Special Book-Launch Seminar: New Deal Law and Order: How the War on Crime Built the Modern Liberal State

Wednesday, November 20, 2024 Hoover Institution | Stanford University

On behalf of the Hoover Applied History Working Group, Dr. Niall Ferguson welcomes Anthony Gregory to vibrantly discuss his recent book, New Deal Law and Order: How the War on Crime Built the Modern Liberal State.

ABOUT THE TALK

This special book talk discovers how the 1930s redefined law and order, transforming liberalism and reshaping American government itself. We remember the New Deal as foundational to modern liberalism, but its crucial role in building the law-and-order state has gone neglected. This HAHWG seminar will look to Franklin Roosevelt’s war on crime for lessons on how political legitimacy relies on enforcement authority and consider the implications for today’s fraught politics of law and order.

The book is available for purchase here.

ABOUT THE SPEAKER

Anthony Gregory is a Hoover Fellow at the Hoover Institution on War, Revolution and Peace, at Stanford University. He is a legal and policy historian of the American state. He was previously an assistant professor in residence at Rhode Island School of Design’s Department of History, Philosophy, and Social Sciences. He earned his PhD in History at the University of California Berkeley, where he trained as an Americanist studying politics and law, and spent two years as a postdoctoral research associate at Brown University’s Political Theory Project before beginning at RISD. Gregory is the author of multiple academic publications on national security, constitutionalism, and legal theory and is currently working on modern American liberalism and criminal justice, particularly on how the New Deal war on crime legitimated and transformed U.S. governance.

Episode Transcript

>> Niall Ferguson (00:07):
Hello, I'm Niall Ferguson.
I'm the Milbank Family Senior Fellowhere at the Hoover Institution.
And it's a delight to welcome tothe Hoover Applied History Working Group,
one of our new Hoover Fellows,Anthony Gregory.
He did all his universitydegrees at a rival institution,
the University of California at Berkeley.

(00:28):
He's the author of three books.
The first,the Power of Habeas Corpus in America.
The second, American Surveillance,Intelligence, Privacy, and
the Fourth Amendment.
But he came to talk to us about hismost recent book, New Deal Law and
How the War on Crime Builtthe Modern Liberal State.

(00:49):
Anthony, you gavea brilliant presentation,
I'd love to follow up with a fewquestions for our online audience.
And my first one is a kind of simple one,why has American
liberalism had such a problem with law andorder as an issue?

>> Anthony Gregory (01:09):
Well, Neil, that's a great question.
American liberalism is concernedwith the protection of rights,
with the elevation of the common good.
But it also has an importantcommitment to restraining state power.
Fighting lawlessness andprotecting rights requires state power.

(01:32):
And there's always a tension just rightthere because there's collateral damage,
there's civil liberties implications.
Whenever the state attempts toenforce the law in the United States,
it's especially a vexing problembecause of the constitutional order.

(01:53):
And American liberalism has a verycautious approach to usurping
jurisdictional authority from the stategovernments, the local governments.
And because of that, notoriously,throughout US history,
the federal government,certainly before the Civil War,

(02:15):
did not take it upon itself to protectthe basic rights, say, of black Americans.
And after the Civil War,
there was this open question of just howmuch the federal government should be
involved in protecting people's rights,even against one another.
And to this day, crimes such as murderare still mostly a state issue.

(02:36):
So I'd say that the set ofvalues in the most abstract and
the particular constitutionalformation of the US
government are both the majorobstacles and challenges.

>> Niall Ferguson (02:50):
In that case, why does one of the most successful liberal
presidents in all of American history,Franklin Roosevelt, decide to make law and
order one of his key issues,which is really the argument of your book?

>> Anthony Gregory (03:05):
Well, lawlessness was this huge problem in the United States
through the Gilded Age,through the Progressive Era,
through the prohibitionist 1920s, and
every generation of national leadersattempted to deal with lawlessness.
But because of those constitutionalrestrictions on their power,

(03:26):
because of American ideology, because ofcoalitional and institutional jealousies
across American society, no federalleaders could really crack the code.
He wasn't the first to make a promisethat he would finally crack the code,
but there was a kind of crisis thatreached a boiling point with prohibition,

(03:49):
especially.
Where prohibition had promisedto finally tame lawlessness by
reforming every police department,every city,
every household, andinstead it seemed to amplify lawlessness.
So he inherited this war oncrime from his predecessor,
President Herbert Hoover, but he wasable to put a more liberal gloss on it,

(04:13):
both in finally promising toend alcohol prohibition, but
promising to deal withthe lingering promises or
problems of lawlessness both fromprohibition and from earlier era.

>> Niall Ferguson (04:26):
Which makes it especially appropriate that we're
having this conversation in theinstitution named after Herbert Hoover.
But another Hoover was oneof the beneficiaries of this
turn in Roosevelt's policy,namely J Edgar Hoover.
Is it fair to say that thereare unintended consequences to Roosevelt's

(04:47):
adoption of the war on crime, and that oneof the beneficiaries, maybe more than one
of the beneficiaries, is actuallysomebody who's anything but liberal?

>> Anthony Gregory (04:57):
Well, that's a very good and
provocative way of raising this point.
J Edgar Hoover for
many years had this reputation asa figure on the American right.
For nearly half a century,he ran the Bureau of Investigation and
especially because ofits post war reputation.

(05:20):
Going after communists,socialists, the New Left even,
and often with kind of costs forcivil liberties on that score,
many on the left saw himas something of a villain.
But it was the New Deal state thatmodernized the Bureau of Investigation.
That turned it from a controversial andweak agency with very few investigatory

(05:44):
powers, very few arrest powers, wheremany of the agents weren't even armed and
didn't even practicetheir firearms regularly.
It was the New Dealers who encouragedJ Edgar Hoover to modernize,
to expand his power,
to get involved in day-to-day questions ofcrime as well as political surveillance.

(06:05):
And J Edgar Hoover himself was initiallyreluctant, but he soon enough realized
that he had something to gain fromthis settlement over federal power.

>> Niall Ferguson (06:17):
As I think I really learned about the United States between
the wars from watching movies,I found all this completely intuitive.
One goes from gangsters to Alcatraz.
One has the feds with theirfirearms imposing law and
order on a kind of crime infested city.

(06:39):
But one of the things that reallyimpressed me about the book was
actually the statistics that youshow on incarceration rates.
This came as a real surprise to methat they actually peak in 1939 and
don't regain the same peak until 1979.
That's a really amazing finding, and itmakes me rethink the New Deal as something

(07:01):
that had a distinctlyauthoritarian character to,
is that the right way to interpret it?

>> Anthony Gregory (07:07):
Well, it's up to you and others to decide whether a prison
population reaching certain heightsis a mark of authoritarianism.
Certainly, many people in the UnitedStates see the late 70s into the 80s and
90s as this period where they call itmass incarceration really expands.

>> Niall Ferguson (07:30):
But if we can use those terms very rarely associate them with FDR.

>> Anthony Gregory (07:34):
Well, that's true.
And to be clear, this wasn't all FDR,
there was some inertia inplace at the state and
federal level, andwe can't run this experiment twice.
But we do know that the New Deal state,including some iconic parts of
the New Deal welfare state,like the Works Progress Administration,

(07:57):
actively helped build andrenovate jails and prisons.
We know that the federal criminalcode ballooned quite a bit
in the 1930s andthat this eventually helped propel
the prison population to newheights after World War II.
And it is the case thatthroughout the 30s,

(08:19):
the overall trajectory was thatthe prison population for state and
federal detentions reaches thispeak at the end of the decade.
And by the way, at the same time,
rehabilitation is also rising,parole, probation.
So what makes the New Dealers so specialis, they don't see rehabilitation and

(08:41):
incarceration as this zero-sum contest.
They want to use all the levers ofstate power, the welfare state,
the security state, the police state,as one might call it, to combat crime
in this kind of holistic, multi-prongedoffensive against lawlessness.

>> Niall Ferguson (08:59):
It had a very special significance in the American South.
And as you say, the context here isthe context of a federal system where for
most of the history ofthe republic up until the 30s,
it's the states that decide on howthe criminal justice system works.
Tell us what your book shows aboutthe way the New Deal's criminal justice

(09:20):
reforms impacted the South.

>> Anthony Gregory (09:23):
Well, as with many other things that the federal government
was doing, most white Southerners werequite on board with the New Deal.
In fact, white Southerners wereRoosevelt's most loyal voting bloc,
and they had been loyal Democrats for manyyears, going back to the 19th century.

(09:46):
The real puzzle is how doesthe New Deal coalition win
over black Americans who in the early30s are breaking largely for
the party of Lincoln forsome understandable historical reasons,
then by the late 30s, they're breaking forthe party of Roosevelt?
And one of the key factors, I would argue,

(10:09):
has to do with law and order.
In the early 30s, there's the surgein lynching, racial terror.
And it's hard for Americans today toreally imagine just how disruptive and
alienating and horrifying this was forBlack-America.
It was racial terrorism andit was on the rise.

(10:31):
And from the perspectiveof most black Americans,
certainly groups like the NAACP,this was the problem of lawlessness
that the federal governmentconspicuously failed to address.
And throughout the New Deal,
Roosevelt didn't really directlyaddress it, at least in the 30s,
but the Justice Department underAttorney General Homer Cummings,

(10:56):
they would give these flashesof hope to black Americans.
They prosecuted a casein 1936 in Arkansas.
They prosecuted a white man for a slavery.
For violating the slavery statuteby tricking local officials into
letting him force blackmen to work his land.
And eventually, as we get into the 40s,the FBI does start to

(11:20):
investigate lynchings andit investigates police brutality.
And so, because the situation forblack Americans was so dire,
it actually didn't take that much for
the New Dealers to give them a senseof hope when it came to law and order.
A more egalitarian future of law andorder,

(11:40):
even as they continued to build upthe carceral systems that by default
were still engines of what we might callwhite supremacy or racism in the south.

>> Niall Ferguson (11:51):
Fast forward 90 years to the 2000s, and
it feels like as we're trying toapply history here, one lesson for
Democrats might be defundthe police as a bad slogan and
getting on the wrong side of the law andorder issue is a way to lose elections.

(12:12):
How does your understanding ofRoosevelt's relationship to the law and
order issue inform your view ofthe politics of the 2024 election?

>> Anthony Gregory (12:25):
That's a very big question.
It's true that the defundthe police rhetoric
in 2020 was not very good politics.
Now, the Democrats did winthe 2020 election, but
notably they won it with Joe Biden,who was famous for

(12:46):
his tough on crime stance in the 1980s,90s,
even pushing Reagan to be harderon drugs than he wanted to be.
And Kamala Harris,who was a prosecutor and
despite some of her rhetoric in 2019,2020,
not a particularly progressive orleft wing prosecutor.

(13:10):
And what we see by 2024 isthe Democrats try to embrace
this ecumenical approachto combating lawlessness.
They accuse the other side of lawlessness.
And similarly,the Republicans accuse the Democrats both
of tolerating lawlessness when itcomes to riots or street crime, and

(13:33):
yet weaponizing the Justice Departmentagainst political enemies.
I would say that in reflectingon the 2024 election and
moving forward, the real puzzle for
both parties is going to behow do we advance a law and

(13:53):
order agenda that seems fair?
That doesn't seem partisan, and
that seems to addresslawlessness among all classes,
among all races, andin this somewhat egalitarian,
or at least aspirationally equal way?
And that was whatRoosevelt was able to do.

(14:16):
And I've yet
to decide whether either party isactually well positioned to do that.
I think they both have a lot ofchallenges in trying to do that.
So we'll see.

>> Niall Ferguson (14:28):
It's an absolutely fascinating book, Anthony, and I highly
recommend it to anybody who wants to get anew understanding of America in the 1930s,
New Deal, Law and Order, How the War onCrime Built the Modern Liberal state.
We're delighted to have you hereat the Hoover Institution and
look forward eagerly to your next book.
That's all for now fromthe Hoover Applied History Working Group.

(14:52):
We'll be posting regular videos like thisevery time we have a seminar at Hoover.
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