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

By Michele Landis Dauber

Even as unemployment rates soared during the Great Depression, FDR’s relief and social security programs faced attacks in Congress and the courts on the legitimacy of federal aid to the growing population of poor. In response, New Dealers pointed to a long tradition—dating back to 1790 and now largely forgotten—of federal aid to victims of disaster. In The Sympathetic State, Michele Landis Dauber recovers this crucial aspect of American history, tracing the roots of the modern American welfare state beyond the New Deal and the Progressive Era back to the earliest days of the republic when relief was forthcoming for the victims of wars, fires, floods, hurricanes, and earthquakes.
 
Drawing on a variety of materials, including newspapers, legal briefs, political speeches, the art and literature of the time, and letters from thousands of ordinary Americans, Dauber shows that while this long history of government disaster relief has faded from our memory today, it was extremely well known to advocates for an expanded role for the national government in the 1930s, including the Social Security Act. Making this connection required framing the Great Depression as a disaster afflicting citizens though no fault of their own. Dauber argues that the disaster paradigm, though successful in defending the New Deal, would ultimately come back to haunt advocates for social welfare. By not making a more radical case for relief, proponents of the New Deal helped create the weak, uniquely American welfare state we have today—one torn between the desire to come to the aid of those suffering and the deeply rooted suspicion that those in need are responsible for their own deprivation.
 
Contrary to conventional thought, the history of federal disaster relief is one of remarkable consistency, despite significant political and ideological change. Dauber’s pathbreaking and highly readable book uncovers the historical origins of the modern American welfare state.

• Language: English
• Publisher: University of Chicago Press
• Release date: Nov 30, 2012
• ISBN: 9780226923505

Book preview

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

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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 Sympathetic State

Disaster Relief and the Origins of the American Welfare State

MICHELE LANDIS DAUBER

The University of Chicago Press

Chicago and London

The mode by which the inevitable comes to pass is effort.

—Oliver Wendell Holmes Jr.

CONTENTS

List of Figures and Tables

Acknowledgments

Dedication: A Human Contrivance

INTRODUCTION / Disaster Relief and the Welfare State

ONE / Building the Sympathetic State

TWO / Innovations

THREE / The Spreading Delta

FOUR / Crafting the Depression

FIVE / The Bomb-Proof Power

SIX / The Well-Beaten Path

SEVEN / We Lost Our All

POSTSCRIPT / Living in a Sympathetic State

Appendix

Notes

Bibliography

Index

FIGURES AND TABLES

FIGURES

2.1 Disaster relief appropriations from Senate debate over the Blair Bill

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

4.1 Migrant Mother

4.2 Relief line waiting for commodities, San Antonio, Texas

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

4.4 San Francisco Social Security office

4.5 White Angel bread line

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

4.7 Waiting for relief commodities, Urbana, Ohio

4.8 Untitled Ben Shahn photograph

4.9 Untitled Walker Evans photograph

4.10 Their Blood Is Strong

4.11 Madonna of the Flood

4.12 Nipomo, California, March 1936, migrant agricultural worker’s family

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

4.14 Homer Sharer and family, Estherville, Iowa

4.15 Lily Rogers Fields with children, Hale County, Alabama

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

4.17 Old age, near Washington, Pennsylvania

4.18 Tractored out

4.19 Farmyard covered with floodwaters near Ridgely, Tennessee

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

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

7.1 Number of writers mentioning excuses

TABLES

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

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

7.3 Odds ratios from logistic regression on various excuses

A.1 Log odds from logistic regression on various excuses

A.2 Odds ratios from logistic regression of gender and age on marital status

A.3 Odds ratios from logistic regression on the making of middle-class arguments and excuses

A.4 Incident-rate ratios from negative binomial model on the number of excuses

A.5 Incident-rate ratios from negative binomial model on the number of excuses for female writers only

A.6 Incident-rate ratios from negative binomial model on the number of excuses for census subset only

A.7 Incident-rate ratios from negative binomial model on the number of excuses controlling for length of letter

A.8 Incident-rate ratios from negative binomial model on the number of excuses controlling for length of letter for female writers only

A.9 Coefficients from linear regression on logged word count

A.10 Coefficients from linear regression on number of excuses per 100 words

ACKNOWLEDGMENTS

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, 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.

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 HUMAN CONTRIVANCE

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 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 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 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 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 moment¹⁸ 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 principle. 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 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 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 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 spending 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 fall-back 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 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 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 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