Document Type



“The Constitutional Virtues and Vices of the New Deal,” 22 Harv. J. of Law & Pub. Pol. 219 (1998)


The topic of our panel today-the New Deal-is a vast one, so let me try to identify six features of it, three that I like (sorry, Richard) and three that I don't (sorry, Bruce). In the course of addressing these six issues, I shall try to take seriously the thought experiment that my Yale colleague, Professor Bruce Ackerman, has extended to us all. He would like us to think about the New Deal as a constitutional moment akin to the Founding and the Reconstruction-a moment that, in effect, gives us the constitutional equivalent of a formal textual amendment. Only that thought experiment, he suggests, can truly make sense of all the ways in which modern jurisprudence changed as a result of the New Deal. Unless we posit something like this hidden constitutional amendment with a certain kind of gravitational pull-like some unseen, distant planet out there whose existence can be deduced only from its effects-Ackerman argues that we can't make sense of our current state of affairs.

Date of Authorship for this Version


Included in

Law Commons