Herbert Hoover’s Righteous Crusade Against the New Deal: A Conversation with George Nash

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Herbert Hoover’s legacy is perhaps forever linked with the failure of the American economy under his presidency after the stock market crash of 1929 and his ensuing defeat by Franklin Delano Roosevelt in the election of 1932. Further adding to his difficulties is the charge that he was progressive-lite in his policies before and after the Great Depression. The proper foundation, it follows, for advocates of a renewed conservative focus is Calvin Coolidge, a President who cut budgets and taxes. This discussion with Hoover scholar George Nash begs to differ.

Nash, who previously appeared on Liberty Law Talk to discuss the lost Hoover memoir he edited entitled Freedom Betrayed—a brilliant criticism of American foreign policy from the late the 1930s through the early postwar period—has now edited another memoir of Hoover’s. This discussion with Nash on The Crusade Years 1933-1955: Herbert Hoover’s Lost Memoir of the New Deal Era and Its Aftermath considers the thoughts, writings, and speeches of Hoover across three decades as he attempted to rally leaders and citizens against the New Deal. Hoover charged that the New Deal would produce a regimented America, one that was no longer free under the rule of law and limited government. In short, Hoover became to the New Deal what Edmund Burke was to the French Revolution, a tireless enemy. So what is the final legacy of Herbert Hoover? This discussion of Hoover’s memoir on domestic policy might cause you to rethink your former assessment.

When Judges Talk to Politicians

Imagine, if you will, that a president who has not shown himself overly careful about a strict observance of the Constitution, announces that he does not propose to abide by the term limits of the Twenty-Second Amendment, and that he proposes to run for a third term. He notes that the members of the Supreme Court might have a problem with this, but argues that they should not have the sole authority to interpret the Constitution, that he also might do so when backed by the will of the people, and that democratic government is the grundnorm of the Constitution and that inconsistent principles such as term limits must yield to it. There’s this chap called Larry Kramer, you see…

No, I don’t see this happening anytime soon, but bear with me.

Now suppose that the Chief Justice sends the president a letter informing him that the Court would rule that such an election would be invalid. Would such a letter be an abuse of the separation of powers? Might a judge publicly opine about the constitutionality of a proposed law or executive order, save in a judgment? Might he do so privately to the president?

I’m not sure if I see an answer in the Code of Conduct for federal judges. We’re not talking about the kind of political advice that Felix Frankfurter gave FDR. Instead, we’re talking a legal question. But still…

That, very roughly, is the constitutional issue in Canada, where Chief Justice Beverley McLachlin sent Prime Minister Harper a letter, which he told the press he had refused to open. At issue was a constitutional principle, the right of Quebec to have three civilians appointed to the Supreme Court, in order that appeals from la belle province on questions of droit privé should not be decided solely by common lawyers. The government proposed to appoint, as a Quebec judge, a member of the Federal Court who was formally a civilian but whose docket consisted solely of the kinds of cases heard by the Federal Circuit in the U.S. The proposed appointment was within the letter but not the spirit of the Constitution, and one could see this going either way. What the Chief Justice wanted to do was tip off the PM that the Supreme Court would have problems with the appointment, and indeed the Court subsequently ruled that it was invalid. Harper is no fool, and one expects he knew what was in the letter. Perhaps he thought that he had more to gain than to lose in taking on a very left wing Court. That’s what I’d conclude from his public announcement that he refused to open the letter. Bit of a slap in the face, that.

So here you have a politician refusing to accept a letter from the Chief Justice on the grounds that this would violate norms of judicial integrity and separation of powers. Was Harper more Catholic than the Pope? Or is a Chinese Wall required as a prophylactic, to ensure that private communications not stray into a cosy Frankfurter-FDR relationship?

Tea Party Game Show With Guest Host Cass Sunstein

Cass Sunstein recently published two short essays-here and here-on the current political struggles between “tea-party” conservatives and progressives. In the first essay, Sunstein attempts to link our current political fracturing with the famous standoff between Whittaker Chambers and Alger Hiss.  His second essay, which compares Whittaker Chambers and Ayn Rand’s divergent philosophies and then links their disagreements to various tendencies within present-day conservatism, is much better.

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