (p < 0.001). Thus adding the explanatory variables (debt and loan) significantly improved the model fit. Table A.7 displays the incident rate ratios for both models. The results of model 2 show that the length of the letter was positively and significantly associated with the number of excuses, though other possible predictors for literacy such as being from an urban area or from the Northeast were not associated with an increase in the number of excuses. But even when the controls intended to approximate literacy are held constant, the explanatory variables are still strongly predictive and significant. Writers ask-

Appendix / 253 Table A.7. Incident-rate ratios from negative binomial model on the number of excuses controlling for length of letter (N = 502) Model 1

Model 2

1.11 1.03

1.08 1.04

1.22** 1.16* 0.97 0.88** 1.00***

1.21** 1.16* 0.97 0.88** 1.00*** 1.20** 1.16**

0.07***

0.05***

97.39*** 7

119.01*** 9 21.62(2)***

Urban Female Region1 North Central South West 1937–40 Period2 Word count Pay back debt Loan α LR Chi-Square Degrees of Freedom LR chi-sq test M1. vs. M2 * p < 0.05, ** p < 0.01, *** p < 0.001

1 The reference group is “North East.” The overall effect of the four-dummy variable set for region was tested using a LR chi-square test between a model containing the region dummies and one that did not. The inclusion of the variables for region significantly improved the model fitting. In that case, the likelihood ratio is 13.28 with 3 degrees of freedom and is statistically significant (p < 0.01). However, the coefficients for the explanatory variables of debt and loan (as well as for the other controls) were essentially identical in the model without the region dummies and in the model that included them. 2 The reference group is “1933–36 Period.”

ing for debt relief and loans used 20 percent and 16 percent more excuses, respectively, than others regardless of the length of the letter. Therefore, even taking into account the effects of literacy (to the extent possible with the data available) the explanatory variables continued to exert an effect on the number of excuses. Table A.8 repeats the analysis reported in table A.7 but for female writers only. An additional explanatory variable for marriage is added in order to gauge the effect of controlling for literacy on the finding from table A.5 that married women writers use more excuses in their letters than unmarried women. For all three models, the LR test of α suggests an alpha greater than 0 (p < 0.001). Therefore, the negative binomial model is preferred over the Poisson. As table A.8 shows, the three models are nested. The chi-square statistics suggest that all three models are significant improvements over the null

254 / Appendix Table A.8. Incident-rate ratios from negative binomial model on the number of excuses controlling for length of letter for female writers only (N = 427) Model 1

Model 2

Model 3

Urban Region1 North Central South West 1937–40 Period2 Word count Pay back debt Loan Married women

1.08

1.05

1.06

1.19* 1.16* 0.96 0.90 1.00***

1.19* 1.16* 0.98 0.90 1.00*** 1.22** 1.14*

1.18* 1.17* 0.97 0.91 1.00*** 1.20** 1.15** 1.18**

α

0.08***

0.06***

0.06***

LR Chi-Square Degrees of Freedom LR chi-sq test (df)

73.36*** 6

92.15*** 8 18.79(2)***

101.78*** 9 9.63(1)**

* p < 0.05, ** p < 0.01, *** p < 0.001 1 The reference group is “North East.” The overall effect of the four-dummy variable set for region was tested using a LR chi-square test between a model containing the region dummies and one that did not. The inclusion of the variables for region significantly improved the model fit. In that case, the likelihood ratio is 9.35 with 3 degrees of freedom and is statistically significant (p < 0.05). However, the coefficients for the explanatory variables of debt, loan, and marriage (as well as the other controls) were essentially identical in the model without the region dummies and in the model that included them. 2 The reference group is “1933–36 Period.”

model (p < 0.001). Model 1 is the baseline model, containing the control variables for urban/rural residence, region, and time of writing, and including an additional control for word count. Model 2 adds the explanatory variables of asking for debt relief or a loan, both of which are positive and significant. Model 3 tests the effect of marriage on the number of excuses deployed by female writers and adds to model 2 a dummy variable for marriage, which along with the variables for debt and loan, is also positive and significant (p < 0.01). As shown in table A.8, adding the explanatory variables debt and loan significantly improved the model fit (p < 0.001). Model 3, which includes marital status, fit the data better than the other two models (p < 0.01). Model 3 shows that even when possible controls for literacy such as Northeast region, urban, and word count are held constant, the effect of asking for debt relief or a loan, and of being married for women writers, continued to be positive and significant. Holding constant all of the control variables and other explanatory variables, being married increased the number of

Appendix / 255 Table A.9. Coefficients from linear regression on logged word count (N = 502) Model 1

Model 2

Urban Female Region1 North Central South West 1937–40 Period2 Number of Excuses Debt Loan Constant

0.06 −0.15*

0.05 −0.16*

−0.12 −0.05 0.07 0.01 0.13***

−0.11 −.005 0.08 0.01 0.13*** 0.11 .00 5.34***

F Score Degrees of Freedom R Square Incremental F Test M1 vs. M2 (df)

28.97*** 7 0.29

5.33***

22.96*** 9 .30 1.66(2)

* p < 0.05, ** p < 0.01, *** p < 0.001 1 The reference group is “North East.” The overall effect of the four-dummy variable set for region was tested using an incremental F test for the null-hypothesis that the set of region variables had no effect on the dependent variable of log (word count). According to this test, the inclusion of the variables for region did not significantly improve the model fit. 2 The reference group is “1933–36 Period.”

excuses deployed by female writers by 18 percent regardless of the length of the letter. Table A.9 reports the results of a linear regression on the log of the word count for each letter in order to estimate the effect of the writer’s gender on the length of the letter, holding constant a number of demographic and letter content variables, including the number of excuses. The dependent variable was logged both to address outliers in the data and for interpretability in terms of percent change. The regression has the form: Y = a + b1X1 + b2X2 + . . . biX i Where Y is the natural log of the word count, a is the constant, x is a vector of the independent variable (e.g., urban, female, region, number of excuses), and b is a vector of estimated parameters.

Model 1 includes a set of demographic variables such as the writer’s sex and region, as well as a variable for the number of excuses in each letter. Model 2 adds two additional content variables for debt relief and loans

256 / Appendix Table A.10. Coefficients from linear regression on number of excuses per 100 words (N = 502) Urban Female Region1 North Central South West 1937–40 Period2 Number of Excuses Pay back debt Loan Constant F Score Degrees of Freedom R Square

0.06 0.27* 0.35*** −0.16 0.08 −0.08 0.13*** 0.07 0.19* 0.86*** 3.76*** 8 0.06

* p < 0.05, ** p < 0.01, *** p < 0.001 1 The reference group is “North East.” The overall effect of the fourdummy variable set for region was tested using an incremental F test for the null-hypothesis that the set of region variables had no effect on the dependent variable of density 100 (number of excuses per 100 words). This test yielded an F of 5.89 with 3 degrees of freedom. According to this test, the inclusion of the variables for region significantly improved the model fit. The significant coefficient (p < 0.001) for North Central suggests that writers from the Midwest region had a greater rate of excuses per 100 words than those from the northeast. 2 The reference group is “1933–36 Period.”

in order to test the effect of these variables on the length of the letter and to ensure that the effect of gender is independent of the effect of both the number of excuses and of the use of particular excuses. The F score of 28.97 for model 1 indicates that this model is a significant improvement over the null model (p < 0.001). Overall the independent variables explain 29 percent of the variation in the dependent variable. The incremental F test shows that model 2 is not a significant improvement over model 1. As discussed in chapter seven, the results of model 1 show that women wrote letters that were shorter than those of male writers, holding constant the number of excuses and the other variables. In table A.10, the dependent variable is the number of excuses per one hundred words. As discussed in chapter seven, men had a mean rate of excuses per one hundred words of 1.14, while for women the mean rate was 1.36, and this difference was significant (p < 0.01). (Since Levene’s test suggests unequal variance, Satterthwaite’s estimates that do not assume equal variance were used). Table A.10 reports the results of a linear regression on the rate of excuses per 100 words to test whether a difference be-

Appendix / 257

tween men and women on this measure persists when the effect of other covariates such as the number of excuses and the use of certain excuses is considered. The overall fit of the model is good. The F score of 3.76 indicates that this model is a significant improvement over the null model. Overall, the independent variables explain only about 6 percent of the variation in the dependent variable. An incremental F test on the joint significance of the two content variables for debt relief and requests for loans indicates that the addition of these variables significantly improved the model fit (p < 0.05). The positive and significant coefficient for “female” indicates that letters from women had a higher rate of excuses per one hundred words than did those written by men holding constant the other covariates in the model, including those that might be related to literacy, such as being from an urban area or from the Northeast rather than the South, as well as those related to the type and purpose of the request.

NOTES

INTRODUCTION

1. 2.

3.

4.

5.

6. 7.

Perkins, “Roots of Social Security.” Ibid. Perkins claimed that she never told Eliot or any of the other lawyers on the committee how she—a nonlawyer—came to this conclusion: “as far as they knew, I went out into the wilderness and had a vision” (ibid). 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” (Perkins, Roosevelt I Knew, 286). Perkins, “Roots of Social Security.” “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” (Eliot, “Legal Background”). The phrase has been attributed to Thomas Reed Powell, and the “switch” refers to the Court’s decision in West Coast Hotel v. Parrish, 300 U.S. 379 (1937), which upheld the constitutionality of state wages and hours legislation. The decision, which many saw as an effort by the Court to conciliate with Roosevelt in reaction to the court-packing plan, was seen as ending a period, often called the “Lochner era,” during which the Supreme Court routinely struck down state and federal efforts to mitigate the harsh effects of capitalism on society. Rogers, “Review of Quantitative Analysis,” 308; Powell, Vagaries and Varieties, 19; Shesol, Supreme Power, 429–43; Feldman, Scorpions, 103–14. “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” (U.S. Const. art. I, § 8, cl. 1). Skocpol, Protecting Soldiers and Mothers, 102–51. This doctrine, 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 and Treatise on the Law of Taxation, Including the Law of Local Assessments, argued that there was an implicit constitutional limit on the power of state and municipal governments to impose taxes such that all expenditures of such funds must be for a “public purpose.” A number of state supreme courts relied on

260 / Notes to Introduction

8. 9. 10. 11. 12. 13.

14.

15.

the doctrine in striking down various state tax assessments during the late nineteenth century. Examples include Lowell v. Boston, 111 Mass. 454 (1873), and State v. Osawkee Township, 14 Kan. 418 (1875). The Supreme Court initially found that the power of state and local governments to tax is limited by “implied reservations of individual rights, without which the social compact could not exist, and which are respected by all governments entitled to the name.” Loan Ass’n v. Topeka, 87 U.S. 655, 663 (1874). Thus “there can be no lawful tax which is not laid for a public purpose” (ibid., 664). The doctrine reached its apex toward the end of the century when the Court recognized the public purpose doctrine as a requirement of substantive due process under the Fourteenth Amendment. Fallbrook Irrigation District v. Bradley, 164 U.S. 112, 159 (1896). However, the Court never applied this doctrine against Congress despite repeated requests that it do so. At least one lower court did, however. See, e.g., United States ex rel. Miles Planting and Mfg. Co. v. Carlisle, 5 App. D.C 138 (C.A.D.C. 1895) (relying on Loan Ass’n v. Topeka and Lowell v. Boston in holding that the Sugar Bounty provisions of the McKinley Tariff Act are unconstitutional because Congress may expend the tax revenues only for a “public purpose”). 27 Cong. Rec. HR8518, 2882 (daily ed. Feb. 28, 1895). “Drought Relief,” Time, August 18, 1930, 13. 74 Cong. Rec. HR14246, 708 (daily ed. Dec. 15, 1930). Woodruff, As Rare as Rain, 40; Dulles, American Red Cross, 258. Dulles, American Red Cross, 277–78. Skocpol, Protecting Soldiers and Mothers, 272–78. 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. See also McCormick, “Party Period and Public Policy,” 283; Lowi, “American Business, Public Policy,” 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. Scheiber, “Government and Economy,” 145–46; Handlin and Handlin, Commonwealth, 229–44; Hacker, Divided Welfare State, 87–95; Skowronek, Building a New American State, 14–15; Finegold and Skocpol, State and Party, 54–55; John, Spreading the News, 15. The branch of political science typically described as “American Political Development” has generated much of this movement toward revision, tending to emphasize path dependence in the development of welfare state structures and institutions. Orren and Skowronek, Search for American Political Development, 96–108; John, “Governmental Institutions,” 368–80. 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 Tug-

Notes to Introduction / 261

16.

17. 18. 19.

20.

21. 22. 23.

24.

25. 26.

27.

well, Arthur Schlesinger, and to a somewhat lesser extent, William Leuchtenburg. Tugwell, Democratic Roosevelt; Schlesinger, Coming of the New Deal; Leuchtenburg, Franklin D. Roosevelt. 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. 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. Skocpol, Protecting Soldiers and Mothers, 526. The historian Daniel Rodgers argues, for example, that the development of American social policy had been so constricted prior to the Depression that when the crisis hit, there was an exceptionally large “logjam” of ideas drawn from European welfare states. These ideas, studied and proposed by American reformers during the Progressive Era, were ready to be taken “off the shelf” and implemented by New Dealers. Rodgers, Atlantic Crossings, 240–41, 414–16. Schlesinger, Crisis of the Old Order. Ackerman, We the People, 1:40; Sunstein, “Congress, Constitutional Moments,” 253–55. Degler, Out of Our Past, 379–416; Corwin, Constitutional Revolution, Ltd., 64; Leuchtenburg, FDR Years, 209–29; Leuchtenburg, Supreme Court Reborn, 213, 235–36. Kalman attempts to distinguish between those scholars who believe that the revolution occurred in 1937 and those who merely believe that it began in 1937 and was completed in the 1940s. Kalman, “Law, Politics, and the New Deal(s),” 2183–85. As Daniel Rogers aptly puts it, the standard historical account of the New Deal is often an “unreflective functionalism” in which “the problem itself is imagined ultimately to drive the political engine forward” (Atlantic Crossings, 6, 412–15). Hoover, “Speech in St. Louis,” 385. 74 Cong. Rec. HR14675, 4437 (Feb. 10, 1931). There were two such appropriations that year. See An Act for the Relief of Thomas Jenkins & Company, chap. 20, 6 Stat. 2 (1790); An Act for the Relief of John Stewart and John Davidson, chap. 37, 6 Stat. 3 (1790). Landis, “Tried by Fire,” 1017–22. The disaster narrative, with its focus on innocent victimization and bad luck, is an example of the role of compassion in policy making (Nussbaum, Upheavals, 314–16, 350–53, 401–441). Landis, “Tried by Fire,” 975–78, 999–1004. John, “Farewell,” 121; John, “Governmental Institutions,” 368–74. Recent scholarship, for example John Larson’s chronicle of the early nineteenth-century campaign for roads, canals, and bridges, has analyzed how early American policies impacted later political development (Internal Improvement, 3–6, 263). Thomas Haskell suggests that the development of a market economy was a precondition for the formation of collective humanitarian efforts because it changed perceptions of causation and moral responsibility by broadening “the range of events” in which people perceive themselves to be involved (“Capitalism,” 360).

262 / Notes to Introduction

28.

29.

30.

31.

32. 33.

34. 35. 36. 37. 38. 39.

40.

41.

My argument is consistent with Haskell’s insight that “conventions of moral responsibility” have an effect on humanitarian impulses. However, it appears that at least with respect to support for redistributive social policy, those conventions of fate and blameworthiness predate the formation of the integrated market economy he describes (“Capitalism,” 349–54). The relief advocates described in chapter four, including politicians, writers, filmmakers, and artists, are examples of what Nussbaum characterizes as “sympathy entrepreneurs,” engaging the public’s emotion of compassion for those who were blamelessly down on their luck (Upheavals, 314–16). As Rodgers notes, political actors do not merely engage with problems that are independently formulated, but participate in the construction of events, “transforming a tragic but incurable condition into a politically solvable problem” (Atlantic Crossings, 6). Solicitor General’s Notes for Oral Argument, 1936—October Term, p. B-C-2, Stanley Reed Papers, Solicitor General Series, Box 13, University of Kentucky Library, Lexington. “A Relentless Tide,” New York Times, January 26, 1937; “America’s Worst Flood,” Life, February 8, 1937, 9. Lorentz’s famous documentary The River, made for the Farm Security Administration, was filmed during the disaster. The film can be viewed at http://www.youtube.com/user/FDRLibrary#p/u/26/fpz0XI6U97U. Evans, Edwin Locke, and other government photographers took hundred of photos of refugees for the FSA. Natanson, Black Image, 63. Radio Address, 1937, Harry L. Hopkins Papers, Box 12, Speeches and Articles, Franklin D. Roosevelt Library, Hyde Park, New York. Beasley, Eleanor Roosevelt, 69; Hareven, Eleanor Roosevelt, 40–59; Knepper, Dear Mrs. Roosevelt, xx–xxiii; Lash, Eleanor and Franklin, 372, 435; Leuchtenburg, Franklin D. Roosevelt, 331; Levine and Levine, People and the President, 215; Purcell and Purcell, Life and Work of Eleanor Roosevelt, 125–26; Somerville, Eleanor Roosevelt, 59; Sussman, “FDR and the White House Mail,” 10; Sussman, Dear FDR, 69, 172. Levine and Levine, People and the President, 1–2. “Roosevelt Plan to Read All Mail Is Result Getter,” Chicago Daily Tribune, May 7, 1934. Howe, “The President’s Mail Bag,” 23. McElvaine, Down and Out, 32. Wilbur and Hyde, Hoover Policies, 383. Rodgers, Atlantic Crossings, 241–41, 414–16, 428, 441–44. James Kloppenberg also explores the influence of the transatlantic conversation about social policy, critiquing the role of the market on modern industrial society during the years leading up the Depression (Uncertain Victory, 349–73). Rodgers acknowledges that the experience and expertise of the Committee on Economic Security (CES) members was mixed, and that Perkins had excluded from CES those experts most likely to bring the European perspective, but accounts for the lack of decisive evidence for European influence by arguing that “even they did not realize how deeply affected their agenda was by the international flow of information and designs and by their years of watching the making of social policy abroad” (Atlantic Crossings, 428, 441). “Unemployment Relief,” HR 4606, 73rd Cong., 1st sess., 77 Cong. Rec. H2118 (April 21, 1933).

Notes to Chapter 1 / 263 42. Pierson, “Increasing Returns,” 252, 264; Stinchcombe, Constructing Social Theories, 103–18. 43. Hacker, Divided Welfare State, 52–58; Skocpol, Protecting Soldiers and Mothers, 58–59; Pierson, “New Politics”, 152–56; Schmidt, “Discursive Institutionalism”, 313–15. 44. Esping-Anderson, Three Worlds of Welfare, 18–26, 70; Howard, “Hidden Side,” 403–05. 45. Howard, “American Welfare State,” 426; Fraser, “Women, Welfare,” 108–10; Gans, War against the Poor, 1–9; Handler and Hasenfeld, Moral Construction of Poverty, 132; Katz, Undeserving Poor, 9–16; Gordon, Pitied but Not Entitled, 28, 52–53; TenBroek, “California’s Dual System,” 426; Skocpol, Protecting Soldiers and Mothers, 32–33, 210–27. 46. Katz, Undeserving Poor, 12. 47. Gordon, Pitied but Not Entitled, 105, 192, 203; Fraser and Gordon, “Genealogy of Dependency,” 310; Fineman, Neutered Mother, 106–18; Quadagno, Color of Welfare; Abramovitz, Regulating the Lives of Women; Nelson, “Gender, Race, and Class,” 419–33; Lieberman, Shifting the Color Line, 216–34; Manza, “Race and the Underdevelopment,” 820–21. 48. Howard, “Hidden Side,” 411–20; Stevens, “Blurring the Boundaries,” 123–30; Hacker, Divided Welfare State, 20–23; Gordon, Pitied but Not Entitled, 2. 49. Piven and Cloward, Regulating the Poor, 42. 50. Democratic Party Platform of 1936, http://www.presidency.ucsb.edu/ws/?pid= 29596. CHAPTER ONE

1.

2.

3.

4.

White, The Federalists, 358. For more information on disaster relief appropriations in the late eighteenth and early nineteenth centuries, see Landis, “Let Me Next Time Be ‘Tried by Fire.’” On the history of taxation and imposts generally in the early Republic, see Einhorn, American Taxation. Bills were generally presented by the representative from the petitioner’s home district. Many such requests were taken up immediately due to the “emergency” nature of the claims. Otherwise, the bill would be referred to a committee, usually the Committee on Claims, where it would be considered and a report issued. The Congress then voted on whether to concur in the report, often deferring to the committee’s judgment. Note, “Private Bills in Congress,” 1685–92. See, e.g., An Act for the Relief of John Stewart and John Davidson, in H. Journal “Remission of Duties on Salt to Stewart & Davidson of Annapolis, Destroyed by Flood the Night after It Was Landed,” in 1790 Journal of the House of Representatives Gales and Seaton (1826) and “An Act for the Remission of Duties on Eleven Hogsheads of Coffee which Had Been Destroyed by Fire” in 1794. One such case concerned Nathaniel Cutter, who imported merchandise into Boston, where he paid the duties. He then attempted to transport the goods to the West Indies, where both the French and the British repeatedly captured him. He was not permitted by the leaders of the slave revolt on St. Domingo to unload his merchandise. Finally, forced to return to the United States, he paid a second import duty on the same goods. The Committee on Finance reported against his claim for a refund, remarking that “it could find no good reason for relieving him against the consequences of a risk which every exporter ought to calculate for himself. Remission of Duties, January 8, 1798, American State Papers: Finance, 1:506.

264 / Notes to Chapter 1 5.

6.

7. 8. 9. 10. 11.

12. 13.

14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24.

Indian Depredations and Cruelties in 1777, January 15, 1822, American State Papers: Claims 1:813–14. Petitioner Elisabeth House was kidnapped, raped, sold into sexual slavery, and forced to watch the murder of her children during the Indian Wars in 1777. Although she “presented strong claims upon [the committee’s] sympathies,” her claim for relief was denied because “if the present claim is allowed, others of a similar character cannot, with propriety, be rejected.” Ibid. In a similar case, the House Committee on Finance recommended against adopting a blanket policy of remitting duties on liquor and stills destroyed by fire or flood or other “unavoidable casualty.” John Randolph of Virginia, chairman of the Committee on Ways and Means, warned in his report that such a policy regardless of the cause of the loss “might prove infinitely dangerous” to the revenue of the United States. Remission of Duties, April 2, 1802, American State Papers: Finance 1:746. For instance, in 1790, the federal government denied John Amelung a loan for his failing glass factory. During House debate, representatives, including William Loughton Smith of South Carolina, raised concerns about Amelung’s business management, suggesting that his misfortunes were his own fault: “It is acknowledged that 20,000 pounds have been employed in the undertaking, and it is yet in danger of failing.” Loan to John Amelung, June 2, 1790, American State Papers: Finance 1:62; 1 Annals of Cong. 1688 (1790). 3 Annals of Cong. 613–15 (1794); 3 Annals of Cong. 689–95 (1794). 12 Reg. Deb. 2581–82 (1836) (listing early relief appropriations). Dauber, “War of 1812,” 294. Relief Act of 1816, chap. 40, § 11–12, 3 Stat. 263 (1816). Proceedings of the Commissioner Appointed under the Act for the Payment of Property Taken or Destroyed by the Enemy during the War with Great Britain, American State Papers: Claims 1:492. Congress subsequently considered and rejected an amendment repealing the delegation of agency power and returning to Congress exclusive authority over eligibility and benefit decisions. 14 Annals of Cong. 374–75, 441 (1816). Dauber, “War of 1812,” 325–40. No one mentioned the Constitution during the debate over relieving the Whiskey Rebellion, the War of 1812, the Venezuelan earthquake of 1812, or in debate over twenty-six other relief measures passed between 1790 and 1827. Landis, “Tried by Fire,” 999–1004. The Constitution was raised as an argument against relief in debate following a fire in Savannah, Georgia, in 1796, the Alexandria fire of 1827, and for the white refugees fleeing the St. Domingo slave revolution. Ibid. Landis, “Let Me Next Time Be ‘Tried by Fire.’” 999–1000. American State Papers: Miscellaneous 2:443. Bryson, Legal Education, 605. Richardson, Compilation of the Messages and Papers, 144–83. Dauber, “War of 1812,” 305; Balogh, Government Out of Sight, 136–39. Story, Commentaries, §§ 985–91. Desan, “Constitutional Commitment,” 1482; Note, “Private Bills in Congress,” 1684 (1966); Nelson, Americanization of the Common Law, 13–15. Nelson, Americanization of the Common Law, 13–15; Desan, “Constitutional Commitment,” 1392, 1500. See Petition of the Sufferers of Wyoming, Pennsylvania, H. Doc. 25–203 (1839). 3 Reg. Deb. 761 (1827) A claim was counted as denied on account of precedent if that was the only reason

Notes to Chapter 1 / 265

25. 26. 27. 28. 29. 30. 31.

32. 33. 34. 35.

36.

37. 38. 39.

40. 41. 42. 43. 44. 45. 46. 47.

48.

given for the denial. Precedent was also offered as a basis, along with other reasons, to deny sixteen claims additional during this same period. Landis, “Let Me Next Time Be ‘Tried by Fire.’” 1011. 3 Annals of Cong. 988 (1794) (statement of Rep. Josiah Parker, Federalist of Virginia). Ibid. See, e.g., 4 Annals of Cong. 1719 (1796). Ibid., 1725. Ibid., 1724. 12 Reg. Deb. 2445 (1836). The anti-Jacksonian faction was comprised of a coalition of Jackson’s opponents, including those who supported nationalistic development such as Henry Clay and former Federalists, as well as states-rights advocates from the South who merely despised Jackson. Holt, Rise and Fall of the American Whig Party, 24–25. Ibid., 2441–42. Ibid., 2445. Ibid., 2447. 19 Reg. Deb. 755 (1827). As in other relief grants, support crossed party lines with Jacksonians such as Samuel Carson of North Carolina, supporters of nationalistic development aligned with John Quincy Adams like Brent, and Whigs such as Virginian William Archer all supporting aid. Ibid, 755–60. Ibid., 755–56. Stevenson was elected as a Jacksonian from Virginia. He opposed relief, calling precedent “a shelter for weakness or imbecility” which had no force or effect under the American (as opposed to the British) constitution. His fellow Virginian, Whig William Archer, supported the relief but also denied that precedent had any “binding operation” on Congress. Ibid., 761. 24 Reg. Deb. 2581, 2587, 2590 (1836). Ibid., 2581. Ibid., 2555. For example, Rhode Islander Dutee Pearce, an anti-Mason, argued that the precedents foreclosed relief, while anti-Jacksonian Representative Stephen Phillips of Massachusetts replied that the precedents were merely inconclusive, rather than contrary. Ibid., 2555. Slaughter, Whiskey Rebellion, 218. 3 Annals of Cong. 984–85, 991 (1794). Ibid., 991–92. Ibid., 993. Ibid., 1002; American State Papers: Claims 1:235–39. Horwitz, Transformation, 209–10; Malone, “Formative Era,” 164–65. H.R. Rep. No. 26–692, at 2 (1840). During this period Congress approved such things as aid to the Irish famine victims, A Resolution Authorizing the Employment of United States Ships Macedonian and Jamestown Supplied for Sending Relief to Ireland and Scotland, No. 10, 9 Stat. 207 (1847); Cong. Globe, 29th Cong., 2nd Sess. 505 (1847), and $200,000 in direct relief to victims of the Sioux Indian depredations in Minnesota. An Act for the Relief of Persons for Damages Sustained by Reason of Depredation and Injuries by Certain Bands of Sioux Indians, chap. 37, 12 Stat. 652 (1863); Cong. Globe, 37th Cong., 3rd Sess. 179, 192, 440–45, 509–18 (1863). Fine, Laissez Faire, 21; Corwin, “Spending Power of Congress,” 548; Warren, Congress as Santa Claus, 142. Corwin argues that the narrow interpretation of the taxing

266 / Notes to Chapter 1

49.

50.

51.

52. 53. 54. 55. 56.

power was dominant only during the period 1845–60, “when state’s rights principles were dominant with all sections and parties” (“Spending Power of Congress,” 579). Warren similarly notes that though relief was granted for the Irish potato famine in 1847, President Pierce vetoed the Dorothea Dix bill providing federal aid for indigent insane asylums in 1854, and President Buchanan vetoed the Homestead Act in 1860 (Congress as Santa Claus, 59–63, 69). Balogh argues that the use of the General Welfare Clause to justify “any extension of national authority was viewed warily by those who feared that this foreshadowed the kind of national government that might interfere with the slave economy” (Out of Sight, 144–45). There is no complete listing of all disaster relief appropriations made during this period; the practice was frequent and grants often were made by riders and amendments to other legislation, making it difficult to compile a comprehensive accounting. Various partial lists were appended to briefs in New Deal Supreme Court cases and read into the Congressional Record during debates over unemployment relief. For more information see Dauber, “Sympathetic State,” 396–407; 74 Cong. Rec. HR16415, 3241–437 (daily ed. Jan. 26, 1931); US Congress, Federal Aid for Unemployment Relief, 2–3; Brief for the United States at App. C. 61–62, United States v. Butler, 297 U.S. 1 (1936) (No. 401); 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). Landis, “Let Me Next Time Be ‘Tried by Fire,’” nn. 21, 39, 42, 53, 58, 68, 69, 70, 81–87, 98, 105, 199, 202, 208, 244, 248, 254, 261, 270 (describing relief acts passed between 1790 and 1860). Examples of appropriations for Mississippi River flood relief include the following Acts of Congress: Act of April 23, 1874, chap. 125, 18 Stat. 34 (indefinite amount); Act of May 13, 1874, chap. 170, 18 Stat. 45 ($190,000); Joint Resolution of February 25, 1882, no. 6, 22 Stat. 378 ($100,000); Joint Resolution of March 10, 1882, no. 8, 22 Stat. 378 (indefinite amount); Joint Resolution of March 11, 1882, no. 9, 22 Stat. 378 (same); Joint Resolution of March 21, 1882, no. 12, 22 Stat. 379 ($150,000); Joint Resolution of April 1, 1882, no. 16, 22 Stat. 379 ($100,000); Act of March 27, 1884, no. 18, 23 Stat. 269 ($125,000); Act of March 31, 1890, chap. 58, 26 Stat. 33 ($25,000); Joint Resolution of April 25, 1890, no. 16, 26 Stat. 671, ($150,000); Joint Resolution of April 7, 1897, no. 9, 30 Stat. 219 ($200,000); Joint Resolution of May 9, 1912, no. 19 37 Stat. 633 ($1,239,179.65); Joint Resolution of February 15, 1916, chap. 28, 39 Stat. 11 (indefinite amount); Joint Resolution of August 3, 1916, chap. 267, 39 Stat. 434 ($540,000); Act of March 23, 1928, 45 Stat. 359 ($1,500,000 for emergency work relief on levees); Act of February 28, 1929, 45 Stat. 1381 ($3,654,000) (emergency flood relief and restoration of roads and bridges). Joint Resolution of June 9, 1897, no. 14, 30 Stat. 221. Cong. Globe, 39th Cong., 1st Sess. 916 (1866). Cong. Globe, 39th Cong., 1st Sess. 3913, 3842 (1866). 18 Cong. Rec. HR10203, 1875 (daily ed. Feb, 17, 1887) (veto message of President Grover Cleveland). 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; “Congress to the Rescue: Appeal from the President in Behalf of the Flood Sufferers,” New York Daily Tribune, April 8, 1897; “Relief for El Paso Sufferers,” New York Daily Tribune,

Notes to Chapter 1 / 267

57. 58.

59.

60.

61. 62.

June 1, 1897; “Aid for the Mississippi Valley Sufferers,” New York Times, March 16, 1882. “Relief for the Flood Stricken,” New York Daily Tribune, April 8, 1897. For more information on the trajectory of disaster relief appropriations between the end of the Civil War and the Progressive Era, see Dauber, “Sympathetic State,” 394–407; and Dauber, “Judicial Review and the Power of the Purse,” 451–58. Lochner v. New York, 198 U.S. 45 (1905). In the 1905 case of Lochner v. New York, the Supreme Court invalidated a New York state labor law limiting the hours that bakers could work to ten per day and sixty per week as an unconstitutional interference with liberty of contract. Justice Peckham, writing for the Court, held that the state police power to protect the health and safety of the population did not extend to regulating the hours of labor in most trades and occupations. Other cases from this period restricted the ability of the national government to regulate the economy. In the 1895 case of United States v. E. C. Knight, the Court held that the Sherman Anti-Trust Act did not permit the federal government to block the American Sugar Refining Company from acquiring a complete monopoly of the country’s sugar manufacturing. According to the Court, the federal government lacked the power to regulate manufacturing, holding that it was not “commerce” within the meaning of the Constitution. Manufacturing, according to the Court, was a matter of state concern. 156 U.S. 1, 17 (1895). However, as Justice Harlan noted in his dissent, the same Court would doubtless find that the states lacked the power to prohibit the manufacture of lawful goods intended for interstate commerce, creating a regulatory no-man’s land in which no governmental body had the power to protect the population from the excesses of capitalism. 156 U.S. 1, 37–38 (1895) (Harlan, J., dissenting). Also in 1895, the Court held that the national government lacked the power to tax income from certain forms of property, a ruling that was perceived as threatening to the existence of the national government and was invalidated in 1913 by the Sixteenth Amendment to the Constitution. Pollock v. Farmers’ Loan & Trust Co., 157 U.S. 429, 583 (1895). Thomas Cooley’s Treatise on the Law of Constitutional Limitations Which Rest upon the Legislative Power of the States of the American Union and Treatise on the Law of Taxation, Including the Law of Local Assessments argued that there was an implicit constitutional limit on the power of state and municipal governments to impose taxes such that all expenditures of such funds must be for a “public purpose.” Although the Supreme Court recognized the public purpose doctrine as a requirement of substantive due process constraining the states under the Fourteenth Amendment, it never applied this doctrine against the national government. Fallbrook Irrigation District v. Bradley, 164 U.S. 112, 159 (1896). 51 Cong. Rec. HR18891, 16777 (daily ed. Oct. 17, 1914). 18 Cong. Rec. HR10203, 1268 (daily ed. Feb. 2, 1887) (statement of Sen. Richard Coke). Coke had been removed from the Texas Supreme Court in 1867 as “an impediment to Reconstruction.” Biographical Dictionary of the United States Congress, s.v. “Richard Coke,” http://bioguide.congress.gov (accessed May 30, 2007). He was subsequently elected governor of Texas, and then as a Democrat to the Senate. In addition to this somewhat checkered past, he had earned his colleagues’ resentment by repeatedly opposing the Blair Education Bill as unconstitutional, and proclaimed that he did not believe disaster relief was constitutional either, but given that it was a settled practice he “propose[d] to claim the benefits of it for my State.” 18 Cong.

268 / Notes to Chapter 1

63. 64. 65. 66.

67. 68.

69.

70. 71. 72. 73.

Rec. HR10203, 1268 (daily ed. Feb. 2, 1887). Although Coke resisted Massachusetts Republican George Hoar’s baiting demand that “Texas should furnish constitutional law to us, who need it, especially when we are obliged to vote upon this bill,” other senators stepped into the breach, such as Vermont’s George Edmunds, who offered that it was “perfectly constitutional for Congress to give away as much money for such a purpose as it thinks fit; whether it is wise or not is another thing.” Ibid. Ibid. Ibid. Ibid., 1269. Ibid. A similar objection was made ten years later when the New York Times reported that a bill for relief following a flood in El Paso “provoked a good many mutterings of dissent among members on both sides of the House.” One California congressman complained that El Paso was a thriving city in a rich state that ought to provide for its own sufferers without asking Congress for aid. Nevertheless, the precedent of repeated aid for Mississippi River flood victims was invoked and there were only eleven votes against the bill. “Relief for El Paso Sufferers,” New York Daily Tribune, June 1, 1897. 18 Cong. Rec. HR10203, 1268 (daily ed. Feb. 2, 1887). With a few notable exceptions, including Cleveland’s veto of Texas drought relief (echoed by Hoover’s initial resistance to drought relief in 1930), support for disaster relief did not divide neatly along party lines with Republicans in favor and Democrats opposed. As the discussion of (Democratic) Senator Coke’s advocacy for the Texas drought relief bill (and the southern Democratic demands in 1914 for relieving the cotton belt) indicates, federal disaster relief policy generally enjoyed broad popular support from both parties. Efforts to extend the precedent to such things as aid to education or unemployment relief sometimes provoked Democratic resistance, but patterns of support and opposition more closely tracked geography than party politics. So, for example, southern Democrats from the eastern seaboard tended to support the Blair Bill, while those from Texas did not; Democrats from states along the Ohio and Mississippi supported frequent flood relief appropriations, and those from dry regions proposed drought aid. 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. Skowronek, Building a New American State, 32–33; Clemens, People’s Lobby, 4; Skocpol and Ikenberry, “Political Formation,” 87–147; Skocpol, Protecting Soldiers and Mothers, 41–47. Such theories have generally focused on the patronage, logrolling, and vote-seeking aspects of legislative behavior (the “party” aspects of state development) while neglecting the rather obvious fact that the members of Congress (and not only judges) were nearly always themselves lawyers with legal training and experience. Cong. Globe, 39th Cong., 1st Sess. 3919 (1866). 62 Cong. Rec. HR9548, 472 (daily ed. Dec. 17, 1921) (statement of Rep. Daniel Garrett). 62 Cong. Rec. HR9548, 579 (daily ed. Dec. 20, 1921) (statement of Sen. Shields). 25 Cong. Rec. S1149, 3077 (daily ed. November 2, 1893) (statement of Sens. Dick Stewart and William Peffer). The Sea Islands Hurricane of 1893 killed over 2,000 people and plunged the region into an economic and humanitarian crisis. Nash, “Sea Island Hurricane,” 46.

Notes to Chapter 1 / 269 74. 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” (Smoldering City, 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 (ibid., 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 other social factors perhaps influenced both practices. 75. Cong. Globe, 39th Cong., 2nd Sess. 260 (1867). Similarly, Illinois Republican Representative George Adams, a graduate of Harvard Law School, argued that as a matter of public policy “no appropriation should be made out of the national Treasury except to relieve distress occasioned by an unforeseen catastrophe, and then only so far as it is absolutely necessary to go for that purpose . . . we ought not to provide for the injuries that are likely to accrue from the annual floods . . . since that is a catastrophe which cannot be called unforeseen.” 15 Cong. Rec. HR215, 2296 (daily ed. March 26, 1884). 76. 15 Cong. Rec. HR154, 1038 (daily ed. Feb. 11, 1884) (statement of Rep. James Blount). 77. The sole clear reference to the public purpose doctrine I found during this period was ironically made by Kansas Populist William Peffer. Peffer was an accomplished lawyer, but was viewed in the Senate as a left-wing crackpot. The Populists opposed the Sea Islands Hurricane relief bill because it “called to the attention of the Senate the suffering and distress in one quarter” while ignoring the larger problem of widespread unemployment and distress due to the abandonment of the silver standard, which was, to the Populists, a far more serious “legislative cyclone.” Peffer argued that the government should establish a system of public works but “to donate money to persons . . . out of the public treasury is altogether another thing.” According to Peffer, the money in the Treasury “is not ours, and we have no legal authority to use it for any purpose other than a public purpose.” 25 Cong. Rec. S1149, 3076–77 (daily ed. Nov. 2, 1893). Peffer’s speech on this subject was, like all his other speeches, ignored. 78. During the earlier period (1790–1830) there had been no broad agreement on the basis for the constitutionality of disaster relief. In the few cases in which the Constitution was debated, many possibilities were suggested (i.e., war power, Necessary and Proper Clause, the power to tax and spend, the general welfare provision in the Preamble, the pursuit of happiness in the Declaration of Independence, the commerce power, etc.), though there was no clear consensus for any of them. By the late nineteenth century it was generally agreed that appropriations for disaster relief were within Congress’s power to tax and spend in the general welfare. The justification of the Freedmen’s Bureau Relief Act of 1867 under this clause doubtless contributed to its citation in subsequent cases. 79. As a member of Congress in 1794, Madison had supported a $15,000 grant of relief to the white refugees fleeing St. Domingo following the slave insurrection. American State Papers: Foreign Relations 1:308. As president, he signed numerous relief bills

270 / Notes to Chapter 1

80.

81.

82. 83. 84. 85. 86. 87. 88. 89. 90.

91.

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. Landis, “Let Me Next Time Be ‘Tried by Fire,’” 53–54nn; Landis, “War of 1812,” 308. 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 (Commentaries, §§ 985–91). Story’s view was frequently offered in Congress and the courts as the authoritative interpretation of the General Welfare Clause. 15 Cong. Rec. HR215, 2295 (Mar. 26, 1884); Brief for the United States at 71, Field v. Clark, 143 U.S. 649 (1892) (No. 1,050); Brief for the Appellants at 35, United States v. Realty Co., 163 U.S. 427 (1896) (No. 870) (Brief of Joseph Choate); Brief for the United States at 152–54, United States v. Butler, 297 U.S. 1 (1936) (No. 401). One of the more interesting of these citations came during House debate over the Russian famine relief bill. Several representatives referred to an oral argument before the Supreme Court by thenprivate attorney Charles Evans Hughes. Hughes had argued in Smith v. Kansas City Title & Trust that the federal farm loan program was a valid exercise of Congress’s power to spend in the general welfare, cited the precedent of disaster relief, and quoted Story. 62 Cong. Rec. HR9548, 457, 472 (daily ed. Dec. 17, 1921). 15 Cong. Rec. HR215, 2295 (Mar. 26, 1884). The debates over the permissibility 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 true 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 Levinson, Constitutional Faith, 27–53; Tushnet, Taking the Constitution, 168; Whittington, Constitutional Construction; Whittington, “Extrajudicial Constitutional Interpretation,” 280. 15 Cong. Rec. HR215, 2296–97 (daily ed. Mar. 26, 1884). Ibid., 2295. Cong. Globe, 39th Cong., 1st Sess. 3919 (1866). 15 Cong. Rec. HR154, 1037 (daily ed. Feb. 11, 1884). 30 Cong. Rec. S45, 1470 (daily ed. June 3, 1897). 15 Cong. Rec. HR215, 2294 (daily ed. Mar. 26, 1884). 62 Cong. Rec. HR9548, 472 (daily ed. Dec. 17, 1921). 62 Cong. Rec. HR9548, 566 (daily ed. Dec. 20, 1921). Cong. Globe, 40th Cong., 1st Sess. 90 (1867). For an explanation of the use of constitutional “necessity” as a justification for the bureau, see Bickers, “The Power to Do What Manifestly Must Be Done,” 110, 116–18. The evidence presented here is consistent with what Larry 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.” Kramer, “Forward,” 11–12, 16; Kramer, People Themselves, 7–10. 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

Notes to Chapter 2 / 271

92. 93. 94.

95. 96. 97.

98. 99. 100. 101. 102. 103. 104. 105. 106. 107.

108.

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. 27 Cong. Rec. HR8518, 2882 (daily ed. Feb. 28, 1895). Ibid., 2883. As the examples given in this section indicate, such objections were raised only in unusual cases in which proponents sought to apply the precedent of disaster relief to an innovative context, such as the Freedmen’s Bureau and the Blair Bill. Cong. Globe, 39th Cong., 1st Sess. 939 (1866). Ibid., 651. Similar views were frequently expressed in a myriad of cases, including the 1921 appropriation of $20 million for Russian famine relief, when Utah Republican Senator Reed Smoot responded to constitutional objections by saying that even if the relief was unconstitutional, if it would “keep millions from death” he would support it. 62 Cong. Rec. HR9548, 566 (daily ed. Dec. 20, 1921). In another example, New Jersey Democrat John McPherson supported the unsuccessful plea for $50,000 in work relief for the Sea Islands Hurricane victims. He responded to constitutional objections in the Senate, saying, “Whether the bill be constitutional or unconstitutional, it is something which appeals to our humanity. Certainly if the appropriation proposed is not a constitutional appropriation of money, it is one which the Congress of the United States has gone outside of the Constitution more than twenty times to make since I have been a member of this body, and I am willing to do it again.” 25 Cong. Rec. S1149, 3077 (daily ed. Nov. 2, 1893). 15 Cong. Rec. HR154, 1033 (daily ed. Feb. 11, 1884). Ibid., 1039. Ibid., 1038. Ibid., 1036. Ibid., 1037. Ibid. Ibid., 1034. The vote was 234–12 (ibid., 1040). Quadagno, Transformation, 179–91; Pierson, “New Politics,” 152–53; Skowronek, Building a New American State, 1–14; Lipset, American Exceptionalism, 71–76. Hooks and McQueen, “American Exceptionalism Revisited,” 186. Balogh argues that the national government did not govern less, merely “less visibly” and asserts that this preference for unobtrusive state practices is the signal characteristic of American exceptionalism. Balogh, Out of Sight, 379. Quadagno, Transformation, 196; Hacker, “Historical Logic,” at 106; Amenta, Bold Relief, 10–17. C H A P T E R T WO

1. 2. 3. 4.

Landis, “Fate, Responsibility,” 259–60. Du Bois, “Freedmen’s Bureau,” 354, 357. Cong. Globe, 39th Cong., 1st Sess. 656 (1866). Ibid., 365–66.

272 / Notes to Chapter 2 5. 6. 7. 8. 9. 10. 11. 12.

13. 14.

15.

16.

17. 18.

19. 20. 21. 22.

23.

Ibid., 365. Ibid. Bremner, Public Good, 98. Bentley, History of the Freedmen’s Bureau, 136; Pierce, Freedmen’s Bureau, 75–104; Foner, Reconstruction, 142–43. Du Bois, “Freedmen’s Bureau,” 359. Bentley, History of the Freedmen’s Bureau, 76; Farmer, “Because They Are Women,” 165. Freedmen’s Bureau Act, 13 Stat. 507 (1865). There were four divisions: land, records, financial affairs, and medical. Howard initially appointed nine assistant commissioners (with three more a few months later), to govern bureau operations in the states where the bureau operated. Olds, “Freedmen’s Bureau,” 117. Under regulations issued by Howard, a ration was defined as a week’s worth of groceries for an adult (children received a half ration) made up of specific amounts of certain foods, including pork or beef, flour, bread, cornmeal, hominy, vinegar, soap, sugar, salt, and, pepper. Circular No. 8, Records of the Freedmen’s Bureau, reprinted in 39th Cong., 1st sess., House Executive Document 11, 47 (Washington, DC, 1866). Howard’s regulations required “rigorous screening” of applicants for rations. Bureau agents were to “arrive at a correct conclusion of how many are actually in a starving condition, and if possible, how many have died from want of food.” Agents were to visit applicants’ homes and examine their circumstances carefully for signs of either fraud or pauperism. Olds, “Freedmen’s Bureau,” 197. Screening procedures varied somewhat from state to state. Bentley, History of the Freedmen’s Bureau, 76; Bremner, Public Good, 117. One observer noted that “the streets in front of commissary offices were sometimes blocked with vehicles bringing men many miles” to obtain rations. Pierce, Freedmen’s Bureau, 94. Bentley, History of the Freedmen’s Bureau, 77. Ibid.; Farmer, “Because They Are Women,” 167. In October 1865, Fisk ceased issuing rations in order to “force[] the idle to work or starve.” Bentley, History of the Freedmen’s Bureau, 77. An agent in Greenville, South Carolina, 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, “Freedmen’s Bureau,” 199. According to Pierce, Howard ordered relief programs terminated when freedmen refused to harvest the cotton crop in 1866 (Freedmen’s Bureau, 95). Farmer, “Because They Are Women,” 166. Ibid.; see also Olds, “Freedmen’s Bureau,” 200. Bremner, Public Good, 116; Pierce, Freedmen’s Bureau, 95–96. Farmer, “Because They Are Women,” 169–70; Bremner, Public Good, 120; Pierce Freedmen’s Bureau, 96; Bentley, History of the Freedmen’s Bureau, 139. Bureau agents in Louisiana and Alabama distributed thousands of rations following flooding and drought. Alabama’s assistant commissioner told Howard that it was “a matter of life and death.” Arkansas’s assistant commissioner considered complying with Howard’s order and concluded that to do so would cause starvation. Bentley, History of the Freedmen’s Bureau, 139. Pierce, Freedmen’s Bureau, 96.

Notes to Chapter 2 / 273 24. Foner, Reconstruction, 152; Pierce, Freedmen’s Bureau, 98–99. There was variation between states in distribution patterns. During the first year of operation, the Alabama bureau distributed more than twice as many rations to whites as to blacks. Alabama’s eligibility requirements called for local justices of the peace to draw up lists of the persons desperately in need and required those people to swear an oath that they would suffer if they did not receive aid. Howard eventually discontinued the practice of using local political establishments to determine eligibility because he thought it led to patronage and unfairly excluded freedmen in favor of whites. Olds, “Freedmen’s Bureau,” 203; Bentley, History of the Freedmen’s Bureau, 143. 25. Pierce, Freedmen’s Bureau, 99n4. 26. Ibid., 102. 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 the bureau used 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. 27. There was some controversy over determining precisely when the clock had begun to run on the bureau’s life. The last Confederate troops officially surrendered in May 1865. However, the Union was engaged in scattered cleanup operations for several more months. By the spring of 1866, however, it was clear that the bureau’s days would be numbered if Congress did not authorize an extension. 28. Farmer, “Because They Are Women,” 166. 29. Bremner, Public Good, 120. Howard did not think that local governments would assume responsibility for indigent relief until the federal government withdrew from the field. Foner, Reconstruction, 152. However, the South had lacked a poor relief infrastructure even before the Civil War; poor whites had tended to migrate to the North in search of work rather than compete with slave labor, which depressed wage rates. Then the war destabilized and bankrupted the southern governments, leaving them unable to take responsibility for the poor. Olds, “Freedmen’s Bureau,” 23. 30. Olds, “Freedmen’s Bureau,” 202. 31. Bentley, History of the Freedmen’s Bureau, 115. Howard’s funding request had set off howls of protest in the southern press. The bureau had no appropriation during the first year because it was supposed to sustain itself through the sale and lease of confiscated and abandoned lands. Johnson’s policy of restoring property to prior owners under a general amnesty stripped the bureau of this means of support and made an appropriation necessary. 32. Foner, Reconstruction, 242–43. 33. Ibid., 242. 34. Bentley, History of the Freedmen’s Bureau, 115. 35. It also would have granted permanent title to the freedmen who had been given leases to land in the South Carolina Sea Islands by Sherman during the war, set aside vast tracts of public lands for allotment to the freedmen, and established military jurisdiction and military courts to try violations of the freedmen’s civil rights under the Black Codes. 36. Foner, Reconstruction, 152. 37. Cong. Globe, 39th Cong., 1st Sess. 315 (1866). Some Republicans like Edgar Cowan thought that “if it was only to operate for the relief of the refugees, of course, I suppose there could be no valid objection to it,” but resisted the far more controversial

274 / Notes to Chapter 2

38. 39. 40.

41.

42. 43.

44. 45. 46. 47. 48. 49. 50.

51. 52. 53.

provisions—for example, those establishing military courts and setting aside land for freedmen’s homesteads—that he contended trenched on the police power of the states. Ibid., 334. Ibid., 370. Ibid., 321, 365–66, 369, 630, 651, 656. According to Bentley, opposition to the bill was stiff before it passed. It was denounced by Lincoln’s former attorney general, Edward Bates, as a “bill of enormities” that was the “consummation of lawless radicalism and lawless contempt for the constitution” (History of the Freedmen’s Bureau, 118). Nevertheless, Foner contends that the moderates were shocked at the veto; Johnson was expected to sign the bill and all his allies had voted for it (Reconstruction, 247). This veto, along with the veto of the Civil Rights Act, marked the battle lines between Congress and Johnson and ultimately led to his impeachment. Andrew Johnson, Veto Message, February 19, 1866, John T. Woolley and Gerhard Peters, “The American Presidency Project,” accessed February 28, 2011, http://www .presidency.ucsb.edu/ws/?pid=71977. Johnson had voted against the 1847 Irish famine relief bill. Foner, Reconstruction, 178, 216–18. The revised bill extended the life of the bureau for two years rather than indefinitely, permitted the extension of jurisdiction only into former slave states, including those that had remained loyal (Maryland and Kentucky) rather than to every state, and tightened the eligibility criteria for relief. Cong. Globe, 38th Cong., 1st Sess. 742 (1864). Ibid., 773. Cong. Globe, 39th Cong., 1st Sess. 630 (1866). Ibid., 345. Ibid., 396. Ibid., 638. Ibid., 655. The anxiety that federal relief would disrupt the southern labor market was sometimes repeated in connection with Mississippi River flood relief, as when the New York Times inveighed in 1882 against the “demoralizing” effects of ration distribution on black labor. Still, the Times approved the relief so long as it was issued “only to those willing to work.” “The Floods in the South: No Change in the Situation—The Demoralizing Effects of Free Rations,” New York Times, March 16, 1882. Cong. Globe, 40th Cong., 1st Sess. 40, 42, 45 (1867). Ibid., 40. Ibid., 89, 90, 208. 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, January 6, 1868.

Notes to Chapter 2 / 275 54. 55. 56. 57. 58.

59. 60.

61. 62.

63.

64.

Cong. Globe, 40th Cong., 1st Sess. 46–47, 85, 89, 211 (1867). Ibid., 208. Editorial, “Relief for the South,” New York Times, March 23, 1867. Cong. Globe, 40th Cong., 1st Sess. 88 (1867). 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, s.v. “Mudsill,” accessed May 17, 2007, http://dictionary.oed.com/cgi/entry/ 00317623?single=1&query_type=word&queryword=mudsill&first=1&max_to _show=10. Cong. Globe, 40th Cong., 1st Sess. 259 (1867). Ibid., 237. Butler was a Massachusetts lawyer who, as commanding general of Hampton Roads, Virginia, had first formulated the theory that escaped slaves were “contraband of war.” Goodheart, 1861, 299–303, 313–15, 329–35, 390–81. Cong. Globe, 40th Cong., 1st Sess. 90 (1867). For instance, during House debate over the 1884 Ohio River flood relief bill, a number of democratic congressmen argued that Republicans could not object to relieving “the poor and suffering whites on the Ohio” given their history of supporting relief for blacks through the bureau and otherwise. 15 Cong. Rec. HR154, 1037 (daily ed. Feb. 11, 1884). Following a Mississippi River flood in 1884, Northern Republican senators accused southern states of refusing to provide flood relief to blacks and demanding federal relief instead. The southerners responded by taunting the Republicans about the Bureau expenditures and Republican commitment to the “wards of the nation.” 15 Cong. Rec. HR5667, 4658 (daily ed. May 29, 1884). Senator Matthew Butler of South Carolina (a former Confederate general) asked relief for thirty thousand black victims of a hurricane because the state would likely not do so and “there is bound to be very great suffering among those people.” 25 Cong. Rec. S1149, 3038 (daily ed. Nov. 1, 1893). Before we conclude that whites have enjoyed no particular advantage over racial minorities in obtaining disaster relief, we should recall that support for aiding blacks but not whites was very limited. Indeed, as described above, by 1867 the original relief mandate of the bureau had been transformed from an agency devoted to the specific benefit of the freedmen into a distribution channel for general relief to the South. As detailed in my previous work, successful appeals for disaster relief must describe the claimants as blameless victims of the vicissitudes of fate. Yet blacks and other racial minorities have more often than not been denied, for reasons having nothing to do with disaster relief per se, the role of moral innocent. Because the status of minorities is rooted in particular circumstances of race and politics, rather than in the relatively fixed logic of blame, the ability of members of disfavored racial groups to lay claim to resources is historically attenuated. As the historian Thomas Haskell has argued, conventions of moral responsibility vary over time (“Capitalism,” 352–59). Thus it was easier for congressional advocates for the freedmen to describe slavery as a disaster deserving of relief in 1865 than at perhaps any time since then, and that ease was short-lived. What seems enduring is the fact that racial minorities in the American state, with the brief exception of the immediate aftermath of the Civil War, always have a less certain possibility of success at characterizing themselves as blameless victims than do whites, even when facing oth-

276 / Notes to Chapter 2

65. 66.

67. 68. 69. 70. 71.

72. 73. 74. 75. 76. 77.

erwise identical exigencies. Moreover, members of minority groups often see their claims challenged, like those of the former Rebels in 1867, as a consequence of the simple binary structure of the disaster narrative itself, in which there are only two roles—victim and disaster. If minority claimants are displaced from the role of victim by the logic of the racial hierarchy, they are available to fill the only remaining narrative role, that of “disaster.” See Landis, “Let Me Next Time Be ‘Tried by Fire,”’ 1025–27. Olds, “Freedmen’s Bureau,” 6. One exception is Lieberman, “Freedman’s Bureau,” an institutional analysis of the bureau as a social service agency, concluding that its roots in the War Department and its early narrow mission of relief distribution were essential to its initial successes (431–32). Cong. Globe, 39th Cong., 1st Sess. 3916–21 (1866). Lee, Struggle for Federal Aid, 31–32; Going, “South and the Blair Education Bill,” 267; Bremner, Public Good, 190. Lee, Struggle for Federal Aid, 88. Going, “South and the Blair Education Bill,” 268. Hundreds of petitions in support of the Blair Bill were sent to the House Education Committee in an effort to get the provision out of committee for a vote. The petitions were preprinted forms that readers tore from the pages of magazines such as The Continent, which printed one such document in 1888. Readers then filled them with signatures and sent them to Congress, such as one from “97 citizens of (Holyoke) Massachusetts, Among these are 39 voters.” The form language of the petition contends that widespread illiteracy “endangers the general welfare” and asks for “an appropriation from the Treasury of the United States for temporary aid” to the schools. Petition, Citizens of Holyoke, Massachusetts to Representative F. Rockwell, undated, 1888, RG 233, HR 50A-H7.1, box 129, NARA. Many emanated from the south, such as an 1884 memorial from the citizens of North Carolina, printed and distributed by the State Department of Public Instruction. Memorial of Citizens of North Carolina to the Congress of the United States for National Aid to Popular Education, 14 March 1884, HR48A-H8.1, box 140, NARA. Lee, Struggle for Federal Aid, 132. Ibid., 128. Ibid., 147. 17 Cong. Rec. S194, 1474 (daily ed. Feb. 16, 1886). Lee, Struggle for Federal Aid, 147. Ibid., 88, 147–48. It is interesting to note that supporters of the Blair Bill did not call upon the massive federal expenditures for Civil War pensions as an authorizing precedent for direct federal charitable aid, despite the fact that the Blair Bill was considered by the Senate later in the same session in 1890 that passed the Dependent Pension Act. If Skocpol’s argument is correct that Civil War dependent pensions were understood by contemporaries as the first national-level social spending program, we should expect congressional supporters of the Blair Bill to cite as precedent the Civil War pensions they had just passed. Certainly there had not been time for Civil War pensions to acquire the taint of corruption to which Skocpol assigns their subsequent failure to appear as precedent for various social welfare programs, including those of the New Deal. But although the Blair Bill ran into difficulty and ultimately failed passage, none of its supporters apparently thought that citing the successful expansion of Civil War pensions would be of any help to

Notes to Chapter 2 / 277

78. 79. 80. 81. 82. 83. 84. 85. 86. 87 88. 89. 90. 91. 92. 93. 94. 95. 96. 97. 98. 99. 100.

101.

their cause. The reason that the two efforts were seen as unrelated is suggested in the debate over the Dependent Pension Act in which supporters and opponents of the bill repeatedly emphasized that the pensions were a debt the government was contractually obligated to pay rather than a charitable gratuity. 21 Cong. Rec. S389, 6381 (daily ed. June 23, 1890). These appropriations were seen as within Congress’s enumerated power to pay the debts (and perhaps to provide for the common defense). They were thus of no help to the Blair Bill’s advocates, who instead cited cases of federal charitable donations under the General Welfare Clause; the largest class of such cases was federal disaster relief. This suggests that even in 1890, Civil War pensions were simply not seen as a relevant precedent or an entering wedge for expanded social provision by the advocates of that expansion. Going, “South and the Blair Education Bill,” 281n1. 21 Cong. Rec. 2295 (1890). Ibid., 2293. Ibid., 2295. Ibid. Lee, Struggle for Federal Aid, 162; Ezell, “Jefferson Davis,” 121. 26 Cong. Rec. S1300, 388 (daily ed. Dec. 19, 1893). Ibid., 387–88; 25 Cong. Rec. S1149, 3039 (daily ed. Nov. 1, 1893). 25 Cong. Rec. S1149, 3038 (daily ed. Nov. 1, 1893). 145. Ibid., 3039. 26 Cong. Rec. S1300, 385–86 (Dec. 19, 1893). Ibid., 387–88. Ibid., 388. Ibid., 386. Clanton, Congressional Populism, 62. 2 Congressional Record HR87, 3151 (daily ed. April 17, 1874). Gutman, “Failure of the Movement,” 254; Klebaner, “Poor Relief and Public Works,” 264. Degler, “West as a Solution to Urban Unemployment,” 64. Keyssar, Out of Work, 251; see also Rezneck, “Distress, Relief, and Discontent,” 498. Keyssar, Out of Work, 251. Degler, “West as a Solution to Urban Unemployment,” 64. Gutman, “Failure of the Movement,” 271; Klebaner, “Poor Relief and Public Works,” 266. Woodard, “Reality and Social Reform,” 320; Feder, Unemployment Relief, 71–97. It may be that Frederick Jackson Turner’s “closing of the frontier” in 1890, as well as the restrictive antitramp laws passed in the wake of the widespread vagrancy during the 1873 Depression contributed to this transformation by placing boundaries around the range of possibilities for workers in search of employment. 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 “though 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.” Willoughby, Workingmen’s Insurance, 375. In an effort to counter views like Willoughby’s the American Federation of Labor, in its 1897 request for federal relief for the unem-

278 / Notes to Chapter 3

102. 103. 104. 105. 106. 107. 108. 109. 110. 111. 112. 113. 114. 115. 116. 117. 118. 119.

ployed, emphasized mechanization, increasing division of labor, immigration, and other “changing conditions, unknown in our forefathers’ times” that had thrown millions out of work. “Labor Leaders’ Demands: Memorial to the President, Cabinet, and Congress from the American Federation,” New York Times, April 23, 1897. 51 Cong. Rec. HR18891, 16635 (daily ed. Oct. 15, 1914); 51 Cong. Rec. HR18891, 16766–81 (daily ed. Oct. 17, 1914). 51 Cong. Rec. HR18891, 16635 (daily ed. Oct. 15, 1914). 51 Cong. Rec. HR18891, 16785 (daily ed. Oct. 17, 1914). Ibid., 16786. Ibid., 16786–87. 51 Cong. Rec. HR18891, 16635 (daily ed. Oct. 15, 1914). The appropriation for relief of the Salem fire was $200,000, not $2 million (ibid., 16787). 51 Cong. Rec. HR18891, 16771 (daily ed. Oct. 17, 1914). Ibid., 16777. Ibid., 16773–74. Ibid., 16788. Ibid., 16771. 51 Cong. Rec. HR656, 16868 (daily ed. Oct. 21, 1914). Ibid. Federal Farm Loan Act of July 17, 1916, Pub. L. 158 (39 Stat. 360). 26 Cong. Rec. S1300, 386 (daily ed. Dec. 19, 1893). 51 Cong. Rec. HR18891, 16769 (daily ed. Oct. 17, 1914). 51 Cong. Rec. HR656, 16872 (daily ed. Oct. 21, 1914). Landis, “Fate, Responsibility,” 285. Although there were important pioneering efforts at documenting the plight of the poor through the use of photography and journalistic exposés, most famously Jacob Riis’s 1890 How the Other Half Lives, the first quarter of the twentieth century saw the extensive development of bureaucratic and representational technologies, including such things as portable and more easily operated cameras, the widespread use of motion pictures, wire service technologies for the speedy distribution of images and text, press networks, movie houses, and film distribution channels. The Roosevelt administration enthusiastically recruited these developments and launched a thoroughgoing propaganda mobilization aimed in large part at the construction of the Depression as a national disaster. CHAPTER THREE

1.

2. 3. 4. 5.

6. 7. 8. 9.

Lochner v. New York, 198 U.S. 45 (1905) (invalidating a New York state labor law limiting the hours that bakers could work to ten per day and sixty per week as an unconstitutional interference with liberty of contract). Novak, “Legal Origins,” 4. For summaries, see Novak, “Legal Origins”; Cachán, “Justice Stephen Field.” Siegel, “Revision Thickens,” 635. Jones, “Thomas M. Cooley,” 754–56; McCurdy, “Justice Field,” 978–81; Gillman, Constitution Besieged, 101–46; Benedict, “Laissez-Faire and Liberty,” 305–14; Fried, Progressive Assault, 31. Soifer, “Paradox of Paternalism,” 249. Field v. Clark, 143 U.S. 649 (1892). United States v. Realty Company, 163 U.S. 427 (1896). Larned, “Sugar Bounties,” in History for Ready Reference, 522–24.

Notes to Chapter 3 / 279 10. U.S. v. E. C. Knight Co., 156 U.S. 1, 2–3 (1895). 11. “Sugar Trust Began Organizing in 1887,” New York Times, November 14, 1909; “Quay Opposes His Party,” New York Times, January 19, 1889; “No Sugar Bounty Wanted,” New York Times, January 7, 1890. 12. “Letter to the Editor from E. Weidenbach,” New York Times, April 20, 1890; “Editorial,” New York Times, March 24, 1891. 13. Chamberlyne, “Sugar Bounties,” 321; Wheless, “Sugar Bounty Cases,” 849; Black, “Sugar Bounty Case,” 828. 14. “No Sugar Bounty Wanted,” New York Times, January 7, 1890. 15. “Costly Revenue Laws,” New York Times, November 25, 1890; “Raids on the Treasury,” New York Times, March 2, 1891; Editorial, New York Times, March 24, 1891. When Hogg later drove the state into bankruptcy, his critics alleged that the crisis could have been averted had he taken the bounty. “Gov. Hogg to Defend Himself,” New York Times, October 4, 1893; “The Texas Sugar Planters,” New York Times, August 30, 1891. 16. “A Gift to the Sugar Makers: The Bounty Estimated to Be Over 11 Million,” New York Times, July 19, 1891. 17. “The Repealed Sugar Bounties,” New York Times, December 28, 1894. 18. “The Sugar Bounty Must Go,” New York Times, June 11, 1893; “Bounty Tariff and Tariff Bounty,” New York Times, September 18, 1893. 19. Nevins, Grover Cleveland, 556–57. 20. “They Want No Sugar Bounty,” New York Times, November 27, 1892; “The Sugar Bounty Must Go,” New York Times, June 11, 1893; “Bounty Tariff and Tariff Bounty,” New York Times, September 18, 1893. 21. Nevins, Grover Cleveland, 577–78; “This Week,” The Outlook, May 22, 1897, 194–95; “Sugar Bounty Cut Off,” New York Times, July 3, 1894. During the course of the maneuvering over the sugar schedule, several senators were caught in a scandal in which the Sugar Trust engaged a broker to help the senators to speculate in the stocks of the refiners and profit by their votes to ensure that the tariff on refined sugar was restored after a committee had placed refined sugar on the free list. This led to hearings at which the broker, Elverton Chapman, and various trust executives including Havemeyer and John E. Searles, refused to testify. Chapman was convicted of contempt and sentenced to jail. “This Week,” The Nation, May 20, 1897, 370; “This Week,” The Outlook, May 22, 1897, 194–95, The senators involved in the scandal were dubbed “The Sugar Trust Senate” and the “Senators from Havemeyer” by the press, which pilloried the sugar schedule in the Gorman bill as “fixing taxes upon the people for the benefit of organized greed.” “Fine Haul in Sugar Dragnet: Senator Quay Admits Dealing in the Trust’s Stocks,” New York Times, June 17, 1894; “Striving Hard for Sugar,” New York Times, August 3, 1894; “The Sugar Trust Senate,” New York Times, August 21, 1894; “Will Demand the Bounty,” New York Times, December 11, 1894. 22. Brief for the Appellants at 56, Field v. Clark, 143 U.S. 649 (1892) (No. 1050) (Brief of Edwin Smith). 23. Brief for the Appellants at 19–32, Field v. Clark, 143 U.S. 649 (1892) (No. 1050) (Brief of Charles Curie). 24. Brief for the United States at 67–69, Field v. Clark, 143 U.S. 649 (1892) (No. 1050). 25. Ibid., 69–70. 26. Ibid., 70.

280 / Notes to Chapter 3 27. Reply Brief for the Appellants at 19–27, Field v. Clark, 143 U.S. 649 (1892) (No. 1050). 28. “New Tariff on Trial,” New York Times, October 26, 1891. 29. Chamberlyne, “Sugar Bounties,” 320. 30. Field v. Clark, 143 U.S. at 695–96. In addition to Harlan, who was somewhat more liberal than most of his colleagues, other members of the unanimous Field Court included conservatives Chief Justice Melvin Fuller, David Brewer, Stephen Field, and Henry Billings Brown. Fuller wrote the Court’s opinions in United States v. E. C. Knight, 156 U.S. 1 (1895) (holding that the Sherman Anti-Trust Act did not apply to sugar refining and manufacturing) and Pollock v. Farmer’ Loan & Trust Co., 158 U.S. 601 (1895) (striking down the federal income tax). 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). Field dissented from the Court’s decisions in both the Slaughterhouse cases and in Munn v. Illinois, because he disagreed that the federal constitution allowed even a limited amount of economic regulation; Henry Billings Brown is best known to history as the author of the Court’s opinion in Plessy v. Ferguson; he also wrote a concurrence in Lochner. 31. As with the Blair Bill, numerous petitions (many of them on preprinted forms) were sent to the House and Senate Appropriations Committees from “business men” from locales such as Missouri, Mississippi, and Massachusetts contending that the bounty should be paid for 1894 either on grounds of fairness or because, as a group of petitioners from Tennessee argued, goods (in this case mules) had been sold on credit to sugar producers who were now unable to pay for them. J. W. Howard et al. to Representative N. Cox, 23 January 1895, RG 233, 53A–H3.4, Box 133, NARA. 32. U.S., ex rel. The Miles Planting and Manufacturing Co. v. Carlisle, 5 App. D.C. 138, 147–48 (C.A.D.C. 1895). 33. Black, “Sugar Bounty Case,” 803; “They Want Their Bounties,” New York Times, March 6, 1895; “Sugar Bounties Will Soon Be Paid,” New York Times, June 19, 1895; “The Sugar Bounty Claims,” New York Times, July 24, 1895; “Taking the Case to Grey Gables,” New York Times, July 26, 1895; “Plea for Sugar Bounty,” New York Times, November 10, 1895. 34. “Plea for Sugar Bounty,” New York Times, November 10, 1895. 35. Editorial, New York Times, August 27, 1894; “The Louisiana Sugar Growers,” New York Times, September 22, 1894; Letter to the Editor, “The Beet Sugar Industry,” New York Times, December 29, 1894; “Will Demand the Bounty,” New York Times, December 11, 1894. 36. Lewis, “Is the Bounty on Sugar Constitutional,” 318. 37. “The Sugar Bounty Sustained,” New York Times, December 19, 1895. 38. Brief for the United States at 187–88, United States v. Realty Co., 163 U.S. 427 (1896) (No. 870). 39. Pollock v. Farmer’s Loan and Trust Co., 157 U.S. 429 (1895); Fine, Laissez-Faire, 133; Horwitz, Transformation, 26. The income tax on incomes over $4,000 had been instituted to offset the revenue lost through the reduction of the high McKinley tariffs. 40. Brief for the Appellants at 7–9, United States v. Realty Co., 163 U.S. 427 (1896) (No. 870) (Brief of Joseph Choate). 41. Ibid., 16. 42. Ibid., 20–21.

Notes to Chapter 3 / 281 43. Ibid., 42. Choate was a nephew of Massachusetts Congressman Rufus Choate. He attended college and law school at Harvard, then litigated some of the most important cases of the late nineteenth century. At least nominally Republican, Choate became a member of New York City’s Committee of Seventy, which broke up the Tweed Ring, and he assisted in the prosecutions of Tammany officials. 44. Ibid., 34. John Hare concludes that the constitutionality of appropriations is “legislative, not judicial, and the errors of Congress cannot be corrected by the courts” (American Constitutional Law, 249). 45. Brief for the Appellants at 7–9, United States v. Realty Co., 163 U.S. 427 (1896) (No. 870) (Brief of Joseph Choate), 90. 46. Ibid., 91; Loan Ass’n v. Topeka, 87 U.S. 655, 665 (1874). 47. Harlan’s reputation as a liberal is based in large measure on his famous dissents, including those in Plessy and Lochner. However, he was not entirely hostile to the doctrine of economic substantive due process, and authored the Court’s opinion in Adair v. United States striking down a federal law prohibiting interstate carriers from terminating workers for union membership. Adair v. United States, 208 U.S. 161 (1908). 48. Peckam was also the author of Allgeyer v. Louisiana, 165 U.S. 578 (1897), which struck down a Louisiana statute barring foreign insurance companies without local agents from doing business in the state as an infringement on the substantive due process rights of Louisiana citizens wishing to purchase insurance from such companies. Joining Peckham’s opinion in Realty Co. were Chief Justice Fuller, and Justices Gray, Peckham, Brown, Shiras, Brewer, and Harlan. (Justice Edward White, who was a sugar man from Louisiana, recused himself.) 49. United States v. Realty Co., 163 U.S. 427, 441 (1896). 50. Ibid., 444. 51. Corwin, “Spending Power,” 575. 52. The question of the scope of congressional authority under the General Welfare Clause arose in two more cases prior to the New Deal that merit brief mention. The first, Smith v. Kansas City Title & Trust Company, 255 U.S. 180 (1921), was a challenge to the Federal Farm Loan Act of 1916 by an investor who contended that Congress had no authority to create federal land banks for the purpose of holding farm mortgages. In that case the lawyer representing the Federal Land Bank of Wichita, Kansas, was none other than Charles Evans Hughes. Between losing the presidential election to Woodrow Wilson in 1916 and his appointment as secretary of state by Calvin Coolidge in 1921, Hughes practiced law in New York. In his oral argument to the Court, Hughes echoed Taft and Choate on the broad and unreviewable scope of the spending power, arguing that “the Farm Loan Act deals with pecuniary aid alone, that is, it is concerned only with the application of money.” Argument of Mr. Hughes for the Appellee, Smith, 255 U.S. at 192. As such, Hughes argued that it was for Congress to determine how best to spend the funds so appropriated and “its decision of that question is not open to judicial review.” Argument of Mr. Hughes for the Appellee, Smith, 255 U.S. at 193. Then, after the advent of the national income tax raised the specter of millions of taxpayer suits (a concern first raised in the debate the Russian famine relief in 1920) to enjoin appropriations by Congress, the Court held in Massachusetts v. Mellon, 262 U.S. 447, 487 (1923), that taxpayers lacked standing to challenge particular spending decisions, in that case, for maternal and child health. 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

282 / Notes to Chapter 3

53. 54. 55. 56. 57.

58. 59. 60. 61. 62.

63. 64. 65.

66. 67. 68. 69. 70. 71. 72. 73. 74. 75. 76. 77. 78. 79. 80. 81. 82.

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 Post, “Federalism in the Taft Court Era,” 1545–47. Jacobs, Law Writers, 135–40. State ex. Rel. Griffith v. Osawkee Township, 14 Kan. 418 (1875). See also Fine, Laissez-Faire, 136. Lowell v. Boston, 111 Mass. 454 (1873). “Congress to the Rescue: Appeal from the President in Behalf of the Flood Sufferers,” New York Daily Tribune, April 8, 1897. This front-page story reported that the southern states could not be faulted for asking Congress for relief because they were barred by their constitutions from rendering aid. Gillman, Constitution Besieged, 101–46. US Congress, Report of the Employer’ Liability and Workmen’s Compensation Commission, 2:57. Best, “Junior Clerk”; Murphy, “Life Insurance”; Weisbert, “Life Insurance Company Expense Limitation Laws,” 371. Joint Resolution for Appointment of a Commission to Investigate the Matter of Employer’s Liability and Workman’s Compensation, No. 45, 36 Stat. 884 (1910). The Triangle Shirtwaist fire occurred in a garment sweatshop in New York City in 1911 and killed 146 workers, nearly all women and girls. Many died by jumping from high floors to their deaths because the exits had been locked to prevent the workers from leaving during the workday. The fire led to a large public outcry for unionization and workers’ compensation, as well as health and safety laws. Von Drehle, Triangle, 194–218. Witt, Accidental Republic, 44–70; Friedman, History of American Law, 516–23. Paschal, Mr. Justice Sutherland, 65. US Congress, Report of the Employer’ Liability and Workmen’s Compensation Commission, 2:51–52. Freund was generally progressive, though was somewhat moderate and cautious on the subject of workers’ compensation by his own admission. Ibid., 62. Ibid., 64. Ibid., 65. Ibid., 77–78. Ibid., 83. Ibid., 98. Ibid. Ibid., 68. Dawson, “System Best Adapted,” 175, 182. US Congress, Report of the Employer’ Liability and Workmen’s Compensation Commission, 2:74. Paschal, Mr. Justice Sutherland, 41–43, 59. US Congress, Report of the Employer’ Liability and Workmen’s Compensation Commission, 2:94. Dawson, “System Best Adapted,” 182. Shamir, Managing Legal Uncertainty, 89; Rudolph, “American Liberty League,” 29. “James M. Beck, 74, New Deal Foe, Dies,” New York Times, April 13, 1936. Beck, Wonderland of Bureaucracy, 22–24. Lemons, “Sheppard-Towner Act,” 779.

Notes to Chapter 3 / 283 83. “Outlines Women’s Legislative Plans,” New York Times, December, 17, 1922; “Fights Maternity Act as Unconstitutional,” New York Times, September 9, 1922; “Backs Up Maternity Act: Pennsylvania Brief Upholding Its Constitutionality,” New York Times, April 29, 1923; “Accept Maternity Act: 43 States Recognize it, Government Claims, in Contesting Suit,” New York Times, April 19, 1923; “Favors Maternity Act,” New York Times, March 30, 1923. The law review articles about the General Welfare Clause included: Corwin, “Spending Power of Congress”; Tucker, “The General Welfare”; Tucker, “Recent Social Legislation”; Burdick, “Federal Aid Legislation”; Note, “Power of a Federal Taxpayer,” 750–53. 84. Brief for the United States at 32, 45, 49–51, Massachusetts v. Mellon, 262 U.S. 447 (1923). 85. Brief for the Appellant at 98–99, Frothingham v. Mellon, 262 U.S. 447 (1923). 86. Brief for the United States at 49–51, Massachusetts v. Mellon, 262 U.S. 447 (1923). 87. “Accept Maternity Law,” New York Times, April 19, 1923. 88. Oral Argument of James M. Beck, Massachusetts v. Mellon, 262 U.S. 447, 457 (1923). 89. Brief for the Appellant at 94, Frothingham v. Mellon, 62 U.S. 447 (1923). 90. Taussig, Tariff History, 453, 497; Hansen, “Taxation,” 544–48; Stanwood, American Tariff Controversies, 270; Schnietz, “Democrats’ 1916.” 91. “Current Legislation,” 774–78. 92. Adcock, “Emergence of Political Science,” 492. 93. Ibid., 493. 94. Freidel, Franklin D. Roosevelt, 75. 95. Ibid.; Hoxie, History of the Faculty, 81. At that time, constitutional law was taught in the political science department, and was an elective for law students. Goebel, History of the School, 241–43. 96. Sutherland, Law at Harvard, 210. 97. Henry Ware, Student Notebook, Constitutional Law 1895–96, Special Collections, Harvard Law School Library. 98. Zachariah Chafee Jr., Student Notebook, Constitutional Law 1913, Special Collections, Harvard Law School Library. 99. Thomas Reed Powell, Student Notebook, Constitutional Law 1904–5, Special Collections, Harvard Law School Library. 100. Thomas Reed Powell, Student Notebook, Constitutional Law 1907–8 (Columbia), November 4, 1907, Special Collections, Harvard Law School Library. 101. Goodnow, Social Reform, 310–17. 102. Goebel, History of the School, 242–43. Powell took a break from graduate school and taught Constitutional Law at the University of Illinois for two years before returning to Columbia to finish his PhD. 103. Thomas Reed Powell, Speech, undated, circa 1920, Papers of Thomas Reed Powell, Special Collections, Harvard Law School Library. 104. “Couch and Coach,” Time, May 8, 1933. 105. “Current Legislation,” 774–78. 106. Constitutional Law, page 31, transcript of lecture, Papers of Thomas Reed Powell, box H, folder H4, Constitutional Law 1930–32, Special Collections, Harvard Law School Library. 107. Ibid. 108. The Reminiscences of Charles Wyzanski (1954), 98–111, 250, in the Oral History Collection of Columbia University (hereafter OHCCU).

284 / Notes to Chapter 3 109. Loss, Introduction, 19; Stephenson, “The Judicial Bookshelf,” 194–95. 110 .Corwin, Constitution and What It Means Today, 20; Loss, Introduction, 35; Corwin, “Spending Power,” 579. 111. Burdick, “Federal Aid Legislation,” 324. 112. Collier, “Judicial Bootstraps,” 214. 113. Nicholson, “Federal Spending Power,” 12. 114. Warren, Supreme Court, 428–29; Hall, Constitutional Law, 180–84; Hall, Cases on Constitutional Law, 603–05; Watson, Library of American Law and Practice, 11:29–30; Watson, Constitution of the United States, 405–6; Evans, Leading Cases, 613–15; Albers, “Our National Constitution,” 161. There was even a self-published monograph on the subject, James Lawson’s The General Welfare Clause: A Study of the Power of Congress under the Constitution of the United States. Lawson asked the same question that Corwin (who cited him) later would raise in The Twilight of the Supreme Court: “why labor so greatly and unsteadily to based [federal laws] on the commerce power when they stand so readily and securely upon the welfare power?” Lawson, General Welfare Clause, 233. The liberal historian Gustavus Myers, in his History of the Supreme Court of the United States, held up Realty Company as a “classic example of class decisions” given that Chief Justice Edward White was himself a sugar man and a sugar bounty beneficiary (History of the Supreme Court, 715–18). 115. Speech of Homer Cummings, Washington and Lee University, Lexington, VA, June 11, 1936, p. 6, Stanley Reed Papers, University of Kentucky Library, Lexington. 116. Speech of John Randolph Tucker, Phoenix and Philmathean Societies of William and Mary College, July 3, 1854 (Richmond: Chas. H. Wayne, Printer, 1854), 12–18, 23. 117. Lee, “John Randolph Tucker,” 203; Davis, “John Randolph Tucker,” 15–16. Bryson, Legal Education, 636. After restoration Tucker articulated the view in speeches that a strict construction of the written Constitution was essential in order to prevent tyranny. His descriptions of the role of taxation in invading the colonists’ rights and spurring the Revolutionary War were replete with thinly veiled references and allegories of the South’s right to resist northern aggression. Oration of Hon. John Randolph Tucker, April 7, 1888, in Marietta, Ohio, reprinted in Ohio Archeological and Historical Quarterly 2 (Columbus: Ohio Archeological and Historical Society, 1888): 64–87. 118. Tucker, Constitution of the United States, §§ 222–41. 119. Davis, “John Randolph Tucker,” 16, 29. 120. Bryson, Legal Education, 616–17, 21. Tucker assisted in passing the Wilson tariff bill, but was denied the nomination (and booed off the stage at the nominating convention) in 1896 due to his loyalty to Cleveland. He was eventually elected to Congress again in 1922. 121. Tucker, “General Welfare,” 167, 177–78; Brief of Amicus Curiae, Henry St. George Tucker at 78, Frothingham v. Mellon, 262 U.S. 447 (1923). Tucker continued to rail against the General Welfare Clause, and in 1927 gave a speech to the Georgia Bar Association annual meeting titled “Judge Story’s Position on the So-Called General Welfare Clause,” which was published in, among other places, the Congressional Record and the ABA Journal. It was again reprinted in 1929 in the Constitutional Review. Tucker, “Judge Story’s Position.” 122. Brief for Defendants and Appellees at 34, Frothingham v. Mellon, 262 U.S. 447 (1923). 123. South Dakota v. Dole, 483 U.S. 203 (1987). Likewise, the Ninth Circuit noted in

Notes to Chapter 4 / 285 upholding the conditional expenditure of federal highway funds contingent on the states adopting a uniform speed limit that courts have almost uniformly shied away from meddling in the congressional power of the purse. Nevada v. Skinner, 884 F.2d 445 (9th Cir. 1989). CHAPTER FOUR

1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33.

34. 35.

74 Cong. Rec. HR14246, 709 (daily ed. Dec. 15, 1930) (statement of Sen. Robert La Follette Jr.). Woodruff, As Rare as Rain, 9. Barry, Rising Tide, 369–75. Dulles, American Red Cross. Woodruff, As Rare as Rain, 66–95. 74 Cong. Rec. HR3369 (daily ed. Jan. 28, 1931). Hopkins, Spending to Save, 30; American Red Cross, Red Cross Relief. Abbott, “Relief by a National Private Agency,” 297–300. 74 Cong. Rec. HR447, 2140 (daily ed. Jan. 14, 1931). Woodruff, As Rare as Rain, 41. 74 Cong. Rec. HR14675, 4438 (daily ed. Feb. 10, 1931). 74 Cong. Rec. HR447, 2144–46 (daily ed. Jan. 14, 1931). Ibid., 2153. 74 Cong. Rec. HR16415, 3241–43 (daily ed. Jan. 26, 1931). 74 Cong. Rec. HR14246, 709 (daily ed. Dec. 15, 1930). 75 Cong. Rec. S3045, 3069 (daily ed. Feb. 2, 1932). 74 Cong. Rec. HR14675, 2364 (daily ed. Jan. 16, 1931). 74 Cong. Rec. HR14246, 703–04 (daily ed. Dec. 15, 1930). Greenbaum, Fighting Progressive, 125. 75 Cong. Rec. S3045, 3307 (daily ed. Feb. 3, 1932). Ibid., 3309. Warren, Congress as Santa Claus, 13. Ibid., 107–8. Ibid., 140. Ibid., 127. Ibid., 136. Federal Emergency Relief Act of 1933, Pub. Law No. 73–15, chap. 30, 48 Stat. 55 (1933). Maney, “Young Bob” La Follette, 106–7. Sherwood, Roosevelt and Hopkins, 51. US Congress, Federal Aid for Unemployment Relief, 547–53. Greenbaum, Fighting Progressive, 133–34. Howard, WPA, 692–97; Williams, Federal Aid for Relief, 22. The New Deal effort to elicit compassion for those who were injured by the workings of the market during the 1930s, and to link that emotion to a policy response, is an important example of what Martha Nussbaum has described as the cultivation of sympathy through public institutions (Upheavals, 401–41). Meltzer, Dorothea Lange, 209. Greenwald and Anderson, Pittsburgh Surveyed, 2–7. The Pittsburgh Survey was funded by the Russell Sage Foundation and conducted by a team of Progressive researchers including Kellogg, Lewis Hine, John Commons, and Crystal Eastman. The goal was to document the condition of the urban working class in a way that would

286 / Notes to Chapter 4

36.

37. 38. 39. 40. 41.

42.

43.

44. 45. 46. 47. 48. 49. 50. 51.

52.

be accessible to a general audience and would influence social policy. A key difference between the Pittsburgh Survey and other, similar endeavors and those of the 1930s was in their geographic scope. As Martin Bulmer notes, the early surveys were dedicated to documenting local, not national, conditions. The 1930s surveys were dedicated to establishing a national economic crisis, though aggregating local conditions. Bulmer, “The Social Survey Movement,” 33. 74 Cong. Rec. HR14246, 702–07 (daily ed. Dec. 15, 1930). One newspaper reportedly criticized La Follette because it cost the government $6,000 to print the thousands of replies in the Congressional Record. Maney, “Young Bob” La Follette, 82n16. 75 Cong. Rec. S3045, 3096 (daily ed. Feb. 2, 1932). Ibid., 3071. Ibid., 3067–68. Ibid., 3072. This effort did not end with the passage of the Social Security Act but was ongoing throughout the 1930s as the programs were subject to repeated legal challenges. For example, in a fireside chat on November 14, 1937, Roosevelt announced a national “Unemployment Census,” in which a “double postcard” was sent to every home in the country asking fourteen questions about unemployment. Franklin D. Roosevelt, “The Unemployment Census” (fireside chat, November 14, 1937), available at http://newdeal.feri.org/chat/chat11.htm (accessed May 30, 2007). Meltzer, Dorothea Lange, 144; Bustard, New Deal for the Arts, 34–35. Stryker and the photographers functioned as what Nussbaum has called “sympathy entrepreneurs” (Upheavals, 314). Library of Congress, “FSA-OWI.” The killed negatives were never printed and were consequently never available to the public or researchers. The Library of Congress recently made these images, consisting of nearly one hundred thousand black-andwhite killed negatives and seventy-seven thousand printed photos, available on its website in an online exhibition. Natanson, Black Image, 81. Natanson argues that the FSA depictions of black subjects “deemphasized the fundamental racial imbalances” in society. Natanson’s tentative assessment of the rejected photos indicates that Stryker did not systematically kill photos of highly controversial or explosive subjects. However, Natanson concludes that the photographers knew what Stryker was looking for and self-censored in favor of depicting the New Deal in a positive light, particularly when it came to race (Natanson, Black Image, at 81–83). Gordon, Dorothea Lange, 206; Stange, “The Record Itself,” 4. Natanson, Black Image, 212; Stange, “The Record Itself,” 1; Gordon, Dorothea Lange, 197. Meltzer, Dorothea Lange, 133. Natanson, Black Image, 207, 212. Dauber, “Object, Genre,” 566; Baxandall, Patterns of Intention, 41–73. Bustard, New Deal for the Arts, 50. For an excellent discussion of the role of race in the RA/FSA photographs, see Natanson, Black Image. Stryker’s scripts typically excluded mention of black life, and he ignored requests from his photographers to pursue the topic. Natanson, Black Image, 61. He also excluded black images from those he promoted for inclusion in books, other publications, and exhibitions. Ibid., at 206–30; Gordon, Dorothea Lange, 196. Howarth, “Mother of Literature,” 79; Meltzer, Dorothea Lange, 143–45.

Notes to Chapter 4 / 287 53. Letter, Edwin Locke to Roy Stryker, February 4, 1937. Roy Stryker Papers. The original caption for one of Evans’s photos of black refugees was “Negroes in the lineup for food at mealtime in the concentration camp for flood refugees, Forrest City, Arkansas.” This was edited by Stryker to read: “Negroes standing in line for food at the camp for flood refugees.” LC-USF33–009217-M3, Library of Congress. Locke took a series depicting African Americans crowded onto a loading dock outside a cotton compressor that had been converted into a “concentration camp” wearing identification tags around their necks. LC-USF33–004197-M3. 54. Evans, caption to photograph LC-USF33–009217-M3; Locke, caption to photograph LC-USF33–004197-M3; photographs LC-USF33–009230-M2 and LC-USF33– 004173-M3 depict lines. Photographs LC-USF33–004196-M1 and LC-USF33– 004231-M2 depict race relations. 55. “Music to Heal a Land of Dust and Floods,” New York Times, February 27, 2007. 56. Lorentz, FDR’s Moviemaker, 52. 57. Letter, Roy Stryker to Pare Lorentz, February 15, 1937. Roy Stryker Papers. 58. Lorentz, FDR’s Moviemaker, 58–59. 59. The script recounts the history of flooding, then draws out the connection to the “ill-clad, ill-housed, and ill-fed” population, and then makes an explicit case for the TVA and Farm Security programs to relieve the distress. Lorentz, FDR’s Moviemaker, 70–73. 60. Stein, California and the Dust Bowl Migration, 202, 208. 61. DeMott, Introduction, xliii. 62. The Lange photo used for the cover was originally captioned “Drought refugees from Oklahoma camping by the roadside. They hope to work in the cotton fields. The official at the border (California-Arizona) inspection service said that on this day, August 17, 1936, twenty-three car loads and truck loads of migrant families out of the drought counties of Oklahoma and Arkansas had passed through that station entering California up to 3 o’clock in the afternoon.” Library of Congress, Prints and Photographs Division, FSA-OWI Collection, LC-USF34–009665-E. There was a second shot of the family, also printed and captioned, featuring a male, presumably the husband/father, with the wife and baby in the background, but this shot was not selected for the cover of Steinbeck’s book in favor of the shot showing only the mother with a baby at the breast. Library of Congress, Prints and Photographs Division, FSA-OWI Collection, LC-USF34–009666-E. 63. Nussbaum, Poetic Justice, 66. 64. Lisca, “Grapes of Wrath,” 757; Levant, Novels of John Steinbeck, 127–29. 65. Levant, Novels of John Steinbeck, 128. 66. Stein, California and the Dust Bowl Migration, 202. 67. Lisca, “Grapes of Wrath,” 757. 68. Steinbeck, Grapes of Wrath, 35. 69. Ibid., 87. 70. Ibid., 95. 71. Ibid., 132. 72. Ibid., 205. 73. Nussbaum, Poetic Justice, 32. 74. Steinbeck, Grapes of Wrath, 156. 75. Nussbaum, Poetic Justice, 70–72. 76. Steinbeck, Grapes of Wrath, 178. 77. Steinbeck, Working Days, 23.

288 / Notes to Chapter 4 78. Clifford, Predicament of Culture, 21–54; Boon, Other Tribes, Other Scribes, 9–10; Malinowski, Argonauts of the Western Pacific; Manganaro, Myth, Rhetoric, and the Voice of Authority, 112; Marcus and Cushman, “Ethnographies as Texts,” 25–27. 79. Stein, California and the Dust Bowl Migration, 213–15. 80. Steinbeck, Working Days, 51. 81. Meltzer, Dorothea Lange, 202–3; Howarth, “Mother of Literature,” 77–92. 82. Kehl, “Steinbeck’s ‘String of Pictures,’” 4. 83. Meltzer, Dorothea Lange, 101. 84. Ibid., 105. 85. Howarth, “Mother of Literature,” 79. 86. Meltzer, Dorothea Lange, 186, 105. 87. Ibid., 97. 88. For a discussion of the encoding of social relations in photographs, see Goffman, Gender Advertisements, 32–56. 89. “The Press: Keen Keen,” Time, October 11, 1937, 50; “Faces in the Flood,” Life, February 8, 1937, 47; “At the Crest of the Flood,” Life, February 15, 1937, 12; “Life’s Pictures,” Life, February 3, 1941, 12; American Red Cross, Ohio Mississippi Flood Disaster, 72. 90. Bustard, New Deal for the Arts, 90; Linda Gordon notes that the Migrant Mother subject, Florence Thompson, was (unknown to Lange) a Cherokee woman and that it is was not without irony that her image came to stand in for white motherhood (Dorothea Lange, 241). 91. Lange, caption to photograph LC-USF34-T01–009058-C, 1936d. 92. Meltzer, Dorothea Lange, 133. Historian Gordon reports that Lange offered the photo to the press prior to sending it to Stryker, and it was immediately published in the San Francisco News. Readers had an immediate emotional response to the picture and sent in over $200,000 for the relief of the pea pickers. Gordon, Dorothea Lange, 237. 93. Meltzer, Dorothea Lange, 135–36; Gordon, Dorothea Lange, 224, 236–38. 94. Skocpol, Protecting Soldiers and Mothers, 2. 95. Lange, caption to photograph LC-USF34–009731-E, 1936. 96. Lange, caption to photograph LC-USF34–009906-C, 1936b. 97. 74 Cong. Rec. HR14246, 703 (Dec. 15, 1930). 98. Roosevelt, “Second Inaugural Address,” 1. 99. Higgs, Crisis and Leviathan, 170–71. Not all of this work was rhetorical; Higgs argues that Roosevelt purposefully closed banks upon taking office in order to provoke a crisis that would justify federal intervention on the model of World War I. According to William Leuchtenburg, the analogy to World War I was far too weak to sustain such innovations as the industry regulating “codes” of the National Industrial Recovery Act (NIRA). However, the idea that the nation was experiencing an “emergency” provided an important rhetorical argument that the economic situation was a sudden catastrophe. Leuchtenburg, “New Deal and the Analogue of War,” 127. 100. Roosevelt, “Extemporaneous Address at the 1933 Conference on Mobilization for Human Needs,” 357–58. 101. Roosevelt, “Address at Atlanta, Georgia,” 471–72; Roosevelt, “Acceptance for the Renomination,” 231; Roosevelt, “Jefferson Day Dinner Address,” 178; Roosevelt, “Informal Extemporaneous Remarks at the Great Lakes Exhibition,” 283–85. 102. Roosevelt, “Campaign Address at Kansas City, Missouri,” 469.

Notes to Chapter 4 / 289 103. Roosevelt, “United States Is Rising,” 164–65. Similarly, Roosevelt discussed visiting sites of government action for disaster relief around the country and reminded the audience at the Great Lakes Exhibition in Cleveland how nearby communities had “come through a very serious disaster” by “working together as a unit. That spirit has not failed us in the past and it is not going to fail us in the future” (“Extemporaneous Address at Great Lakes Exhibition,” 285). 104. Ibid. 105. Requa, “Ohio-Mississippi River,” 994; “President’s Proclamation,” New York Times, January 24, 1937; “400,000 Homeless,” New York Times, January 25, 1937. 106. “A Relentless Tide,” New York Times, January 26, 1937; “America’s Worst Flood,” Life, February 8, 1937, 9. 107. “Cairo Fights River,” New York Times, January 27, 1937. 108. Franklin D. Roosevelt, “Democratic Victory Day Speech,” 119–21. 109. Robert M. La Follette, NBC Radio Address, February 13, 1937, Franklin D. Roosevelt Library, Hyde Park, New York, available at: http://newdeal.feri.org/cong/congress001 .htm#26. 110. Stuart Chase, Letter to the New York Times, February 15, 1937, Franklin D. Roosevelt Library, Hyde Park, New York, available at: http://newdeal.feri.org/court/chase.htm. 111. “WPA Expands Aid for Flooded Zone,” New York Times, February 13, 1937; “Shock Troops of Disaster,” Motion Picture, Records of the Works Progress Administration, RG 69, NARA. 112. “$600,000 Drop?” Time, February 8, 1937, 7. 113. Harry L. Hopkins, Radio Address, early 1937, Harry L. Hopkins Papers, box 12, Speeches and Articles, Franklin D. Roosevelt Library, Hyde Park, New York. 114. Robert Jackson, New York Economic Club (speech, Hotel Astor, New York, March 24, 1937), Papers of Robert H. Jackson, Library of Congress. 115. “Treasury and Post Office Appropriations,” HR14246, 71st Cong., 3d sess., 74 Cong Rec. 707 (Dec. 15, 1930). 116. Roosevelt, “Acceptance Speech for the Renomination for the Presidency.” 117. Democratic Party, “Don’t Go Back and Backward.” 118. “Relief of Farmers in the Drought and Storm Areas,” HR Res. 447, 71st Cong., 3d sess., 74 Cong. Rec. S2140 (Jan. 14, 1931). 119. Ibid., 2145. 120. Steinbeck’s decision to bracket the intentional injuries of capitalism with the vicissitudes of fate pointed readers to one of the central ironies of his tale. The Growers’ Association starved the Joads in the midst of plenty; clearly the dust could have done no worse. 121. Stein, California and the Dust Bowl Migration, 13; Meltzer, Dorothea Lange, 175. 122. Quoted in Stein, California and the Dust Bowl Migration, 61. 123. Ibid., 60. 124. Ibid., 215. 125. Gordon, Pitied but Not Entitled, 185; Stevens, Income Security, 140; National Association of Manufacturers, Statement on the Economic Security Act, 940. 126. Skocpol and Ikenberry, “Political Formation,” 133; Witte, Development of the Social Security Act, 146–52. 127. Roosevelt, “Message to the Congress,” 287–92. 128. Meltzer, Dorothea Lange, 164. This was a persistent analogy throughout the Roosevelt administration, expressed by the president’s Committee on Farm Tenancy as “erosion of soil has its counterpart in the erosion of our society.” In 1937 Roy Stryker

290 / Notes to Chapter 5

129. 130. 131. 132.

prepared a layout of Dorothea Lange photographs of the migrants with the theme of “human erosion.” Roosevelt, “Message to the Congress,” 287–92. Roosevelt, “President Asks the Congress for Additional Funds,” 293–97. Roosevelt, “Presidential Address to National Conference on Economic Security,” 452. Brief for the Petitioner at 49–74 & app. tbl. 2–5, Helvering v. Davis, 301 U.S. 619 (1937) (No. 910). CHAPTER FIVE

1. 2.

3. 4.

5. 6. 7.

8. 9. 10. 11. 12. 13.

14.

15. 16.

17.

Felix Frankfurter to Jerome Frank, November 27, 1935, Jerome Frank Papers, Sterling Library, Yale University, New Haven, Connecticut. Jerome Frank to Felix Frankfurter, November 29, 1935; Felix Frankfurter to Jerome Frank, December 2, 1935; Jerome Frank to Felix Frankfurter, December 4, 1935; Felix Frankfurter to Jerome Frank, December 6, 1935; Jerome Frank to Felix Frankfurter, December 9, 1935; Felix Frankfurter to Jerome Frank, December 11, 1935; Jerome Frank to Felix Frankfurter, December 20, 1935; all in Jerome Frank Papers, Sterling Library, Yale University, New Haven, Connecticut. Kalman, Legal Realism, 103–36; Irons, New Deal Lawyers, 3–14. Memorandum, Thurman Arnold to Robert Jackson, September 15, 1936, Records of the Department of Justice, RG 60, 137-1-3, Classified Correspondence Files (Records of Steward Machine Co. v. Davis), NARA. Leuchtenburg, Franklin D. Roosevelt, 130; Schlesinger, Coming of the New Deal, 297–98. Paul Kellogg to the Editor of Better Times, November 20, 1934, RG 47, PI183, Entry 1, Staff Correspondence, NARA. Roosevelt had failed to throw his full support behind the Wagner-Lewis unemployment insurance bill in early 1934, deciding to allow it to fail and then recommending the formation of a group (that became CES) to study the problem of social insurance for the following session of Congress. Eliot, Recollections of the New Deal, 73. The Reminiscences of Raymond Moley (February 2, 1965), 3, OHCCU. Schlesinger, Coming of the New Deal, 304; Witte, Social Security Act, 22–37. Eliot, Recollections of the New Deal, 101. Witte, Social Security Act, 97. Schlesinger, Coming of the New Deal, 306, 314. Skocpol and Ikenberry, “Expanding Social Benefits,” 408. Grodzins notes “it was believed that a federal-state system would have greater constitutional security than an all-federal one” (“American Political Parties,” 979). Lieberman, Shifting the Color Line, 32. Daniel Rodgers also repeats this version of events, arguing that Perkins reduced unemployment insurance to a “constitutionally minimalist” state-level program due to fears of a Supreme Court veto (Atlantic Crossings, 443). Perkins, Roosevelt I Knew, 291. Joseph Harris, Considerations Concerning the Relative Merits and Defects of the Wagner-Lewis and Subsidy Plans for Unemployment Insurance, November 1934, Records of the Committee on Economic Security, RG 47, PI183, Entry 3, Staff Reports, NARA. Skocpol and Ikenberry, “Expanding Social Benefits,” 409.

Notes to Chapter 5 / 291 18. Eliot, Recollections of the New Deal, 95. Arthur Altmeyer also reported that “the concern regarding constitutionality cannot be exaggerated” (Formative Years, 20). 19. Edwin Witte to Felix Frankfurter, July 27, 1934, General Correspondence, RG 47, PI183, Entry 8, NARA; Edwin Witte to Joseph Chamberlain, July 27, 1934, General Correspondence, RG 47, PI183, Entry 8, NARA. Chamberlain responded that he didn’t know much about the subject but that he thought (incorrectly as it turned out) that the Court would strike down a spending measure that could not be defended by some other enumerated power. Joseph Chamberlain to Edwin Witte, August 7, 1934, General Correspondence, RG 47, PI183, Entry 8, NARA; Telegram, Edwin Witte to Paul Raushenbush, care Honorable Lewis [sic] D. Brandeis, August 16, 1934, General Correspondence, RG 47, PI183, Entry 8, NARA. In his first days on the job, Witte drew up an outline that would govern the work undertaken by the technical board. In it he identified the constitutional and legal aspects of the program as a major focus for the group as it reviewed and formulated specific proposals for social insurance. Witte, Social Security Act, 22. 20. Felix Frankfurter to Edwin Witte, August 4, 1934, General Correspondence, RG 47, PI183, Entry 8, NARA. Frankfurter wrote that “I have long been of the conviction that one of the foremost drawbacks to appropriate social legislation, all along the line, is our preoccupation with questions of constitutionality and more especially our tendency to discuss problems of constitutionality at the beginning of our inquiries rather than at the end.” 21. Charles Wyzanski to Edwin Witte, June 30, 1934, General Correspondence, RG 47, PI183, Entry 8, NARA. Holtzoff would later play a key role in the court-packing plan as one of the few people, with Stanley Reed and Homer Cummings, who knew of it in advance of its public announcement. Alsop and Catledge, 168 Days, 43. 22. Traynor and others, “Barbara Nachtrieb Armstrong,” 920–36; The Reminiscences of J. Douglas Brown (February 22, 1965), 111–12, OHCCU. 23. The Reminiscences of Eveline Burns (February 10, 1965), 28, 82, OHCCU; The Reminiscences of Murray Latimer (August 4, 1965), 40–41, OHCCU. 24. Edwin Witte, Preliminary Outline of the Work of the Staff of the Committee on Economic Security, August 10, 1934, Records of the Committee on Economic Security, RG 47, PI183, Entry 1, Technical Board Reports; The Reminiscences of Barbara Armstrong (December 19, 1965), 30, OHCCU. 25. The Reminiscences of Barbara Armstrong (December 19, 1965), 41, 211, OHCCU. 26. Thomas Eliot to Edwin Witte, November 5, 1934, Records of the Committee on Economic Security, RG 47, PI183, Entry 1, Staff Correspondence, NARA; Altmeyer, Formative Years, 20–23. 27. Preliminary Recommendation of the Technical Board of the CES, October 1, 1934, Records of the Committee on Economic Security, RG 47, PI183, Entry 1, Reports and Minutes of the Technical Board Unemployment Committee, NARA; Summary of Discussion of Old Age Security Committee of the Technical Board, September 29, 1934, RG 47, PI183, Entry 1, Minutes of the Technical Board Old Age Committee, NARA; Witte, Social Security Act, 112–15. 28. Brown, “Genesis of Social Security,” 5. 29. Edwin Witte to William Leiserson, October 16, 1934, Records of the Committee on Economic Security, RG 47, PI183, Entry 8, General Correspondence, NARA. 30. Memorandum, Alexander Holtzoff, Constitutional Aspects of Social Insurance, October 3, 1934, Records of the Committee on Economic Security, RG 47, PI183, Entry 3, Staff Reports, NARA.

292 / Notes to Chapter 5 31. Barbara Armstrong, Memorandum on Straight National Old Age Insurance and Unemployment Insurance, [late October] 1934, Records of the Committee on Economic Security, RG 47, PI183, Entry 1, Staff Correspondence, NARA; Eliot, Recollections of the New Deal, 73–89. 32. Edwin Witte, Report of the Technical Board on the Major Alternative Plans for the Administration of Unemployment Insurance, November 9, 1934, Records of the Committee on Economic Security, RG 47, PI183, Entry 1, Reports and Minutes of the Technical Board Unemployment Committee, NARA; Eliot, Recollections of the New Deal, 75–77; Altmeyer, Formative Years, 16–18; Schlesinger, Coming of the New Deal, 305–6. 33. Memorandum, Alexander Holtzoff to Edwin Witte, November 6, 1934, Records of the Committee on Economic Security, RG 47, PI183, Entry 3, Staff Reports, NARA. 34. Alexander Holtzoff, Constitutional Aspects of Social Insurance, October 3, 1934, Records of the Committee on Economic Security, RG 47, PI183, Entry 3, Staff Reports, NARA. 35. Barbara Armstrong, Memorandum on Straight National Old Age Insurance and Unemployment Insurance, [late October] 1934, Records of the Committee on Economic Security, RG 47, PI183, Entry 1, Staff Correspondence, NARA. This memo is referenced in Armstrong’s letter to McGovney of October 23 and was therefore written before that date. Thomas Eliot, Presentation to the Executive Committee of the Technical Board, October 25, 1934, Records of the Committee on Economic Security, RG 47, PI183, Entry 3, Staff Reports, NARA. 36. The Reminiscences of Murray Latimer (August 4, 1965), 38–42, OHCCU. 37. Memorandum, Dudley O. McGovney to Barbara Armstrong, October 23, 1934, RG 47, PI183, Entry 1, Staff Correspondence, NARA; Barbara Armstrong to Douglas Maggs, October 23, 1934, RG 47, PI183, Entry 1, Staff Correspondence, NARA; The Reminiscences of Barbara Armstrong (December 19, 1965), 76, OHCCU. Eliot reported that Erwin Griswold and Henry Hart thought that the Court would approve the national plan, but that Powell and Frankfurter did not. Memorandum, Thomas Eliot to Edwin Witte, October 8, 1934, Records of the Committee on Economic Security, RG 47, PI183, Entry 3, Staff Reports, Eliot, NARA. 38. Barbara Armstrong, Memorandum on Straight National Old Age Insurance and Unemployment Insurance, [late October] 1934, Records of the Committee on Economic Security, RG4 7, PI183, Entry 1, Staff Correspondence, NARA. This memo is referenced in Armstrong’s letter to McGovney of October 23 and was therefore written before that date. Thomas Eliot, Presentation to the Executive Committee of the Technical Board, October 25, 1934, Records of the Committee on Economic Security, RG 47, PI183, Entry 3, Staff Reports, NARA. 39. Thomas Eliot, Outline of Plans, October 1, 1934, Records of the Committee on Economic Security, RG 47, PI183, Entry 3, Staff Reports, NARA; Barbara Armstrong, Advantages of Federal Subsidy Plan, 9 November 1934, Records of the Committee on Economic Security, RG 47, PI183, Entry 3, Staff Reports, NARA; Memorandum, Alexander Holtzoff to Edwin Witte, November 6, 1934, Records of the Committee on Economic Security, RG 47, PI183, Entry 3, Staff Reports, NARA. 40. Minutes of the Meeting of the CES, October 1, 1934, Records of the Committee on Economic Security, RG 47, PI183, Entry 1, Minutes and Agendas of the Cabinet Committee, NARA. 41. Schlesinger, Coming of the New Deal, 304–5. 42. The Reminiscences of Murray Latimer (August 4, 1965), 16–18, 38, OHCCU.

Notes to Chapter 5 / 293 43. Armstrong recalled that she told Witte she had offered her best judgment and he was of course free to discard it if he desired. Instead, she contended that he altered her report and misrepresented her view to the technical board, informing them that she favored state-level programs. The Reminiscences of Barbara Armstrong (December 19, 1965), 51–55, OHCCU. 44. Armstrong says that Thomas Reed Powell referred to Eliot as “a typical Congressman,” meaning that even in law school he had been quite political, which she said “in academic circles was not a nice way to summarize anybody” (ibid., 186–87). 45. The Reminiscences of Thomas H. Eliot (August 9, 1965), 21, 28, 31 OHCCU. 46. The Reminiscences of Barbara Armstrong (December 19, 1965), 93, 186–87, OHCCU. 47. Memorandum, Thomas Eliot to Edwin Witte, October 8, 1934, Records of the Committee on Economic Security, RG 47, PI183, Entry 3, Staff Reports, Eliot, NARA. 48. The Reminiscences of Thomas H. Eliot (August 9, 1965), 17, OHCCU. 49. The Reminiscences of Barbara Armstrong (December 19, 1965), 74–76, OHCCU; The Reminiscences of J. Douglas Brown (February 22, 1965), 109–10, OHCCU. 50. The Reminiscences of Barbara Armstrong (December 19, 1965), 97, OHCCU. 51. Ibid., 94; Traynor and others, “Barbara Nachtrieb Armstrong,” 923. 52. The Reminiscences of Barbara Armstrong (December 19, 1965), 93–97, OHCCU. Brown told an oral history interviewer in 1965 that he still had a copy of the letter in his files. The Reminiscences of J. Douglas Brown (February 22, 1965), 109–10, OHCCU. 53. The Reminiscences of Barbara Armstrong (December 19, 1965), 289, OHCCU. Brown characterized it as a “breakthrough” that cleared the “constitutional obstacles” from the national system. The Reminiscences of J. Douglas Brown (February 22, 1965), 110, OHCCU. 54. Thomas Eliot to Edwin Witte, November 5, 1934, Records of the Committee on Economic Security, RG 47, PI183, Entry 1, Staff Correspondence, NARA. 55. Altmeyer, Formative Years, 25–26. 56. Barbara Armstrong, Outline of Old-Age Annuity Program Proposed by Staff, November 9, 1934, Records of the Committee on Economic Security, RG 47, PI183, Entry 3, Staff Reports, NARA. Altmeyer, in his memoir, inaccurately claimed that the committee decided to “risk” the straight federal old age insurance system even though its chance of being struck down by the Court was greater than that of a Wagner-Lewis model (Formative Years, 25). 57. The Reminiscences of Barbara Armstrong (December 19, 1965), 59–62, 211–17, OHCCU; Witte, Social Security Act, 49, 121. 58. Alexander Holtzoff to Edwin Witte, November 6, 1934, Records of the Committee on Economic Security, RG 47, PI183, Entry 3, Staff Reports, NARA. 59. Barbara Armstrong, Memorandum, Advantages of Federal Subsidy Plan, November 9, 1934, Records of the Committee on Economic Security, RG 47, PI183, Entry 3, Staff Reports, NARA; Joseph Harris, Memorandum, Considerations concerning the Relative Merits and Defects of the Wagner-Lewis and Subsidy Plans for Unemployment Insurance, Records of the Committee on Economic Security, RG 47, PI183, Entry 3, Staff Reports, NARA. 60. Edwin Witte, Report of the Technical Board on the Major Alternative Plans for the Administration of Unemployment Insurance, November 9, 1934, Records of the Committee on Economic Security, RG 47, PI183, Entry 1, Reports and Minutes of the Technical Board Unemployment Committee, NARA.

294 / Notes to Chapter 5 61. Thomas Eliot, Memorandum, Subsidy Plan, Records of the Committee on Economic Security, RG 47, PI 183, Entry 3, Staff Reports, Eliot, NARA. 62. Corwin, Twilight, 178–79. Even those, like University of Kentucky law professor Forrest Revere Black, who disliked the fact were forced to admit that “whatever Congress deems to be for the general welfare is a legitimate subject of expenditure.” Black, “Socialism and the Constitution,” 328. 63. Black, “Socialism and the Constitution,” 317. 64. Thomas Reed Powell, Book Review, The Twilight of the Supreme Court, Papers of Thomas Reed Powell, Special Collections, Harvard Law School Library, Cambridge, MA. 65. Clark, Introduction, xvii. 66. Memorandum, Barbara Armstrong, Advantages of Federal Subsidy Plan, November 9, 1934, Records of the Committee on Economic Security, RG 47, PI183, Entry 3, Staff Reports, Armstrong, NARA. 67. Alexander Holtzoff to Edwin Witte and Arthur Altmeyer, November 6, 1934, Records of the Committee on Economic Security, RG 47, PI183, Entry 3, Staff Reports, Holtzoff, NARA. 68. The Reminiscences of Barbara Armstrong (December 19, 1965), 56–58, OHCCU. Similarly, Armstrong was shocked that Frances Perkins did not support her, given that she was another professional woman in a male-dominated field. 69. Edwin Witte, Report of the Technical Board on the Major Alternative Plans for the Administration of Unemployment Insurance, November 9, 1934, Records of the Committee on Economic Security, RG 47, PI183, Entry 1, Reports and Minutes of the Technical Board Unemployment Committee, NARA. 70. The Reminiscences of Eveline Burns (February 10, 1965), 39–42, OHCCU; The Reminiscences of Murray Latimer (August 4, 1965), 13, OHCCU. 71. Altmeyer, Formative Years, 23. 72. Minutes of the Technical Board, Executive Committee, November 8, 1934, Records of the Committee on Economic Security, RG 47, PI183, Entry 1, Reports and Minutes of the Technical Board Unemployment Committee, NARA. 73. Witte, Social Security Act, 118. Rex Tugwell later claimed that both he and Hopkins had been strong supporters of the straight national plan. Grodzins, “American Political Parties,” 978. 74. Paul Kellogg, the editor of Survey and Survey Graphic, was the vice chairman of the panel. The Reminiscences of Frank Graham (March 27, 1965), 1–4, 14–16, 18, OHCCU; The Reminiscences of Eveline Burns (February 10, 1965), 40–50, OHCCU; The Reminiscences of Barbara Armstrong (December 19, 1965), 62. 75. The Reminiscences of Barbara Armstrong (December 19, 1965), 62, OHCCU; Witte, Social Security Act, 54–63, 121–25; The Reminiscences of Frank Graham (March 27, 1965), 5–7, OHCCU. 76. Witte, Social Security Act, 58. The Advisory Council vote in favor of the subsidy plan was leaked to the New York Times, probably by Murray Latimer of the Railroad Retirement Board. The Reminiscences of Frank Graham (March 27, 1965), 21–22, OHCCU; The Reminiscences of Murray Latimer (August 4, 1965), 18–19, 34–35, OHCCU. 77. The Reminiscences of Frank Graham (March 27, 1965), 6–7, OHCCU. Graham recounted that the advisory council worried about the potential race to the bottom that would be created by the Wagner-Lewis plan (ibid., at 18–21). 78. Eliot, Recollections of the New Deal, 101; Witte, Social Security Act, 68.

Notes to Chapter 5 / 295 79. “Democratic Party Platform of 1932,” June 27, 1932. Online by Gerhard Peters and John T. Woolley, The American Presidency Project, http://www.presidency.ucsb.edu/ ws/?pid=29595; Roosevelt, “Message to the Congress Reviewing the Broad Objectives and Accomplishments of the Administration,” 287; Eliot, Recollections of the New Deal, 73, 98; Witte, Social Security Act, 18. The Reminiscences of Raymond Moley (February 2, 1965), 7–8, OHCCU. 80. Although Corcoran was not yet at this time the administration fixer he would later become, he was already taking on his role as Roosevelt’s “hatchet man.” He was admitted to the inner circle of Roosevelt advisors in 1934 and by the time the Social Security Act went to Congress was a “fixture” at the White House. Lasser, Benjamin V. Cohen, 130–33. 81. Tom Corcoran, Memorandum on “Why the Wagner-Lewis principle should not be opposed at this time for the purpose of insisting on a completely national scheme of unemployment insurance at this Congress,” December 1934, Records of the Committee on Economic Security, RG 47, PI183, Entry 3, Staff Reports, Corcoran, NARA. 82. The Reminiscences of Thomas Hopkinson Eliot (August 9, 1965), 21, OHCCU; Lasser, Benjamin V. Cohen, 133. 83. Witte, Social Security Act, 125; Eliot, Recollections of the New Deal, 99; Altmeyer, Formative Years, 22–23. The lack of federal standards for benefits, waiting periods, and other provisions caused some members of the advisory council and the staff to continue to agitate against the CES recommendations and for the subsidy plan. Frank Graham, a historian and President of the University of North Carolina and the chair of the advisory council, testified in favor of federal standards on February 2, 1935, saying that he still favored the defeated subsidy plan for this reason. Testimony of Frank Graham, Hearings before the Committee on Finance, United States Senate, 74th Cong., 1st sess., S1130, February 2, 1935. 84. Joseph Harris to Jane Perry Clark, April 2, 1935, Records of the Committee on Economic Security, RG 47, PI183, Entry 1, Staff Correspondence, NARA. 85. The Reminiscences of J. Douglas Brown (February 22, 1965), 109, OHCCU; Witte, Social Security Act, 131, 144. According to Witte, the “Negro question” was more directly raised by the old age assistance provisions of the act, when the Ways and Means Committee forced the administration to “tone down” all clauses relating to federal supervision and delete the requirement that benefits be sufficient to provide “a reasonable subsistence compatible with decency and health.” 86. Lieberman, Shifting the Color Line, 62. 87. 79 Cong. Rec. HR7260, 5708–9 (April 15, 1935). 88. 79 Cong. Rec. HR7260, 9283 (June 14, 1935). 89. 79 Cong. Rec. HR7260, 5863–70 (April 17, 1935). 90. Ibid. 91. 79 Cong. Rec. HR7260, 5967–68 (daily ed. April 18, 1935). Lundeen himself voted against the bill, because he favored a noncontributory and far more generous alternative. 79 Cong. Rec. HR7260, 6070 (daily ed. April 19, 1935); Steiner, “Social Security,” 461–48. 92. Edwin Witte to Ray Moley, May 10, 1935, Records of the Committee on Economic Security, RG 47, PI183, Entry 1, Staff Correspondence, NARA; Ray Moley to Frances Perkins, October 31, 1934, Records of the Committee on Economic Security, RG 47, PI183, Entry 1, Staff Correspondence, NARA. Although Roosevelt and Moley would shortly break over Moley’s dissatisfaction with Roosevelt’s increasing liberalism, at

296 / Notes to Chapter 5

93. 94.

95.

96. 97. 98. 99.

100. 101. 102.

103. 104.

105. 106.

107. 108.

109. 110. 111.

this time he was still among the president’s core advisors and was his chief speechwriter. Lasser, Benjamin V. Cohen, 134. Joseph Harris to Alexander Holtzoff, May 15, 1935, Records of the Committee on Economic Security, RG 47, PI183, Entry 1, Box 11, NARA. Colin Stam, Memorandum on the Constitutional Questions on the Social Security Bill (H.R. 7260) as Passed by the House, Records of the Committee on Economic Security, RG 47, PI183, Entry 1, Box 11, NARA. Joseph Harris, Brief in Defense of the Unemployment Compensation Provisions of the Social Security Bill, p. 5, RG 47, PI183, Entry 3, Staff Reports, NARA; Joseph Harris, Statement Concerning the Effect of the Social Security Bill upon States Rights, Records of the Committee on Economic Security, RG 47, PI183, Entry 3, Staff Reports, NARA; Joseph Harris, Brief in Defense of Old-Age Benefits as Provided in the Social Security Bill, p. 11, RG 47, PI183, Entry 3, Staff Reports, NARA. Secretary of Edwin Witte to Thomas Eliot, June 7, 1935, Records of the Committee on Economic Security, RG 47, PI183, Entry 1, Box 11, NARA. 79 Cong. Rec. HR7260, 9273 (daily ed. June 14, 1935). 79 Cong. Rec. HR7260, 9286–87 (daily ed. June 14, 1935). George’s real purpose was to support the Clark amendment, which would have gutted the act by exempting employers who set up private pension plans. George’s attack on Social Security was one of the factors that caused Roosevelt to target him for defeat in the 1938 elections. He launched that attack on George in his Gainesville address in 1938, as discussed in chapter four. 79 Cong. Rec. HR7260, 9273 (daily ed. June 14, 1935). Eliot, Recollections of the New Deal, 112. Alexander Holtzoff, Memorandum on the Constitutionality of the “Social Security Bill,” p. 10–11, Records of the Committee on Economic Security, RG 47, PI183, Entry 3, Staff Reports, NARA; Alexander Holtzoff to Joseph Harris, May 14, 1935, Papers of the Committee for Economic Security, RG 47, PI183, Entry 1, Box 11, NARA. 79 Cong. Rec. HR7260, 5782–84 (daily ed. April 16, 1935). Holtzoff prepared the memorandum for Cummings. Alexander Holtzoff, Memorandum on the Constitutionality of the “Social Security Bill,” p. 10–11, Records of the Committee on Economic Security, RG 47, PI183, Entry 3, Staff Reports, NARA. Eliot recalled that Holtzoff also ghost-wrote defenses of the bill’s constitutionality for Assistant Solicitor General McClean, whose southern deportment was favored by conservative Democrats on the committee. Eliot, Recollections of the New Deal, 112. Post, “Constitutionality of Government Spending,” 33. Ackerman, Transformations 268, 290–91; for a comprehensive review of the literature on the New Deal “constitutional revolution,” see Laura Kalman, “Law, Politics, and the New Deal,” particularly 2169, 2181–85. The Reminiscences of Barbara Armstrong (December 19, 1965), p. 289, OHCCU. Memorandum, Thurman Arnold to Robert Jackson, September 15, 1936, Records of Steward Machine Co. v. Davis, RG 60, 137–1-3, Classified Correspondence File, NARA. Quadagno, Color of Welfare, 20; Lieberman, Shifting the Color Line, 62. Lieberman, Shifting the Color Line, 24–27; Quadagno, The Color of Welfare, 21. Lieberman, Shifting the Color Line, 62.

Notes to Chapter 6 / 297 112. Brinkley, Voices of Protest, 222–26. Much has been made of the story that Congress tried to eliminate old age insurance from the bill. But the amendment striking the old-age provisions was defeated by more than one hundred votes. Lieberman, Shifting the Color Line, 40. 113. Lieberman, Shifting the Color Line, 44–45. 114. Witte, “Reflections”; Brown, “Genesis of Social Security.” As Lieberman points out, southern states desperately needed federal funds for the support of the indigent poor and generally supported the Social Security Act. They merely wanted to minimize its impact on “regional patterns of race and labor.” Lieberman, Shifting the Color Line, 36–37. Perhaps aware of this, the administration resisted somewhat the demand to exclude agricultural and domestic labor from the old age insurance program. Ibid., 40–44. 115. The Reminiscences of Barbara Armstrong (December 19, 1965), 210, OHCCU. 116. Schlesinger, Coming of the New Deal, 213–14; Burns, “Review of Altmeyer,” 658, Larry DeWitt, “Never a Finished Thing: A Brief Biography of Arthur Joseph Altmeyer,” http://www.ssa.gov/history/bioaja.html (accessed May 30, 2007); The Reminiscences of Frank Graham (March 27, 1965), 11, OHCCU. 117. Altmeyer, Formative Years, 14–15, 20–22. 118. Rex Tugwell went so far to distance himself from the state-level unemployment compensation system that he claimed that both he and Harry Hopkins had vigorously supported the straight national plan and regarded the adoption of state-level unemployment insurance as “their greatest defeat,” after which they both quit the CES and refused to have any more to do with the shaping of the act or its subsequent administration. Grodzins, “American Political Parties,” 978. 119. Leuchtenburg, Franklin D. Roosevelt, 130; Schlesinger, Coming of the New Deal, 301–3. CHAPTER SIX

1. 2. 3. 4. 5. 6. 7.

8.

Brief for the United States at 179, United States v. Butler, 297 U.S. 1 (1936) (No. 401). Brief for the Tennessee Valley Auth. at 55, Ashwander v. Tennessee Valley Auth., 297 U.S. 288 (1935). Brief for Respondent at 59, Loomis v. First Federal Savings & Loan, 305 U.S. 562 (1938). Brief for Appellants at 18–23, United States v. Certain Lands in the City of Louisville, 78 F.2d 684 (6th Cir. 1935). Brief for Petitioners at 46, 48, Helvering v. Davis, 301 U.S. 619 (1937). U.S. v. Butler, 297 U.S. 1, 62, 67 (1936). See for example, Helvering v. Davis, 301 U.S. 619, 640 (1937); Steward Mach. Co. v. Davis, 301 U.S. 548, 586–87 (1937). Richard Friedman notes that Butler’s declaration of the broad scope of the General Welfare Clause was later relied upon in the Social Security cases, but attributes the holding in Butler not to Realty Company but to Chief Justice Hughes’s desire to “write his views” on the matter acquired during his work on the Federal Farm Loan case into law (Friedman, “Switching Time,” 1955–56). 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

298 / Notes to Chapter 6

9.

10.

11.

12.

13.

14. 15. 16. 17.

the Court to make a revolutionary change. Instead, they described the act as entirely consistent with existing precedent (“A Stream of Legal Consciousness,” 144–56). Irons, New Deal Lawyers. Cushman highlights the way in which legal training and traditions, rather than merely politics, influenced judicial decision making and acted as a brake on the personal preferences of judges during the New Deal (Cushman, Rethinking the New Deal, 40–41). Memorandum, Thomas Eliot to Edwin Witte, October 8, 1934, Records of the Committee on Economic Security, RG 47, PI183, Entry 3, staff reports, Eliot, NARA; Alexander Holtzoff to Edwin Witte, October 3, 1934, Records of the Committee on Economic Security, RG 47, PI183, Entry 8, General Correspondence, NARA. The AAA had received a favorable decision from the district court on October 19, 1934, based on the General Welfare Clause. Although it is plausible that the committee lawyers or the professors who were advising them were aware of this decision and that it influenced their views, there is no evidence for this. Moreover, it is clear that Witte, Holtzoff, Eliot, and Armstrong had already settled on the taxing and spending power as the basis for the economic security plan prior to the district court’s decision. The various memoranda advocating that strategy were written in September, and by the beginning of October, Witte told Holtzoff and Eliot to bring everything in under the taxing power, and Eliot reported that the professors he consulted, including Powell, agreed that the taxing and appropriation power was the best strategy. Edwin Witte to Alexander Holtzoff, October 5, 1934, Records of the Committee on Economic Security, RG 47, PI183, Entry 8, General Correspondence, NARA; Memorandum, Thomas Eliot to Edwin Witte, October 8, 1934, Records of the Committee on Economic Security, RG 47, PI183, Entry 3, NARA. Two days before the AAA was upheld by the district court, Witte rejected Leiserson’s repeated entreaties to use the commerce power. Edwin Witte to William Leiserson, October 17, 1934, Records of the Committee on Economic Security, RG 47, PI183, Entry 8, General Correspondence, NARA. The lower courts hearing challenges to NIRA were divided, so it is unlikely that these decisions played much role in the CES lawyers’ recommendations. In July 1934, District Judge William Calvin Chesnut, who had been appointed by President Hoover in 1931, reviewed the “diverse conclusions” of the lower courts on the scope of the commerce power in the NIRA. United States v. Mills, 7 F. Supp. 547, 553 (D. Md. 1934). The railway pension case was not argued until March 1935, and not decided until May of that year on an expedited appeal from a district court injunction. Railroad Retirement Board v. Alton, 295 U.S. 330 (1935). Many former government officials associated with the CES claimed in accounts produced many years later, for example that of Arthur Altmeyer in Formative Years of Social Security, that these Supreme Court cases influenced their choices, but the actual timing of these renders those claims highly implausible. Edwin Witte, Report of the Technical Board on the Major Alternative Plans for the Administration of Unemployment Insurance, November 9, 1934, Records of the Committee on Economic Security, RG 47, PI183, Entry 1, Reports and Minutes of the Technical Board Unemployment Committee, NARA. Memorandum, Thurman Arnold to Robert Jackson, September 15, 1936, RG 60, 137–1-3, Classified Correspondence File, Steward Machine Co. v. Davis, NARA. Irons, New Deal Lawyers, 3. Kalman, Legal Realism, 10–13; Stevens, Law School, 60–64, 172–80. Horsky, like Wyzanski, had been recommended by Frankfurter to clerk for Judge

Notes to Chapter 6 / 299

18. 19.

20. 21. 22.

23. 24.

Augustus Hand, who then sent him to work for Stanley Reed in the solicitor’s office. Like Corcoran and others of the elite lawyers in this chapter, Horsky became a partner at a Washington law firm (in Horsky’s case, Covington & Burling). In 1944, Horsky represented Fred Korematsu in his challenge to Japanese internment. “Legends in the Law,” Washington DC Bar Report, August/September 1996. Many of these New Deal lawyers reentered the government as advisors to the Kennedy and Johnson administrations. Goulden, Super-Lawyers, 5, 27–29, 150, 331. Irons, New Deal Lawyers, 187–91. Ibid., 181–97. Irons makes much of the retreat of Stanley Reed, who argued the Butler case before the Supreme Court as solicitor general, from the “expansive” view of the General Welfare Clause put forth in the government’s brief. Reed, whom Irons characterizes as a cautious southerner, even though he had attended John Burgess’s classes at Columbia alongside Reed Powell and FDR, seemed to accept in oral argument that direct payments to individuals might fall outside of the meaning of the “general welfare.” Yet rather than capitalize on Reed’s retreat, the lawyer for the processors, George Wharton Pepper, ignored it in favor of attacking the government’s argument in its brief that the General Welfare Clause authorized spending for virtually whatever purpose Congress saw fit, without any review by the courts. Irons terms Pepper’s tactic “clever,” presumably because it exposed the brief’s weaker, more far-reaching claim. Yet Irons notes that Justice Roberts, who wrote the majority opinion for the Court against the administration, “surprisingly” accepted the government’s position on the reach of the General Welfare Clause, as well as the limits on judicial review over appropriations. Roberts’s decision is only surprising if we accept Irons’s characterization of the Hamiltonian view of the General Welfare Clause advanced by the government as being unprecedented and outside of the constitutional mainstream. In fact, as George Wharton Pepper doubtless knew from his time in Congress, the government’s argument in its brief more closely reflected the settled understanding of the issue following the Supreme Court’s decisions in Realty Company and the Maternity Act cases. Pepper attacked the supposedly broad view of the General Welfare Clause not because it was more vulnerable to attack, but because if left unchallenged it was a potent threat to his case. Irons does not mention Realty Company despite the importance of the case to the government’s argument. He instead positions the brief’s argument against judicial review as sincere but groundless and even desperate. In missing the importance of this case he misses as well all the legislative precedents on which it was bottomed, such as the sugar bounty and disaster relief. Powell, “Processing Tax,” 125, 126, 139. Ibid., 130. Ibid., 136–38. This article was published after the decision in Butler had been announced (but before Powell had seen the opinion). Powell was outraged and defended his prediction as having been entirely justified by the law, while slashing the majority: “I did not believe that so many of the Justices would do what I think so foolish and so unwarranted by anything in the Constitution. I do not believe that the majority opinion when it is available will convince me that it was Constitution rather than the majority that rendered the decision.” Ibid., 125. Irons, New Deal Lawyers, 182–85. Dictionary of American Biography, Supplement 5: 1951–1955, s.v. “Owen Josephus Roberts,” reproduced in Biography Resource Center, http://galenet.galegroup.com/ servlet/BioRC, accessed May 30, 2007.

300 / Notes to Chapter 6 25. Franklin Process Co. v. Hoosac Mills Corp., 8 F. Supp. 552, 559–60 (D.C. Mass. 1934); Franklin Process v. Hoosac Mills Corp., RG 60, 5-36-346, Correspondence File, NARA. Judge Brewster found that the tax had to be for the general welfare and within an enumerated power. He held that the “nation-wide economic disturbance” of the Depression brought “the purpose of the legislation into relationship with commerce which would not exist under normal conditions,” which even he admitted was a shaky basis for finding that the act was a legitimate exercise of the enumerated power. Franklin Process, 8 F. Supp. at 560. 26. Irons, New Deal Lawyers, 186–87. 27. Henry Wallace to Homer Cummings (informing him that Savoy, the chief of the tax section, would be assisting DOJ on behalf of Agriculture), August 19, 1935, RG 60, 5-36-346, Correspondence File, NARA; Henry Wallace to Stanley Reed (transmitting a draft brief in support of the cert petition by Savoy), August 19, 1935, RG 60, 5-36346, Correspondence File, NARA. 28. Memorandum, Frank Wideman to Alger Hiss, August 22, 1935, RG 60, 5-36-346, Correspondence File, NARA. 29. Brief for the United States at 139, 146–49, 154–55, 176–67, App. C, p. 61, United States v. Butler, 297 U.S. 1 (1936) (No. 401). 30. Brief for the United States at 152–69, United States v. Butler, 297 U.S. 1 (1936) (No. 401). 31. Brief for the United States at 127–28, 171, 172–79, United States v. Butler, 297 U.S. 1 (1936) (No. 401). 32. Missouri Utilities v. City of California, 8 F. Supp. 454, 458 (C.D. Mo. 1934); Kansas Gas & Elec. Co. v. City of Independence, 79 F.2d 32, 40 (10th Cir. 1935). 33. In addition to Choate’s brief, the government brief also referenced the briefs in Field v. Clark, Smith v. Kansas City Title (authored by Chief Justice Charles Hughes, then in private practice), and Massachusetts v. Mellon (authored by the Liberty League’s James Beck, then US solicitor general). Brief for the United States at 138 n. 60, United States v. Butler, 297 U.S. 1 (1936) (No. 401). 34. Memorandum, Frank Wideman to Alger Hiss, August 28, 1935, RG 60, 5-36-346, Correspondence File, NARA. 35. Memorandum, Arthur Jacobs to Sewall Key, August 22, 1935, RG 60, 5-36-346, Correspondence File, NARA. Interestingly, one of Jacobs’s other suggestions was a brief mention of 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 and the Maternity Act, there is no mention of veterans’ pensions as a precedent for New Deal welfare spending in his 280-page brief or 100-page appendix. Brief for the United States at 155–69, United States v. Butler, 297 U.S. 1 (1936) (No. 401). 36. Alger Hiss to Stanley Reed, November 27, 1935, RG 60, 5-36-346, Correspondence File, NARA. 37. Memorandum, John Paul Jackson to Sewall Key, September 12, 1935; Memorandum, John Paul Jackson to Sewall Key, October 10, 1935; Memorandum, John Paul Jackson to Sewall Key, October 15, 1936; Memorandum, Frank Wideman to Alger Hiss, September 13, 1936; Memorandum, Sewall Key to Frank Wideman, September 16, 1935; Memorandum, Arthur Jacobs to Sewall Key, September 10, 1935; Memorandum, Arthur Jacobs to Sewall Key, October 11, 1935; Memorandum, Arthur Prescott to Sewall Key, August 30, 1935; Memorandum, Alger Hiss, List of Legal Memoranda Prepared by Tax Division, RE Hoosac Case, September 4, 1935; Alger

Notes to Chapter 6 / 301

38. 39. 40.

41.

42. 43. 44. 45.

46.

47.

48. 49.

50.

51.

Hiss, List of Additional Memoranda Prepared by Tax Division in Hoosac Case, September 14, 1935; all in RG 60, 5-36-346, Correspondence File, NARA. Memorandum, Arthur Jacobs to Sewall Key, October 8, 1935, RG 60, 5-36-346, Correspondence File, NARA. Memorandum, Arthur Prescott to Sewall Key, August 30, 1935, RG 60, 5-36-346, Correspondence File, NARA. Memorandum, Arthur Prescott to Sewall Key, August 30, 1935, p. 21, RG 60, 5-36346, Correspondence File, NARA; Memorandum, Sewall Key to Alger Hiss, September 16, 1935, p. 27, RG 60, 5-36-346, Correspondence File, NARA. Memorandum, Helen Carloss to Sewall Key, August 21, 1935, RG 60, 5-36-346, Correspondence File, NARA. Key specifically called the Hughes brief to Hiss’s attention in his own memo a few weeks later. Memorandum, Sewall Key to Alger Hiss, September 17, 1935, RG 60, 5-36-346, Correspondence File, NARA. The Tax Division lawyers were so impressed with Carloss’s memo that it was the subject of a conference in the department, to which Hiss was invited two weeks later. Memorandum, Frank Wideman to Alger Hiss, September 9, 1935, RG 60, 5-36-346, Correspondence File, NARA. Erwin Griswold to Stanley Reed, October 21, 1935, RG 60, 5-36-346, Correspondence File, NARA. Memorandum, Helen Carloss to Sewall Key, October 2, 1935, RG 60, 5-36-346, Correspondence File, NARA. Seth Thomas to Stanley Reed, September 3, 1935, RG 60, 5-36-346, Correspondence File, NARA. Memorandum, Helen Carloss to Sewall Key, October 2, 1935, pp. 5, 14, RG 60, 5-36-346, Correspondence File, NARA; Brief for the United States at 93, 95, 147, 175, United States v. Butler, 297 U.S. 1 (1936) (No. 401). Memorandum, Stanley Reed to Alger Hiss (transmitting comments of Berle and Frank), October 25, 1935; Mastin White to Stanley Reed (transmitting a draft of a general welfare argument for the brief), October 12, 1935; both in RG 60, 5-36-346, Correspondence File, NARA. White was a graduate of both Columbia (1930) and Harvard (1933) law schools. Vincent Nicholson to Stanley Reed (with annotations by Alger Hiss), November 21, 1935, RG 60, 5-36-346, Correspondence File, NARA; Nicholson, “Federal Spending Power,” 12. International News Service, “New Deal Asks ‘Liberalized’ Constitution,” November 19, 1935, RG 60, 5-36-346, Correspondence File, NARA. See, e.g., Clarence Goodwin to Stanley Reed, October 25, 1935; Joseph Strayer to Frank Wideman (responding to Wideman’s request for help from Stayer’s Princeton colleague Edward Corwin), October 14, 1935; both in RG 60, 5-36-346, Correspondence File, NARA. Thomas Reed Powell to Paul Freund, November 12, 1935; Thomas Reed Powell to Paul Freund, November 13, 1935; both in Thomas Reed Powell Papers, Special Collections, Harvard Law School Library, Cambridge, MA. Memorandum, James Morris to Alger Hiss, September 10, 1935, RG 60, 5-36-346, DOJ Central Files, Classified Subject Files, Correspondence File, NARA; Memorandum, Stanley Reed to Alger Hiss, November 22, 1935, RG 60, 5-36-346, Department of Justice Central Files, Classified Subject Files, Correspondence File, NARA. Reed was worried because his friend, Clarence Goodwin, a Washington lawyer and former judge on the Illinois Appellate Court, told him after reviewing the page

302 / Notes to Chapter 6

52. 53. 54. 55. 56. 57.

58.

59.

60. 61.

62. 63.

64.

65.

66.

proofs of the brief that he thought the brief was “very impressive” but the argument on judicial review was “unnecessary and unfortunate.” Clarence Goodwin to Stanley Reed, October 25, 1935, RG 60, 5-36-346, Correspondence File, NARA. Shamir, Managing Legal Uncertainty, 192; Ely, “John W. Davis,” 188–89. Bryson, Legal Education, 187, 192. Ely, “John W. Davis,” 186. Brief of Amicus Curiae Hygrade Food Products, National Biscuit Company, and P. Lorillard Company at 27, 52, United States v. Butler, 297 U.S. 1 (1936) (No. 401). Yorkey, “Constitutional Law,” 634–35n36. Brief Filed by Malcolm Donald as Amicus Curiae on Behalf of the National Association of Cotton Manufacturers at 133, United States v. Butler, 297 U.S. 1 (1936) (No. 401). Robert N. Anderson to Malcolm Donald, August 20, 1935; Malcolm Donald to Robert Anderson, August 22, 1935; Stanley Reed to Malcolm Donald, November 23, 1935; all in RG 60, 5-36-346, Correspondence File, NARA. Even after the arguments in the case were concluded, Reed requested ten additional copies of the brief, likely in connection with other, upcoming cases for Social Security and other programs. Stanley Reed to Malcolm Donald, December 12, 1935; Malcolm Donald to Stanley Reed, December 14, 1935; both in RG 60, 5-36-346, Correspondence File, NARA. Memorandum, Francis LeSourd to Sewall Key, December 7, 1935; Memorandum, Francis LeSourd to Sewall Key, December 8, 1935; both in RG 60, 5-36-346, Correspondence File, NARA. Copy of the Brief of Malcolm Donald, U.S. v. Butler, Stanley Reed Papers, University of Kentucky Library, Lexington. Transcript of the Oral Argument of Stanley Reed, December 9, 1935, United States v. Butler, No. 401, United States Supreme Court, RG 60, 5-36-346, Correspondence File, NARA; “AAA Stirs Barrage of Pointed Queries from High Bench,” New York Times, December 10, 1935. “Reed in Collapse; AAA Cases Halted,” New York Times, December 11, 1935; Irons, New Deal Lawyers, 193. Dean Dinwoodey, “An Epochal Decision: The New Deal Effects; Broad Implications of the Majority and Minority Judgments Set Forth,” United States Law Week, January 12, 1936, E3. Howard Lee McBain, “The Issue: Court or Congress,” New York Times, January 19, 1936. Roscoe Steffens of Yale Law School made a similar point in a letter to the editor of the Times. He wrote to correct a Times editorial that indicated that the Court had held that aid to agriculture was not in the general welfare. In fact, Steffens said, “both majority and minority opinions were in accord that federal spending must be for a national purpose, but neither so much as intimate” that aid to agriculture would not fall within that definition. Roscoe Steffens, letter to the editor, New York Times, January 13, 1936. The Supreme Court upheld the old age provisions and the unemployment compensation provisions of the Social Security Act in Helvering v. Davis, 301 U.S. 619 (1937) and Charles C. Steward Machine Co. v. Davis, 301 U.S. 548 (1937), respectively. In Duke Power Co. v. Greenwood County, 302 U.S. 485 (1938), the Court upheld the public works provisions of the National Industrial Recovery Act (NIRA). Stanley Reed to Malcolm Donald, December 12, 1936; Malcolm Donald to Stanley Reed, December 14, 1935; Memorandum, Francis LeSourd to Sewall Key, Decem-

Notes to Chapter 6 / 303

67.

68.

69.

70.

71.

ber 14, 1936; all in RG 60, 5-36-346, Correspondence File, NARA. In some cases, government lawyers from other departments had to request copies of the opponents’ briefs because the Tax Division would no longer part with copies. John Dickenson to Edward Hale, January 21, 1936; John W. Davis to Stanley Reed, December 17, 1935; both in RG 60, 5-36-346, Correspondence File, NARA. Government lawyers requested the brief for pending cases, for example, the general counsel of the Resettlement Administration. I. M. Gottlieb to Mary Agnes Quinn (Stanley Reed’s secretary), February 5, 1935, RG 60, 5-36-346, Correspondence File, NARA; Robert Jackson to A. M. Smith, Treasury Department, April 18, 1936, RG 60, 5-36-346 DOJ, Classified Correspondence Files; Judge Jerry Sullivan, U.S. Customs Court to Stanley Reed (sending both the brief and Jacobs’s memos on the history of appropriations), February 10, 1936, RG 60, 5-36-346, Correspondence File, NARA; Memorandum, Hugh Cox to John Dickenson, December 13, 1935, RG 60, 5-36346, Correspondence File, NARA. E.g., Telegram, Franklin D. Roosevelt to Stanley Reed, November 22, 1935; George Nillson to Homer Cummings, December 2, 1935; H. W. Bullock to Homer Cummings, December 2, 1935; Herman Goldberg to Homer Cummings, October 3, 1935; Lester Reeves to Stanley Reed, October 17, 1935; Charles Boyden to Mary Agnes Quinn, October 25, 1935; Gilbert Montague to Andrew Sharpe, October 26, 1935; all in RG 60, 5-36-346, Correspondence File, NARA. College and law students also requested the brief. John Paul Jones to Justice Department, December 19, 1935; Thomas Cornette to Stanley Reed, November 25, 1935; both in RG 60, 5-36346, Correspondence File, NARA. A Harvard student writing his honors thesis on the constitutionality of the AAA asked to be given a seat for oral argument. Thomas Quinn to Homer Cummings, November 23, 1935, RG 60, 5-36-346, Correspondence File, NARA. Key had to send regrets after the supply of the brief was exhausted in order to keep a sufficient number for the division lawyers. Robert Anderson to J. Williston Smith, October 30, 1935, RG 60, 5-36-346, Correspondence File, NARA. Robert Jackson sent a set of briefs over to Treasury in April with instructions to have them transcribed and then return the originals to the Tax Division. Robert Jackson to A. M. Smith, Treasury Department, April 18, 1936; Judge Jerry Sullivan, U.S. Customs Court to Stanley Reed, February 10, 1936; both in RG 60, 5-36-346, Correspondence File, NARA. Solicitor General’s Mailing List Re: Hoosac Mills, Stanley Reed Papers, Misc. Series, Box 297, University of Kentucky Library, Lexington; Congressional List, Re: Hoosac briefs, Stanley Reed Papers, Misc. Series, Box 297, University of Kentucky Library, Lexington. R. J. Lingel to Stanley Reed, January 7, 1936; Rose Boots, Librarian at Columbia University Library to Solicitor General’s Office (acknowledging receipt of a set of the briefs), February 14, 1936; Edward Mason, Harvard University Division of History, Government and Economics to Department of Justice, February 24, 1936; Judge Jerry Sullivan, U.S. Customs Court to Stanley Reed, February 10, 1936; all in RG 60, 5-36-346, Correspondence File, NARA. Moise Steeg Jr., Board of Editors of the Tulane Law Review to Stanley Reed, February 3, 1935, RG 60, 5-36-346, Correspondence File, NARA. A great many academic articles analyzed the government’s arguments for the spending power in addition to those by McGuire, Nicholson, Burdick, Corwin, and Warren, including Yorkey, “Constitutional Law”; Post, “Constitutionality of Government Spending”; Cathcart, “Supreme Court.”

304 / Notes to Chapter 6 72. 73. 74. 75. 76.

77. 78.

79.

80.

81. 82.

83. 84.

85. 86.

Yorkey, “Constitutional Law,” 634–37; Cathcart, “Supreme Court,” 329. Armstrong, “Federal Social Security,” 273. Powell, “Processing Tax,” 125. Judge Jerry Sullivan, U.S. Customs Court to Stanley Reed, February 10, 1936, RG 60, 5-36-346, Correspondence File. NARA. “Welfare Clause Invoked for AAA: Cummings Brief in Hoosac Mills Case Opens New Deal Defense in Supreme Court,” New York Times, November 19, 1935; International News Service, “New Deal Asks ‘Liberalized’ Constitution,” November 19, 1935; “Reed in Collapse: AAA Cases Halted,” New York Times, December 11, 1935; Howard Lee McBain, “The Issue: Court or Congress,” New York Times, January 19, 1936, at SM1; “AAA Stirs Barrage of Pointed Questions from High Bench,” New York Times, December 10, 1935. “The Supreme Court Swings the Ax,” The Nation, January 15, 1936. Dean Dinwoodey, “An Epochal Decision: The New Deal Effects: Broad Implications of the Majority and Minority Judgments Set Forth,” United States Law Week, January 12, 1936, E3. Harold Ickes to Homer Cummings, October 31, 1935, Duke Power Co. v. Greenwood County, RG 60, 117-68-4, Classified Correspondence File, NARA; Jerome Frank to Alexander Holtzoff, November 4, 1935, Duke Power Co. v. Greenwood County, RG 60, 117-68-4, Classified Correspondence File, NARA. Frank and Holtzoff took the AAA and HOLC briefs as their starting point in their Fourth Circuit brief. Alexander Holtzoff to D. W. Robinson, November 23, 1935, Duke Power Co. v. Greenwood County, RG 60, 117-68-4, Classified Correspondence File, NARA. The Home Owners’ Loan Corporation (HOLC) was an agency established to prevent foreclosures. It operated between 1933 and 1951 and received 1.8 million applications totaling $6 billion in home refinancing aid; it made approximately 1 million refinancing loans totaling approximately $3.1 billion, with an average amount of $3,039 per loan. HOLC refinanced approximately 20 percent of the mortgaged dwellings in the country, most of which was done during the first two years of operation. Harriss, History and Policies, 1–6, 16. Memorandum, Alger Hiss to Sewall Key, November 4, 1935, RG 60, 5-36-346, Correspondence File, NARA. Brief on Behalf of the United States as Amicus Curiae at 40, n. 26, Hopkins Federal Savings & Loan v. Cleary, 296 U.S. 315 (1935) (No. 55); Associated Press, “Asks Court Define ‘Welfare’ Clause,” New York Times, November 14, 1935. Shamir, Managing Legal Uncertainty, 192n11. Brief for the Respondent at 35, Hopkins Federal Savings & Loan v. Cleary, 296 U.S. 315 (1935) (No. 55). The Beck-Baker opinion was likely published in some form as it was cited by the district court in striking down the NRA program of grants for municipal power plant construction in Duke Power Co. v. Greenwood County, 10 F. Supp. 854, 869 (D.C.S.C. 1935) (referring to the “admirable opinions” of Baker and Beck in their “printed brief rendered to the President of Edison Electric Institute”). United States v. Certain Lands in City of Louisville, 78 F.2d 684, 687–88 (6th Cir. 1935). Memorandum, Hugh Cox to John Dickenson, December 20, 1935, RG 60, 5-36346, Correspondence File, NARA. Corwin was hired to consult on the public power cases during 1935. A Princeton Companion, s.v. “Edwin S. Corwin,” http://etc .princeton.edu/CampusWWW/Companion/corwin_edward.html, accessed May 30, 2007.

Notes to Chapter 6 / 305 87. Brief for the United States at 34–35, n. 19, United States v. Certain Lands in the City of Louisville, dismissed on motion of petitioner 297 U.S. 726 (1936) (No. 443). The government’s brief to the Sixth Circuit, drafted in the spring of 1935, had included citation to Realty Company, as well as a short list of disaster appropriations. It had also mentioned Chief Justice Hughes’s brief in the Federal Farm Loan Case, and the 1934 district court opinion in Missouri Utilities, upholding the government’s public power programs. Brief for the United States at 18–21, United States v. Certain Lands in the City of Louisville, 78 F.2d 684 (6th Cir. 1935). 88. Brief for the United States at 13–31, 63–64, United States v. Certain Lands in the City of Louisville, dismissed on motion of petitioner 297 U.S. 726 (1936) (No. 443); Memorandum, Alger Hiss to Stanley Reed, November 26, 1935, RG 60, 5-36-346, Correspondence File, NARA. 89. Brief for the Respondent Edward J. Gernert at 46–47, 66–67, 76, United States v. Certain Lands in the City of Louisville, dismissed on motion of petitioner 297 U.S. 726 (1936) (No. 443). 90. Missouri Utilities v. City of California, 8 F. Supp. 454, 461 (C.D. Mo. 1934). District Judge Merrill Otis could not resist attributing this view to “one of the greatest constitutional scholars and lawyers of the present generation,” James Beck, whose “view of the general welfare clause coincides with that of Hamilton and Story.” Ibid. A Tenth Circuit opinion finding for the government discussed the Caracas earthquake, Story, Beck’s brief in the Maternity Act cases, and Ollie McGuire’s article on the general welfare power of Congress. Kansas Gas & Electric v. City of Independence, Kansas, 79 F.2d 32, 40 (10th Cir. 1935) (quoting Story regarding early disaster relief grants). The Tax Division lawyers working on Butler had been encouraged by these decisions and had discussed them in various memos. Memorandum, Arthur Prescott to Sewall Key, August 30, 1935, p. 21; Memorandum, Helen Carloss to Sewall Key, August 21, 1935, p. 9; Memorandum, Sewall Key to Alger Hiss, September 16, 1935, p. 27; all in RG 60, 5-36-346, Correspondence File, NARA. 91. J. E. G., “Constitutional Law: Eminent Domain,” Michigan Law Review 33 no. 6 (1935), 958. The note relied on Goodnow’s Social Reform and the Constitution for the proposition that the “general welfare,” as defined by the precedents, was broad enough to include relieving slum conditions. 92. Brief for the Respondent Edward J. Gernert at 56, United States v. Certain Lands in the City of Louisville, dismissed on motion of petitioner 297 U.S. 726 (1936) (No. 443). 93. Ibid., at 58. The court never decided the question because the government voluntarily dismissed the case prior to argument, perhaps due to a settlement with the holdout landowner. United States v. Certain Lands in the City of Louisville, 297 U.S. 726 (1936) (dismissing certiorari). 94. Hiss, Recollections of a Life, 66. 95. “Legends in the Law,” Washington DC Bar Report, August/September 1996. 96. Jerome Frank to Felix Frankfurter, December 4, 1935, Jerome Frank Papers, Sterling Library, Yale University, New Haven, Connecticut. 97. Jerome Frank to Alexander Holtzoff, November 3, 1935, Duke Power v. Greenwood County, RG 60, 117-68-4, Classified Correspondence File, NARA. 98. “Duke Fights PWA Power Aid: Asks Court Halt $2,852,000 Fund,” New York Times, September 11, 1937. 99. See, e.g., Missouri Utilities v. City of California, 8 F. Supp. 454, 461 (C.D. Mo. 1934); Kansas Gas & Electric v. City of Independence, Kansas, 79 F.2d 32, 40 (10th Cir. 1935).

306 / Notes to Chapter 6 100. Memorandum by Jerome Frank used in conference with Solicitor General, November 14, 1935, RG 60, 117-68-4, Classified Correspondence File, NARA; Jerome Frank to Alexander Holtzoff, November 25, 1935, RG 60, 117-68-4, Classified Correspondence File, NARA. 101. Baker was involved in litigation against the TVA and the Public Utilities Holding Company as well. Shamir, Managing Legal Uncertainty, 86–87; Robert Talley, “Baker, the Dark Horse,” Clearfield Progress, May 28, 1932; Schlesinger, Coming of the New Deal, 483; biographical information on Newton Baker comes from the Encyclopedia of World Biography, 2nd ed, s.v. “Newton Baker”; and the Dictionary of American Biography, Supplements 1–2 (1944–58), s.v. “Newton Baker.” 102. Jerome Frank to Felix Frankfurter, January 20, 1936, Jerome Frank Papers, Sterling Library, Yale University, New Haven, Connecticut. 103. Frank’s letters to Frankfurter were filled with complaints about Holtzoff, whom he blamed for every flaw in the case and deficiency in the briefs. Jerome Frank to Felix Frankfurter, January 20, 1936, Jerome Frank Papers, Sterling Library, Yale University, New Haven, Connecticut. According to Alsop and Catledge, Holtzoff was “a squat, thickly bespectacled little man with a passion for legal hairsplitting” (168 Days, 43). 104. Brief for Harold L. Ickes as Federal Emergency Administrator of Public Works, No. 3971, Duke Power Co. v. Greenwood County, 81 F.2d 986 (4th Cir. 1936) (submitted October 1935), pp. 60–64, Stanley Reed Papers, Solicitor General Series, Box 13, University of Kentucky Library, Lexington. Identical language appeared in briefs for other public power cases, also written by Frank, Holtzoff, and Scott. Brief of Harold I. Ickes, as Federal Emergency Administrator of Public Works, City of Centralia v. Illinois Power & Light Corp., 89 F.2d 985 (7th Cir. 1937), pp. 50–52, Stanley Reed Papers, Solicitor General Series, Box 13, University of Kentucky Library, Lexington. In a DC Circuit case involving the Resettlement Administration litigated by a different group of lawyers around the same time, the government did not expect the court to reach the constitutional issue and so did not include the disaster precedents. After argument, the government submitted a hastily thrown together supplemental brief on the constitutional issues, including cross references to the “myriad acts of Congress appropriating money” listed in the briefs in Butler and Kentucky Lands. Supplemental Brief of Appellees at 25, Franklin Township v. Tugwell, 85 F.2d 208 (7th Cir. 1937) (No. 6619). 105. D. W. Robinson to Alexander Holtzoff, Jerome Frank, and John Scott, February 25, 1936; Alexander Holtzoff to D. W. Robinson, February 27, 1936; Memorandum, Alexander Holtzoff to Homer Cummings, February 26, 1936; Memorandum, Homer Cummings to Franklin D. Roosevelt, February 27, 1936; James Morris to Alexander Holtzoff and John Scott, June 17, 1936; all in RG 60, 117-68-4, Classified Correspondence File, NARA. 106. Frank had by this time left the government for private practice with the New York firm of Greenbaum, Wolf and Ernst, though he continued to consult on the case and participated in the oral argument on November 10, 1936. Duke Power Company v. Greenwood County, 299 U.S. 259 (1936). Prior to his departure, he sent (via Francis LeSourd) a “First Very Rough Draft of the Brief for US Supreme Court” to Reed, for “study” purposes only. Holtzoff’s outline appears to have provided the basis for the eventual brief, though Frank continued to work on the case from private practice and with Reed made the oral argument before the Court the following November. Memorandum, Jerome Frank to Stanley Reed, February 29, 1936; Tele-

Notes to Chapter 6 / 307

107.

108.

109.

110.

111.

112.

113. 114. 115.

116. 117. 118.

gram, Jerome Frank to Robert Sher, March 7, 1936; Jerome Frank to Paul Freund, March 19, 1936; all in Stanley Reed Papers, Solicitor General Series, Box 13, University of Kentucky Library, Lexington. Outline of Brief for the Supreme Court, Duke Power Co. v. Greenwood County, RG 60, 117-68-4, Enclosures File, NARA; Memorandum, John Scott to Alexander Holtzoff, June 29, 1936, RG 60, 117-68-4, NARA. Brief for Respondent Harold I. Ickes as Federal Emergency Administrator of Public Works at 119, n. 54, Duke Power Co. v. Greenwood County, 299 U.S. 259 (1936) (No. 32). According to the brief, the committee chair was quoting an opinion of the DC Circuit enjoining the Resettlement Administration from operating a planned community. The court held there that resettlement of the urban poor into planned suburban neighborhoods in New Jersey was not sufficiently connected to the relief of national unemployment to be in the “general” welfare. Township of Franklin v. Tugwell, 85 F.2d 208, 220–21 (D.C. Cir. 1936). Memorandum Decision, Oklahoma v. Ickes, Supreme Court of the District of Columbia, June 5, 1936, Stanley Reed Papers, University of Kentucky Library, Lexington. Brief for Respondent Harold I. Ickes as Federal Emergency Administrator of Public Works at 164, n. 80, App. D, 68–89, Duke Power Co. v. Greenwood County, 299 U.S. 259 (1936) (No. 32). Solicitor General’s Notes for Oral Argument, 1936–October Term, p. B-C-2, Stanley Reed Papers, Solicitor General Series, Box 13, University of Kentucky Library, Lexington. Argument of the Solicitor General in Duke Power Co. v. Greenwood County before the Supreme Court of the United States, November 10, 1936, Stanley Reed Papers, Solicitor General Series, Box 13, University of Kentucky Library, Lexington. Only a partial transcript of this argument survives, as there was no official record. Reed asked a staff member of the HOLC to record his argument, mistaking him for a reporter. Stanley Reed to Robert Pollard, November 27, 1935, Duke Power v. Greenwood County, RG 60, 117-68-4, Classified Correspondence File, NARA. Reply Brief for Petitioners at 37–38, Duke Power Co. v. Greenwood County, 299 U.S. 259 (1936) (No. 32). Reply Brief for Petitioners at 115, Duke Power Co. v. Greenwood County, 299 U.S. 259 (1936) (No. 32). Telegram, Walter Lippman to Robert M. Gates, November 25, 1936, Duke Power v. Greenwood County, RG 60, 117-68-4, Classified Correspondence File, NARA; James Morris to John McIntire, Faculty Editor in Chief, George Washington Law Review, November 24, 1936, Duke Power Co. v. Greenwood County, RG 60, 117-68-4, Classified Correspondence File, NARA; Henry Bruestle, Assistant Solicitor, City of Cincinnati to James Morris, December 9, 1936, Duke Power v. Greenwood County, RG 60, 117-68-4, Classified Correspondence File, NARA. Stanley Reed’s mailing list for Duke Power was considerably shorter than that for Butler but still included over a dozen correspondents. Solicitor General’s Mailing List Re: Alabama Power v. Ickes and Duke Power Co. v. Greenwood County, Stanley Reed Papers, Misc. Series, Box 297, University of Kentucky Library, Lexington. Reply Brief for Petitioners at 78, Duke Power Co. v. Greenwood County, 299 U.S. 259 (1936) (No. 32). Carter v. Carter Coal Company, 298 U.S. 238, 308–09 (1936). United States v. Butler, 297 U.S. 1, 75 (1936).

308 / Notes to Chapter 6 119. For example, the Cornell Law Quarterly called this aspect of the decision “embarrassing.” Yorkey, “Constitutional Law,” 636. 120. Reply Brief for Petitioners at 78, Duke Power Co. v. Greenwood County, 299 U.S. 259 (1936) (No. 32). 121. Brief for Respondent Harold I. Ickes as Federal Emergency Administrator of Public Works at 184–85, Duke Power Co. v. Greenwood County, 299 U.S. 259 (1936) (No. 32). 122. Brief for the United States at 179, United States v. Butler, 297 U.S. 1 (1936) (No. 401). 123. Brief for the United States at 226–27, United States v. Butler, 297 U.S. 1 (1936) (No. 401). 124. Jerome Frank to Alexander Holtzoff, November 5, 1935, Duke Power Co. v. Greenwood County, RG 60, 117-68-4, Classified Correspondence File, NARA; Jerome Frank to Alexander Holtzoff, November 29, 1935, Duke Power Co. v. Greenwood County, RG 60, 117-68-4, Classified Correspondence File, NARA; Memorandum, Frank Wideman to Alger Hiss, September 12, 1935, RG 60, 5-36-346, Correspondence File, NARA. Mordecai Ezekiel to Stanley Reed, December 7, 1935, RG 60, 5-36-346, Correspondence File, NARA. Hiss was very concerned about whether Ezekial’s economic brief would be included in the record and if not whether the Court could take judicial notice of it. 125. Duke Power Co. v. Greenwood County, 81 F.2d 986, 994 (4th Cir. 1936). 126. Missouri Utilities Co. v. City of California, 8 F. Supp. 454, 464 (C.D. Mo. 1934). 127. Argument of the Solicitor General in Duke Power Co. v. Greenwood County before the Supreme Court of the United States, November 10, 1936, Stanley Reed Papers, Solicitor General Series, Box 13, University of Kentucky Library, Lexington. 128. Stanley Reed, “Constitution, Guide or Gaoler” (speech to the Judicial Section of the New York State Bar Association, New York, NY, January 25, 1936), Papers of Stanley Reed, University of Kentucky Library, Lexington. 129. Stanley Reed, “The Constitution as a Vital Institution” (speech to the Ohio Bar Association, Columbus, Ohio, July 10, 1936), Stanley Reed Papers, University of Kentucky Library, Lexington. Chief Justice Hughes in later years expressed agreement with Reed’s view (Friedman, “Switching Time,” 1956). 130. Brief for the Petitioner at 11, Cincinnati Soap Co. v. United States, 301 U.S. 308 (1937) (No. 659). 131. Ibid., 37. 132. Ibid., 44. 133. Ibid., 57. 134. Cincinnati Soap Co. v. United States, 301 U.S. 308, 315–17 (1937). 135. Robert Jackson to Hon. Guy Fake, November 2, 1936, Records of Pulaski Trucking v. Newark Milk Co., RG 60, 137-48-1, Classified Correspondence Files, NARA. 136. “Security Suit Speeded in New Jersey,” New York Times, July 1, 1936. 137. Memorandum, Robert Jackson to Keenan, October 9, 1936, Records of Pulaski Trucking v. Newark Milk Co., RG 60, 137-48-1, Classified Correspondence Files, NARA; Hon. Guy Fake to Charles Horsky (and opposing counsel), September 25, 1936, Records of Pulaski Trucking v. Newark Milk Co., RG 60, 137-48-1, Classified Correspondence Files, NARA; Memorandum, Thomas Eliot to Arthur Altmeyer, July 18, 1936, Records of the Social Security Board, PI183, Entry 13, Chairman’s File, Box 81, NARA. 138. Brief on Behalf of William H. Kelly, Collector of Internal Revenue, Pulaski Trucking

Notes to Chapter 6 / 309

139.

140.

141. 142.

143. 144.

145. 146.

147.

148. 149.

150. 151.

Corp. v. Newark Milk Co. (D.N.J.), pp. 108–10, Records of Pulaski Trucking v. Newark Milk Co., RG 60, 137-48-1, Enclosures File, NARA. Brief of the United States as Amicus Curiae, Johnson v. Washington (Wa.), p. 63–65, Records of the Social Security Board, PI183, Entry 13, Chairman’s File, Box 81, NARA. Brief on Behalf of Defendant, Pulaski Trucking Corp. v. Newark Milk Co. (D.N.J.), Records of Pulaski Trucking v. Newark Milk Co., RG 60, 137-48-1, Enclosures File, NARA. Home Building and Loan Ass’n v. Blaisdell, 290 U.S. 398, 439–40 (1934). Beeland Wholesale Co. v. Kaufman, 174 So. 516, 524–25 (Ala. 1937); Telegram, A. A. Carmichael to J. P. Jackson, February 12, 1937, Beeland Wholesale v. Davis, RG 60, Classified Correspondence File 137-1-1, NARA; The Reminiscences of Robert Houghwout Jackson, 1952, p. 479, in the Columbia Oral History Collection, Papers of Robert Jackson, Library of Congress, box 258. Thomas Eliot to Stanley Reed, November 18, 1936, RG 235, Records of the Federal Security Agency, SSB, RG 235, PI181, Entry 11, General Counsel’s Records, Box 2, NARA. Memorandum, Thurman Arnold to Robert Jackson, September 15, 1936, Records of Steward Machine v. Davis, RG 60, 137-1-3, Classified Correspondence Files, NARA; Department of Justice, Register, 4–5. Arnold, who was on leave from his appointment at Yale Law School, wrote two books on the subject, The Symbols of Government and The Folklore of Capitalism. Memorandum, Thurman Arnold to Robert Jackson, September 15, 1936, Records of Steward Machine v. Davis, RG 60, 137-1-3, Classified Correspondence Files, NARA. Roosevelt’s 1938 speech in Gainesville, Georgia, was known as the “Brother’s Keeper” speech, in which he said that wages in the South were “far too low” and launched a thinly veiled attack on Walter George and others, whom he accused of supporting a “feudal system.” “F.D.R. Blasts ‘Feudal Lords of Fascism’ as Recovery Dams,” Lowell Sun, March 23, 1938. The speech, which was heard by 50,000 people in Gainesville, was poorly received by the audience, which largely sat on its hands, and by the South generally, which reacted with dismay. Jim Smith to Homer Cummings, January 6, 1937, Records of Beeland Wholesale v. Davis, RG 60, 137-1-1, Classified Correspondence Files, NARA. Johnston and Burr were involved in multiple challenges to the Alabama unemployment compensation law and the Security Act, for example in the cases of Carmichael v. Southern Coal & Coke and Carmichael v. Gulf States Paper Corp., consolidated and decided as 301 U.S. 495 (1937). Brief for the Petitioner at 3, Steward Machine Co. v. Davis, 301 U.S. 548 (1937) (No. 837). Doubtless the symbolism of hiring Justice Brandeis’s firm was attractive to the plaintiffs. The Boston lawyers from Nutter, McClennen, including Jacob Kaplan and Edward McClennen, like Donald, had been educated at Harvard. Nutter, McClennen & Fish: The First Century 1879–1979, privately printed, 1986, 15,19, 27. In January 1936, shortly after the Butler decision was released, McClennen had written an impassioned denunciation of the broad interpretation General Welfare Clause and sent it to the Senate Judiciary Committee, saying that he wanted “to be of assistance” on a subject of “grave public concern.” McClennen, “Rights and Powers of the States and Congress,” Massachusetts Law Quarterly (April 1936): 11. Steward Machine Co. v. Davis, 89 F.2d 207, 210 (5th Cir. 1937). “Security Act Wins in Circuit Ruling,” New York Times, March 21, 1937.

310 / Notes to Chapter 7 152. Brief for the Petitioner at 160, Steward Machine Co. v. Davis, 301 U.S. 548 (1937) (No. 837). 153. Brief for the United States at 12, ibid. 154. “Instances are cited of appropriations by Congress . . . for flood relief in the states, for relief from drought in certain agricultural states, or to relieve losses from earthquakes here or abroad, or from disastrous fires.” Davis v. Boston & Maine Railroad, 89 F.2d 368, 379 (1st Cir. 1937). 155. Brief for the United States at 47–48, Helvering v. Davis, 301 U.S. 619 (1937) (No. 910). 156. Notes, Helvering v. Davis, Papers of Robert Jackson, Library of Congress, Box 77. 157. Oral Argument at 698–99, Helvering v. Davis, 301 U.S. 619 (1937) (No. 910). 158. Memorandum, Peter Seitz to Robert Bingham, May 28, 1936, RG 235, Records of the Federal Security Agency, Social Security Board, PI181, Entry 11, General Counsel’s Records, Box 2, NARA. 159. Brief for the United States at 49–74, ibid. 160. Brief for the United States at 9–29, Steward Machine Co. v. Davis, 301 U.S. 548 (1937) (No. 837). 161. Brief for the United States at 20, ibid. 162. In addition to those discussed earlier in this chapter, see, e.g., Brief for the United States at 47, Helvering v. Davis, 301 U.S. 619 (1937) (No. 910), referring to the previous lists of disaster precedents in the briefs in Butler and Duke Power. By the time later cases reached the Court, the precedents had been cited to the Court so many times that the briefs sometimes presented them merely as a summary with cross references to lengthy lists in other, recently submitted briefs. See, e.g., Brief for the United States, Davis. Boston & Maine Railroad Company (D. Mass.), p. 47, Helvering v. Davis, RG 60, 137-376-2, Enclosures File, NARA. 163. Helvering v. Davis, 301 U.S. 619, 640–641 (1937). 164. The difficulty of distinguishing between a “debt” arising from a “moral obligation” and “general welfare” was frequently noted from the very beginning of the litigation over the Roosevelt administration’s programs. For example, a district court relied upon Realty Co. for its conclusion that building municipal power plants was within the general welfare. The court concluded that the distinction between “debt” and “general welfare” was incoherent because “the only constitutional power to pay such a debt as the promise to give a bounty to sugar producers and manufacturers is in clause 1 of section 8, and the Court said that there was the source of the power. . . . By what sort of reasoning can it be argued that the same language which authorizes Congress to appropriate money to pay a debt not incurred in the discharge of any power elsewhere vested in Congress does not also authorize some object essential to the general welfare not within the scope of any power elsewhere vested in Congress.” Missouri Utilities Co. v. City of California, 8 F. Supp. 454 (C.D. Mo. 1934). The government’s brief in Butler made the same point. Brief for the United States at 179, United States v. Butler, 297 U.S. 1 (1936) (No. 401). 165. “New Deal Victory,” New York Times, May 25, 1937. 166. Steward Machine Co. v. Davis, 301 U.S. 548, 614 (1937) (Sutherland, J., dissenting). CHAPTER SEVEN

1.

Matilda Esveldt to Eleanor Roosevelt, April 13, 1934, 2192193429. Unless otherwise indicated, all letters to Eleanor Roosevelt cited in this chapter are from Eleanor

Notes to Chapter 7 / 311 Roosevelt: Papers 1884–1964, Series 150.1: Material Assistance Requested, housed at the Franklin D. Roosevelt Library in Hyde Park, New York. Identification numbers are my own. For more information on the data, sampling, and methodology, see the appendix. 2. Emory Ward to Eleanor Roosevelt, March 21, 1934, 2220193521; 1928–28 Catalogue of Fireside Gifts and Artists Supplies, Fireside Industries, Inc., Adrian Michigan; “Now You Can Learn Enameling at a Trifling Cost with This Free Limited Scholarship,” Brochure, Fireside Industries, Inc., Adrian Michigan, 1925. 3. Mrs. Mildred Battis Jr. to Eleanor Roosevelt, April 10, 1934, 2188193430. 4. In Nussbaum’s terms, the letters permit us to examine the extent to which the notion of compassion as a basis for state intervention was mobilized in the general population as well as among policymakers (Upheavals, 401–41). 5. The median value of an owner-occupied home in Stevens County in 1930 was $1,522. The county median home values used in this chapter are from US Bureau of the Census, 1933. US Census Bureau, Fifteenth Decennial Census of the United States, Population, vol. 6, Families, Table 19 (“Classification of Families by Counties”). The statistics for each state were presented in a series of twenty-four standard tables. Table 19 for each state contained the county median value for owned and rented homes. The value for Stevens County appears on page 1417. 6. US Federal Census (Population Schedule), 1930, Chewlah Township, Stevens County, Washington, ED 12, Sheet 2A, Dwelling 45, Family 47, Esveldt household, jpeg image, online: MyFamily.com, Inc., 2006, subscription database, digital scan of original records in the National Archives, Washington, DC, http://www.ancestry .com (last accessed November 1, 2006). 7. US Federal Census (Population Schedule), 1930, Des Moines, Des Moines Township, Polk County, Iowa, ED 7722, Sheet 6B, Dwelling 114, Family 125, Emory Ward household, jpeg image, online: MyFamily.com, Inc., 2006, subscription database, digital scan of original records in the National Archives, Washington, DC, http://www.ancestry.com (last accessed January 1, 2004). 8. US Federal Census (Population Schedule), 1930, Philadelphia, Pennsylvania, ED 51–76, Sheet 18, Dwelling 305, Family 336, Frisby Battis household, jpeg image, online: MyFamily.com, Inc., 2006, subscription database, digital scan of original records in the National Archives, Washington, DC, http://www.ancestry.com (last accessed June 1, 2003). 9. Willie Symm Berry to Eleanor Roosevelt, December 2, 1940, 2260194006. 10. Eleanor Roosevelt, “My Mail” (1940), unpublished manuscript intended for Vogue, Eleanor Roosevelt Papers, Speech and Article File, Franklin D. Roosevelt Library, Hyde Park, New York. 11. This chapter is based on a sample of letters from the collection Eleanor Roosevelt: Papers 1884–1964, Series 150.1: Material Assistance Requested, housed at the Franklin D, Roosevelt Library in Hyde Park, New York. For information on data, methods, and sampling, see the appendix. 12. Similarly, Mrs. Roosevelt reported on a schoolgirl who had exaggerated her achievements by claiming that she had been chosen to give the valedictory address at her high school graduation but lacked an appropriate dress. The girl was subsequently discovered to be only a sophomore and “not a very good student” at that. These three stories of dishonest writers were frequently repeated by Mrs. Roosevelt and the press in speeches and articles during the 1930s and later were discussed in numerous biographies and in Roosevelt’s autobiography. See, e.g., Eleanor Roosevelt, My

312 / Notes to Chapter 7

13. 14.

15. 16. 17.

18. 19.

Day, available at http://www.gwu.edu/~erpapers/myday/displaydoc.cfm?_y=1937& _f=md054564 (excerpt from a February 1937 “My Day” column); Eleanor Roosevelt, “My Mail” (1940), unpublished manuscript intended for Vogue, Eleanor Roosevelt Papers, Speech and Article File, Franklin D. Roosevelt Library, Hyde Park, New York; Roosevelt, This I Remember, 100–101; S. J. Woolf, “Energy,” New York Times, May 28, 1939; Hareven, Eleanor Roosevelt, 60. Roosevelt, This I Remember, 100–101. It is impossible to say for sure how many writers received more than a form letter from the First Lady. It is clear from the correspondence that Mrs. Roosevelt granted virtually none of the thousands of pleas despite an apparently widespread view to the contrary. Some sources report that Mrs. Roosevelt personally read, investigated, and referred nearly every letter; however, given the “colossal” volume of mail this is clearly wrong. Hellman, “Mrs. Roosevelt,” 70; Cohen, Dear Mrs. Roosevelt, 237. It is interesting how many serious journalists and academics credulously reported that Mrs. Roosevelt personally aided everyone who wrote to her, along with examples of individual cases in which she had intervened in some way. Bromley, “Future of Eleanor Roosevelt,” 132; Knepper, Dear Mrs. Roosevelt, xvi; Hareven, Eleanor Roosevelt, 58–63; Kearney, Anna Eleanor Roosevelt, 114; Scharf, Eleanor Roosevelt, 103. Some of these stories became apocryphal and were frequently repeated, such giving a banjo to a nine-year-old boy, or a graduation dress to a needy girl. Bromley, “Future of Eleanor Roosevelt,” 132; Whitehurst, “Dear Mr. President,” 12. Kearney reports more realistically that Roosevelt probably personally answered no more than five hundred letters per year out of the hundreds of thousands she received. Kearney, Anna Eleanor Roosevelt, 116. As discussed above, letters were sometimes referred to other departments, such as FERA or other agencies, that occasionally investigated individual cases and aided the writers. For the most part, however, Mrs. Roosevelt did not remain involved or interested after that; it appears that this was a simply a strategy for the bureaucratic processing of mail. Eventually, Roosevelt’s secretary tactfully informed an over-eager FERA administrator that the First Lady did not care to receive follow-up reports on the letters she forwarded. Hareven, Eleanor Roosevelt, 60. Garfinkel, Studies in Ethnomethodology, 36–37; Hart, “Ascription of Responsibilities,” 148; Scott and Lyman, “Accounts,” 46–47. Scott and Lyman, “Accounts,” 52–55. Garfinkel, Studies in Ethnomethodology, 76–103. This consistency in the pattern of justifications is an instance of what Boltanski and Thevenot call a “collective convention” of equivalence, in which there is broadly shared agreement as to the sorts of justifications that are responsive to criticism or claims of injustice (“Sociology of Critical Capacity,” 362). Mills, “Situated Action,” 904. This approach should be distinguished from those in which narrative is used as empirical evidence of some underlying “interpretive schema.” Gerteis, “Possession of Civic Virtue,” 581. In that case, narratives (for example, concerning race and civic virtue) essentially are used to shed light on a group’s worldview or identity. Hart, “Cracking the Code,” 635; Somers, “Narrative Construction of Identity,” 605–6. Instead, I use the pattern of narrative deployment in the letters as evidence of the writers’ “motivated compliance” with the rules they perceive to be governing redistributive decisions, and ultimately as evidence of the rules themselves. Garfinkel, Studies in Ethnomethodology, 53–54.

Notes to Chapter 7 / 313 20. 21. 22. 23. 24.

25. 26.

27.

28.

29. 30.

31.

32. 33. 34.

McElvaine, Down and Out, xi; Cohen, Dear Mrs. Roosevelt, 17. Levine and Levine, People and the President, xi. Knepper, Dear Mrs. Roosevelt, xxiv. Berger, Invitation to Sociology, 54–57; Goffman, Asylums, 127–59. The 1930 census with a few exceptions defined as urban any city or incorporated municipality with a population of 2,500 or more. For more information on the 1930 census, see the appendix. For information on differences between the census subset and the overall sample, see the appendix. US Census Bureau, Fifteenth Decennial Census of the United States: 1930, Population vol. 1, table 5, page 10 (“Population of the United States by Divisions and States”). For information on the geographic distribution of the full sample and the census subset of letters and the comparison of those groups of letters to the US population and to one another, see the appendix. US Census Bureau, Fifteenth Decennial Census of the United States: 1930, Population, vol. 2, General Report, Table 6, page 10 (“Urban and Rural Populations by Divisions and States: 1920 and 1930”). US Census Bureau, Fifteenth Decennial Census of the United States: 1930, Population, vol. 2, General Report, Table 3 (“Illiteracy in the Urban, Rural-Farm, and RuralNonfarm Population, by Color and Nativity, for the United States: 1930”) and Table 10 (“Illiteracy in the Population Ten Years Old and Over, by Color and Nativity, by Divisions and States: 1930”). For more information on the underrepresentation of rural writers, particularly rural southern blacks, see the appendix. For more information on the gender and marital status of writers, see the appendix. For example, women might draw on a particular “female” tradition of benevolent and charitable activities on behalf of the poor or argue that as mothers they had a particularly powerful claim on resources. Ginzberg, Women and the Work of Benevolence, 1–10. They were consumers in the nineteenth century of “sentimental stories” in women’s magazines. Sandage, Born Losers, 227. Men, on the other hand, might be expected make demands on the government based on their service as workers or veterans. Witt, Accidental Republic; Sterrett, Public Pensions; Skocpol, Protecting Soldiers and Mothers, 148–49; Cohen, Making a New Deal, 270–71. Approximately two-thirds of married female writers made no mention of their own employment or unemployment and focused instead on the employment situation of their husbands. These writers seem to have taken for granted that they would be assumed to be legitimately out of the workforce. By contrast, the vast majority of adult men discussed their work or inability to do so. For more information see the appendix. Mary Barton to Eleanor Roosevelt, February 19, 1934, 2188193426. Ruth Koch to Eleanor Roosevelt, August 17, 1938, 2244193812. Willrich, “Close This Place,” 556. Willrich argues that American women had a lengthy “epistolary tradition” of “petitioning” the government owing in part to their exclusion from the electoral process. Sandage notes that women authored many, though not all, of the “begging letters” to nineteenth-century industrialists, which he calls an “epistolary genre.” Sandage, Born Losers, 244–45. It is in my view doubtful that the writers on whom I report—isolated individuals asking for financial help—were acting on a “tradition” or writing within a “genre” rather than simply responding to cues in the media that the Roosevelts wanted to receive mail and might even grant their requests.

314 / Notes to Chapter 7 35. See Beasley, Eleanor Roosevelt, 15–24 (detailing her many publications in women’s magazines and newspapers such as Babies Just Babies and the Women’s Home Companion). It is possible that men wrote a larger proportion of the letters to FDR, though the lack of a preserved body of similar letters to the president discussed in the appendix at note 2 makes a systematic comparison impossible. 36. Mrs. William A. Biglow to Eleanor Roosevelt, August 8, 1934, 2188193431. 37. Mrs. Ray W. Taylor to Eleanor Roosevelt, January 5, 1934, 2204193410. 38. The idea that when there was a choice couples designated their letters as being “from” women is consistent with the fact that within the census subset (for which writers’ age and marital status information is available) male letter writers were on average younger and more likely to be single than female letter writers (appendix, table A.2). The most likely explanation for this finding is not that married men were less likely to write letters than were single men, but that the letters they participated in writing were likely to be signed by their wives. 39. For more information on the race of letter writers, see the appendix. 40. For more information on the occupational status of writers, see the appendix. 41. See the appendix. 42. US Census Bureau, Fifteenth Decennial Census of the United States: 1930, Population, vol. 6, Families, 34, Table 41; US Census Bureau, Fifteenth Census of the United States: 1930, Population, vol. 6, Families, 53, Table 60. For more information on home and radio ownership, see the appendix. 43. Farm values were collected by enumerators on separate farm schedules. However, those farm value manuscript forms were lost by the Census Bureau, so individual farm value data is not available for the writers. See http://1930census.archives.gov/ FAQ.html (accessed May 30, 2007). 44. See the appendix. 45. See the appendix. 46. Cohen, Dear Mrs. Roosevelt, 37. 47. Eleanor Roosevelt, “Mail of a President’s Wife” (draft speech, 1940), article file, Eleanor Roosevelt Papers, Franklin D. Roosevelt Library. 48. Roosevelt, This I Remember, 99. 49. Bromley, “Future of Eleanor Roosevelt,” 1940. 50. Smith and Morris, Dear Mr. President, 153. 51. Mrs. Wm. Tracey to Eleanor Roosevelt, January 18, 1934, 2204193426. 52. Mrs. Hattie Higgins to Eleanor Roosevelt, September 25, 1939, 2252193914; Mrs. Pearl Berlin to Eleanor Roosevelt, May 21, 1937, 2232.18.may.37. 53. Beasley, Eleanor Roosevelt, 114. 54. Lash, Eleanor and Franklin, 454. 55. Gellhorn, Eleanor Roosevelt’s My Day, ix. 56. This effort to shape the behavior of another by imputing to them a social role and characteristics is known in social psychology as altercasting. Weinstein and Deutschberger, “Some Dimensions of Altercasting.” 57. Mrs. Coy Wadsworth to Eleanor Roosevelt, March 19, 1935, 2204193435. 58. Thomas Minor to Eleanor Roosevelt, February 27, 1939, 2256193906; Maude E. Stanley to Eleanor Roosevelt, September 14, 1938, 2248193819; Mrs. Fannie Snyder to Eleanor Roosevelt, December 12, 1938, 2248193806. 59. Mrs. Lilla Seales to Eleanor Roosevelt, October 3, 1940, 2268194027. 60. Mrs. James R. Todd to Eleanor Roosevelt, May 26, 1935, 2220193509. 1930 US Federal Census (Population Schedule), Due West, South Carolina, ED 1-13, Sheet

Notes to Chapter 7 / 315

61. 62. 63. 64. 65.

66. 67. 68. 69. 70. 71. 72. 73. 74.

75. 76. 77. 78. 79. 80. 81. 82. 83. 84. 85. 86. 87. 88. 89.

48, Dwelling 95, Family 97, Archie D. Kennedy household, online: MyFamily.com, Inc., 2006, subscription database, digital scan of original records in the National Archives, Washington, DC, http://www.ancestry.com (accessed November 1, 2006). Mattie Wells Tabor to Eleanor Roosevelt, September 5, 1935, 2220193503. S. K. Ramsey to Eleanor Roosevelt, December 21, 1933, 2201193426; Mrs. Otis Roberson to Eleanor Roosevelt, October 17, 1934, 2200193432. Mrs. George Wheat to Eleanor Roosevelt, March 16, 1935, 2220193515. Mattie Wells-Tabor to Eleanor Roosevelt, September 5, 1935, 2220193503. Antonett Battafarano to Eleanor Roosevelt, March 19, 1934, 2188193429; 1930 US Federal Census (Population Schedule), Youngstown City, Ohio, ED 38–40, Sheet 11B, Dwelling 171, Family 176, Phillipa Battafarano household, online: MyFamily. com, Inc., 2006, subscription database, digital scan of original records in the National Archives, Washington, DC, http://www.ancestry.com (accessed November 1, 2006). Mrs. William Aho to Eleanor Roosevelt, February 15, 1933, 2188193405. Lona Cherry to Eleanor Roosevelt, October 9, 1935, 2208193514; Grace Truscott to Eleanor Roosevelt, September 16, 1938, 2248193829. Mrs. Emerson Babel to Eleanor Roosevelt, February 20, 1938, 2240193815. Glaser and Strauss, Discovery of Grounded Theory, 35–41. Mrs. A. W. Eikenberry to Eleanor Roosevelt, May 10, 1936, 2224193615; Mrs. W. W. Esslinger to Eleanor Roosevelt, October 22, 1934, 2192193412. Ruth Chrest to Eleanor Roosevelt, October 30, 1935, 2208193512. Audra Steeve to Eleanor Roosevelt, May 25, 1934, 2192193407. Jean Gordon to Eleanor Roosevelt, December 15, 1934, 2192193402. Julia Mae Pendell to Eleanor Roosevelt, December 12, 1935, X2216193525; 1930 US Federal Census (Population Schedule), Dresden Township, Washington County, New York, ED 58–7, Sheet 1B, Dwelling 24, Family 24, Thomas R. Pendell household, online: MyFamily.com, Inc., 2006, subscription database, digital scan of original records in the National Archives, Washington, DC, http://www.ancestry.com (accessed November 1, 2006). Mrs. Orren Parker to Eleanor Roosevelt, January 26, 1934, 2200193407. Beatrice Faye to Eleanor Roosevelt, January 31, 1936, 2224193621. Mrs. James Todd to Eleanor Roosevelt, May 26, 1935, 2220193509. For details on the class status index variables and analysis, see the appendix. Bulah Dowell to Eleanor Roosevelt, May 13, 1936, 2224193610. Mrs. R. L. Drury to Eleanor Roosevelt, April 22, 1935, 2208193536. Maude Stanley to Eleanor Roosevelt, September 14, 1938, 2248193819. Suzanne Faure to Eleanor Roosevelt, November 19, 1933, 2188193435; Nellie Kelly to Eleanor Roosevelt, September 8, 1934, 2196193419. Sally Carroll Ross to Eleanor Roosevelt, March 3, 1934, 2200193439. Dorothy Irace to Eleanor Roosevelt, 20 August 1938, 2244193801. Maude Stanley to Eleanor Roosevelt, September 14, 1938, 2248193819. Rosa Newton to Eleanor Roosevelt, December 4, 1936, 2228.14.dec.36. Mrs. Ed Whitt to Eleanor Roosevelt, January 11, 1935, 2220193517. Mrs. Lester Christopher to Eleanor Roosevelt, November 14, 1935, 2208193508. Mrs. Jewell Danes to Eleanor Roosevelt, November 14, 1936, 2224193603; Will Hilton to Eleanor Roosevelt, July 8, 1939, 2252193915; Mrs. R. M. Tanner to Eleanor Roosevelt, January 22, 1934, 2204193408. As Scott Sandage has shown, the begging letter came into use in the late nineteenth century as people, including many

316 / Notes to Postscript

90. 91. 92. 93. 94.

95. 96. 97. 98. 99. 100. 101. 102. 103. 104. 105. 106. 107. 108.

109. 110. 111.

women, wrote to captains of industry such as John Rockefeller asking for financial assistance or work (Born Losers, 228). Mrs. Walter Nance to Eleanor Roosevelt, April 4, 1937, 2236.18.apr. Mrs. B. D. Edwards to Eleanor Roosevelt, June 5, 1934, X2192193431. Hazel Aldrich to Eleanor Roosevelt, November 5, 1937, 2232.25.nov.37. Donata Arena to Eleanor Roosevelt, March 22, 1934, 2188193414; Josie Mae Hill to Eleanor Roosevelt, July 9, 1935, 2212193522. Because there were sixty-two women who were silent regarding their marital status it is impossible to know for certain how many married women there were in the sample. The census subset is not a reliable guide to this figure because marriage most likely affected a female writer’s likelihood of being found in the census manuscript files, as discussed in the appendix. Vada Richard to Eleanor Roosevelt, April 24, 1934, 2200193451. Mrs. Cate to Eleanor Roosevelt, May 3, 1935, 2208193503. Mathilda Gangemi to Eleanor Roosevelt, April 18, 1934, X2192193428. For more information on the treatment of married women’s employment in the letters, see the appendix. (Rev.) Corwin F. von Milles to Eleanor Roosevelt, June 22, 1937, 2236.14.jan.37. Mrs. Bernard F. Kane to Eleanor Roosevelt, September 8, 1934, 2196193415. Ruth Koch to Eleanor Roosevelt, August 17, 1938, 2244193812. Mrs. Waldo C. Freeman to Eleanor Roosevelt, November 21, 1935, 2212193506. Hilda Knotts to Eleanor Roosevelt, September 14, 1938, 2244193811. Helen Mernin to Eleanor Roosevelt, February 12, 1936, 2228.23.feb. Mrs. Gerald Donoho to Eleanor Roosevelt, January 9, 1936, 2224193607. Bonnie Hale MacDonald to Eleanor Roosevelt, July 1, 1937, 2236.8.jly. Sandage, Born Losers, 241–42. Although the national literacy rate was over 95 percent in 1930, the rate of illiteracy for people over ten years of age in urban areas was 3.2 percent, compared with 4.8 percent among the rural nonfarm and 6.9 percent among the rural farm populations. Similarly, the illiteracy rate in the three southern regions (8.3 percent) was more than double that for the two northeastern regions (3.5 percent). US Census Bureau, Fifteenth Decennial Census of the United States: 1930, Population, vol. 2, General Report, Table 3 (“Illiteracy in the Urban, Rural-Farm, and Rural-Nonfarm Population, by Color and Nativity, for the United States: 1930”) and Table 10 (“Illiteracy in the Population Ten Years Old and Over, by Color and Nativity, by Divisions and States: 1930”). Bonnie Hale MacDonald to Eleanor Roosevelt, July 1, 1937, 2236.8.jly.37. Frances Abernathy to Eleanor Roosevelt, June 20, 1934, 2188193402. Cohen, Making a New Deal, 271–89. POSTSCRIPT

1. 2. 3. 4.

Lisa Eckelbecker, “Welfare Reform: Where Will the Jobs Come From?” Sunday Telegram, March 5, 1995. Doris Sue Wong, “Democrats Skip Ceremony as Weld Signs Welfare Bill,” Boston Globe, February 11, 1995. Scott Lehigh and Frank Phillips, “Weld Seeks Disaster Aid for Fisheries,” Boston Globe, March 21, 1995. “Massachusetts Not Deserving of Aid to Save Fishing Industry,” Austin (Texas) American Statesman, March 24, 1995.

Notes to Appendix / 317 5.

Tom Coakley, “Specialists Blame Overfishing: Some Say Weld’s ‘Natural Disaster’ Argument Ignores Man-Made Causes,” Boston Globe, March 26, 1995. 6. Linda Borg, “Disaster Tag Sought by Mass,” Providence Journal Bulletin, March 22, 1995. 7. Linda Borg, “$30 Million in Fishery Aid Planned,” Providence Journal Bulletin, March 22, 1994. 8. “Massachusetts Not Deserving of Aid to Save Fishing Industry,” Austin (Texas) American Statesman, March 24, 1995. 9. As philosopher Nancy Fraser has argued, need itself is not a prepolitical or unproblematic category that automatically justifies relief even in what may seem obvious cases. Needs are interpreted, constructed, and defined by state actors who impose administrative definitions on mostly female welfare subjects. However, successful arguments based on need do yield tangible resources that would otherwise be unavailable. 10. Michele L. Dauber, “The End of Compassion as We Know It,” Legal Times, August 5, 1996, 21; John Harris and Judith Havemann, “Clinton Stalls Wisconsin Plan as Parties Seek Welfare Pact,” Washington Post, July 16, 1996; Frances Fox Piven, “The System Is Not the Source,” New York Times, August 8, 1996; Washington Post, “And Now, Welfare Reform,” June 12, 1994. APPENDIX

1. 2.

Hellman, “Mrs. Roosevelt,” 70. Most letters to FDR of that type were not filed by subject by the White House mailroom staff and were not retained by archivists. However, a number of observers have estimated that the bulk of FDR’s mail was comprised of individual requests for assistance like those reported on in this chapter. See Jasper Mayer and Mary Roos, Analysis of General Run of All Mail Addressed to President Roosevelt, by Correspondence Division, Federal Emergency Relief Administration, received at White House between March 23–27, 1934, President’s Official File (OF 50), Box 4, Franklin and Eleanor Roosevelt Library, Hyde Park, New York; Whitehurst, “Dear Mr. President,” 12; Smith and Morris, “Dear Mr. President,” 213–14; Hellman, “Mrs. Roosevelt,” 70; Sussman, Dear FDR, 123–24; Howe, “President’s Mailbag,” 23. Lila Sussman estimates that of the five to eight thousand letters the president received every day, as many as 80 percent were requests from individuals for financial assistance. Sussman, Dear FDR, 132, n. 23. A selection of letters to FDR requesting aid in McElvaine appears identical in content and tone to those discussed in this chapter. McElvaine, Down and Out, 72–73, 75, 86–87, 106–9, 116, 158, 161–62, 166–70. During 1933 before Mrs. Roosevelt had sufficient staff to handle the mail herself, some letters were sent to Ellen Woodward at the Federal Emergency Relief Administration for response, and from there such letters went to state relief offices and were often not retained. Some of these can be found in FERA Old General Subject Series, Correspondence with White House, NARA; Whitehurst, “Dear Mr. President,” 12; Wickenden, “Relief Programs,” 181. Those letters that remain in the FERA files appear to be indistinguishable from the letters analyzed in this chapter, however the fact that forwarded mail was often not preserved rules out a systematic comparison. Those letters to the Roosevelts that concerned eligibility for particular government programs such as work relief under the Civil Works Administration or Works Progress Administration were generally forwarded to the relevant agencies for responses. Some of these letters can still be found in the files of certain agencies, chiefly FERA.

318 / Notes to Appendix These letters primarily deal with complaints about unfairness, incompetence, or corruption in relief administration. Some are described in Cohen, Making a New Deal, 283. 3. Roosevelt, This I Remember, 100. 4. The 1930 Census with a few exceptions defined as urban any city or incorporated municipality with a population of 2,500 or more. In addition, a few townships and other political subdivisions mostly located on the eastern seaboard having a total population of 10,000 or more, and a population density of 1,000 or more per square mile, were considered to be urban. All other areas were defined as rural. The Census Bureau also modified for New England its practice of classifying all towns of 2,500 or more inhabitants as urban, because it resulted in classifying as urban a considerable number of places that were mainly rural in their general characteristics, which resulted in some minor changes of classification. Steven Ruggles, Matthew Sobek, Trent Alexander, Catherine A. Fitch, Ronald Goeken, Patricia Kelly Hall, Miriam King, and Chad Ronender, Integrated Public Use Microdata Series: version 3.0 (Machine Readable Database), Minneapolis: Minnesota Population Center (producer and distributer), 2004, http:/ipums.umn/usa/ (accessed May 30, 2007). 5. US Bureau of the Census, Fifteenth Decennial Census of the United States: 1930, Population, vol. 2, 842, Table 4 (“Marital Condition of the Population 15 Years Old and Over, By Sex, Color, and Nativity, for the United States, 1890–1930”). 6. Pearson, “Significance of Urban History,” 231; Maisel, “Variables Commonly Ignored,” 266; Thornthwaite, Internal Migration. 7. US Census Bureau, Fifteenth Decennial Census of the United States: 1930, Population, vol. 2, General Report, 842, Table 4 (“Marital Condition of the Population 15 Years Old and Over, By Sex, Color, and Nativity, for the United States, 1890–1930”). 8. The average age of male writers was twenty-nine, compared with 35.4 for women, and this difference was significant (p < 0.01). 9. US Census Bureau, Fifteenth Decennial Census of the United States: 1930, Population, vol. 4, Occupations by States, 68, Table 24 (“Number and Proportion of Women 15 Years Old and Over Gainfully Occupied”). 10. For the full sample of letters, chisq (6) = 10.21 (p = 0.1161). The same test on the census subset produced the same result, chisq (6) = 7.95 (p = 0.2419). Furthermore, the letters for which a 1930 manuscript census form was found and those for which a census form was not found were not significantly different in their regional distribution, chisq (6) = 8.1905 (p = 0.224). 11. US Census Bureau, Fifteenth Decennial Census of the United States, Population, vol. 2, General Report, vi, Map of the United States, Showing Geographic Divisions; US Bureau of the Census, Seventeenth Decennial Census of the United States, Characteristics of the Population, vol. 2, xi, Figure 1 (“Regions and Geographic Divisions of the United States”). 12. US Census Bureau, Fifteenth Decennial Census of the United States:1930, Population, vol. 2, General Report, 12, Table 8 (“Rural-Farm and Rural Nonfarm (Village) Population, By Divisions and States: 1930 and 1920”). 13. Although the 1930 census tabulated information on other racial and ethnic groups, such as Mexicans and Japanese, only a few letters were received from members of these groups, which comprised 1.2 percent and 0.1 percent of the US population, respectively. US Census Bureau, Fifteenth Decennial Census of the United States: 1930,

Notes to Appendix / 319

14.

15.

16.

17.

18. 19.

20. 21. 22.

Population, vol. 2, General Report, Statistics by Subjects, 32, Table 4 (“Total Population by Color or Race for the United States, 1790–1930”). US Census Bureau, Fifteenth Decennial Census of the United States: 1930, Population, vol. 2, General Report, Table 3 (“Illiteracy in the Urban, Rural-Farm, and Rural-Nonfarm Population, by Color and Nativity, for the United States: 1930”) and Table 10 (“Illiteracy in the Population Ten Years Old and Over, by Color and Nativity, by Divisions and States: 1930”). US Census Bureau, Fifteenth Census of the United States: 1930, Population, vol. 6, Families, 53, Table 60 (“Families Having Radio Set, in Urban, Rural-Farm, and Rural-Nonfarm Areas, by Divisions and States: 1930”). Craig, “How America Adopted Radio,” 189; Joint Committee on Radio Research, “Rural Radio Ownership,” 6–10 (detailing how southern and rural households lagged in radio adoption); Podber, “Early Radio in Appalachia,” 394–96; Beasley, White House Press Conferences, 9, 57, 127, 280, 310, 333; Cohen, Dear Mrs. Roosevelt, 5; Cook, Eleanor Roosevelt, 13; Hoff-Wilson and Lightman, Without Precedent, 10; Knepper, Dear Mrs. Roosevelt, 23; Kearney, Anna Eleanor Roosevelt, 113. See US Census Bureau and Edwards, Socio-Economic Grouping; US Census Bureau, Sixteenth Decennial Census of the United States: 1940, Population, vol. 2, Characteristics of the Population, United States Summary, 15–17, Table XI (“Employed Workers, by Major Occupation Group and Sex, for the United States: 1940”); US Census Bureau and Edwards, Comparative Occupation Statistics, 183–89. The occupational categories used were: professional, skilled worker, proprietor, clerk, semiskilled worker, farmer, other laborer, servant class, and farm laborer (as well as unknown and silent). US Census Bureau, Fifteenth Decennial Census of the United States: 1930, Unemployment, vol. 2, pp. 2–3, 51–52, Table 19 (“Unemployment Returns—Class A, By Sex and Family Relationship, by Geographic Divisions and States: 1930”) and Table 20 (“Unemployment Returns—Class B, By Sex and Family Relationship, by Geographic Divisions and States: 1930”); US Census Bureau, Fifteenth Decennial Census of the United States: 1930, Population, vol. 6, Families, 49, Table 56 (“Families Classified by Sex of Head and by Age of Man Head, By Divisions and States: 1930.” US Census Bureau, Fifteenth Census of the United States: 1930, Population, vol. 6, Families, 53, Table 60 (“Families Having Radio Set, in Urban, Rural-Farm, and Rural-Nonfarm Areas, by Divisions and States: 1930”). See http://1930census.archives.gov/FAQ.html (accessed May 30, 2007). Using a conventional calculation for median, the median family size for writers in the census subset is five. The 1930 Census Bureau used a formula for computing the median number of people in a family replicated here for the census subset in order to make it comparable to the census figure rather than using a more conventional calculation. See US Census Bureau, Fifteenth Decennial Census of the United States: 1930, Population, vol. 6, “Families,” 7n3. The proportion of median housing value and the number of people in the family are essentially uncorrelated (Pearson’s r = 0.2). Gerteis, “Possession of Civic Virtue,” 593. As discussed in chapter seven, writers only rarely deployed these excuses, which are analytically related as non-fault-based claims that have been emphasized as important in the existing welfare state literature. In order to guard against the possibility that the nonsignificant results were due to the low occurrence of these variables in

320 / Notes to Appendix

23.

24.

25. 26.

the data, I combined them into a composite variable “entitlement,” which occurred in 151 letters. The reference group is “North East.” The four-region system established in the 1950 census was used rather than the seven-region format in use in 1930 in order to reduce the degrees of freedom used in the analysis. The overall effect of the four dummy variable set for region was tested using a LR chi-square test between a model containing the region dummies and one that did not. The inclusion of the variables for region did not significantly improve the model fitting for any of the reported models on any of the nineteen dependent variables. The reference group is “1933–36 Period.” The letters cover the period 1933–40, coinciding roughly with Roosevelt’s first and second terms. There are two justifications for splitting the decade into halves: first, just as there were regional differences and differences between the city and the country that might have affected the content of the letters, there were changes in the economic circumstances of the nation over the course of the 1930s that might have affected the strategies writers adopted. Splitting the decade into two parts rather than ten allowed for the capture of some of that variation with a minimum of added variables. Second, claims of entitlement might be expected to lag the development of institutions during the first term, so that it would be reasonable to expect that claims based on fault would diminish and those based on entitlement would increase in the second half of the decade. One hundred seven writers requested assistance with unpaid debts, and 198 requested aid in the form of a loan; fifty-six writers were in both categories. Long and Freese, Regression Models for Categorical Dependent Variables Using Stata, 372.

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INDEX

Italic page numbers refer to illustrations. Abbott, Grace, 80 Ackerman, Bruce, 147 Adair v. United States, 281n47 Adams, George, 269n75 Adams, John Quincy, 23, 265n35 Adkins v. Children’s Hospital, 183 aggregation, 87–89 aging, as a disaster, 123–25 Agricultural Adjustment Act, 8, 121, 154–60, 165–66, 175, 180, 298n11 Agricultural Adjustment Administration (AAA), 129, 152, 158 agricultural price supports. See farm subsidies (price supports) agriculture: aid to, 152, 157, 159–60, 165, 167, 173, 302n64; agriculture, regulation, 152, 169 Aid to Families with Dependent Children (AFDC), 228 Allen, William, 3, 31–32 Allgeyer v. Louisiana, 281n48 Alsop, 306n103 Altmeyer, Arthur, 130, 133, 135, 140, 149, 291n18, 293n56, 298n12 American Association of Labor Legislation, 63 American exceptionalism, 33 American Federation of Labor, 88, 277n101 American law schools, 155 American Liberty League, 67. See also New Deal: opponents

American Medical Association, 67 American Political Science Association, 70 American social contract, 82, 222 American Sugar Trust, 54–56, 58, 279n21 antitramp laws, 277n100 appropriation power. See Congress: power to appropriate Archer, William, 21, 265nn35–36 Armstrong, Barbara Nachtrieb, 129, 133–40, 147–49, 156–57, 166, 183, 293nn43–44, 294n68, 298n11 Armstrong Committee, 63 Arnold, Thurman, 128–29, 148, 155, 179–80, 309n144 Bailey, Martha, 25 Baker, Newton, 75, 168, 171, 173–76, 181 Balogh, Brian, 266n48, 271n107 Bates, Edward, 274n40 Baxandall, Michael, 91 Beard, Charles, 71 Beck, James M., 10, 67–69, 73, 76–77, 85, 145, 161–62, 164–65, 168, 171, 177, 305n90 Belford, James, 33 Bentley, George R., 274n40 Berle, Adolph, 162 Bickford, Walter, 227 Bingham, John, 38, 42 Bituminous Coal Conservation Act, 174 Black, Forrest Revere, 294n62

342 / Index Black Codes, 273n35 black poverty, federal responsibility for, 15, 36, 40–43 black suffrage, 38 Blair, Henry W., 44–45 Blair Education Bill, 32–33, 44–45, 48, 75,160, 267n62, 268n68, 271n94, 276n77; petitions in support of, 44, 276n71 blame and blamelessness, 6, 14–15, 23, 25–26, 35, 87, 90, 102, 113–15, 120, 225, 228, 275n64; in letters to Eleanor Roosevelt, 188, 191–92, 218; of women, 197 Blount, James, 29 Boltanski, Luc, 312n17 Borah, William, 26, 50 Boudinot, Thomas, 24 Brandeis, Louis, 84, 132, 134, 139, 176, 181, 309n149 Brantley, William, 64 Breckenridge, J. C., 30, 39 Brent, William, 23, 265n35 Brewer, David, 62, 280n30 Brewster, Elisha, 158, 300n25 Bristol, Horace, 112 Brown, Douglas, 133, 137–39, 142, 293nn52–53 Brown, Henry Billings, 280n30 Buchanan, James, 266n48 Bulmer, Martin, 286n35 Burdick, Charles, 73 Bureau of Labor Statistics, 89 Burgess, John, 70–71, 299n19 Burr, Borden, 75, 180–81, 309n147 Bush, George W., and the Bush administration, 15–16, 225 business failure, 25 Butler, Benjamin Beast, 42, 275n60 Butler, Matthew, 275n63 Butler, Pierce, 183 Calhoun, John C., 30, 45 Cannon, Joseph, 30–31 capitalism, effects on society, 259n4, 267n59 Cardozo, Benjamin, 176, 183 Carloss, Helen, 161–62, 301n41

Carmichael v. Gulf States Paper Corp., 309n147 Carmichael v. Southern Coal & Coke, 309n147 Carnes, Thomas, 24 Carson, Samuel, 265n35 Carter v. Carter Coal, 174 Cathcart, Arthur, 166 Catledge, Turner, 306n103 Chafee, Zachariah, 71 Chamber of Commerce, Business Advisory Council, 140 Chamberlain, Joseph, 132, 291n19 Chapman, Elverton, 279n21 charity, 32–33, 61; private, 14, 29, 117; public (governmental), 23, 27, 29, 56, 144, 180 Charles C. Steward Machine Co. v. Davis, 302n65 Chase, Stuart, 119 Chesnut, William Calvin, 298n12 Child Labor Tax Case, 134, 143, 155 children, as icons of blamelessness, 120 Children’s Bureau, 89, 300n35 Choate, Joseph Hodges, 59–60, 65, 159–60, 162, 171, 177, 281n43 Cincinnati Soap Co. v. United States, 177–78, 182–83 City of Centralia v. Illinois Power & Light Corp., 306n104 Civil Rights Act, vetoed, 274n40 Civil War pensions, 2–5, 19, 26, 260n13, 276n77 Clanton, Gene, 48 Clark, Charles, 139 class legislation, 53, 61 Clay, Henry, 265n31 Cleveland, Grover, 25, 27–28, 58, 66, 75–76, 268n68 Clifford, James, 111 Clinton, Bill, 226–29 Cloward, Richard, 13 Cohen, Ben, 139 Cohen, Lizabeth, 222 Cohen, Robert, 193 Coit, Joshua, 22 Coke, Richard, 27, 267n62, 268n68 Cole, Cornelius, 40

Index / 343 Collier, Charles, 74, 155 Collins, Tom, 104 Columbia University, 62, 70–74 Commerce Clause. See Interstate Commerce Clause commerce power. See Congress: commerce power Committee on Claims, 18, 25, 263n2 Committee on Economic Security (CES), 1–2, 124–25, 129–35, 139–44, 147, 149, 154, 158, 262n40 Committee on Farm Tenancy, 289n128 Commons, John, 112, 285n35 compassion, and the state, 32, 107, 111, 201, 261n24, 311n4 Congress: bound by precedent, 20–21 (see also precedents); commerce power, 66, 72, 133, 144, 156, 298nn11–12; lack of authority to spend on internal improvements, 19, 76–77; power to appropriate, 2, 4, 7, 36, 58, 62, 68, 72, 85, 133, 137, 146–47, 152, 160–62, 164–66, 169, 173, 182; power to define general welfare, 64, 67, 69; power to spend, 7–9, 31, 54, 61, 71–72, 131, 142, 145, 147, 151–52, 154, 171, 261n15, 270n91, 298n11 (see also congressional spending); power to tax, 7, 31, 132–34, 152, 154, 163, 298n11; power under the Constitution, 2; welfare spending thought unconstitutional before 1937, 260n15 congressional debates, over relief, 24–25, 41, 45, 270n80, 274n53 congressional spending: bomb-proof, 138–39; in the general welfare, 56–58, 64–69; legal and historical research, 161; narrow view, 75–76 Constitution: ignored in favor of a more humane organizing principle, 6, 29, 32–33, 50; reshaping, 156 constitutional doctrine, 7, 156 constitutional law, 70–74, 76, 135, 138, 154–55, 165 constitutionality, 132, 137–38, 143, 149, 291n20 Cooley, Thomas, 56–57, 59–60, 62, 73, 259n7, 267n60, 271n91

Coolidge, Calvin, 79, 171, 281n52 Cooper, Jere, 146 Cooper, William, 22 Corcoran, Tom, 141–42, 295n80, 299n17 Corwin, Edward, 61, 68, 70, 73, 137–39, 145, 147, 168, 172–73, 178, 265n48 Costigan, Edward, 83–86, 89–90, 165, 174 Coughlin, Father Charles, 222 court opinions, 152–53 Cowan, Edgar, 273n37 Cox, Hugh, 168 Coxe, Trudy, 227 Crawford, Fred, 143 Cummings, Homer, 75, 133, 145–46, 163, 172, 296n104 Cushman, Barry, 297n7, 298n9 Cutter, Nathaniel, 263n4 Daniel, John, 45 Dauber, Kenneth, 91 Davis, Garrett, 39, 41 Davis, John W., 10, 75–76, 158, 161, 163–64, 166, 171, 181 Davis v. Boston & Maine Railroad, 310n154 Dawson, Miles, 62–68, 71, 131, 160, 177 Degler, Carl, 4 Democratic Party platform, 120, 141 Democrats, southern, 43, 118, 132, 142, 146, 148, 268n68 depression: as a disaster, 81, 88–90; documentation and visual imagery, 87 Depression of 1857, 49 Depression of 1873, 48–49, 277n100 Depression of 1893, 47, 58, 277n101 Depression of the 1930s. See Great Depression Desan, Christine, 21 Dewey, John, 71 Dexter, Samuel, 24 disaster: economic, 7, 83, 89, 117, 120, 143; local versus national, 174–76; moral dimension, 225; natural versus man-made, 14, 51, 79, 82–84, 116–17, 173 disaster narrative, 6–7, 11, 23, 28, 87, 121–23, 261n24, 276n64; expressed in letters to Eleanor Roosevelt, 192, 197, 200

344 / Index disaster relief, 3–16, 19–21, 25–26, 33, 120, 179, 184, 260n13; appropriations, judicial review, 31; as class legislation in state supreme courts, 61; constitutionality of, 29–32, 53, 269n78; in the formation of US social policy, 12–15; implications for the American state, 226 (see also welfare state); as paternalism, 53; politics, 225; precedents, 13, 51, 57, 83–86, 169, 181–82 (see also precedents); as a precedent for New Deal social welfare programs, 17, 81; as a precedent for seeking federal funds, 35, 48–51; and racial minorities, 275n64; state and local, 62; tables and lists, 45–49, 46, 59–61, 159–60, 310n162 disaster relief history, 17, 34, 39, 44, 47, 64, 67, 151, 177–78; as support for general welfare, 56, 59 disaster story, plausibility, 87 disasters: Alexandria fire of 1827, 5, 18–19, 21, 23, 48, 59, 83, 264n13; Boston fire, 22, 62; Caracas earthquake, 1812, 19–20, 23, 30, 45, 86, 144–45, 159–60, 171, 179, 264n13, 270n79, 305n90; Chicago fire, 1872, 45, 269n74; cotton market crash, 1914, 26, 49–51; crop failure and famine in the South, 1867, 38, 41–42; drought in the South, 1930–1931, 3, 14, 35, 79–80, 160; earthquake at New Madrid, Missouri, 1812, 23, 45, 48, 270n79; fire in New York, 1836, 23, 48; fire in Portland, Maine, 1866, 28, 30, 41, 43, 45, 48; fire in Portsmouth, 1803, 48; fire in Savannah, Georgia, 1796, 22, 264n13; flood in El Paso, 268n66; flooding in the pea fields of Visalia and Nipomo, California, 1938, 104; flooding in the South in 1874, 48; Hurricane Katrina, 15, 225; Irish potato famine, 1847, 30, 41, 45, 265n47, 266n48, 274n42; Massachusetts fisheries, 226–27; Mississippi River flood of 1884, 30–31, 275n63; Mississippi River flood of 1927, 79, 82, 84, 226; Mississippi River flood of 1937, 9, 94, 114, 118–20; Niagara frontier, 19–20; Ohio River flood, 1884, 29, 32, 275n62; Rio Grande River

flood, 1897, 25, 30; Russian famine, 1921, 28, 31, 161, 270n80, 271n97, 281n52; Salem fire, 1914, 50, 85; San Francisco earthquake, 50, 82, 84, 146, 172; Sea Islands Hurricane, 1893, 29, 47, 268n73, 269n77, 271n97; Sioux Indian depredations in Minnesota, 48, 265n47; St. Domingo revolution, 1794, 19–20, 29, 57, 59, 144, 160, 164, 171, 264n13, 269n79; Texas drought, 1887, 25, 27–28, 268n68; Triangle Shirtwaist fire, 63, 282n62; Whiskey Rebellion, 5, 14, 19–20, 24, 159, 171, 179, 264n13 doctrine of strict constructionism, 20, 40 documentary film, 94–98 documenting the plight of the poor, 278n119 Donald, Malcolm, 158, 164–66, 168, 173, 309n149 Dorothea Dix bill, 266n48 Douglas, William O., 71–72 drought, 13–14, 79–80, 119–21, 124 drought relief, 3, 8, 23, 31, 268n68 Du Bois, W. E. B., 35–36, 43 Duke Power Co. v. Greenwood County, 170–72, 178, 302n65, 307n115 Dunning, William, 71 dust bowl, 5, 94, 113, 117–19, 121, 124 Eastman, Crystal, 285n35 economic briefs, 175, 182 economy, federal intervention, 5, 26 Edmunds, George, 28, 268n62 education: federal aid to, 7, 13, 268n68; federal versus local responsibility, 44 Edwards, Alba, 235–36, 245, 251 elderly, as victims, 123 Eliot, Thomas, 2, 72, 129, 132–41, 147, 149, 154–58, 166, 169, 176–81, 292n37, 293n44, 296n104, 298n11 Eliot, Thomas Dawes, 36, 39 Elliot, George, 114 Ellis, Ezekiel, 30 emancipation, as a disaster, 40, 42 entitlement, 6, 136, 222, 320n22, 320n24 ethnography, 111 Evans, Walker, 9, 90, 94–95, 112, 115–16, 229, 287n53; photographs, 97, 101, 103, 106

Index / 345 experimental jurisprudence, xv–xvi Ezekiel, Mordecai, 175, 308n12 Fake, Guy L., 179 Fallbrook Irrigation District v. Bradley, 260n7 farm crisis, national, 175 Farm Security Administration (FSA), 91, 104, 112–15, 121–22 farm subsidies (price supports), 8, 51, 129, 155, 158, 226 Federal Emergency Relief Act of 1933, 86 Federal Emergency Relief Administration (FERA), 112, 129, 312n14, 317n2 Federal Farm Loan Act of 1916, 51, 281n52 federal farm loans, 7, 270n80 federal relief: direct, 17–18, 143, 146; illegitimate, 84–85; before the New Deal, 4 federal spending programs, 19–20, 72, 143. See also Congress: power to spend; congressional spending federalism, 38, 43, 75, 130 Fessenden, William, 36, 38 Field, Marshall, 56–57 Field, Stephen, 280n30 Field v. Clark, 54, 56, 58, 61–62, 65, 160–61, 300n33 Finley, David, 51 fire relief, 23. See also disasters Fisk, Clinton, 37, 272n18 floods and flood relief, 13–14, 28, 32, 120–21, 172, 268n68 (see also disasters); for blacks, 275n63; as political opportunities, 118–19 Follett, John, 32 Foner, Eric, 38, 274n40 food relief, 82. See also rations foreign aid appropriations, 49 Frank, Jerome, xv–xvi, 127–29, 132, 158, 161–62, 167, 169–73, 175–76, 182, 306n103, 306n106 Frankfurter, Felix, 69, 73, 127–29, 132, 136, 139, 151, 170–71, 291n20, 298n17, 306n103 Franklin Process Co. v. Hoosac Mills Corp., 300n25 Fraser, Nancy, 317n9 free land policies, 49 Freedmen’s Aid societies, 38 Freedmen’s Bureau, 7, 13, 25, 29, 31–38,

41, 131, 271n94; constitutionality in peacetime, 39–40; extending relief to white southerners, 31, 41; extension of, 38–41, 45, 59; funding for, 38, 273n31; original term of one year, 273n27, 274n43; racial politics of, 40, 42; role in American political development, 43; as a social service agency, 276n66; in a stream of federal relief precedents, 44 Freedmen’s Bureau Relief Act of 1867, 37, 48, 269n78 freedmen’s civil rights, 36, 273n35 Freund, Ernst, 63, 65, 282n65 Freund, Paul, 73, 155, 158–59, 163–64, 169, 172 Friedman, Richard, 297n7 frontier, closing of, 277n100 FSA photographs and photographers, 91–92, 113, 115, 121, 286n50 FSA photographs, racial content, 114, 286n43, 286nn50–51, 287n53 Fuller, Melvin, 280n30 Garfinkel, Harold, 191–92 Garrett, Daniel, 28 Gellhorn, Martha, 201 general welfare: versus debt arising from a moral obligation, 68, 72, 183, 310n164; generality of, 174 general welfare argument, 158, 166–69 General Welfare Clause of the US Constitution, 19–20, 30, 45, 53, 71, 77, 132, 266n48, 270nn80–81, 271n91, 277n77; broad construction, 172; in the classroom, 69, 73; expansive reading, 153, 156, 299n19; history, 70; interpretation, 162–63; a loophole, 138; narrow construction, 59; practical construction, 159, 167; scope, 57, 61, 142, 152, 154, 165; after the Sugar Bounty Cases, 62, 65–67; a threat to the South, 131 general welfare questions, not subject to judicial review, 59, 71, 152, 163, 181 George, Walter, 118, 146–47, 296n99, 309n146 Giddings, Franklin, 71 Giddings, Joshua, 25 Gifford, Walter, 90 Goodhue, Benjamin, 22

346 / Index Goodnow, Frank, 70–71, 305n91 Goodwin, Clarence, 301n51 Gordon, Linda, 288n90, 288n92 Graham, Frank, 140–41, 294n77, 295n83 grants-in-aid, to the states, 130, 137, 146, 159–60 Gray, John Chipman, 70–71 Great Depression, 164, 173–74, 300n25; connected to unemployment, in letters to Eleanor Roosevelt, 216–17; constructed, 87–88; as a disaster, 7–10, 14, 99, 102, 116–17, 119, 123, 144, 223; in letters to Eleanor Roosevelt, 186–87, 191–93, 213; as a motive force for the New Deal, 4 Grinnell, Josiah, 32 Griswold, Erwin, 161 Grodzins, 290n13 Guthrie, James, 39 Hacker, Jacob, 12 Hale, Edward, 158 Hall, James Parker, 74 Hamilton, Alexander, 64, 85 Hand, Augustus, 299n17 Harding, Warren, 67 Hare, J. I. Clark, 59, 172, 281n44 Harlan, John Marshall, 57, 61, 267n59, 280n30, 281n47 Harper, James, 23 Harris, Joseph, 138, 142, 145 Harrison, Benjamin, 58 Harrison, Pat, 145 Hart, H. L. A., 191 Harvard Law School, 62, 69–76, 134–36, 155–61, 164 Haskell, Thomas, 261n27, 275n64 Hastings, Daniel O., 82 Hastings, William W., 82 Havemeyer, Henry, 54–55, 279n21 Hawley, Joseph, 27 Helvering v. Davis, 183, 302n65, 310n162 Henderson, John, 28, 30 Hendricks, Thomas, 39 Hewes, Lawrence, 112 Higgs, Robert, 288n99 Hine, Lewis, 285n35 Hiss, Alger, 73, 129, 152, 155–71, 175, 182, 300n35, 301n41, 308n124

Hiss, Donald, 73, 168 Hoar, George, 268n62 Hogg, Big Jim, 55, 279n15 Holmes, Oliver Wendell, 171 Holtzoff, Alexander, 70, 129–40, 145–46, 154, 157, 160–61, 166–75, 291n21, 296n104, 298n11, 306n103, 306n106 Home Building and Loan v. Blaisdell, 179 Home Loan Act, 167 Home Owners Loan Corporation (HOLC), 129, 143, 167, 304n80 home values, 188, 199, 235, 311n5 Homestead Act, 1860, 266n48 Hoover, Herbert, and the Hoover administration, 3–4, 7, 10–11, 15–16, 79–83, 88–89, 116, 225–28, 268n68 Hopkins, Harry, 9, 86, 112, 119–20, 140, 149, 183 Hopkins Federal Savings & Loan v. Cleary, 168 Horsky, Charles, 155, 170, 177, 298n17 Howard, Donald, 86 Howard, Oliver O., 37–39, 41, 272nn14–15, 272n18, 273n24, 273n29, 273n31 Howe, Louis McHenry, 10–11 Hubbard, John Henry, 40 Hughes, Charles Evans, 161, 163, 270n80, 281n52, 297n7, 305n87, 308n129 human erosion, 124, 290n128 humanity, and the role of government, 29, 31–33, 41, 51 Hunt, Carleton, 30 Ickes, Harold, 167, 170 iconization, 87, 101–2, 114, 120 Ikenberry, John, 130 illiteracy, 40, 316n108; as a disaster, 44–45 income tax, national, 281n52 Interstate Commerce Clause, 118–19, 132–33, 154, 158, 162, 297n8 Irons, Peter, 153, 155–56, 158, 297n8, 299n19 Ives v. South Buffalo Railway, 63, 65 Jackson, Howell, 44 Jackson, John Paul, 179 Jackson, Robert H., 120, 128–29, 155, 177–82

Index / 347 Jacobs, Arthur, 160–61, 167–68, 172, 300n35 Jefferson, Thomas, 64 John, Richard, 6 Johnson, Hiram, 146 Johnson, Lyndon, and the Johnson administration, 25, 40, 149, 229, 273n31, 274n40, 274n42, 299n17 Johnson, Reverdy, 39, 41, 43 Johnson v. Washington, 178 Johnston, Forney, 180, 309n147 Jordan, Isaac, 32 judicial activism, xvi Kalman, Laura, 261n19 Kansas Gas & Electric v. City of Independence, Kansas, 305n90 Kaplan, Jacob, 309n149 Kearny, James R., 312n14 Keen, James, Madonna of the Flood, 99, 114 Kehl, D. G., 112 Keifer, Joseph, 31 Kellogg, Paul, 88, 129, 285n35, 294n74 Kennedy, John, and the Kennedy administration, 149, 299n17 Kent, James, 73 Key, Sewall, 159–60, 164, 166, 169, 176–77, 301n41 Keyssar, Alexander, 48–49 Kloppenberg, James, 262n39 Kramer, Larry, 270n91 La Follette, Robert, Jr., 3–8, 10, 23, 35, 79–90, 112, 116, 119, 174; list of disasters, 82–83, 85, 88, 117 labor, 273n26; changing conditions, 278n101; and federal relief in the South, 274n50; racist practices in the South, 148–49, 297n114; and relief, 37 labor market in the 1930s, gendered, 196 laissez-faire ideology, 3, 6, 26 Lane, Amos, 22 Lange, Dorothea, 8, 88, 90–92, 104, 112–15, 120–22, 287n62; captions, 115–16; Migrant Mother, 91, 92, 114, 122, 229, 288n90, 290n128; photographs, 92, 94, 95, 96, 98, 100, 105, 107, 108 Larson, John, 261n26

Lash, Joseph, 201 Latimer, Murray, 294n76 law of mercy, 33 Lawrence, William, 29 Lawson, James, 284n114 lawyers: civil service/government, 69, 129, 153–55, 184; defending the New Deal, educated at Harvard Law School, 69; as legislators, 28, 268n69 Lee, Gordon, 44 Lee, Richard Bland, 18–20, 23 Lee, Russell, 90, 115–16; photographs, 93, 102, 104 legal formalism, xvi Legal Realism, xv, 127–28 legislation to relieve unemployment, 8 legislative adjudication, in the early Congress, 21 Leiserson, William, 133, 298n11 LeSourd, Francis, 164, 166 letter writers: age, 233, 318n8; class status, 207–9; demographic characteristics, 193–200, 236, 250; dishonest, 188–91, 311n12; expressing pride, 210, 218; gender, 196–97, 212–13, 233; geographic distribution, 195–96, 232–34; home and radio ownership, 198–99, 234–35; indebtedness, 213, 216–20; literacy, 195, 219, 234, 252–54, 316n108; marital status, 219–20, 232–33, 316n94; median family size, 199, 235, 319n19; occupation, 199, 235, 250–51; by region, 212–13; respect for Eleanor Roosevelt’s time, 202, 221; self-identified as black, 198; socioeconomic variables, 219–20, 234–36, 245–46; unemployment, 199, 233 letter writing, strategies, 198, 200 letters: begging, 210, 218, 315n89; from children, 193, 203; coded for content, 204, 232; consistent pattern of narrative deployment, 312n17, 312n19; as direct testimony about living conditions, 192–93; excuses used, 202–6, 212–21, 236–42, 245–49, 252, 319n22; expressing female values, 196–97, 313n30; length, 204, 212, 218–21, 255–56; sampling method, 231; statistical models used, 242–57

348 / Index Leuchtenburg, William, 261n15, 288n99 Levine, Lawrence, 193 Lewis, Barbour, 30 Lewis, William Draper, 58, 62 Lieberman, Robert, 130, 148, 276n66, 297n114 Lincoln, Abraham, 274n40 Linder, Leo, 143–44 Loan Association v. Topeka, 56, 61, 260n7 Lochner era, of the Supreme Court, 26, 53, 61, 259n4, 271n91 Lochner v. New York, 53, 61, 267n59, 278n1 Locke, Edwin, 94, 262n31, 287n53 Logan, John, 42 Long, Huey, 222 Lorentz, Pare, 8–9, 90, 94–95, 112–13; The River, 95, 98 Lowell v. Boston, 62, 70, 260n7 Lundeen, Ernest, 123, 143–44, 295n91 Lundeen Bill, 143–44 Lyman, Stanford, 191–92 MacLeish, Archibald, 91 Macon, Nathaniel, 30 Madison, James, 18–20, 29–30, 76, 269n79 Maggs, Douglas, 134, 136–37 Malinowski, Bronislaw, 111 manufacturing and commerce, federal regulation, 267n59 Margold, Nathan, 168 Marian, John Hardin, 171 market economy, and the formation of collective humanitarian efforts, 261n27 Massachusetts v. Mellon, 69, 72, 154, 281n52, 300n33 Maternity Act, 67–68, 73, 281n52, 300n35 Maternity Act cases, 134, 145, 161–62, 164, 180, 299n19 McBain, Howard Lee, 165 McClean, Angus, 296n104 McClennen, Edward, 309n149 McElvaine, Robert, 10, 192 McGovney, Dudley, 134, 136–37 McGuire, Ollie, 162, 305n90 McKellar, Kenneth, 51, 82, 120 McKinley Tariff Act of 1890, 7, 54, 56, 260n7 McPherson, John, 29, 271n97

McReynolds, James, 183 McSwain, John, 31 mechanization, as a disaster, 121, 209 medical insurance, 130 Meyer, H. H. B., 82 Middleton, Charles, 169 migrant story, as a disaster narrative, 121 migrants, innocent, 121–22 Miller, Samuel F., 61 Mills, C. Wright, 192 Mississippi River floods, 25–26, 45, 146–47, 268n66, 274n50 (see also disasters); examples of appropriation, 266n51 Missouri Utilities v. City of California, 305n87, 305n90, 310n164 Moley, Ray, 72, 130, 144, 295n92 Monroe, James, 19–20, 45, 76–77 moral agency, 83, 100 moral economy, 11–12, 15, 115, 225, 228–29; common understanding, 187–89, 192–93, 200, 212, 218, 223 moral order, practical sociology of, 191, 228 moral sensibility, shared by men and women, 196 Morgenthau, Henry, 140 Morris, James, 163, 169 mortgage assistance, 13, 129 mudsills, 42, 275n58 Munn v. Illinois, 280n30 Myers, Gustavus, 284n114 narratives of market failure and unemployment, 51. See also disaster narrative Natanson, Nicholas, 91, 286n43 National Association of Manufacturers, 123 National Industrial Recovery Act (NIRA), 154, 288n99, 298n12, 302n65 National Labor Relations Act, 156 National Recovery Administration (NRA), 161 needs, as justification for relief, 13, 87, 191, 207, 228, 317n9 Negro question, 295n85 Nelson, William, 21 Nevada v. Skinner, 285n123 New Deal, 4; as a break with the past, 3, 9–10, 151; as a constitutional revolu-

Index / 349 tion, 5, 77, 128, 147; court challenges to, 129, 173; and European welfare states, 11–12; historiography, 10–11; legal defense, 151; and old age insurance, 122; opponents, 68–69, 77–78, 138, 163–64, 171; and the precedent of disaster relief, 6, 17, 47–48, 81, 151, 173, 181, 184; as a radical innovation, 4, 127–28; representations of the poor, 87–112, 229 (see also photography: New Deal); and the Supreme Court, 2; term first coined, 119; and unemployment relief, 86 New Deal artists, 91 New Deal lawyers, 69–70, 77, 154–56, 170, 299n1 (see also Columbia University; Harvard Law School); legal strategy, 153 Nicholson, Vincent, 74, 162, 166 Norris, George, 120 Novak, William, 53 Nussbaum, Martha, 106, 110–11, 262n28, 285n33, 286n42, 311n4 Okies, 111, 122 old age insurance, 8, 13, 123, 129–30, 133–36, 144–45, 148, 182; state versus national, 137 Otis, Merrill E., 305n90 Overman, Lee, 50 Panic of 1893, 49 Parker, Josiah, 22 paternalism, 26, 53 payroll tax, 64, 66, 146, 158 Pearce, Dutee, 265n39 Peckham, Rufus, 61, 69, 159, 171, 267n59, 281n48 Peffer, William, 29, 47–48, 51, 173, 269n77 pensions, 71 Pepper, George Wharton, 158, 165, 299n19 Perkins, Francis, 1–2, 10–11, 86, 130–32, 135, 140–41, 149, 259n2, 262n40, 290n14, 294n68 Perkins, William Robertson, 75, 163–64, 170–71 Peters, Samuel, 55 petitions, 280n31. See also Blair Education Bill: petitions in support of

Philippines, 177 Phillips, Stephen, 265n39 photograph negatives, killed, 90, 286n43 photography: depicting race relations, 94; New Deal, 115, 197; power to construct icons of the Depression, 112; scripted, of the Great Depression, 90–92; sociological, 86 Pierce, Franklin, 266n48 Pierce, Paul, 38, 272n18 Pierson, Paul, 12 Pittsburgh Survey, 285n35 Piven, Frances, 13 Plessy v. Ferguson, 280n30 police power, 72 policy feedback, 12 political science, 70 Pollock v. Farmers’ Loan & Trust Co., 59, 267n59, 280n30 Pomeroy, John, 59 popular constitutionalism, 270n91 Powell, Thomas Reed, 69–74, 135–39, 154, 156–58, 163, 165–66, 183, 259n4, 293n44, 299n22 power companies, southern, 127 power of eminent domain, 168–69 power plant construction, municipal, 127, 161, 169, 171, 173, 304n84 precedents, 18, 20–23, 26–28, 44–47, 81, 264n24, 265n36 processing tax, 154, 158–59, 161, 176–77 public power cases, 167, 170, 173–74, 305n87. See also power plant construction, municipal public purpose doctrine, 2, 26, 56–57, 60, 62, 71, 259n7, 267n60, 269n77 Public Utilities Holding Company Act, 168 Public Works Administration, 127, 129, 165, 168–70 public works programs, 127, 129 Pulaski Trucking, 180 Quadagno, Jill, 148 Quigley, Sylvia, 81 race, role in debates over relief, 42 racial inequality, in America, 15 racial minorities: as blameless victims, 275n64; as a disaster, 122

350 / Index Railroad Retirement Board v. Alton, 144, 154, 298n12 Randall, Samuel, 31 Randolph, John, 264n5 rations: as a measure of relief, 37–38, 272n14, 272n22; in relation to labor contracts, 37; variations between states, 273n24 Reagan, John, 30, 33 Reconstruction, 38, 131 Reconstruction Finance Corporation, 86 Red Cross, 3, 14, 79–81, 83, 116 Reed, Stanley, 8, 70, 158, 161–66, 172–73, 179, 299n17, 299n19, 301n51, 302n58, 306n106, 307n112, 307n115 Rehnquist, William, 77 Reinhardt, Stephen, xvi relief: constitutionality of, 8, 19, 47, 274n53; for individuals, 5, 17, 146. See also disaster relief; federal relief relief bills, 17–19, 35, 263n2. See also relief petitions relief commissioners, administrative authority, 18–19, 37, 272n12 relief infrastructure, lacking in the South, 273n29 relief petitions, 17, 21–22 Resettlement Administration, 90, 129, 306n104, 307n108 Revolutionary War, 18 Rhea, John, 18 Riis, Jacob, 278n119 Roberts, Owen, 158, 175–76, 299n19 Robinson, William S. O’B., 170 Rodgers, Daniel, 11–12, 261n16, 261n20, 262n29, 262n40, 290n14 Roosevelt, Eleanor, 112; image, 200–202; letters personally answered, 312n14; letters requesting relief, 10–11, 185–94, 196–97, 231 (see also letter writers; letters); newspaper columns, magazine articles, and radio addresses, 10, 188, 197, 202, 234 Roosevelt, Franklin D., 9–10, 14, 67, 70, 81, 85–86, 90, 102, 116–25, 162, 172–73, 180, 228, 286n41, 288n99, 289n103; “Brother’s Keeper” address, 118, 309n146; court-packing plan, 2, 165,

259n4, 291n21; letters, 10, 317n2; support for social insurance, 130, 141–42, 147–48, 290n7, 295n92, 296n99; transformation of the Democratic Party,181; use of disaster metaphors, 116–17 Roosevelt, Teddy, 70 Roosevelt administration, 113, 132, 149, 278n119, 310n164 Rothstein, Arthur, 90, 122 Rural Electrification Administration, 162 rural-urban migration, during the 1920s, 1930s, and 1940s, 233 Russell Sage Foundation, 86, 285n35 Sandage, Scott, 313n34, 315n89 Sanderson, Bennett, 158 Saulsbury, Eli, 27, 40 Savoy, Prew, 159 Sawislak, Karen, 269n74 Schechter Poultry, 144, 154, 158, 166 Schenck, Robert, 42 Schlesinger, Arthur, Jr., 10, 130, 149, 261n15 Schutz, Alfred, 191 Scott, Marvin, 191–92 Searles, John E., 279n21 Seitz, Peter, 182 Seminole War, 1836, 22 separation of powers, 21 Shahn, Ben, 90–91; photographs, 96, 97 Sherman, William Tecumseh, 273n35 Sherman Antitrust Act, 267n59, 280n30 Shields, John, 29 Siegel, Stephen, 53 Skocpol, Theda, 3–4, 114, 130, 260n13, 276n77 Slaughterhouse cases, 280n30 slavery, as a disaster, 40, 42, 275n64 slaves, as contraband, 36, 42 slum clearance program, 168–69 Smith, Ellison, 50–51 Smith, Hoke, 49 Smith, William Laughton, 22 Smith v. Kansas City Title & Trust Company, 270n80, 281n52, 300n33 Smoot, Reed, 31, 271n97 social insurance, 12, 66, 123–24, 130, 133,

Index / 351 141; constitutionality, 143; state-federal plans, 147, 157, 228 social policy, American, 12; prior to the Depression, 261n16 Social Security Act of 1935, 12, 72–73, 118, 120, 122–24, 130, 147, 149, 154, 157–60, 165, 180, 286n41; constitutionality, 129; drafting of, 1, 8–9; Old Age Insurance provisions, 122–23 Social Security bill, 131–32, 139, 142–43; constitutionality, 144–46 Social Security Board, 149, 169–70 social welfare programs, 8, 17, 85, 129, 276n77 socialism, 76 South Dakota v. Dole, 77 spending power. See Congress: power to spend Stam, Colin, 145–46 State ex. Rel. Griffith v. Osawkee Township, 62 State v. Osawkee Township, 260n7 states’ rights, 33, 54–55, 69, 75, 131, 142, 144, 151, 164–65 Steagall, Henry, 12 Steffens, Roscoe, 302n64 Stein, Walter, 102, 121–22 Steinbeck, John, 8, 114, 120–22, 289n120; characters, 107–12; The Grapes of Wrath, 102–12; Their Blood Is Strong, 98, 112, 122, 287n62 Stephens, Thaddeus, 38 Stevenson, Andrew, 23, 265n36 Stewart, Bryce, 133–35, 138 Stewart, “Silver” Dick, 29 Stone, Harlan Fiske, 1–2, 5, 7, 70, 131, 165, 176 Storer, Bellamy, 23 Story, Joseph, Commentaries on the Constitution, 20, 29–30, 57, 64, 73, 160, 270n80, 305n90 Stowe, Harriet Beecher, 102 Stryker, Roy, 90–95, 112–15, 286nn42–43, 286n51, 287n53, 290n128 substantive due process doctrine, 281nn47–48 sugar bounty, 54–57, 59, 64–65, 68–69, 71–72, 156, 160, 162; repeal, 58

Sugar Bounty Cases, 7, 58, 61, 66, 144, 151–52 Sumner, Charles, 38 support for relief, across party lines, 265n35, 268n68 Supreme Court, 270n91; avoidance of questions about spending power, 157; Four Horsemen, 2, 62, 183; interaction with Congress, 53, 66, 68–69, 72, 77; traditional view of, 53 surveys, conducted in the 1930s, 89, 286n35 Sussman, Lila, 317n2 Sutherland, George, 62–67, 69, 71, 73, 177, 183 switch in time, 2, 26, 165 Taft, William Howard, 56–57, 65–66, 160–62, 281n52 Tax Division of the Justice Department, 75, 152, 155, 159–61, 163, 177–78 tax relief, 17–18 taxation, 56, 62, 71, 147, 284n117; state, 74 taxing power, 1–2, 26, 66, 72, 259n7, 265n48. See also Congress: power to tax Taylor, Paul Schuster, 112–13, 121 technologies, new, for constructing the Depression as a national disaster, 278n119 Teller, Henry, 27–28 Tennessee Valley Authority (TVA), 170, 172 Thayer, James Bradley, 70 theory of the state, based on compassion and charity, 32. See also law of mercy Thevenot, Laurent, 312n17 Thomas, Seth, 162 Townsend Clubs, 123, 148, 222 transportation aid, 273n26 Traynor, Roger, 133 Trumbull, Lyman, 32, 38–39 Tucker, Henry Harry St. George, 76, 145, 284nn120–21 Tucker, Henry St. George, 19–20, 73, 76–77 Tucker, John Randolph, 75–76, 131, 147, 163–64, 168, 171, 173, 284n117

352 / Index Tugwell, Rexford, 90, 94, 112, 260n15, 294n73, 297n118 Turner, Frederick Jackson, 277n100 unemployment, 160, 168–69, 175, 182; blamed for financial problems, 211; by male breadwinners, 181, 197, 210–11; as a disaster on a national scale, 35, 79–80, 87–89, 124; as a national versus local issue, 176 unemployment benefits, minimum standards, 131, 134–35, 138, 141–43, 148, 295n83 Unemployment Census, 286n41 unemployment compensation law, in Alabama, 179–80, 309n147 unemployment insurance, 129–35, 145, 148, 183; constitutionality of a national system, 131; court challenges to, 180; European style, 277n101; national plan, 134–41, 157, 147, 157, 292n37, 297n118; subsidy plan, 137–41, 295n83; Wagner-Lewis plan, 134–42, 148–49, 157 unemployment insurance law: federal, 178; state-level, 137, 141 unemployment relief (unemployment compensation), 7–8, 13–14, 24–25, 28, 43, 47–49, 51, 81, 83, 86, 268n68 United States Census of 1930, 187–88, 194–200, 208, 232, 318n4 United States ex rel. Miles Planting and Mfg. Co. v. Carlisle, 260n7 United States v. Butler, 62, 69, 76, 139, 152–58, 165–78, 183, 297n7, 310n164 United States v. Certain Lands in the City of Louisville, 305n87, 305n93 United States v. E. C. Knight, 267n59, 280n30 United States v. Mills, 298n12 United States v. Realty Company, 54, 57–74, 77, 145, 151–55, 159–60, 163–67, 171, 173, 176–78, 181, 183, 284n114, 297n7, 299n19, 305n87, 310n164 veterans’ pensions, 300n35 victimization, rhetoric of, 40, 90, 206, 222. See also blame and blamelessness

victims: blameless, 113–14; of the Depression, 106–9; Depression-era images, 100–101, 112 vocabulary of motives, 192 Von Holst, Hermann, 59 Wagner, Robert, 86, 143, 145–46 Wagner Act, 297n8 Wagner-Lewis unemployment insurance bill (failed), 132, 134 Wallace, Henry, 140 Walsh, David, 88 Wambaugh, Eugene, 70 War of 1812, 20, 23, 264n13, 270n79 War on Poverty, 229 war power, of Congress, 35, 39, 269n78 Warmuth, Henry, 55 Warner, Adoniram, 32 Warren, Charles, 74, 84–85, 147, 160, 164, 173, 266n48 Washington, George, 24 Watson, “Sunny Jim,” 83 Webster, Daniel, 45 Weld, William, 226–28 welfare, definition, 13 welfare reform, 15, 226, 229 welfare state: American versus European, 11–13, 261n16; developed at the federal level, 4, 6; disaster-based, 226, 228; modern, 147; scholarship, 43; two-tiered, 13; underdeveloped in the United States, 33–34 West Coast Hotel v. Parrish, 259n4 Wheat, Alfred, 172 Wheless, Joseph, 55 White, Edward, 281n48, 284n114 White, Frank, 49 White, Joseph, 23 whites, southern, 42, 44 Wideman, Frank, 159 Williams, Edward Ainsworth, 86 Willoughby, W. W., 70–71, 74, 172, 277n101 Willrich, Michael, 313n34 Wilson, Woodrow, 49, 70 Wilson-Gorman Tariff Act of 1894, 55–56, 279n21 Witte, Edwin, 130–41, 144–45, 147,

Index / 353 149,154, 291n19, 293n43, 295n85, 298n11 women: and employment in the 1930s, 196, 211, 313n31, 316n98; tradition of letter writing, 197, 218, 313n34 Woodbridge, Frederick, 41 Woodruff, Nan, 81 Woods Committee on Employment, 80

Woodward, Ellen, 317n2 workers, sense of entitlement, 222. See also entitlement workmen’s compensation, 7, 62–65. See also unemployment relief (unemployment compensation) Works Progress Administration (WPA), 119, 129, 183, 317n2 World Court, 171 Wyzanski, Charles, 72–73, 181–82