Achieving Our Future in the Age of Obama?: Lochner, Progressive Constitutionalism, and African-American Progress

Abstract

It is clear that the New Deal era was the most important and wide-ranging period of constitutional change since the Civil War. Equally clear, the events that catalyzed the New Deal were echoed more recently by the economic and financial collapse of 2008, which sparked President Obama’s current efforts to save American capitalism. In this regard, three things are worth noting: first, President Obama’s recovery plans, taken together will leave the government permanently bigger, more costly, and more intrusive; second, his approach to the current crisis recalls the efforts of his predecessor and model, Franklin D. Roosevelt; and third, such efforts appear to be marred by contradiction. Despite President Obama’s efforts, and in spite of sporadic evidence that the United States is beginning to emerge from one of the most devastating economic slides in its history; American workers, black and white, must tackle anxiety that is elevated by allegations of falling or stagnant wages, increasing employment uncertainty, and growing disparities in nonwhite versus white unemployment rates. Amidst recent evidence that the latter trend has accelerated, the pertinent question that confronts us today is whether the fundamental change offered by the Obama administration will lead to consequences which mirror results that dogged the New Deal.

It is, therefore, an opportune time to consider whether the constitutional law and policy implications that can be drawn from the New Deal offer a secure foundation for questioning various Obama administration initiatives that are tied to progressive teleology. And this issue is particularly important to the lives and future of African Americans, despite the Supreme Court’s acclaimed commitment to the protection of, "discrete and insular minorities." Emphasizing an ethical and consequentialist dimension, and based on a 2012 symposium presentation at the University of Pennsylvania Law School, this article shows that African Americans and other outsiders have much to fear from the replication of FDR’s policies by the Obama administration. Unless the Supreme Court can muster the courage to intervene on behalf of the truly disadvantaged among us, which is highly doubtful, it is probable that history will repeat itself.

Keywords: Barack, Buck v. Bell, business, Carolene Products, Chantal Delsol, constitution, contract, Delano, Ferguson, framers, Great Depression, human welfare, labor, liberals, liberty, lobbyists, Lochner, Louise Weinberg, New York, Oliver Wendell Holmes, Plessy, Risa Goluboff, Social Darwinism, world order

JEL Classification: D63, E24, H53, I31, I38, J64, J71