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The Sympathetic State

Published online by Cambridge University Press:  18 August 2010

Michele Landis Dauber
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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, “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 Justice Harlan Fiske Stone's wife. The justice himself sat down to tea and asked how she 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.”

Type
Forum: “Overtaken by a Great Calamity”: Disaster Relief and the Origins of the American Welfare State
Information
Law and History Review , Volume 23 , Issue 2 , Summer 2005 , pp. 387 - 442
Copyright
Copyright © the Board of Trustees of the University of Illinois 2005

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References

1. Perkins, Frances, “The Roots of Social Security” (address delivered at Social Security Administration headquarters, Baltimore, Md., October 23, 1962).Google Scholar

2. Ibid. Perkins claimed that she never told Eliot or any of the other lawyers on the committee how she—a non-lawyer—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, Frances, The Roosevelt I Knew (New York: Random House, 1946), 286Google Scholar.

3. Perkins, “The Roots of Social Security”; Eliot, Thomas Hopkinson, “The Legal Background of the Social Security Act” (address delivered at a general staff meeting at Social Security Administration Headquarters, Baltimore, Md., February 3, 1961)Google Scholar (“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”).

4. West Coast Hotel v. Parrish, 300 U.S. 379 (1937).

5. U.S. Constitution, art. I, sec. 8, cl. 1 (“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”).

6. Skocpol, Theda, Protecting Soldiers and Mothers: The Political Origins of Social Policy in the United States (Cambridge: Belknap Press of the Harvard University Press, 1992).Google Scholar

7. This doctrine was popularized by Cooley's, Thomas authoritative Treatise on the Law of Constitutional Limitations Which Rest upon the Legislative Power of the States of the American Union, 6th ed. (Boston: Little, Brown, 1890)Google Scholar and Treatise on the Law of Taxation, Including the Law of Local Assessments, 2d ed. (Chicago: Callaghan and Company, 1886).Google Scholar Cooley 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 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, as discussed below, 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 were unconstitutional because Congress could expend the tax revenues only for a “public purpose”).

8. In Steward Machine Co. v. Davis, 301 U.S. 548 (1937), the Court upheld the unemployment compensation provisions of the Social Security Act, and in Helvering v. Davis, 301 U.S. 619 (1937), it upheld the old age benefit provisions of the Social Security Act.

9. Massachusetts v. Mellon, 262 U.S. 447 (1923).

10. To Eliot and the other government lawyers charged with finding a constitutional basis for social security, Perkins's “wilderness vision” seemed the best strategy, though Eliot was nervous about whether the Court would ultimately agree. Eliot recalled in 1980 that the older and more experienced lawyers on the CES staff, including U.C. law professor Barbara Nachtrieb Armstrong, and Assistant Attorney General Alexander Holtzoff did not share his anxiety and were very confident about the justification of the Social Security Act as a “tax and spend statute.” Eliot, Thomas, Recollections of the New Deal: When the People Mattered (Boston: Northeastern University Press, 1992), 96–97, 112Google Scholar.

11. Cong. Rec., 53d Cong., 3d Sess., 1895, 27, pt. 4:2882 (Populist Senator William Allen of Nebraska, arguing for drought relief, and citing precedents of flood relief and other prior acts of Congress).

12. See Michele Landis, “‘Let Me Next Time Be Tried By Fire': Disaster Relief and the Origins of the American Welfare State 1789–1874,” Northwestern University Law Review 92 (1998): 967–1034Google Scholar ; Landis, Michele, “Fate, Responsibility, and Natural Disaster Relief: Narrating the American Welfare State,” Law and Society Review 33 (1999): 257–318CrossRefGoogle Scholar ; Dauber, Michele Landis, Helping Ourselves: Disaster Relief and the Origins of the American Welfare State, Ph.D. diss., Northwestern University, 2003Google Scholar.

13. See, e.g., Brief for the United States at 129, United States v. Realty Co., 163 U.S. 427 (1896) (No. 870) (denying that charitable appropriations had been properly made under the “General-Welfare Clause”); Brief for the United States at 8, Field v. Clark, 143 U.S. 649 (1892) (No.1,050). This brief by then-Solicitor General William Howard Taft argued that is the sugar bounty was “within the power of Congress under the general welfare clause of the Constitution.”

14. The history of disaster relief also figured in the law review articles of the 1920s and '30s as a precedent that justified an expansive reading of the taxing and spending power. For instance, in his 1935 law review article McGuire discussed the citation of disaster relief appropriations in the Sugar Bounty cases and concluded that the Court had relinquished judicial review over appropriations decisions by Congress. O. R. McGuire, “The New Deal and the Public Money,” Georgetown Law Journal 23 (1935): 155, 190. Similarly, in an article published the same year, Cathcart discussed the Sugar Bounty and Butler decisions and concluded that Congressional power to spend out of the general revenues, including for the “relief of human suffering” is essentially unlimited. Cathcart, Arthur, “The Supreme Court and the New Deal,” Southern California Law Review 9 (1935): 328–30Google Scholar.

15. Warren, Charles, Congress as Santa Claus (Charlottesville, Va.: Michie Company, 1932), 142Google Scholar (quoting Corwin, Edward, “The Spending Power of Congress—Apropos the Maternity Act,” Harvard Law Review 36 [1922]: 580Google Scholar ). Corwin's article had argued that the Court had no power to strike down the Sheppard-Towner Maternity Act because history demonstrated that Congress had always had plenary and unreviewable power over appropriations. Warren admitted that Corwin was right as to the history but urged that the Court should find a way to review Congress's relief appropriations or else “as to such legislation the powers of Congress are not limited by the Constitution in fact (however much they may be in theory)” (3).

16. Eliot, , Recollections of the New Deal, at 95.Google Scholar

17. Skocpol, Protecting Soldiers and Mothers.

18. Although Skocpol's book contains numerous examples of elite opinion that Civil War pensions were a hotbed of graft and corruption (e.g., Protecting Soldiers and Mothers, 272–78), there is little evidence to suggest that any serious reformer or political actor expected that Civil War pensions would serve as a positive precedent for noncontributory old age pensions. The best evidence she musters on this crucial point appears to be the suggestion from Isaac Rubinow in 1913 that the inevitable death of the Civil War pensioners would at least in theory leave space in the federal budget for “the establishment of a national old-age pension scheme without even any material fiscal disturbance.” This is, however, some distance from her assertion that Rubinow and others had “expect[ed] a smooth transition from Civil War pensions to more general benefits for elderly Americans” (Protecting Soldiers and Mothers, 157 n.101). This lack of evidence is surprising given that Skocpol's project leans heavily on the notion that Rubinow and others had indeed had this belief (and that it was a sensible one to have); it is after all their mistaken view of the precedential capacity of the Civil War pension system that she purports to explain, primarily with reference to Mugwump attacks on widespread fraud in the program.

19. Brief for the Appellees at 24, United States v. Realty Co., 163 U.S. 427 (1896) (No. 870) (Brief of Joseph Choate).

20. Senator William Borah (D-Idaho), Cong. Rec., 63d Cong, 1st sess., 1914, 51, pt. 16:16777.

21. Landis, “‘Tried by Fire;'” Landis, “Fate, Responsibility, and ‘Natural' Disaster Relief.”

22. On the development of disaster relief bureaucracies in the early Republic, see Dauber, Michele Landis, “The War of 1812, September 11, and the Politics of Compensation,” DePaul Law Review 53 (2003): 289–354Google Scholar.

23. During this period, the Congress approved such things as aid to the Irish famine victims, Resolution of March 3, 1847 (9 Stat. 207, No. 10); Congressional Globe, 29th Cong., 2d sess., 1847, 16, pt. 1:505, and $200,000 in direct relief to victims of the Sioux Indian depredations in Minnesota. Act of February 16, 1863 (12 Stat. 652, ch. 37); Congressional Globe, 37th Cong., 3d sess., 1863, 34, pt. 1:179, 192, 440–45, 509–18.

24. Fine, Sidney, Laissez-Faire and the General Welfare State (Ann Arbor: University of Michigan Press, 1956): 21Google Scholar ; Corwin, , “The Spending Power of Congress,” 548Google Scholar ; Warren, , Congress as Santa Claus, 142Google Scholar.

25. Corwin argues that the narrow interpretation of the taxing power was dominant only during the period 1845–1860 “when state's rights principles were dominant with all sections and parties.” Corwin, “The 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. Warren, Congress as Santa Claus.

26. Cong. Rec., 71st Cong., 1st sess., 1931, 74, pt. 1:3241–43; Senate Committee on Manufactures, Federal Aid for Unemployment Relief: Hearings on S. 5125, 73d Cong., 1st sess., 2–3 February 1933; 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).

27. Landis, “‘Tried By Fire.'”

28. Examples of appropriations for Mississippi River flood relief include the following Acts of Congress: Act of April 23, 1874 (18 Stat. 34 ch. 125) (indefinite amount); Act of May 13, 1874 (18 Stat. 45, ch. 170) ($190,000); Joint Resolution of February 25, 1882 (22 Stat. 378, No. 6) ($100,000); Joint Resolution of March 10, 1882 (22 Stat. 378, No. 8) (indefinite amount); Joint Resolution of March 11, 1882 (22 Stat. 378, No. 9) (same); Joint Resolution of March 21, 1882 (22 Stat. 379, No. 12) ($150,000); Joint Resolution of April 1, 1882 (22 Stat. 379, No. 16) ($100,000); Act of April 11, 1882 (22 Stat. 44 ch. 77) ($20,000); Act of March 27, 1884 (26 Stat. 269) ($125,000); Act of March 31, 1890 (26 Stat. 33, ch. 58) ($25,000); Joint Resolution of April 21, 1890 (26 Stat. 671, No. 16) ($150,000); Joint Resolution of April 7, 1897 (30 Stat. 219, No. 9) ($200,000); Joint Resolution of May 9, 1912 (37 Stat. 663, No. 19) ($1,239,179.65); Act of August 26, 1912 (37 Stat. 601) ($4,500); Act of March 4, 1913 (37 Stat. 919); Act of October 22, 1913 (38 Stat. 215–16) ($785,388.79); Joint Resolution of February 15, 1916 (39 Stat. 11, ch. 28) (indefinite amount); Joint Resolution of August 3, 1916 (39 Stat. 434, ch. 267) ($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).

29. Joint Resolution of June 9, 1897 (30 Stat. 221, No. 14).

30. Congressional Globe, 39th Cong., 1st sess., 1866, 37, pt. 1:916.

31. Congressional Globe, 39th Cong., 1st sess., 1866, 37, pt. 5:3913 (House), 3842 (Senate).

32. Cong. Rec., 49th Cong., 2d sess., 1887, 18, pt. 2:1875.

33. 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, at 3; “Congress to the Rescue: Appeal from the President in Behalf of the Flood Sufferers,” New York Daily Tribune, April 8, 1897, at 1; “Relief for El Paso Sufferers,” New York Daily Tribune, June 1, 1897, at 5; “Aid for the Mississippi Valley Sufferers,” New York Times, March 16, 1882, at 1.

34. “Relief for the Flood Stricken,” New York Daily Tribune, April 8, 1897, at 5.

35. Cong. Rec., 49th Cong., 2d sess., 1887, 18, pt. 2:1269. Coke had been removed from the Texas Supreme Court in 1867 as “an impediment to Reconstruction.” Congressional Biography 2002, available at http://bioguide.congress.gov/ (last visited January 7, 2004). 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, proclaimed that he did not believe disaster relief was constitutional either, but given that it was a settled practice he “proposed to claim the benefits of it for my State.” Cong. Rec., 49th Cong., 2d sess., 1887, 18, pt. 2:1268. Although Coke resisted Senator 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 Senator Edmunds, who offered that it was “perfectly constitutional for Congress to give away as much money for such a purpose as it sees fit; whether it is wise or not is another thing” (1268).

36. Ibid.

37. Ibid.

38. Ibid., 1269.

39. Ibid. A similar objection was made ten years later when the New York Tribune 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 11 votes against the bill. “Relief for El Paso Sufferers,” New York Daily Tribune, June 1, 1897, at 5.

40. Cong. Rec., 49th Cong., 2d sess., 1887, 18, pt. 2:1268.

41. 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.

42. 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, Stephen, Building a New American State: The Expansion of National Administrative Capacities 1877–1920 (Cambridge: Cambridge University Press, 1982)CrossRefGoogle Scholar ; Clemens, Elisabeth S., The People's Lobby: Organizational Innovation and the Rise of Interest Group Politics in the United States, 1890–1925 (Chicago: University of Chicago Press, 1997)Google Scholar; Skocpol, Theda and Ikenberry, John, “The Political Formation of the American Welfare State in Historical and Comparative Perspective,” in Comparative Social Research: The Welfare State, vol. 6, ed. Thomasson, R. F. (Greenwich, Conn.: JAI Press, 1983), 87–147Google Scholar; Skocpol, Protecting Soldiers and Mothers. 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.

43. Congressional Globe, 39th Cong., 1st sess., 1866, 39, pt. 5:3919.

44. Cong. Rec., 67th Cong., 2d sess., 1921, 62, pt. 1:472.

45. Ibid., 579.

46. Cong. Rec., 53d Cong., 1st sess., 1893, 25, pt. 3:3077.

47. 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.” Sawislak, Karen, Smoldering City: Chicagoans and the Great Fire, 1871–1874 (Chicago: University of Chicago Press, 1995), 90.Google Scholar 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 (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 both practices were perhaps influenced by other social factors.

48. Congressional Globe, 39th Cong., 2d sess., 1867, 38, pt. 1:260. Similarly, Illinois Representative Adams 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 necessary to go for that purpose… we ought not to provide for injuries that are likely to accrue from the annual floods… since that is a catastrophe which cannot be called unforeseen.” Cong. Rec., 48th Cong., 1st sess., 1884, 15, pt. 3:2296.

49. Cong. Rec., 48th Cong., 1st sess., 1884, 15, pt. 3:1038.

50. 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 cyclone relief bill because it “calls 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 that is not a public purpose.” Cong. Rec., 53d Cong., 1st sess., 1893, 25, pt. 3:3077. Peffer's speech on this subject was, like all his other speeches, ignored.

51. 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 time of the later period that is the subject of this article, it was 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.

52. 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. Annals of Cong., 3d Cong., 1st sess., 1794, pt. 1:171–72. As president, he signed numerous relief bills 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. See Landis, “‘Tried By Fire,'” 977 nn. 53–54; Landis, “The War of 1812.”

53. 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. Story, Joseph, Commentaries on the Constitution of the United States (Boston: Hilliard, Gray & Co., 1833)Google Scholar , §§ 985–991. Story's view was frequently offered in Congress and the courts as an authoritative interpretation of the General Welfare Clause. See, e.g., Cong. Rec., 48th Cong., 1st sess., 1884, 15, pt. 3:2295; 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 then-private 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. Cong. Rec., 67th Cong., 2d sess., 1921, 62, pt. 1:457, 472.

54. Cong. Rec., 48th Cong., 1st sess., 1884, 15, pt. 3:2295. The debates over the permissibilty 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 so 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, Sanford, Constitutional Faith (Princeton: Princeton University Press, 1988)Google Scholar ; Tushnet, Mark, Taking the Constitution Away from the Courts (Princeton: Princeton University Press, 1999)Google Scholar ; Whittington, Keith, Constitutional Construction: Divided Powers and Constitutional Meaning (Cambridge: Harvard University Press, 1999)Google Scholar ; Whittington, Keith, “Extrajudicial Constitutional Interpretation: Three Objections and Responses,” North Carolina Law Review 80 (2002): 773–851Google Scholar.

55. Cong. Rec., 48th Cong., 1st sess., 1884, 15, pt. 3:2296–97.

56. Ibid., 2295.

57. Congressional Globe, 39th Cong., 1st sess., 1866, 37, pt. 5:3919.

58. Cong. Rec., 48th Cong., 1st sess., 1884, 15, pt. 2:1037.

59. Cong. Rec., 55th Cong., 1st sess., 1897, 30, pt. 2:1470.

60. Cong. Rec., 48th Cong., 1st sess., 1884, 15, pt. 3:2294.

61. Cong. Rec., 67th Cong., 2d sess., 1921, 62, pt. 1:471.

62. Ibid., 566.

63. Congressional Globe, 40th Cong., 1st sess., 1867, 39, pt. 1:90.

64. The evidence presented here is consistent with what 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, Larry, “The Supreme Court 2000 Term Forward: We the Court,” Harvard Law Review 115 (2001): 11–12, 16.CrossRefGoogle Scholar 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 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.

65. Cong. Rec., 53d Cong., 3d sess., 1895, 27, pt. 4:2882.

66. Ibid., 2883.

67. 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.

68. Congressional Globe, 39th Cong., 1st sess., 1866, 37, pt. 1:939.

69. Ibid., 651.

70. Similar views were frequently expressed in a myriad of cases, including the 1921 appropriation of $20 million for Russian famine relief, when Senator 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. Cong. Rec., 67th Cong., 2d sess., 1921, 62, pt. 1:566. In another example, Representative McPherson supported the unsuccessful plea for $50,000 in work relief for the Sea Islands cyclone victims. He responded to constitutional objections, saying, “whether the bill is constitutional or unconstitutional, it is something that 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 20 times since I have been a member of this body and I am willing to do it again.” Cong. Rec., 53d Cong., 1st sess., 1893, 25, pt. 2:3077.

71. Cong. Rec., 48th Cong., 1st sess., 1884, 15, pt. 2:1033.

72. Ibid., 1039.

73. Ibid., 1038.

74. Ibid., 1036.

75. Ibid., 1037.

76. Ibid.

77. Ibid., 1034.

78. The vote was 234–12. Ibid., 1040.

79. Landis, “Fate, Responsibility, and ‘Natural' Disaster Relief.”

80. DuBois, W. E. B., “The Freedmen's Bureau,” Atlantic Monthly 87 (1901): 354, 357.Google Scholar

81. Congressional Globe, 39th Cong., 1st sess., 1866, 37, pt. 1:656.

82. Ibid., 365–66.

83. Ibid., 365.

84. Ibid.

85. Bremner, Robert, The Public Good: Philanthropy and Welfare in the Civil War Era (New York: Alfred A. Knopf, 1980), 98.Google Scholar

86. Bentley, George, History of the Freedmen's Bureau (Philadelphia: University of Pennsylvania Press, 1955)CrossRefGoogle Scholar ; Pierce, Paul Skeels, The Freedmen's Bureau: A Chapter in the History of Reconstruction (New York: Haskell House Publishers, [1904] 1971)Google Scholar ; Foner, Eric, Reconstruction: America's Unfinished Revolution (New York: Harper & Row, 1988)Google Scholar.

87. DuBois, , “The Freedmen's Bureau,” 359.Google Scholar

88. Bentley, , History of the Freedmen's Bureau, 76Google Scholar ; Farmer, Mary, “‘Because They Are Women': Gender and the Virginia Freedmen's Bureau's ‘War on Dependency,’” in The Freedmen's Bureau and Reconstruction: Reconsiderations, ed. Cimbala, Paul and Miller, Randall (New York: Fordham University Press, 1988), 165Google Scholar.

89. 13 Stat. 507 (1865).

90. 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.

91. Olds, Victoria Marcus, “The Freedmen's Bureau as a Social Agency” (Ph.D. diss., Columbia University, 1966), 117.Google Scholar

92. 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 House Exec. Doc., 39th Cong., 1st sess., 1866, no. 11, p. 47.

93. 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 the homes of applicants, and examine their circumstances carefully for signs of either fraud or pauperism. Olds, “The Freedmen's Bureau as a Social Agency,” 197. Screening procedures varied somewhat from state to state.

94. Bentley, , History of the Freedmen's Bureau, 76Google Scholar ; Bremner, , The Public Good, 117.Google Scholar One observer noted that “the streets in front of commissary offices were sometimes blocked with vehicles bringing men many miles” to obtain rations. Pierce, , The Freedmen's Bureau, 94Google Scholar.

95. Bentley, , History of the Freedmen's Bureau, 77.Google Scholar

96. Ibid.; Farmer, , “‘Because They Are Women,'” 167Google Scholar . 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.Google Scholar An agent in Greenville, S.C. 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, , “The Freedmen's Bureau as a Social Agency,” 199.Google Scholar According to Pierce, Howard ordered relief programs terminated when freedmen refused to harvest the cotton crop in 1866. Pierce, , The Freedmen's Bureau, 95Google Scholar.

97. Farmer, , “‘Because They Are Women,'” 166.Google Scholar

98. Ibid.; see also Olds, “The Freedmen's Bureau as a Social Agency,” 200.

99. Bremner, , The Public Good, 116Google Scholar ; Pierce, , The Freedmen's Bureau, 95–96Google Scholar.

100. Farmer, , “‘Because They Are Women,'” 169–70Google Scholar ; Bremner, , The Public Good, 120Google Scholar ; Pierce, , The Freedmen's Bureau, 96Google Scholar ; Bentley, , History of the Freedmen's Bureau, 139.Google Scholar 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' assistant commissioner considered complying with Howard's order and concluded that to do so would cause starvation. Bentley, , History of the Freedmen's Bureau, 139Google Scholar.

101. Pierce, , The Freedmen's Bureau, 96.Google Scholar

102. Foner, , Reconstruction, 152Google Scholar ; Pierce, , The Freedmen's Bureau, 98–99.Google Scholar 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, , “The Freedmen's Bureau as a Social Agency,” 203Google Scholar ; Bentley, , History of the Freedmen's Bureau, 143Google Scholar.

103. Pierce, , The Freedmen's Bureau, 99 n 4.Google Scholar

104. 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 used by the Bureau 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.

105. 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 clean-up 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.

106. Farmer, , “‘Because They Are Women,'” 166.Google Scholar

107. Bremner, , The Public Good, 120.Google Scholar Howard did not think that local governments would assume responsibility for indigent relief until the federal government withdrew from the field. Foner, , Reconstruction, 152.Google Scholar 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, “The Freedmen's Bureau as a Social Agency,” 23.

108. Olds, , “The Freedmen's Bureau as a Social Agency,” 202.Google Scholar

109. Bentley, , History of the Freedmen's Bureau, 115.Google Scholar 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.

110. Foner, Reconstruction, 242–43.

111. Ibid., 242.

112. Bentley, , History of the Freedmen's Bureau, 115.Google Scholar

113. 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.

114. Foner, , Reconstruction, 152.Google Scholar

115. Congressional Globe, 39th Cong., 1st sess., 1866, 37, pt. 1:315. Some Republicans like Edgar Cowan thought that “[i]f 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 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. Cong. Rec., 39th Cong., 1st sess., 1866, 37, pt. 1:334.

116. Ibid., 370.

117. Ibid., 321, 365–66, 369, 630, 651, 656.

118. 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.” Bentley, , History of the Freedmen's Bureau, 118.Google Scholar 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. Foner, , Reconstruction, 247.Google Scholar It was this veto, along with the veto of the Civil Rights Act, that marked the battle lines between Congress and Johnson and ultimately led to his impeachment.

119. Ibid., 916.

120. Johnson had voted against the 1847 Irish famine relief bill. Foner, Reconstruction, 178, 216–18.

121. 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.

122. Congressional Globe, 38th Cong., 1st sess., 1864, 35, pt. 1:742.

123. Ibid., 773.

124. Congressional Globe, 39th Cong., 1st sess., 1866, 37, pt. 1:630.

125. Ibid., 345.

126. Ibid., 396.

127. Ibid., 638.

128. Ibid., 655. The anxiety that federal relief would disrupt the southern labor market was sometimes repeated in connection with Mississippi 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, at 3.

129. Cong. Rec., 40th Cong., 2d sess., 1867, 39, pt. 1:40, 42, 45.

130. Ibid., 40.

131. 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, 6 January 1868, 1.

132. Cong. Rec., 40th Cong., 2d sess., 1867, 39, pt. 1:46–47, 85, 89, 211.

133. Ibid., 208.

134. Editorial, “Relief for the South,” New York Times, 23 March 1867, 1.

135. Cong. Rec., 40th Cong., 2d sess., 1867, 39, pt. 1:88.

136. 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 Online 2003, http://dictionary.oed.com (last visited January 7, 2004).

137. Cong. Rec., 40th Cong., 2d sess., 1867, 39, pt. 1:259.

138. Ibid., 237.

139. Ibid., 90.

140. 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. Cong. Rec., 48th Cong., 1st sess., 1884, 15, pt. 2:1037.

141. 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.” Cong. Rec., 48th Cong., 1st sess., 1884 15, pt. 4:4659; Cong. Rec., 53d Cong., 1st sess., 1893, 25, pt. 2:3038. Senator Butler of South Carolina asked relief for 30,000 black victims of a cyclone because the state would likely not do so and “there is bound to be very great suffering among those people.”

142. 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 varies over time. 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 have, 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 otherwise 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, “Tried by Fire,” 1025–27.

143. Olds, “The Freedmen's Bureau as a Social Agency.”

144. Congressional Globe, 39th Cong., 1st sess., 1866, 37, pt. 5:3916–18.

145. Lee, Gordon, The Struggle for Federal Aid, First Phase: A History of the Attempts to Obtain Federal Aid for the Common School 1870–1890 (New York: Bureau of Publications Teachers College, Columbia University, 1949)Google Scholar ; Going, Allen, “The South and the Blair Education Bill,” Mississippi Valley Historical Review 44 (1957): 267CrossRefGoogle Scholar ; Bremner, The Public Good.

146. Lee, , The Struggle for Federal Aid, First Phase, 88.Google Scholar

147. Going, “The South and the Blair Education Bill.”

148. 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 pre-printed 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, Massachus-sets to Representative F. Rockwell, undated, 1888, NARA, RG 233, HR 50A-H7.1, box 129.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, March 14, 1884, HR48A-H8.1, box 140.

149. The Struggle for Federal Aid, First Phase, 132.

150. Ibid., 128.

151. Ibid., 147.

152. Cong. Rec., 49th Cong., 1st sess., 1886, 17, pt. 2:1768.

153. Lee, The Struggle for Federal Aid, First Phase, 147.

154. 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 that 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 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. Cong. Rec., 51st Cong., 1st sess., 1890, 21, pt. 7:6381. 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.

155. Going, “The South and the Blair Education Bill,” 281 n.1.

156. Cong. Rec., 51st Cong., 1st sess., 1890, 21, pt. 3:2295.

157. Ibid., 2293.

158. Ibid., 2295.

159. Ibid.

160. Lee, , The Struggle for Federal Aid, First Phase, 162Google Scholar ; Ezell, John, “Jefferson Davis and the Blair Bill,” Journal of Mississippi History 31 (1969): 121Google Scholar.

161. Cong. Rec., 53d Cong., 1st sess., 1893, 25, pt. 1:388.

162. Ibid., 387–88, pt. 2:3039.

163. Ibid., pt. 2:3038.

164. Ibid., pt. 1:385–86.

165. Ibid., 388.

166. Cong. Rec., 53d Cong., 1st sess., 1893, 25, pt. 1:386.

167. Clanton, Gene, Congressional Populism and the Crisis of the 1890s (Lawrence: University Press of Kansas, 1998), 62.Google Scholar

168. Cong. Rec., 53d Cong., 1st sess., 1874, 2, pt. 4:3151.

169. Gutman, Herbert, “The Failure of the Movement by the Unemployed for Public Works in 1873,” Political Science Quarterly 80 (1965): 254CrossRefGoogle Scholar ; Klebaner, Benjamin, “Poor Relief and Public Works During the Depression of 1857,” Historian 22 (1960): 264CrossRefGoogle Scholar.

170. Degler, Carl N., “The West as a Solution to Urban Unemployment,” in New York History, ed. Cunningham, Mary (Cooperstown: State Historical Association, 1955), 63–84.Google Scholar

171. Keyssar, Alexander, Out of Work: The First Century of Unemployment in Massachusetts (Cambridge: Cambridge University Press, 1986), 251Google Scholar ; see also Rezneck, Samuel, “Distress, Relief, and Discontent in the U.S. during the Depression of 1873–78,” Journal of Economic History 58 (1950): 498Google Scholar.

172. Keyssar, , Out of Work, 251.Google Scholar

173. Degler, “West as a Solution,” 64.Google Scholar

174. Gutman, , “The Failure of the Movement by the Unemployed for Public Works in 1873,” 271Google Scholar ; Klebaner, , “Poor Relief and Public Works During the Depression of 1857,” 266Google Scholar.

175. Woodard, Calvin, “Reality and Social Reform: The Transition from Laissez-Faire to the Welfare State,” Yale Law Journal 72 (1962): 320CrossRefGoogle Scholar ; Feder, Hannah, Unemployment Relief in Periods of Depression (New York: Arno Press, [1936] 1971).Google Scholar It may be that Frederick Jackson Turner's “closing of the frontier” in 1890, as well as the restrictive anti-tramp 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.

176. 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 “[t]hough 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, William F., Workingmen's Insurance (New York: Thomas Y. Crowell & Co., 1898), 375.Google Scholar In an effort to counter views like Willoughby's the American Federation of Labor, in its 1897 request for federal relief for the unemployed, 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, at 1.

177. Cong. Rec., 63d Cong., 2d sess., 1914, 51, pt. 16:16635, 16766–81.

178. Ibid., 16766.

179. Ibid., 16786.

180. The appropriation for relief of the Salem fire was $200,000, not $2 million. Cong. Rec., 63d Cong., 2d sess., 1914, 51, pt. 16:16787.

181. Ibid., 16635.

182. Ibid., 16771.

183. Ibid., 16777.

184. Ibid., 16773–74.

185. Ibid., 16788.

186. Ibid., 16771.

187. Ibid., 16867.

188. Ibid., 16868.

189. 39 Stat. 360.

190. Cong. Rec., 53d Cong., 1st sess., 1893, 25, pt. 1:386.

191. Cong. Rec., 63d Cong., 2d sess., 1914, 51, pt. 16:16769.

192. Ibid., 16872.

193. Landis, “Fate, Responsibility, and ‘Natural' Disaster Relief.” Although there were important pioneering efforts at documenting the plight of the poor through the use of photography and journalistic exposes, most famously Jacob Riis's How the Other Half Lives (New York: Charles Scribner's Sons, 1890)Google Scholar , 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 which was aimed in large measure at the construction of the depression as a national disaster.

194. 143 U.S. 649 (1892).

195. 163 U.S. 427 (1896).

196. Brief for the Appellants at 56, Field v. Clark, 143 U.S. 649 (1892) (No. 1050) (Brief of Edwin Smith).

197. Brief for the Appellants at 19–32, Field v. Clark, 143 U.S. 649 (1892) (No. 1050) (Brief of Charles Curie).

198. Brief for the United States at 67–69, Field v. Clark, 143 U.S. 649 (1892) (No. 1050).

199. Ibid., 69–70.

200. Ibid., 70.

201. Reply Brief for the Appellants, Field v. Clark, 143 U.S. 649 (1892) (No. 1050).

202. 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 producers) and Pollack 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. Finally, 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.

203. As with the Blair Bill, numerous petitions (many of them pre-printed forms) were sent to the House and Senate Appropriations Committees by “business men” from all parts of the country 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. Letter, J. W. Howard et al. to Representative N. Cox, Jan. 23, 1895, NARA, RG 233, 53AH3.4, box 133.

204. Brief for the United States at 187–88, United States v. Realty Co., 163 U.S. 427 (1896) (No. 870).

205. Pollack v. Farmer's Loan and Trust Co., 157 U.S. 429 (1895); Fine, Sidney, Laissez-Faire and the General Welfare State (Ann Arbor: University of Michigan Press, 1956), 133Google Scholar ; Horwitz, Morton, The Transformation of American Law, 1870–1960: The Crisis of Legal Orthodoxy (New York: Oxford University Press, 1992), 26Google Scholar.

206. Brief for the Appellants at 7–9, United States v. Realty Co., 163 U.S. 427 (1896) (No. 870) (Brief of Joseph Choate).

207. Ibid., 16.

208. 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.

209. Ibid., 34. Hare concludes that the constitutionality of appropriations is “legislative, not judicial, and the errors of Congress cannot be corrected by the courts.” Hare, John Innes Clark, American Constitutional Law, vol. 1 (Boston: Little Brown, 1889), 249Google Scholar.

210. Ibid., 90.

211. Ibid., 91; Loan Ass'n v. Topeka, 87 U.S. 655, 665 (1874).

212. Harlan's reputation as a liberal is largely based on his famous dissents including those in Plessy and Lochner. However, he was not entirely hostile to the doctrine of economic substantive due process. For example, Harlan wrote the Court's opinion in Adair v. United States invalidating a federal law prohibiting interstate carriers from terminating workers for union membership. 208 U.S. 161 (1908).

213. 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, a sugar man from Louisiana, recused himself).

214. United States v. Realty Co., 163 U.S. 427, 441 (1896).

215. Ibid., 444.

216. Corwin, “The Spending Power of Congress.”

217. 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 “[t]he 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 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, Robert, “Federalism in the Taft Court Era: Can it be Revived?” Duke Law Journal 51 (2002): 1545–47CrossRefGoogle Scholar.

218. Jacobs, Clyde, Law Writers and the Courts: The Influence of Thomas M. Cooley, Christopher G. Tiedeman, and John F. Dillon upon American Constitutional Law (Berkeley: University of California Press, 1954).Google Scholar

219. 14 Kan. 418 (1875).

220. See also Fine, Laissez-Faire and the General Welfare State, 136.

221. 111 Mass. 454 (1873).

222. “Congress to the Rescue:Appeal From the President in Behalf of the Flood Sufferers,” New York Daily Tribune, April 8, 1897, at 1. 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.

223. Skocpol, Protecting Soldiers and Mothers. 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. McCormick, Richard L., “The Party Period and Public Policy: An Exploratory Hypothesis,” Journal of American History 66 (1979): 279CrossRefGoogle Scholar ; Lowi, Theodore J., “American Business, Public Policy, and Political Theory,” World Politics 16 (1964): 677.CrossRefGoogle Scholar 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.

224. Scheiber, Harry, “Government and Economy: Studies of the ‘Commonwealth Policy' in Nineteenth Century America,” Journal of Interdisciplinary History 3 (1972): 135–51CrossRefGoogle Scholar ; Handlin, Oscar and Handlin, Mary, Commonwealth: A Study of the Role of Government in the American Economy, 1774–1861 (Cambridge: Harvard University Press, 1947)Google Scholar.

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226. 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 Tugwell, Arthur Schlesinger, and to a somewhat lesser extent, William Leuchtenberg. Tugwell, Rexford, The Democratic Roosevelt (Garden City, N.J.: Doubleday, 1957)Google Scholar ; Schlesinger, Arthur M., The Coming of the New Deal (Boston: Houghton Mifflin, 1959)Google Scholar ; Leuchtenberg, William, Franklin D. Roosevelt and the New Deal (New York: Harper & Row, 1963).Google Scholar 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. Moreover, such a history of the General Welfare Clause would only have served to call attention to the administration's poor draftsmanship of the Agricultural Adjustment Act, which, because it linked the processing tax directly to the benefit payments to growers, was vulnerable in a way that the Social Security Act (which paid benefits out of the general revenues) was not. 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 Thus, the notion that the Constitution constrained federal social spending prior to the New Deal may be another of what Barry Cushman has called a “constitutional bedtime story with a happy ending for New Deal liberals.” Cushman, Barry, “Rethinking the New Deal Court,” Virginia Law Review 80 (1994): 261CrossRefGoogle Scholar.

227. Novak, William, “The Legal Origins of the Modern American State” (Chicago: American Bar Foundation Working Paper #9925, 2002): 4.Google Scholar

228. For summaries, see Novak, “Legal Origins”; Manuel Cachan, “Justice Stephen Field and ‘Free Soil, Free Labor Constitutionalism': Reconsidering Revisionism, Law and History Review 20 (2002): 8–18Google Scholar.

229. Siegel, Stephen A., “The Revision Thickens,” Law and History Review 20 (2002): 635.CrossRefGoogle Scholar

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232. Lists of disaster relief precedents were often recited during Congressional debates, in Supreme Court briefs, and in political speeches in support of New Deal programs such as the AAA, the CWA, and the Social Security Act; the table itself was frequently reproduced in various forms. See, e.g., Senate Committee on Maunfactures, Federal Aid for Unemployment Relief: Hearings on S. 5125, 73d Cong., 1st sess., 2–3 February 1933. Assistant Solicitor General Alger Hiss included the table in the Government's 1935 brief defending the Agricultural Adjustment Administration (AAA), and argued that the extensive history of disaster relief “should of itself settle the construction” of the general welfare clause and hence the validity of the New Deal farm relief program. Brief for the United States, at 153, United States v. Butler, 297 U.S. 1 (1936) (No. 401). Hiss did not merely lift the table from the Choate brief; he assigned a lawyer, A. L. Jacobs, from the Justice Department's Tax Division to research the history of appropriations under the General Welfare Clause. The result was a twenty-two-page memorandum, discussing a number of possible precedents which 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,” and such things as codfish bounties and federal grants to the states. Interestingly, one of Jacobs's other suggestions was 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, there is no mention of veteran's pensions as a precedent for New Deal welfare spending in his 280 page brief or 100 page appendix. Memorandum, A. J. Jacobs to Sewall Key, Aug. 22, 1935, NARA, RG 60, Correspondence File 5–36–346. Interestingly, the history of disaster relief, accompanied by an eight-page version of the table, was featured in Edith Abbott's monumental 1940 work on American social welfare history. Abbott, who was Dean of the School of Social Service Administration at the University of Chicago, describes disaster relief as the first phase of federal social provision, albeit one that was somewhat haphazard. Abbott, Edith, Public Assistance: American Principles and Policies (Chicago: University of Chicago Press, 1940), 2:645–48, 691–99Google Scholar.

233. 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 the Court to make a revolutionary change. Instead, they described the Act as entirely consistent with existing precedent. Cushman, Barry, “A Stream of Legal Consciousness: The Current of Commerce Doctrine from Swift to Jones and Laughlin,” Fordham Law Review 61 (1992): 105, 144–56Google Scholar ; Irons, Peter, The New Deal Lawyers (Princeton: Princeton University Press, 1982)Google Scholar.

234. Landis, , “Fate, Responsibility, and ‘Natural' Disaster Relief,” 284–312.Google Scholar