New Deal Law and Order

New Deal Law and Order by Anthony Gregory provides a rich history of how the modern U.S. justice system developed as both a product and a tool of the New Deal. The author takes the reader from Reconstruction (1865) to the end of World War II (1945), parsing the theme of state building that permeated federal policy over the eighty-year period. He details efforts to consolidate state and federal governmental power through (1) the careful crafting of the federal government’s image, (2) bureaucratic expansion and restructuring, (3) formalization of federal power, and (4) political alignment against the “crime issue.” These avenues for the growth of U.S. federal jurisdiction and power constitute the New Deal’s pursuit of law and order. Preservation of law and order is the primary issue around which bipartisan support was curated and maintained by key federal actors, including Franklin Delano Roosevelt, Homer Cummings, and J. Edgar Hoover, among others. Gregory builds on previous histories of the U.S. justice system by identifying how the expansion of state power during the New Deal produced the current justice system. Often, the justice system is treated as an entity separate from the government that operates it. This text provides an important contribution in that it traces the pernicious way that the justice system’s enforcement power provides the foundation of the modern state.

Core to this history is the consensus across interest groups and political parties that enabled the immense expansion of the U.S. justice system. This expansion cannot be blamed on a single political party or set of interests. Instead, it is inexorably tied up with government power. This historical narrative complements work by Naomi Murakawa (2014, The First Civil Right: How Liberals Built Prison America, Princeton University Press), who locates the growth of the U.S. prison system in both Republican and Democratic reform efforts during the second half of the twentieth century, as well as work by Marie Gottschalk (2012, The Prison and the Gallows: The Politics of Mass Incarceration in America, Cambridge University Press), who has previously identified how reform-focused lobbying by special interest groups in the late twentieth century resulted in the growth of the U.S. justice system.

Missing from the narrative, however, is a detailed investigation into the relationship between state justice systems and the federal one. While the text is artful in tracing the growth of the federal U.S. justice system and how its jurisdiction expanded into states, there is no clear delimitation of the extent of that expansion. It is suggested that federal priorities drove the way state systems developed, but that is not evidenced beyond detailing those federal priorities. State justice systems constitute the bulk of the U.S. justice system. Federal policies provide some incentives for how the criminal law is enforced and how prison systems are managed, but states determine what the justice system looks like in practice, with large variations across states. The vast majority of people caught up in the justice system are at the state level and subject to state criminal statutes—not federal ones. As suggested by John Pfaff (2017, Locked In: The True Cause of Mass Incarceration and How to Achieve Real Reform, Basic Books), any effective reform of the justice system to reduce the size of the prison population or its reach into society must occur at the state level. Any revisions at the federal level are a drop in the bucket of the expansive U.S. criminal justice system. While Gregory makes it apparent that expansion of the federal justice system facilitated the expansion of federal governmental power, the true impact of that expansion on state justice systems remains unexamined.

A major weakness of the text is its limited guidance for how the reader should interpret the rich history that the author provides. This leads to ambiguity in what the reader should conclude, making it easy to read one’s favored interpretation into the narrative. Along these lines, it is not clear what the author means by “liberal” or “liberalism,” despite these being core concepts in his overall narrative. It is clear that the author sees state building through the expansion of the justice system as core to the “modern liberal state”; however, it is unclear what about the state is liberal.

As previously discussed, the narrative makes it clear that the current system is a product of bipartisan politics, so “liberal” cannot mean simply left-leaning. Gregory does define American liberalism as “a political program seeking to balance freedom and social needs in pursuit of democratic stability” (p. 3), but he also describes how the expansion of the justice system and governmental authority developed the tools for constraining freedom. At the time, federal officials certainly paid lip service to freedom (a trend that continues today), but the reality was the expansion of the government’s ability to restrict freedom. “Liberal,” then, cannot mean “free” without some severe caveats.

Finally, “liberal” and “liberalism” as used in the book cannot refer to democratic systems like that championed by Frank H. Knight (1960, Intelligence and Democratic Action, Harvard University Press) and James M. Buchanan (1954, “Social Choice, Democracy, and Free Markets,” Journal of Political Economy 62 [April]: 114–23), whose systems of liberalism emphasize democratic practices that prioritize the values and desires of the populace over those of political leaders. Gregory casts federal officials as driving the growth of federal government power and the justice system by cultivating buy-in among key interest groups. It is not that voters demanded a more expansive state and justice system; rather, federal officials answered voter demands in ways that expanded their authority. This leads me to conclude that “liberal” and “liberalism” must refer to expansive state capacity anchored in enforcement—the opposite of liberalism, to my mind.

Another weakness is the scant detail about what resistance to federal officials’ policies existed, leaving the reader to wonder about the true degree of the consensus described. While the text is rich with the goals of key federal authorities and the ways in which those authorities packaged their preferred policies to meet, at least rhetorically, the demands of special interest groups, the book does not detail how these policies were received, ultimately omitting the mechanism by which the described state building occurred. It is also unclear why those federal officials wanted to expand federal power. The reader is left with the impression that they were motivated to engage in state-building for its own sake.

Despite these weaknesses, the detail in the text makes it ripe for use by social scientists. For example, the text lays bare the “Bootleggers and Baptists” dynamics (Bruce Yandle, 1983, “Bootleggers and Baptists: The Education of a Regulatory Economics,” Regulation 7:12–16) underlying the growth of the U.S. justice system. The text also provides a prime example of the ratchet effect (Robert Higgs, 1987, Crisis and Leviathan: Critical Episodes in the Growth of American Government, Oxford University Press) at work. Gregory shows how leading federal authorities used crises—real and curated—to expand their powers and jurisdictional authority. They positioned the federal government as the only authority with the means to effectively address whatever issues of crime and safety were most salient at the time. This ratcheting led to the growth of the U.S. justice system as a product of and tool for the growth of the federal system. As similarly discussed by Christopher J. Coyne and Abigail R. Hall (2024, “Perfecting Tyranny: Foreign Intervention as Experimentation in State Control,” The Independent Review 19 [October]: 165–89), the technologies and skills developed as part of U.S. war efforts were implemented domestically in pursuit of “law and order,” serving to expand and insulate federal power.

Overall, this text represents an important contribution in the history of the U.S. justice system. It clearly locates the roots of federal and state power in their enforcement capacities, inextricably tying U.S. federal authority to its enforcement systems. Gregory portrays a process of jurisdictional consolidation through the pursuit of law and order that transcended identity and politics. In this way, the book provides fertile ground for social scientists to trace the mechanisms and interests at the root of the expansive U.S. justice system and more clearly identify its entanglement with state power.