The Invisible Constitution

By Laurence H. Tribe
Oxford University Press, 2008

Review By Leonard H. Becker

In a law review article published a half-century ago, Herbert Wechsler, a professor at Columbia Law School, called upon judges to apply “neutral principles” in adjudicating constitutional cases.[1] In large measure, Wechsler’s argument reflected the ongoing academic response to the judicial excesses of the 1920s and beyond. The Supreme Court, dominated at the time by radical reactionaries, had invalidated progressive federal statutes on the theory that they exceeded the powers of the central government. At the same time, the judges struck down state remedial legislation (such as minimum wage and maximum hours statutes) in the name of “liberty of contract” and other creations of the Court. Wechsler’s work embraced the views of Felix Frankfurter, formerly a Harvard Law professor, a leading figure in the progressives’ criticism of the anti-New Deal Supreme Court, and, later, a Roosevelt appointee to the Court who regularly denounced the tendency of his fellow justices to elevate “personal predilection” to the status of immutable principle. To a significant extent as well, Wechsler was responding to the rise of legal realism, at Yale Law School and elsewhere, whose proponents argued that because judges, in construing arcane or ambiguous provisions of the Constitution, relied on just such personal predilections as those condemned by Frankfurter, it was best to expose those premises for what they were and to resolve constitutional questions openly in the light of sound social policy.

In his new book, The Invisible Constitution, Laurence H. Tribe, Harvard Law professor, prolific scholar and advocate, and legal adviser to the Obama administration, contributes to the ongoing contest between neutral principles and personal predilections—without referring to that contest as such and seemingly unaware that he is pursuing a well-trodden path.

Tribe devotes a large part of his book to explaining what it’s not. In arguing for an “invisible” Constitution, he is not, he says, presenting an overview of constitutional law, although his book draws many of its illustrations from constitutional cases. He is not writing about the Supreme Court, although most of his cases are the product of Supreme Court litigation. He is not addressing the Constitution’s “construction,” but its “architecture”—an elusive distinction at best. Nowhere does Tribe offer a comprehensive roster of the propositions that make up his “invisible” Constitution, acknowledging that his list is “suggestive, not exhaustive.” His sampling contains what he thinks “the vast majority of educated citizens would probably include in their list of what the U.S. Constitution forbids or demands”:

Ours is a ‘government of the people, by the people, for the people.’

Ours is a ‘government of laws, not men.’

We are committed to the ‘rule of law.’

Courts must not automatically defer to what elected officials decide the Constitution means.

Government may not torture people to force information out of them.

In each person’s intimate private life, there are limits to what government may control.

Congress may not commandeer states as though they were agencies or departments of the federal government.

No state may secede from the Union.

All of these propositions look good, even irrefutable. However, some of them are debatable as universally accepted postulates, and all of them (with the exception of the last) could be counterbalanced by propositions of comparable generality. The “may not torture” principle, for example, seems more aspirational than descriptive of governmental practice, and it could be challenged by a competing suggestion, such as that “the Constitution is not a suicide pact.”[2] Despite President George W. Bush’s lip service to the notion that “we don’t torture,”[3] recent exposés reveal that officials at the highest level of the Bush administration authorized inhumane conduct at Guantánamo Bay, Cuba, and various other detention centers in Iraq and Afghanistan—conduct that most observers would have little difficulty in classifying as “torture.”[4] At the same time, some commentators who cannot be dismissed as “uneducated” have suggested that torture might be necessary, as in the “ticking bomb” scenario or other narrowly circumscribed situations.[5]

Another of Tribe’s propositions that withers under scrutiny is the “no commandeering” rule. This “invisibility” would come as news to state courts, which not only must apply federal law where controlling, pursuant to the supremacy clause, but also must adjudicate federally declared rights and responsibilities as required by Congress from time to time. Examples of the latter type of federal direction include the Employers’ Liability Act of 1908, which subjected common-carrier employers to state suits by employees injured on the job, without regard to state law to the contrary (a federal incursion on state sovereignty sustained, even in those old days, by a unanimous Supreme Court as a valid exercise of Congress’ power to regulate interstate commerce),[6] and the comprehensive price-control regime established at the outset of World War II, creating treble-damages actions and license- revocation proceedings against violators, to be brought in state courts.[7]

The one case on which Tribe largely rests his discussion of the “no commandeering” principle reflects the high-water mark of the Rehnquist Court’s “federalism” kick—nullifying, on a 5–4 vote, a federal statute that required state law enforcement officials to perform background checks on would-be gun owners.[8] A single 5-4 Supreme Court decision doth not an “invisible Constitution” make. A less glamorous, but more accurate, statement of Tribe’s “invisible” principle might be: “Congress may require state agencies to handle federal matters to a certain extent, but shall not overdo it.”[9]

Tribe’s “invisibles” levitate at such a high level of generality as to provide little or no guidance in particular cases. Few will disagree that “when in doubt, government should do the right thing,” but not even universal acceptance of such a notion would assist in resolving real-world controversies.

One of Tribe’s examples will demonstrate that his quest for “invisibles” has led him to embrace the notion of “neutral principles” as illusory substitutes for helpful thinking. Suppose, Tribe says, that the municipality where you live adopts an ordinance that makes it unlawful for you to buy or rent a house or apartment, or to stay overnight as a guest of the owner or tenant, without first securing the written consent of two-thirds of the residents living within 500 feet. “Our hypothetical case,” Tribe says, “would undoubtedly be governed by a defining principle drawn from the invisible Constitution: the principle that ours is a ‘government of the people, by the people, for the people.’”According to Tribe, only the government, not a ragtag bunch of neighbors, may adopt and implement the hypothesized prohibition if it is to have constitutional legitimacy.

As it happens, the District of Columbia has a municipal rule similar to Tribe’s hypothetical ordinance. In the District, before one may hold a circus, carnival, concert, or like event on his property, a city permit must be obtained. The grant of that permit is conditioned, among other things, on the applicant’s securing the concurrence of 90 percent of the people whose properties lie, in whole or in part, within 500 feet of the proposed activity.[10] True enough, the D.C. rule applies to public events with potential to disrupt the neighbors’ peace, whereas in Tribe’s case, the mere occupancy of a dwelling, whether by ownership, tenancy, or overnight stay, is a private act less likely, all things considered, to disturb the neighbors in the enjoyment of their properties. But that difference exposes the real objection to Tribe’s hypothetical ordinance—not its ad hoc enforcement by a handful of self-regarding neighbors, but its undue invasion of the privacy of the occupant of the subject property. Why Tribe has chosen to analyze his hypothetical under the rubric of “government of the people” rather than his more pertinent “limits on government control of private life” is a mystery.

Even if we treat Tribe’s hypothetical as presenting an issue of privacy, we still haven’t resolved whether the neighbors’ rights trump those of the individual occupant, perhaps as an application of the countervailing “invisible” principle that everyone is entitled to the use of her property, so long as she does not trespass unduly on the public interest. It is hard to know the right answer without more information about the circumstances. Suppose the property occupant attempts a de facto conversion from private dwelling to boarding house or hotel in a residential area. Are the neighbors to have no say in the introduction of such an establishment in their midst? What about their rights to privacy?

In sum, Tribe’s condemnation of his hypothesized ordinance on the ground that it somehow contravenes a government “of the people” comes across as a stretch, not to say an exercise of unbounded professorial discretion. In his quest for a “neutral principle” that will objectively resolve his hypothetical case to everyone’s satisfaction, Tribe has fallen prey to the quaint, and thoroughly discredited, notion that the judge need do no more than discover an “invisible” principle and lay it alongside the challenged law to determine whether the latter squares with the former. The rabbit goes into the hat in the selection of the controlling “invisibility.” Far from illuminating the concept of the “invisible” Constitution, Tribe’s hypothetical casts considerable doubt on the viability of his enterprise.

In the concluding phase of The Invisible Constitution, Tribe enumerates proposed canons of constitutional interpretation. He identifies these “distinct but overlapping” modes of construction as “geometric, geodesic, global, geological, gravitational and gyroscopic” (emphasis Tribe’s). Even if the unrelenting alliteration trips the reader’s “too-clever-by-half” alarm, Tribe’s discussion is insightful.

Two of the “g’s” merit comment in this review. By the “geological” mode, Tribe refers to the utility of “digging for [the] foundations” of individual guarantees expressed in the text of the Constitution. This is not the same as searching for a phantom “clarity” in the meaning of the Constitution as originally adopted. Rather, Tribe has in mind the underlying aspirations of personal autonomy, freedom from being sacrificed to the “greater good,” freedom from regimentation in family life, security from state intrusion in the privacy of one’s home, and kindred values. These notions are reminiscent of the celebrated “penumbral” right to privacy that the Supreme Court uncovered in Griswold v. Connecticut—a discovery that led to Roe v. Wade and its progeny. Thus, at least potentially, Tribe’s “geological” considerations are subject to the same debate about the judicial role in effecting public policy that has been engendered by the abortion cases.[11]

By the “gravitational” mode, Tribe refers to the doctrine formerly known as the “slippery slope.” A contention that offers no logical stopping place before its consequences reach their absolute, unattractive end probably is not a good idea. Tribe poses as an example the Gun-Free School Zones Act, invalidated by the Supreme Court on the ground that the statute exceeded Congress’ authority to regulate interstate commerce. When the justices could not elicit a satisfactory answer to the question—if Congress can adopt this statute on the theory that guns travel in interstate commerce, what can’t Congress do?—a slender majority declined to endorse the exercise of national power.[12]

In the final analysis, Tribe’s “invisible” propositions are best understood as aspirational guides rather than as legal mandates equivalent to the text of the “visible” Constitution. The distinction that Tribe draws between his “invisible” propositions, on one hand, and his “six g’s,” on the other, takes on less importance than he posits. Both the “invisibles” and the guides to interpretation are potentially creative ways of thinking about the Constitution and about particular cases that put one or another textual provision into play, without losing sight of the reality that principles of high generality do not decide specific cases.

Tribe’s postulation may not be as original as he thinks. His book is so short—a little more than 200 pages of text, organized in 42 segments, with lots of blank space in between—that at times the discussion seems more like an outline for a law school seminar than a full-fledged constitutional philosophy. Nonetheless, Tribe has come up with useful insights into the proper function of all public officials—legislative, executive, judicial—who play a role in shaping our living Constitution.

Leonard H. Becker served as District of Columbia Bar Counsel from 1992 to 1999 and as general counsel to Mayor Anthony A. Williams from 2003 through 2006. He resides in Washington, D.C., and he may be reached at lenbecker@verizon.net.

Notes
[1] H. Wechsler, “Toward Neutral Principles in Constitutional Law,” 73 Harv. L. Rev. 1, 15 (1959) (Oliver Wendell Holmes lecture) (“I put it to you that the main constituent of the judicial process is precisely that it must be genuinely principled, resting with respect to every step that is involved in reaching judgment on analysis and reasons quite transcending the immediate result that is achieved”).
[2] Kennedy v. Mendoza-Martinez, 372 U.S. 144, 160 (1963); Terminiello v. City of Chicago, 337 U.S. 1, 36 (Jackson, J., dissenting).
[3] Assoc. Press dispatch from Panama City, Panama, Nov. 7, 2005, available at www.msnbc/msn.com/id/9956644/.
[4] See, e.g., J. Mayer, The Dark Side: The Inside Story of How the War on Terror Turned into a War on American Ideals, reviewed by Patrick McGlone, Wash. Law., Dec. 2008, at 40.
[5] See, e.g., B. Wittes, Law and the Long War: The Future of Justice in the Age of Terror, at 185, reviewed in Wash. Law., Jan. 2009, at 40 (“There are not many truly principled opponents of all coercion in all interrogations at all times. And whatever rhetorical pose politicians adopt, categorical opposition to coercive interrogation is not a tenable position for anyone with actual responsibility for protecting a country”).
[6] Act of Apr. 22, 1908, 35 Stat. 65, as amended, Apr. 5, 1910, 36 Stat. 291, upheld in Second Employers’ Liability Cases, 223 U.S. 1, 55-56 (1912).
[7] Emergency Price Control Act of 1942, § 205(f)(1) & (2), 56 Stat. 23, 34-35 (Jan. 30, 1942).
[8] Printz v. United States, 521 U.S. 898 (1997).
[9] E.g., New York v. United States, 505 U.S. 144 (1992) (Congress may not mandate state enactment of particular legislation). For a persuasive view that the Court’s so-called “federalism revolution” essentially ended with the Printz decision, see J. Toobin, The Nine: Inside the Secret World of the Supreme Court, 129-31 (2007).
[10] D.C. Mun. Reg., tit. 19, §§ 1300, 1301.
[11] Griswold v. Connecticut, 381 U.S. 479 (1965); Roe v. Wade, 410 U.S. 113 (1973).
[12] Lopez v. United States, 514 U.S. 549 (1995).

The Great Decision: Jefferson, Adams, Marshall, and the Battle for the Supreme Court

By Cliff Sloan and David McKean
PublicAffairs, 2009

Review By James Srodes

In the end, of course, poor William Marbury never did become a justice of the peace for the District of Columbia.

Attorneys who teethed on the University Casebook Series Constitutional Law by Gerald Gunther, or any of its rivals, can be forgiven for overlooking that interesting fact when they consider what an overshadowing monument Marbury v. Madison turned out to be on the landscape of American government. The power of the Supreme Court to check the actions of both the chief executive and the U.S. Congress is the most unique feature of our version of democracy. Everyone says so today.

What makes The Great Decision such a riveting yarn is that the authors highlight just what a cliffhanger Marbury was, as well as the heavy odds at the time that our system of courts and judicial review could have remained, as in many other nations today, in a secondary role of settling quotidian disputes and double-checking trial court procedures. The authors make a compelling, well-written case for just why a copy of the 1803 Supreme Court decision hangs in a place of honor in our National Archives display, along with other founding documents such as the Declaration of Independence and the Constitution of the United States.

Sloan and McKean bring the eye of Washington insiders to their retelling of a national power struggle that was more raw and bare-knuckled than any of the “rough politics” we’ve witnessed in recent months. Sloan, a partner at Skadden, Arps, Slate, Meagher and Flom LLP, clerked for Justice John Paul Stevens, worked in the Clinton White House, and was former publisher of the online magazine Slate. McKean has been a long-serving staff and campaign aide for Senator John Kerry (D-Mass.) and previously published a biography of the quintessential political brawler of another era, Thomas “Tommy the Cork” Corcoran.

By 1800 old Revolutionary comrades John Adams and Thomas Jefferson had come to despise and fear each other. Their followers were close to splitting the young republic over how the government should function for a nation that was rural, agrarian, sectional, and protectionist, but which was rapidly becoming more urban, commercial, national, and globally ambitious. Despite their subsequent apotheosis by history and lionization by television docudramas, Adams and Jefferson, according to the authors, appeared to have been willing to claw and gouge over power with a zest that would bring a blush of envy to the cheek of an Illinois governor today.

In recounting the Marbury case, Sloan and McKean raise an implicit question: “What if Chief Justice John Marshall had ruled otherwise?” The authors firmly set to rest the civics class cliché that, with foresight and deliberation, the framers of the Constitution created the Supreme Court as a functioning, co-equal interpreter of our laws alongside the legislative and executive branches. When Marshall declared, “It is emphatically the province and duty of the judicial department to say what the law is,” it was news to nearly everyone, including Marbury, James Madison, and, most of all, Jefferson.

For the first dozen years of our republic, a Supreme Court justice had a pretty thankless task. The judicial reach stated in the Constitution confined the Court to jurisdiction in cases in which states were a party and where diplomats were involved. Congress then added appellate jurisdiction in larger civil cases and in cases where state courts ruled on federal statutes. The justices, including the chief justice, had circuit riding duties to the far reaches of the 13 states where they shared trials with district judges.

Some men have greatness thrust upon them and John Marshall was surely one of them. Marshall began in 1800 as a well-to-do Federalist congressman from Richmond, Virginia, who was known for his legal expertise, good humor, and ardent dislike of his distant cousin, Jefferson. In the midst of his reelection campaign, Adams abruptly launched a purge of his Cabinet in reaction to Alexander Hamilton’s break with him, which fractured the party’s unity. After turning down the job of secretary of war, Marshall agreed to take the vacant post of secretary of state. Months later, in the wake of his election defeat, Adams was suddenly notified that Chief Justice Oliver Ellsworth, who was on a diplomatic assignment in Paris, was resigning.

Because Jefferson could not take office until March 4, 1801, and the new Republican Congress could not convene until the end of the year, Adams and Marshall had to move quickly. Starting in January, Adams secured passage of the Judiciary Act of 1801 which, among other things, created a new system of appellate courts whose judges would take from the Supreme Court justices the chore of riding the district court circuits. Thus armed, Adams flooded the Senate in February with a total of 217 nominations, nearly all them for loyal Federalists. They included nominations to 93 judicial and legal offices, 53 of which were for the District of Columbia, and to 106 military and naval posts. When former Chief Justice John Jay flatly rejected Adams’ plea to take over the helm of the Supreme Court one more time, the nod went to Marshall, who was sworn in on February 4 while still serving as secretary of state.

This is where the book’s storyline takes on the elements of a thriller. As late as March 2, 1801, Adams and Marshall were pushing last-minute District of Columbia nominations to the Senate, and then racing the confirmation documents back to the small frame dwelling that housed the Department of State where the appointments were affixed with the Great Seal of the United States to be delivered to the appointees. Marshall’s brother James, himself a new district judge, was pressed into service in the final hours of March 3 to deliver dozens of justice of the peace appointments. This was a particularly sought-after post since it provided the incumbents with a percentage of the fines and settlements they imposed on local disputes.

Later, James would testify that he found he had more appointments to deliver than he could comfortably carry, so he left half a dozen behind, including that of Marbury, a Maryland Federalist who had settled in Georgetown where he gained prominence in banking and real estate. The next day, Madison, acting as President Jefferson’s new secretary of state, came upon the leftover appointments and refused to send them along. Marbury and three other disappointed appointees filed suit in December 1801, demanding that Madison deliver to them the official documents which had been duly confirmed and sealed. With no hesitancy, the Marshall Court agreed to take the case.

Until that moment, it had scarcely been contemplated that the Supreme Court could compel a cabinet officer, let alone the president, to do anything. Congress might enact laws and presidents carry them out at their own discretion. Jefferson was in no doubt aware of what was afoot. He wrote two days later that “[t]he Federalists have retired into the judiciary as a stronghold, and from that battery all the works of republicanism are to be beaten down and erased.” When the new Republican Congress began in earnest in January 1802, Jefferson matched Adams with the alacrity in which he pushed bills to Congress to repeal the Adams expansion of the judiciary, to cancel the increased number of judicial appointments, and, for good measure, to set the Supreme Court justices back on horseback riding the circuits again. Effectively, the Marshall Court was shut down that year.

It was when Marshall and the Court finally convened in the lobby of Stelle’s Hotel for the Marbury case in February 1803 that the “what if” question becomes so dramatic. The over-arching question of whether legal precedent pointed to judicial power over constitutional questions was most uncertain. British common law, for example, recognized no high court oversight of Parliament acts. Nor was it clear if courts should be able to intrude on clearly political acts of the executive branch, whatever its control over the constitutionality of legislative acts.

Then there is the tantalizing “what if” that the authors sum up: “What is certain is that, from the time Marbury filed the request for a mandamus in December 1801, through the firestorm of 1802 and the cancellation of the Supreme Court’s sessions for that year,…and the resumption of the case in February 1803, no record exists of anybody raising an objection to the Supreme Court’s jurisdiction, even in the midst of fierce criticism of the Court for unwarranted meddling in the Executive Branch. Everyone in Washington, it seemed, reacted to the case, and the discussion spilled over into congressional debates, but nobody had focused on the question of the Supreme Court’s jurisdiction.”

In what the authors call “an utterly compelling piece of political and judicial theater,” Marshall enunciated the three key issues before the Court. Marbury and his fellow plaintiffs had a right to their commissions as justices of the peace for they were legally issued; Jefferson and Madison broke the law when they refused to deliver them; and, arguably the crux of the case, “The government of the United States has been emphatically termed a government of laws and not of men,” and that while some acts of the chief executive were political (and beyond the Court’s reach), this was not one of those cases.

Marbury, at that point, had won the first two of the three controlling points of the case. It was on the third question that Marshall’s adroit genius stood out—and has continued to do so over the years. He split the final question into two issues: Since a writ of mandamus to force Madison to hand the commissions over was the appropriate remedy, “it only remains to be enquired, Whether[sic] it can issue from this court.”

What came next was a legal sucker punch. Marshall and the four other justices stepped out with a left foot and a showy right-hand jab, and then dug a sharp left into the rib cage that takes the breath away. The answer to the last question is, no, the Supreme Court does not have original jurisdiction as a trial court on such issues. Hence, Marbury is left with, “Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument. The rule must be discharged.” Case dismissed. Marbury, it seems, had gone to the wrong court. The Supreme Court, however, had changed the character of the American government.

Marshall and the Court thus avoided a showdown with Jefferson and the Republicans that the latter could have very well lost if the president had flatly refused an order to turn the nomination documents over to the Marbury plaintiffs. Yet the precedent of judicial review had been firmly enunciated, and there was not much Jefferson could do about it even when the Court followed up in short order with its Stuart v. Laird decision invalidating the Judiciary Act of 1802.

Sloan and McKean have written a cheerfully accessible story that will be enjoyable for law professionals and lay readers alike. Constitutional historians may sniff when their enthusiasm for their tale outruns their research, but the glitches are minor and don’t interrupt the exciting pace and scope of a story that is as relevant today as it was over 200 years ago. It did not have to happen the way it did.

James Srodes’ most recent book is Franklin: The Essential Founding Father.

Traitor to His Class: The Privileged Life and Radical Presidency of Franklin Delano Roosevelt

By H. W. Brands
Doubleday, 2008

Review By Ronald Goldfarb

As President Barack Obama faces challenges over wars abroad and extraordinary economic turmoil at home, references are commonly made to Franklin Delano Roosevelt (FDR) and his first term in the White House. As historian and University of Texas professor H. W. Brands describes in his new FDR book, Traitor to His Class, the two men ascended to the nation’s highest office from markedly different backgrounds, having followed remarkably different routes. Yet the two presidencies will be compared for the unique similarities in their rise to power and the problems both men encountered at the start of their terms.

There have been many FDR biographies as well as collections of letters, public papers, and assessments by scholars, family, and colleagues (among them British Prime Minister Winston Churchill, former FDR campaign manager James Farley, Secretary of State Cordell Hull, Secretary of the Interior Harold Ickes, former First Lady Eleanor Roosevelt, and the president’s children). This volume is notable because FDR’s experiences might be deemed a model for what the country faces today.

Though FDR was, in Brands’ words, “a Hudson Valley patrician,” he became “a champion of the common people of America.” He exuded calm in the eye of the storm, and spoke with “passion and eloquence.” At particularly trying times, he told America it had “a rendezvous with destiny,” and he aimed to permanently change “the American moral landscape.” These views have an intriguing, current relevance.

While FDR lived a sheltered life, pampered by his mother, he traveled widely, as aristocratic citizens did in the early 20th century. He went to the prestigious Groton School in Massachusetts, earned his bachelor’s degree at Harvard University, and trained as a lawyer at Columbia University. He worked briefly for a New York City law firm, but soon gave it up for politics.

As a young man, early successes in the New York state government, hampered by one early political defeat (a primary run for a United States Senate seat), led FDR to look toward the presidency as his personal goal. Lineage, luck, and timing played decisive parts in his decisions and political ascendance. He concluded early, as his models Theodore “Teddy” Roosevelt and Woodrow Wilson had, that “the fundamental problem of American life was the excessive power of corporate capital.” Following a valuable and formative stint as assistant secretary of the navy, FDR returned to New York to make his political reputation, seeing Washington, D.C., and the federal government as the “wasteland of elective politics.”

The political circumstances of FDR’s ascension to the presidency also are interesting when viewed in a currently relevant, if parochial, light. FDR was a lawyer with little interest in the practice and who always had an eye on the presidency. He chose state politics over federal, knowing the Senate was not the most advantageous place from which to run for the presidency. FDR’s national political reputation, along with his famous last name, was enhanced when he delivered the 1924 nominating speech for New York Governor Alfred Smith at the Democratic National Convention. At 46, he “threw himself into a race smart money said he would lose.” Does this sound familiar, yet?

FDR profited from the advent and potency of advertising and radio, an earlier generation’s equivalent of the Internet which President Obama embraced—and which returned the favor. FDR’s oratory was singular and touched a wide and avid audience. Radio “knitted the nation into a single communications sphere,” Brands reports.

FDR was faced on day one of his first term with a national failure of the banking system. Wall Street was “a war zone,” The New York Times reported. There was panic and swoon; yet FDR’s predecessor, Herbert Hoover, said—in hauntingly familiar words—that the economy was fundamentally sound. The facts of life in America at the time proved that the every-man-for-himself, laissez-faire political philosophy was failing. American capitalism was breaking up. The real estate bubble was bursting, auto sales were flagging, the construction industry was hurting, and employment rates were dropping due to mounting layoffs. FDR spoke out for the “forgotten man.” He avoided “veering too far to the left or to the right,” Brands concludes.

In 1932 FDR defeated Hoover in a landslide that “extended to the congressional races.” As a result, he entered office with strong legislative support. FDR moved quickly to put Americans back to work, seeking extraordinary powers from Congress. Critics were there, of course, calling his proposals socialistic. There also was a failed attempt to assassinate him in Florida.

Books have been written about FDR’s first hundred days, which have become not only an interesting part of 20th century history, but also a model or point of reference in today’s political scene. With his brain trust of academic experts—speechwriter Ray Moley, economist Rexford Tugwell, and others—and an enthusiastic Congress, FDR was able to create an ambitious legislative response to the nation’s rising unemployment rates, shriveled commerce, collapsing banks, and mortgage foreclosures.

Fifteen pieces of major legislation are described in the section “Hundred Days” in Brands’ book. Together, these so-called New Deal laws—the Emergency Banking Relief Act, Glass–Steagall Act, Economy Act, Emergency Conservation Work Act, Social Security Act reversing earlier laissez-faire attitudes to a “caveat vendor” approach, Agricultural Adjustment Act, and National Industrial Recovery Act, among others—provided a “framework for an entirely new government system.” FDR played “nine-pins with the skulls and thighbones of economic orthodoxy” with calm and ease, his aide Moley reported.

Brands demonstrates how “much of Roosevelt’s program was extemporaneous and experimental.” He resisted orthodox economic theory and actively fought bank failures, mortgage foreclosures, and declining commerce by initiating new programs like the National Recovery Administration (run by Hugh Johnson) and the Public Works Administration (overseen by Ickes), and a full dance card of projects, protective codes, unemployment insurance, and disability and old age pensions—cradle to grave social insurance. Labor unions expanded and became more powerful. FDR proposed higher taxes on the wealthy, incurring the wrath of “his class,” as Brands notes in his book’s title. Opponents claimed the taxes were “revenge rather than revenue.” FDR cast himself as a modern Andrew Jackson, fighting critics and calling the Republicans “the moral descendents of King George III, economic royalists.” In 1936, Governor Smith argued that “the New Deal is socialism in poor disguise.”

FDR’s reelection added brio to his already popular approach. When the U.S. Supreme Court overthrew some of his social engineering legislation, FDR attempted to stack the Court. His tactic failed, but he made his point as the Court shifted, and new appointments led to a more amenable Third Branch. Brands’ description of this episode is an interesting story well told.

The final third of the book describes the gathering war clouds, and FDR’s shift of focus from domestic problems to his deft guidance of his isolationist government and country into World War II. Brands explains this part of history step by step: the Spanish Civil War, Benito Mussolini’s invasion of Ethiopia, the rise of Nazi Germany, and the Japanese aggressions against China.

Brands expounds, engagingly, on FDR’s “subtle and canny” leadership—facing isolationist undertows at home and, internationally, dealing with Churchill, Joseph Stalin, and other powerful allied leaders as well as demonic enemies, primarily Adolf Hitler. FDR pursued his foreign policy while continuing to manage deep economic and racial problems at home. The relatively docile press allowed him wiggle room that today’s media would never permit.

The story of how he maneuvered a reluctant country into a world war, the military calculations between world powers in Europe and Asia, along with exiled Polish and French leaders, demonstrates FDR’s extraordinary diplomatic skills. At home, he won a third term against Wendell Wilkie, with Henry Wallace replacing Vice President John Garner. The war provided political cover for FDR to avoid “the oldest taboo in American politics,” the emergence of what critics called “the permanent presidency,” in a big victory—a 55–45 margin and 71 percent approval rating.

By 1942 FDR was “the most powerful man in American history,” leading the world’s most powerful nation, a “first among equals in the most formidable wartime alliance ever gathered,” Brands concludes. Machiavellian as well as visionary, he manipulated the press and allowed questionable constitutional incursions on civil liberties and isolationist immigration policies. He managed profound and demanding pressures with a major physical handicap and a strained marriage, and did so for more years than any president of this country.

Using close friend and adviser Harry Hopkins as his alter ego in international negotiations, FDR was a superb strategist, wise in military matters, and a clever chess master with competing domestic and international players. Volumes have been written about all these parts of the FDR story, but Brands synthesizes voluminous sources, presenting this history as a riveting story. A reader interested in a one-volume treatment of such a broad canvass will be rewarded by Brands’ book.

FDR managed a world war, international post-war negotiations for the peace that laid the groundwork for the United Nations, and psychological games with world leaders while running successfully for a historic fourth term in 1944 against the young New York Governor Thomas Dewey. He was, for an unprecedented time, an actor who never left the demanding world stage. Of course, the strains of his labor would take their toll.

Exhausted and physically ravaged, FDR went to Georgia after his reelection to revive body and spirits, as he’d often done before. There, he suddenly died. The nation and the world mourned. When Harry Truman offered his condolences, Eleanor Roosevelt responded, “Is there anything we can do for you? For you are the one in trouble now.”

FDR’s years in power, while imperfect, were profoundly successful. Brands concludes that while FDR disappointed his aristocratic class, in a time “rife with fascists, militarists, and communists abroad and irresponsible demagogues at home, he was the best thing that could have happened to them.”

Comparisons between the early FDR years and President Obama’s first few months in office are remarkable today, even though times and conditions are never the same. Of course, there are as many important differences in their backgrounds and politics, but the early similarities are striking, and Brands describes them succinctly and well.

As Brands makes clear, there is one major difference between these two men’s experiences. Unlike Obama, FDR and his brain trust had no comparable recent history upon which to draw. FDR’s solutions led to a half century’s change of national politics and the role of the federal government. It remains to be seen what effect Obama’s solutions will provide beyond coping with the problems he inherited. Similarities aside, problems and solutions and cultural evolution perforce must differ. Those differences as well as similarities will provide later historians with interesting biographical material.

Ronald Goldfarb is a Washington, D.C., attorney, author, and literary agent whose reviews appear regularly in Washington Lawyer.