The Chicken and the Eagle
Do free-marketeers need their own judicial pantheon? In a recent forum at the Council on Foreign Relations, Amity Shlaes, author of The Forgotten Man: A New History of the Great Depression, argued that conservatives and libertarians ought to induct Schechter Poultry Corp. v. United States into such a pantheon. She gave the example of Gideon’s Trumpet, Anthony Lewis’s account of the lone and unrepresented prisoner who fought his case to the Supreme Court in Gideon v. Wainwright and won the right to a lawyer. This story, she argued, has provided a central emotional text for many a liberal lawyer. Schechter ought to be the same thing for libertarians and conservatives.
I learned my con law in the hallowed halls of establishment liberalism where Frankfurter once walked and where Tribe taught us the traditional story of Schechter. This was the case where the final retrograde forces of Lochner-ism struck down the New Deal in the name of nineteenth-century notions of commerce and non-delegation. Tribe, being a very smart and thoughtful doctrinalist, gave us a more nuanced account of the case than one might expect from an institution whose identity is tied up in sacred myths of the New Deal braintrusters, but I don’t recall that we were invited to feel any sense of relief or triumph over the decline of the National Recovery Administration. (One could contrast this to Tribe’s eloquent and moving indictment of the system of segregation struck down in Brown.)
Shlaes’ story is different. In a nutshell, Schechter is the case that saved us from a centrally planned economy. Although, Roosevelt ultimately bullied the Court into abandoning Lochner, after Schechter the New Dealers were chastened, and they never again tried anything as massive and intrusive as the NRA. Indeed, I think that you could plausibly argue that since 1935 no one in the United States has dared try anything on the scale of the NRA. Had it stood, we would have been saddled with an economy where every major sector was regulated by detailed codes that not only dealt with issues of safety or working conditions, but also things like prices, permissible production levels, the scope of consumer choice (the New Dealers thought it was bad), and the terms of agreements between government regulated cartels. Gauche as Red-baiting is in New Deal history, there is no denying that many of the New Dealers were enamored of totalitirian economic planning, and, while the NRA never came close to the state-owned monstrosities of Stalin, it would have created an economic world in the United States closer to Fascist Italy than the modern welfare state. It was ultimately less of an exercise in economic redistribution than of political domination and control of economic life.
Shlaes’ valorization of Schechter is ultimately a political story, of course. As a political story, I find it extremely appealing. I shouldn’t get carried away, however. Given FDR I doubt that apocalyptic counter-factuals about the NRA are true. The brain-trusters may have been enamored of centralized planning, but I don’t think that FDR was. Rather, I think that he was entranced by a rather diffuse commitment to the poor, activity, and — most of all — electoral success. The Soviets and the Fascists survived precisely because their economic idiocy was insulated from the positive and negative feedback of democratic politics. I suspect that without Schechter, the NRA would have moderated itself dramatically. By 1935 its political popularity was already in retreat, and FDR seems to have been perfectly willing to scrap grandiose experiments when elections were on the line. Furthermore, there are principled conservative reasons to doubt the soundness of Schechter‘s reasoning, even if one does subscribe to apocalyptic counter-factual histories.
Still, as a myth rather than a historical or legal theory, Schechter has much to commend it. A small, religious, family business built by immigrants searching for the American dream of advancement and self-improvement gets shut down by arrogant government bureaucrats hell-bent on imposing economic idiocy on the nation. They push back, and David-like force the government Goliath to its knees. The chicken triumphs over the eagle.