New Deal Law And Order: How The War On Crime Built The Modern Liberal State

>> Niall Ferguson: Well, good afternoon. It's great to be back and to welcome you all to the first meeting of the Hoover Applied History Working Group, as we put the word applied into our description. And this is a special occasion. It's the launch really of Anthony Gregory's latest book, New Deal Law and Order how the War on Crime Built the Modern Liberal State, copies of which for the people who are here, have been distributed.

If you're online, I think you might be entitled to a copy, but you'll have to contact my learned friend Joseph Medford if you want to claim it. I'm gonna introduce Anthony. I'm then going to say a brief word about how we're going to run this and then hand it over to him.

Anthony is a product of a rival organization, University of California at Berkeley, just commenting on how little traffic there is between Stanford and Berkeley. Despite their proximity he did all his degrees there, including his doctoral dissertation, which was titled From War on Crime to Liberal Security State, the New Deal and American Political Legitimacy.

Is this actually the book of the dissertation? At some level, but he's written and published books before this one, the Power of Habeas Corpus in America was 2013, which won the Best Book Award from the American Publishers Awards. And a book eight years ago, American Surveillance, Intelligence, Privacy in the Fourth Amendment.

What's going to happen is that he is going to introduce the book, outline its arguments over around a half hour thereabouts. And then we're really privileged and lucky to have as a commentator my old friend David Kennedy, who was for many years professor of History here. He is now The Donald J McLaughlin professor of History Emeritus.

You may know David for the very popular textbook the American Pageant. He's the editor of the Oxford History of the United States and the author of multiple books of which I suppose the most famous is Freedom from the American People in Depression and War. Which won the Pulitzer when it was published in 1999.

And it was that book that made me think he would be an ideal commentator on this one. With that, I am gonna hand over the floor to you, Anthony.

>> Anthony Gregory: Thank you, Niall. Thank you, Joseph David Kennedy and everyone at the Hoover Institution who helped make this possible.

There are too many name. It's truly an honor to be here. The Hoover Applied History Working Group. I'm going to talk about my book. It's a history book and I will try to apply some of the, what I take to be the lessons of the book to a couple of matters of contemporary significance.

The book New Deal Law and Order argues that New Deal Crime policy brought new legitimacy to national enforcement authority. That in doing so, the New Deal War on crime built American law and order, both in the narrow sense of revamping crime and punishment. But also in a broader sense of laying the foundations of modern government.

In this process, the New Deal War on crime transformed American liberalism in both its partisan and nonpartisan dimensions. And American federalism, that distribution of power between the federal and state governments. First, I'm going to talk a little bit about some of the main themes of the book. And then I'm going to get into some of the history in the book, some specific questions, policy questions regarding the Constitution, prisons, and Southern politics.

And then I'm going to finish with just a few words about the moment that we find ourselves in today. So, first, main themes. The book takes up the rather modest themes of political legitimacy, liberalism and the conflict between law and order and lawlessness. So what do I mean by these ideas, these words?

Well, in order for a government to have political legitimacy, it needs not only institutional capacity, but the ideological support, or at least the acquiescence from a critical mass of the people. Now, in ideological terms, Americans have traditionally looked upon state power with ambivalence, even distrust. Yet in institutional terms, Americans have arguably built the most powerful state in world history.

This irony becomes clearest after World War II. But I push the story back earlier to see what came before. You could look at the period from the 1860s all the way through the early 1930s as one long struggle for political legitimacy. The American government would mobilize in the Civil War, Reconstruction, the Plains wars, in struggles with organized Labor, World War I, Prohibition.

But every time this happened, there was a ratcheting back of state power, in large part because that state power was not sustained by the ideological support of large groups of the American public. And this brings us to liberalism. Often we hear the same arc in American history. From the 1860s to the 1930s, we hear this story told in terms of the Transformation of liberalism, 19th century classical liberalism, to New Deal liberalism.

Now, scholars don't really agree on how to define liberalism, but across the different variations, we do detect some family resemblances. Liberalism has a commitment to a politics for the common man, state power constrained by and directed by democratic voice and the rule of law. Some sense of the equality before the law where the individual is the legible unit of policy, a distribution of power across jurisdictions.

And a robustly protected space where civil and commercial society can flourish. Now, there are tensions between all of these values. And to a large degree, the history of liberalism could be told as a reprioritization of different aspects of liberal values depending on the circumstances. Usually we hear about modern liberalism, not New Deal Deal liberalism going into Cold War liberalism as a prioritization of the social state, of the needs of labor, of international threats, and authoritarianism abroad.

But I contend that just as important in understanding this shift in liberalism is this question of law and order. So what's law and order? Well, law and order is both the material institutional capacity of government to enforce the law and the recognition by society that this enforcement's legitimate.

We often define a modern state as an institution that has something like a legitimate monopoly on legal force. The twist in the United States is, of course, federalism, that distribution of power where the national government never really achieves full general or plenary power over every simple domestic matter.

Even questions like murder are not fully federally legible in the United States to this day. Major questions like slavery and secession were settled in the 1860s through force. But other big questions about whose enforcement legitimacy should be recognized lingered, they remained. And much of the story of the 1860s through the 1930s is this struggle for legitimacy as expressed in the struggle for law and order.

A struggle against lawlessness, which is a major theme throughout these decades. The lawless Wild West of cowboys and Indians, the lawless New South, the lawless industrializing cities. And in response to this lawlessness, different generations of liberal leaders thought that they could build law and order. but they couldn't get the support of this critical mass of people, at least sustainably.

And I just wanna mention three groups of people that end up being pretty important to this story of liberalism into the 20th century. Black Americans, White Southerners, and organized labor, or the working class. These three groups end up being totally central to the story of New Deal liberals.

And yet these three groups are among those most distrustful of enforcement power, particularly national enforcement power. Until the New Deal, reconstruction and its aftermath caused distrust among black Americans and White Southerners. And strike breaking leads much of the labor movement to distrust the central state. This crisis of legitimacy for law and order, for liberalism hit a certain peak with World War I and the Red Scare in Prohibition.

Where these ambitious state building exercises far outpace the ideological support necessary to sustain them. These state building exercises, particularly Prohibition, exposed the lawlessness of the state itself and lacked credibility. Now, after the 1929 stock market crash, after the beginning of the Great Depression, there's this rise in kidnappings and racketeering that provoke President Herbert Hoover to wage a war on crime.

But as with a number of his other policies, his war on crime isn't particularly credible. And this brings us to the election of Roosevelt and the New Deal. When Roosevelt's elected, of course, Americans are clamoring for government action to address the depression. But they're also worried about this lawlessness that has been rising and that has always been this problem.

Indeed, Roosevelt survives an assassination attempt. And there are American calls for something like dictatorial powers to deal with the gangster problem, even as many Americans are still very distrustful of state power, national enforcement authority. What Roosevelt achieves in these first two years of his presidency regarding criminal justice is it's amazing, in effect, he delivers this legitimacy.

He builds a war on crime coalition with his attorney general, seen there on the left, Homer Cummings. They transcend the divisions that had previously obstructed national consensus. They bring together conservatives and progressives, law enforcers and social workers, lawyers who oppose the New Deal but support the criminal justice policies, eugenicists and so on.

And within just a couple years, the New Deal Administration not only ends alcohol prohibition or oversees its more or less graceful end, but it establishes the largest slate of changes in the federal Criminal Code to date. Almost two dozen statutes of varying degrees of importance, some very far reaching.

They use the interstate commerce power to pursue extortionists and kidnappers. They go after automatic weapons for the first time at the federal level. They bring new power to the Bureau of Investigation. But the federal government doesn't just take on new powers on its own, it also encourages the state governments to do so as well.

And this brings me to the constitutional settlement that I call the War on Crime Constitution. And one important way to look at this is to consider federalism. Historically, federalism was a competition between national and state authority. It was a zero sum game. In the 1920s, Prohibition turned it into a negative sum game.

Because the 18th amendment of the Constitution authorizing Prohibition called on federal and state governments to share in the concurrent power to enforce Prohibition. Enforcement power had gone from the prize to be won to the liability to be dodged, as the national and state authorities blamed each other for the failures and corruption of Prohibition.

The New Deal war on crime turned this negative sum game of Prohibition era federalism into a war on crime federalism. Where the federal and state governments expanded their power in complementary rather than rivals. We can look at Prohibition of a different sort for, an example, Harry Anslinger, head of the Narcotics Bureau in the 1930s, very controversial, polarizing conservative figure.

Though the New Dealers in Anslinger agreed on the need to crack down on drugs and the constitutional innovations that they can employ to do so. In particular they went state by state, cajoling the states to ramp up their narcotics laws. And they did so in the name of international agreements, the 1931 Geneva Convention Required every single nation to crack down on narcotics.

But the national government of the United States, its hands were somewhat tied. You had to change the Constitution to go after alcohol. And so how do you go after alcohol without changing the Constitution? You get the states to do it. And yet by the late 30s something changes.

The New Dealers reciprocate. They give something back to Anslinger. New Deal constitutionalism and indeed the precedence of New Deal firearms taxation policy allow the federal government to just ban marijuana outright in 1937 with the marijuana Tax Act. And this empowers Anslinger and gives permanence to his bureau like nothing before.

Throughout the 30s the Liberals wanted to get rid of Anslinger. And yet it was the liberals that established for him this permanent.

>> Anthony Gregory: In fact here he is, 30 years after they first tried to get rid of him, hanging out with JFK. Now he wasn't the only conservative who had this near half century tenure in American life thanks to his partisan opponents.

We also have the famous J Edgar Hoover, another kind of polarizing conservative figure. But it was the New Dealers that made the FBI what we know it to be. It was Cummings and Roosevelt who encouraged J Edgar Hoover to take on new arrest and investigatory powers, to arm his men, to use political surveillance.

These were measures Hoover was hesitant to undertake. But the Roosevelt administration convinced him and he reciprocated in his own way. First, the modernized FBI waged this short term war on crime against these larger than life famous iconic gangsters and bandits John Dillinger, Bonnie and Clyde, Ma Barker. But then they created a security state that relied on this war on crime federalism.

There was this 1935 training school that the FBI set up that ingratiated them to all the police departments in the country. They also shared forensic intelligence with all the police departments and sheriff departments, in particular fingerprinting. So any police department could send in a fingerprint and they could get intelligence from across the country.

This bought the loyalty of police and sheriffs. It bought their loyalty to the FBI and to the New Deal and to the federal government. And indeed Cummings successor, Frank Murphy went further. Frank Murphy envisioned a well funded FBI to wage a two front war against both American criminals and enemies of the state.

And he elevated the FBI to become one of the core institutions in the American intelligence community alongside the Army's Military Intelligence Division and Office of Naval Intelligence. So now you had the very high echelons of the military state tethered all the way down to the local sheriff. In World War II here's a picture of what the fingerprinting database looked like before FileMaker, it took up even more space.

One last word about the FBI for now is the FBI also won the support of some of the labor movement. It was the FBI that did this by going after vigilantism, at least rhetorically. And I would contend that we see by the time we get to World War II, a very different kind of security state than we had seen.

Say, in World War I, which relied on vigilantes to implement surveillance and repression and so forth. I'm going to talk now about liberalism, both in a kind of ideological sense and kind of a political coalitional sense. One of the somewhat overlooked legacies of the New Deal has to do with incarceration.

In both quantitative and qualitative terms, the New Deal government vastly expanded the detention state, or what some scholars today call the carceral state. The per capita incarceration rate reached a peak in 1939, not seen again until 1979. The New Deal welfare state was directly involved in building and renovating prisons and jails across the country.

The Works Progress Administration, you can't get more iconically New Deal than that. They were involved in about 760 such detention facilities. In qualitative terms, it was also Cummings and the Roosevelt administration that came up with this idea of Alcatraz, just not so far from here, this idea of a federal maximum security penitentiary.

That was a New Deal innovation. And the idea was, here you put prisoners that are irredeemable. They use such language. But while the New Dealers pursued an unforgiving model of punishment with Alcatraz, they also pursued an unprecedented federal support for rehabilitation. The WPA, while it was building those jails, worked with the Justice Department to survey parole and probation processes across the countries.

Bringing legitimacy to the state governments and winning legitimacy themselves with the aim of defending rehabilitation against a conservative backlash. Survey of release procedures they surveyed. They personally visited 82 prisons to do this. So, today's kind of prison reformers tend to think about incarceration and rehabilitation as competing approaches to crime.

But the New Dealers, they wanted it all. They wanted to use all the levers of state power to holistically see crime as something that could be approached in every way possible. And we can also look to their criminology, New Deal criminology as another example of this. The New Deal government elevated academic criminology like nothing before it.

First there was Raymond Moley, he was one of the main architects of the New Deal. Later famously turned against the New Deal. His papers are here at the Hoover Institution library and archives. And in the early 30s, in the first couple years of the New Deal, Raymond Moley undertakes this major criminological study.

Then, after him, we have Justin Miller, he's the dean of Duke Law School. Cummings taps him to head up this initiative with the hopes of creating a Bureau of Crime Prevention. Now, crime prevention was not a new idea. In the Progressive Era it tended to refer to juvenile programs where social workers would try to deter young Americans from a life of crime.

But under the New Deal, crime prevention became a much more capacious, radical, at times even revolutionary idea. Both more progressive and more repressive. Crime prevention came to mean anything that could prevent crime in any way. Miller sends out 1800 requests for information from everyone that could conceivably have something to say.

The Boy Scouts, eugenics groups, social welfare agencies, police departments, anyone who's involved in law enforcement, in governance, in welfare, in children, any of it. And by the late 30s, New Deal criminology and crime prevention moves to the Treasury Department, the Social Security Act Creates this committee within the Treasury Department where they start talking about crime prevention as anything that would prevent crime.

It gets to be such a capacious, never ending idea that by the end they propose perhaps we should put all the prisons under a new department of welfare. That we should completely marry the welfare state and the prison state. This does not happen. But it just shows that the more idealistic new deal criminology became, the more repressive became its proposals.

Now, this combination of repression and progressive ideas, this isn't the only what some would call a paradox or tension in 20th century liberalism. When we look at coalitions, perhaps the biggest puzzle and one of the most important questions in how the 20th century liberal state was built is how do you get this coalition that simultaneously maintains the support of most white southerners.

Especially the most socially and racially reactionary white southerners and black Americans. The white southerners had been part of the democratic base more or less since the collapse of the Antebellum Whig party. But black Americans moved from the party of Rose of Lincoln to the party of Roosevelt from 32 to 36, and then even more so after that.

One way to look at this is this is the Roosevelt administration maintaining the spirit of reunion while revitalizing the promise of Reconstruction. When historians talk about reunion, they're talking about this progressive era detente between the elites, the white elites in north and South. A shared understanding with eugenics, with imperialist ideas, with a revisionist approach to the civil war and reconstruction.

That downplays their racial importance with the elevation of the southern segregationist Democrat Woodrow Wilson, to the pantheon of respectable progressivism. So the spirit of reunion continues into the 30s and a little bit beyond. But at the same time, the Roosevelt administration brings back these promises of Reconstruction. How does it do it?

Well, historians usually focus on welfare policy, labor policy, of course, but I contend law and order was also important. Law and order and federalism and liberalism regarding crime and punishment were in flux such that these two groups could project conflicting hopes onto the future of the new deal state as they work together in the present to build that state.

So, for example, at the end of 34, Cummings hosts this major crime conference, everyone's there. Progressives, conservatives, practitioners, prohibitionists, anti prohibitionists. It's this real kumbaya moment over crime fighting a real mutual admiration society kind of moment. Everyone's there, Anslinger, J Edgar Hoover, you get the idea. But conspicuous in its absence is much talk about lynching, which black Americans understandably regarded as a very pressing example of crime, of lawlessness.

And because of this, this crime conference was picketed by the NAACP and fellow travelers. They were especially angry because of a particularly gruesome lynching of Claude Neal, in October, Niall had been accused of rape and murder in Florida. Sheriff took him to Alabama to protect him, where a mob seized him and brought him back to Florida, where he was tortured for about 12 hours and murdered.

This was such a gruesome lynching that even racist supporters of rough justice found it horrifying. And here's an example of a headline to kind of get at that balance between believing in law and order and being horrified by the lynching. Lynching put off for Fear off Disorder, Mob asks Crowd to Depart so it might Kill Negro in Peace.

So even a lot of kind of pro lynching people were starting to turn against it. But Cummings and Roosevelt did not act. They did not establish a federal lynching law. The NAACP said, why don't you just use interstate kidnapping statutes? If you can't kidnap someone and take them across state lines, why doesn't that apply here?

But Cummings was not moved. So the spirit of reunion is alive and well. And indeed, Senator Hugo Black is one example of a Democrat who from Alabama, he blocks a federal lynching law and eventually Roosevelt puts him on the Supreme Court. But the spirit of reconstruction is also getting these new kind of revitalized flashes of hope.

In 1936, Cummings prosecutes a man, Paul Petra, in Arkansas for the crime of slavery, for tricking local officials into allowing him to force black men to work his land, which is slavery. And he calls this a victory for law and order, as do many black Americans, civil rights activists and so forth.

And so by the time you get to the late 30s, these groups with very different expectations of what law and order might mean ten, 20 years from now, are working together to build the New Deal state. I think it's a crucial part of, of this strange puzzle in the coalitional history.

Now, in the longer term, the New Deal coalition collapses. The FBI starts investigating lynching in the 40s, and ultimately, of course, we have the civil rights enforcement by the FBI, among other federal officials and so forth. In the 60s and 70s, the New Deal coalition basically collapses. But the war on crime coalition continues to be important.

In the late 20th century, some of the most consequential bipartisan measures are in furtherance of the war on crime. But in the 21st century, even that seems to have kind of collapsed or fallen apart. And this brings me to our current predicament. I'm only gonna say a few things about this, and we could talk more about it if you like.

I don't know if any of you have noticed, but America has some problems right now. America's suffering, I would contend, a bit of a crisis in legitimacy, liberalism and law and order. I'd say that this distrust in institutions that we see on left and right is very clear when it comes to law and order.

And I'd say it's also tied up with this impatience with some of the core values of liberalism that many of us have taken for granted. It's interesting. There's a scramble in the politics of law and order today, isn't there? Conservatives and Republicans distrust the FBI of. Of course, Democrats distrust the local police.

We don't have to belabor the point too much or get into too many contentious specifics to note that the kind of 2020 Democratic politics about police culminates, interestingly, with the election of Joe Biden, who would been a main proponent of the crime bill. And prosecutor Kamala Harris, who had been knocked out of the primaries by Tulsi Gabbard for being too hard on marijuana.

And I would just suggest, very gently, that the Republicans also have an uneasy relationship with law and order. But I think this is all actually bound together, and we can look at this in a pessimistic way. We could look at it in a more hopeful way, and we can also think about some of the broader principles that I think this should bring us back to.

The pessimistic way to look at this is, a lot of people want to look back for these historical analogies is are we heading into an era like the 1960s, right? And I fear that it might be worse than that, but I don't think it's going to be as bad as the 1860s.

So I'd say perhaps, and it's a very imperfect analogy. It's an imperfect analogy, because now the US government has nuclear weapons. There's a lot of things that have changed since my period, right? But I think the really relevant decades that we got to consider are between the 1870s and the 1930s, which was this period of crisis for liberalism, for legitimacy, widespread institutional distrust, no sustained politics on left and right or among the different parties behind this, no sustained mobilization or energy or stability.

And that period left a lot to be desired when it came to ideological dislocations and certainly lawlessness. It was a very lawless, violent time and corrupt time. The more hopeful way to look at this is that the scrambled law and order offers an opportunity where you see bipartisan support for thinking outside the box, so to speak.

We see this certainly with the First Step Act that Trump signed. We see it with the fact that both Trump and Kamala Harris now think that Roosevelt's marijuana prohibition experiment. It's time to perhaps put that to a close. It's nice to see both parties come against at least one element of the new deal.

And we can think maybe that there's hope that we'll learn. Last time when they ended alcohol prohibition, they launched drug prohibition, which in the long term, I would say, was at least as harmful in some ways, maybe more. Hopefully, as we figure out what to do about fentanyl and opiate crisis, we don't just exchange one purely punitive approach for another.

The kind of cautionary points I want to raise, though, are these. The solidarity that the new deal war on crime that I argue helped produce the stable and more liberal security state by. It came at a cost like everything does, came with trade-offs. There was a sense in which the liberal security state of the late 30s and the 1940s was a more inclusive vision where political dissent really was tolerated more than in World War I or in the Red Scare.

Where the idea of socio-economic class or even race was starting to be less of the way that Americans divide themselves. There was a kind of an expansion of the circle of those who were included. And kind of a formalizing and hardening of the boundary between what was acceptable and what was not.

And we see some of the collateral damage in that hardening when we think of Japanese internment, for example. But in the long run, that inclusiveness probably is the way we should think about the mid 20th century, that move toward inclusion. But that hardening is something we have to consider, the common enemy, who's it gonna be that brings America together if that happens?

And the last cautionary note is, it always required this balancing act, right? Between illiberal overreach, illiberal repression, and allowing lawlessness both within and without institutions. And we could look at this election, or we could look at the voices on left and right, or we could look at whoever is promoting policy and say, are they striking this balance?

But I think that that's really where we have to start. We have to understand that this is a difficult navigation, that there's this question of the relationship between American liberty and freedom and the coercive edge of the state. It's always been fraught, but it's always been there. And we can't look away.

The modern liberal state had no immaculate conception. It arose from a period of lawlessness and repression with the goal of harnessing and refining and reforming state power. And indeed, looking back, I'd say that all the great movements of the 20th century understood this fraught connection between state violence, state power and freedom.

No consequential form of liberalism can wash its hands of the hard choices in building law and order, and neither can we.

>> Niall Ferguson: Days at this point, I would improvise some amateurish opening question, but we've reformed ourselves and now have an expert commentator. And so I'm going to hand it over immediately to David Kennedy.

>> David Kennedy: Thank you, Niall. I'm really delighted and honored to be part of this discussion with the Applied History Working Group. And it's my first such engagement, I hope not the last. So I salute Niall as the group's prima mobile and Joseph Lidford as the ongoing high pan general of this initiative.

And I'm no less honored to be asked to comment on Anthony Gregory's New Deal Law and Order, which is a refreshingly provocative piece of scholarship from which I learned much, and to which, or more properly, to the author, of which I want to address a few questions. Now, the book's overall argument has just been very adequately summarized here, I think.

It's a very robust argument, and I'm gonna suggest that maybe it's just a touch too robust, but I'll get to, To that in a moment. The most solid achievement of the book as I read it, is the very careful way it documents the consolidation and strengthening of the federal law enforcement apparatus in the New Deal 1930.

Developments, as we just heard, included bringing a measure of resolution to long running tensions between the Treasury Department and the Justice Department. Concerning their respective jurisdictions, not to mention their respective budgets. The book also documents, as have others, the growing muscularity of J Edgar Hoover's FBI in this period.

And along the way, it also documents, I think, quite realistic appreciation of the ways that new types of crimes, interstate fugitivism and kidnapping being prime examples that you dwell on at some length. These new types of crimes compel the expanding scope of nationalized law enforcement. And arguably, most provocatively, the book addresses the way that New Deal reforms both conferred legitimacy on a national law enforcement system.

That had been badly discredited in the antecedent prohibition, the era. Even while, as we've just heard at some length, while only modestly confronting the outrageously rampant flouting of federal norm statutes and constitutional principles, with respect to racial issues. Throughout the long Jim Crow era that stretched the end of reconstruction to the so called second reconstruction in the 1960s, nearly a century later.

So, framing the New Deal story as a kind of a catharsis, or at least a cadence in that long arc of the history of criminal justice or ineffective federal enforcement of justice, is among the many virtues of this book. But, it's about the book's claims for the consequences and broader implications of law enforcement reforms that I wanna address my principal comments.

The book variously declares, here I'll quote briefly a few passages, that New Deal crime policies quote, delivered legitimacy to national enforcement authority. Including economic reforms that are more familiar staple items in 1930s historiography. That's at page three. Page four, we read that the modern liberal state, that would define the 20th century, with his unity of welfare liberalism, carceral repression and national security regimentation arose largely from the crucible of Roosevelt's anti-crime campaign.

Page 97, Roosevelt's war on crime coalition quote set the trajectory for the American liberal state. And page 262, it was the New Deal experimentation with fighting crime that provided the bridge between the welfare state and the security state. Now, those kinds of statements constitute in the aggregate, I think a very large claim, for the broader historical role of crime fighting in the 1930s and thereafter.

Now, I surely understand the author's desire to amplify the importance of what might otherwise be regarded as a monographic scale study. And I strongly commend the instinct to look for dots that need connecting in ways they haven't been connected before. But I'm obliged to observe that in this case, I think the core argument is carried more by assertion than by evidence.

If there was some kind of grand strategic vision to advance Social Security, the Securities and Exchange Commission. The creation of the Federal Deposit Insurance Corporation, and the Federal Housing Authority, the Wagner Act and other landmark New Deal initiatives, by somehow associating them with criminal justice reform. We simply don't see a convincing documentary record of those connections.

Similarly, if the unobjectionably plausible argument is that public opinion was conditioned by the alleged success of federal law enforcement, to acknowledge the legitimacy of innovative federal initiatives such as the ones I've just mentioned. Neither do we see in this work, at least, convincing polling data to support that claim.

Now, to be sure, and here I think the book is on very solid ground. Among the historical challenges facing Roosevelt and the new dealers, was establishing the legitimacy of a more active interventionist state. Among a people whom Edmund Burke had long before characterized as devotees of descent, hyper-wary of all central power, and embracing what Burke called the Protestantism of the Protestant religion.

Though despite the originality of this book's argument along the dimension of law enforcement. I remain unpersuaded that crime fighting was a deliberately conceived or indispensable element in confronting that larger challenge of legitimacy with respect to all kinds of other reforms in the New Deal era. Now, I have a further query along these lines.

And that is that, as noted in the passages I just cited, the book repeatedly invokes a characterization, post war or post New Deal American state as liberal. And indeed, in the last 30 minutes we've heard the word liberal pronounced many times right here in this room. So, let's set aside for the moment whether that's an adequate or broadly accepted characterization of the political order of the last eight decades.

Let's just focus for the time being on that seven letter adjective, liberal, and this ten letter cognate, liberalism. Those words are called upon in this book to do a lot of heavy lifting, but their precise meaning to this reader, at least, is not at all clear. As early as we've just heard from the author that it's a contested concept, and I think it surely is.

So, as early as page three, American liberalism is defined as quote, a political program seeking to balance freedom and social needs in pursuit of democratic stability. Now, for my taste, that's just a tad too generic to distinguish liberalism from many other ideological positions. A few pages later, the author acknowledges that liberalism is a thorny concept, that's your language.

Apparently, its very spinous character facilitates its all-purpose application in a variety of contexts. We hear about gilded age liberalism at page 22, national liberalism at page 24, industrialism at page 32, to cite just a handful of examples. So here's the question, and I think this goes close to the heart of the matter that you're trying to argue in the book.

Why is that term, liberal, liberalism, adduced at all in this account? Does it add any analytic depth, or narrative coherence, or explanatory power to the account? If an AI or chatbot editor excised every instance of the term in this book, would the basic argument lose or gain value?

So I think, frankly, that judicious application of Occam's razor might be appropriate here. Specifically, it seems to me much more plausible to argue that it was their address to real, substantive social and economic needs. As well as the lived experience of the reforms the New Deal put in place, that amply demonstrated over time their utility and benefit, and thus earned them legitimacy.

There's no need to search for abscondite mechanisms when concrete ones are in plain sight. I'm glad to add this as a footnote to this, or a sidebar talking about transformation of the New Deal coalition in the South. I'm reminded of a remark of Andrew Young's, former mayor of Atlanta, UN ambassador, prominent Figure in the civil rights movement who said, we should properly identify the origins of the civil rights movement of the 1960s in the 1933 Tennessee Valley Authority legislation.

That it was the economic modernization of the south, which was a New Deal initiative. It is the most powerful driver of what becomes the civil rights movement three decades later. All right, one other line of inquiry. In the same paragraph where we see the first definition of liberalism cited above, we also read that the New Deal crime fighting policies alter liberalism and federalism.

And indeed you put up federalism as one of your major themes on the screen just a moment ago. So, I've already had my say about the utility of the term liberalism in the general argument. So let me just conclude with a few thoughts about federalism. Here, I think the book New Deal Law and Order is on firmer ground than when it ventures into the swampy territory of political philosophies and grand historical consequences.

As already noted, I think the book does an excellent job of chronicling the institutional and statutory innovations of the 1930s that address the historical relation between federal and state power. Particularly in the crime fighting dimension. But here the argument proceeds on another dimension altogether, not so much dealing with abstractions like liberalism and legitimacy.

But with solid institutional architectures and case law jurisprudence, all to the good. But I have one cavil of lesser valence than my already declared reservations about the larger argument of the book in terms of the business of legitimacy. But this is worth mentioning nonetheless. And here we encroach on the subject matter of another recent Hoover undertaking on the subject matter of American Federalism Today.

Results of which were published earlier this year under just that title, here's the book. And I apologize that I didn't bring a projectable version of this, but I'll show it to you. Take a look.

>> Anthony Gregory: Okay.

>> David Kennedy: Even a cursory read of this book will confirm that the several authors in that volume share no agreed definition of the modern American state or political order, liberal or otherwise.

But with specific reference to federal state relations across a whole series of dimensions. There is broad agreement in this volume on the accuracy of a now notorious trope of political scientist, Morton Grodzins. When he distinguished between what he called layer cake federalism and marble cake federalism. And there's an illustration here in the book that, again, I apologize, I didn't make provision to project it.

Layer cake federalism is the kind of classic understanding of the division between federal and state responsibilities stipulated to a certain extent in the Constitution. And Grodzins' argument was that layer cake federalism is, you use the term zero-sum game, expanding federal power means diminishing state power, and so on.

Grodzins' argument was that that concept is obsolete. And marble cake federalism means that federal and state power interdigitated and mixed up with one another in truly consequential ways. And indeed, this book and the presentation we just heard documents there. Nonetheless, I think readers of this book might be forgiven for concluding that the 1930s saw a layer cake kind of concept coming to realization.

That we see here a definitive and permanent shift of law enforcement authority, as well as other functions from state to federal agencies. The equivalent to exploit grunts metaphor of expanding the chocolate layer and shrinking the vanilla layer, or the zero-sum model you discussed. And again, in your oral presentation just now, I think you addressed this finally.

But I do think that you could misread it in the book as another documentation of the expansion of federal power at the expense of state power. I don't think that's the case, I think you probably agree. So, the reality is much more complicated about all kinds of authority and power, not just with respect to crime fighting.

That's federal and state power have both enlarged synchronously and interconnectedly. Not in a manner that has diminished the power of one and enlarged the power of the other, but in general across both the federal and state dimensions. We see in the last century or so the expansion of state capacity to do all kinds of different things, including crime fighting.

Which is why another recent author, who is cited in this book, in fact not an author in the book, but he cited in it Richard Nathan, another political scientist. Has somewhat puckishly declared, as the title of an article, there will always be a new federalism. It's an ongoing debate about the relation of these two sovereign concepts.

And in short, that story is surely not over. But thank you for a really provocative book.

>> Niall Ferguson: Thanks very much, David. I guess I have distilled this into three questions that you might want to respond to Anthony. First, was there really a conscious attempt to legitimize New Deal institutions by linking them to more effective criminal justice?

Correct me, David, if I get this wrong. Second, do you actually need the words liberal and liberalism in the book? Could the argument survive without them with a more pragmatic explanatory framework? And finally, are you taking us back to layer cake federalism, a phrase that was previously unknown to me, but which has made me feel strangely hungry?

>> Anthony Gregory: Well, thank you, those are all excellent, I think very fair criticisms on the kind of deliberate nature of this project of legitimating the national government. And the stronger claims I make, and how much this project was either conscious or it was as clear cut. Polling data of course, I wish, as you know, it really starts to kick off in the later 30s, I wish I could find more polling data.

The little bits where I am able to get a sense of public opinion are a little more qualitative. Or you have those polls, the newspapers published that Herbert Hoover collects. That suggests that right next to depression, the second biggest issue in 32 is prohibition. Now, that doesn't prove everything I suggest about the relationship between law and order, and legitimacy and the national project, but it's suggestive of something.

And it is true I try to kind of implicitly make this case. I think I can make the case that Roosevelt, and Homer Cummings, and others saw themselves deliberately as transforming liberals. They saw themselves in this time in the history of liberalism, and they said liberalism needs to be updated, right?

And we often think about this in terms of the economic. But for Cummings, he made the case over and over that the Constitution, that law and order, that it was all part of a piece for him. And Cummings, was one of the New Dealers most central legal minds when it came to New Deal constitutionalism, as well as law and order.

And I think that it was deliberate for him, not so much are we trying to legitimate the state, create a modern state that in the forties is gonna look very different and is it going to entail all of these changes and liberal, wasn't quite that explicit? And to the extent that it could be read that way, that my argument could be read that way, I perhaps could have been more careful.

But it is the case that just as they thought they were building a new kind of state, but within the parameters of liberalism, and that they really saw that there was a threat to liberalism, that there was a threat that came in the possibility that they would go too far, that there were people demanding economic fascism for political economy.

They recognize this too, when it came to the clamoring for martial law. They recognized this as citizens were writing to them saying, why don't we just summarily execute people that are either found to have illegal guns or whatnot? And they say, we can't go that far. And I think that their deliberate understanding of their place in the transformation of liberalism regarding the economy and their understanding of where they stood in the historical transformation of law and order were not mere coincidence.

And especially for those who are most directly involved in both. I do think that the importance of liberalism in understanding the relationship between Americans and the state that grows and maintains legitimacy is very important. And I also think that law and order is very important to that picture.

But I concede that there it wasn't like there was a referendum, we're going to vote for Roosevelt because he's changing. And I'm not trying to caricature what your critique, but I concede that it was quite a distance from that. There is a large degree to which the, they didn't realize how much they were transforming the state either.

That world War II and the Cold War, of course, they transformed the state in material terms beyond what they could have imagined really in the early and mid 1930s. And yet what they did deliberately undertake to do, I think, was essential, that the cultural changes, that the changes in ideology, that the relationship between ideology and institutions made the World War II security state more sustainable.

And I do stand by that argument on the relationship between the economic and law and order. I think that too deserves more fleshing out. Layer cake federalism. That also speaks to an oversimplification in my presentation at least. I'd say that oversimplification does appear here and there in the book.

But I think that overall I would agree that a kind of cooperative federalism was always important to the american state, and indeed, even in the early republic, even in the early national period. And this is something that I totally agree that the zero sum game is a caricature.

On the other hand, I think that there's almost more to that zero sum game after the civil war and until about World War I than there was before or after. But at this point, I am kind of going beyond what the book gets into. But it's been something I've been thinking about just in the last few months, this cooperative federalism, and it's in a more nuanced appreciation.

So I do appreciate all that.

>> David Kennedy: It's surely the case that the post reconstruction period gave the concept of states rights a very bad name, and it's pretty hard to reverse that judgment. That was a terrible period when conceding a lot of authority, the states made the terms of life very violently difficult for a lot of American citizens having to be black.

>> Anthony Gregory: Right, and I also think that liberalism really is important in understanding the tension between favoring an activist national government that will undo state level oppression and deciding when to allow state government to have more flexibility, both for prudential reasons but also for reasons of sustainability and the greater hope for an American liberal order.

>> Niall Ferguson: Well, this has been a fascinating discussion. I now wish to open it up not only to the people in the room, but also the people who are online. But we'll go to the people in the room first. I see Andrew Roberts, I see Barry Strauss. And I see Stephen Kotkin, maybe, and Tom Weber, and Lucy and Daniels will maybe do five in a row so we can group questions together.

We'll get more questions that but I urge you all to ask questions rather than to give speeches, especially, address this to Lord Roberts, who's in the habit.

>> Niall Ferguson: Of speeches in the House of Lords, we're not there now. Andrew, why don't you go first, then Barry.

>> Andrew Roberts: My Lords.

>> Andrew Roberts: There's only two Lords here.

>> Andrew Roberts: I ain't no Lord.

>> Andrew Roberts: The Lindbergh baby case, how important was that in the whole process?

>> Anthony Gregory: So Herbert Hoover signs the Lindbergh kidnapping law, as it's come to be known, and then it gets kind of updated shortly thereafter. And I would say it's central to the public's understanding.

It's such a sensational, horrific thing. And kidnapping in general is on the rise in the early thirties, in part because there's an overlap in the technologies and bootlegging and if you can hide liquor, you can hide a person. And kidnapping becomes crucial in itself because it, I'm sorry, I was supposed to let five.

>> Niall Ferguson: That's fine, go. We'll just interrupt you if you go and get along.

>> Anthony Gregory: Okay, kidnapping was an example of a crime where Americans thought, wow, anyone can be affected. The criminal can come from anywhere. It's not just the cities. It's not just the south or the northeast.

It's the middle of America. It's everywhere, It's a middle class problem, as it increasingly became. And the Lindbergh kidnapping case was, of course, crucial for policy reasons and for cultural reasons.

>> Niall Ferguson: Thank you, Barry Strauss.

>> Barry Strauss: Yeah, thanks, I wanted to ask about the comparative dimension compared to other western democracies at the time.

How serious was crime in the United States in the 1930s? And how effective was the American government in fighting crime?

>> Niall Ferguson: Do you want to go for it? We'll do them one by one. Quite well.

>> Anthony Gregory: Okay.

>> Niall Ferguson: Easier to keep track. It's easier for you.

>> Anthony Gregory: I'm not absolutely sure which western democracies especially had more or less crime.

I do know that Americans often regarded the United States as particularly dangerous and crime infested by international standards. And one of the, quote, I named one chapter the most lawless nation because this, you see this phrase come up, we're the most lawless nation. My sense is that indeed the United States had more crime of very sorts.

And I don't know how much I want to ascribe the fall in crime through the thirties to federal policy. I'm uncomfortable making that judgment about causation, but federal. But the thirties do see a major drop in violence of all sorts of crime, reported crime of most sorts, murder, property crime, lynching, goes from being surging in the early thirties to dropping off to almost nothing by the end of the decade.

And they definitely took credit for it while still saying this only proves we need even bigger budgets. Lord Kotkin.

>> Stephen Kotkin: How improbable is that, unbelievable. That would be the end of the House of Lords before I got into it, although you can always hope so.

>> Stephen Kotkin: The liberalism conversation eluded me.

I've been at a lot of New Deal stuff, not on this level, on different levels. Kind of the Gary Gerstl level, let's call it that. And the arguments are usually they didn't do it. Well, if they did do it, they didn't mean it. And if they meant it, it doesn't matter because we don't really know what liberalism is.

And somehow they rescue themselves every time, but here we have a problem. They put everybody in jail or they tried to put everybody in jail, or they built a lot of jails, or they put the WPA's name on the jail, and I could go on. So how do we reconcile these tendencies here?

On the one hand, the New Deal is about the SEC and all the things that you enumerated, which I read about in your book. But on the other hand, the New Deal is about the fact that they built the jails and they incarcerated the people and they built a coalition somehow on that basis.

So I'm puzzled now how to reconcile this problem. I understand that things are hard to define. I mean, I've been 40 years on communism now, so you can't tell me that things are not amorphous and definitions are not problematic. And do we really know what communism is, and I get that, and it's legitimate conversation up to a point.

But then up to another point you have a political coalition, you got a political trajectory, you got things that happen in real life. And I'm looking at this and I'm thinking I have to incorporate this into liberalism somehow, so I need help here. It's not my subject, I study illiberalism.

Maybe it is my subject, if you see what I'm saying, right? So how do I reconcile, help me hear my limitations in whether it legitimizes the New Deal or not, that was your critique. And I can understand that they don't want it to legitimize the New Deal necessarily.

Maybe they wanna legitimize the New Deal with other strategies. And so I get that that maybe he overreached with the legitimacy issue. But does he overreach with the coalition issue, does he overreach with the prison building issue, does he overreach with the incarceration stuff, where's the reconciliation in the argument here?

Anyway, primitive, but then again, you know me.

>> Niall Ferguson: I take this to be directed more of Professor Kennedy.

>> David Kennedy: Well, Stephen, I have to say in all honesty, if the idea of liberalism you find elusive, I find your comment elusive. Can you boil it down to a sentence or two?

>> Stephen Kotkin: Yeah, so people are worried to delegitimize liberalism. And so if liberalism is about southern racist Democrats going into coalition to get Roosevelt's legislation passed, let's call that Ira Katz Nelson. That's problematic and hard to assimilate because it's kind of against our vision of the New Deal in some ways.

Even though we all know that Ira is not a flaming right winger and that the book is empirically very solid, at least that's been my impression. And so now we have yet another problem for the New Deal to manage, which is the jailing of a lot of people.

Now this law and order could be seen as a positive, but you seem to be pushing back on the idea that they used law and order as a positive to legitimate their enterprise, that it was just stuff that happened. In other words, it was events driven, it was specific circumstances driven.

It wasn't a vision, it wasn't a legitimation of the New Deal. And so I have this coincidence that I get the New Deal and that I get his empirical reality at the same time, and I need to reconcile that.

>> David Kennedy: I'll take a stab at responding, but I think you ought to take some as well.

I'll offer my own rough and ready definition of liberalism, okay? This is a starting point of this part of the discussion, certainly for the last, since the 1930s. Term, I think, generally means something that has to do with the expansion of state power capacity, whether at the federal or the state level.

So it's more government, okay, that's a pretty rough and ready definition of what I think liberalism means in operational terms. There's no very little argument that state power expanded in the 1930s, that there is a meaning to the idea of the New Deal state, it's different from the antecedent state.

My cavil with the book is law enforcement and the federal initiatives in that sphere. Is that somehow determinative of results in other spheres or just another instance of the expansion of state capacity across a whole range of terms of life, the economy and so on. And let me add something to that, let me stick with this part of the discussion to some of the landmark institutional innovations of the New Deal.

Take Social Security, Securities and Exchange Commission, federal housing authority. Each of these dimensions, state power, expands Social Security. Don't forget there are two titles, one's about unemployment, the other's about security. Securities and Exchange Commission comes into being, didn't exist before, and the Federal Housing Authority builds the sunbelt in suburbia in the post World War II there, okay?

In each of these areas, I believe what's remarkable if, when you really look closely, what happened is how carefully and minimally. These institutions expanded state power, Social Security, at least the old age pension. Part of it is for all practical purposes, a government run private insurance scheme. But it's private insurance into which the beneficiaries pay and their employers pay.

Securities and Exchange Commission, there's no nationalization of industry in the United States. When you ask the comparative question, a lot of other societies beset by the Great Depression, there's nationalization, especially in European societies of key industries. Nothing like it in the United States. And the SEC comes into being not to throttle markets, to perfect them by making all parties.

The transactions of the securities exchanges provide reliable information verified by external parties. Federal Housing Authority, again, the Keynesian doctrine for a company in the depression was to expand state power by building municipal council housing as Lord Roberts knows, in the UK. Nothing comparable in the United States. I think the maximum number, percentage of people in the United States who ever live in public housing is about one or 2% in the UK before Margaret Thatcher was 30, 40%, maybe even more.

Nothing like it. What does the FHA do? It stabilizes credit markets so that private lenders can build private homes. So in each of these dimensions, yes, there's an expansion of state power, but it's, on close examination, it's remarkable for its modesty and its restraint. That's not the reputation that the new deal has out there in the arenas of public or political discourse.

But that's the case, I think. Crime control, crime fighting has some similar characteristics. Yes, there's a lot of expansion of federal capacity, but along with it as well, an expansion of state capacity.

>> Anthony Gregory: Well, I think you've convinced me that I conceded too much to you earlier, because-

>> Anthony Gregory: If we define liberalism as the expansion of the state, up to a point where you're kind of getting a lot of bang for your buck. It's kind of like your chapter in Freedom from Fear, where you go through everything, the New Deal, and you're like, what the New Deal actually do?

And you're kind of modest about it. You said, did it solve the depression? No, it's a culture. You get a lot of cultural bang for the buck, social bang for the buck, and law and order, you get that too. If you arm the feds. That's consequential and doesn't cost much.

Indeed, through the thirties, what's amazing about doing the archival work is how the late thirties, early thirties, they look kind of the same in terms of the people at top. They're scrutinizing every last dollar. The forties blows that up, right? So I'd say that it can't just be the expansion of state power.

It has to be expansion of state power in a way that simultaneously prioritizes this promise of kind of a humanitarian, more collectivist notion than the classical liberal era. But still values the individual. That frames social welfare as social insurance. That doesn't use vigilantism. That moves away from the associationalism of the progressive version of liberalism.

And I think that in all of these ways, not only was the law and order liberalism of the thirties just another example, but it's crucial cuz we're talking about the power of the state to enforce the law. If after World War Two the feds came and said, you can't commit this lynching, and they were just run away like they were through the gilded age, then you couldn't have the modern liberal state.

So I do still concede that there's more work to be done. Someone needs to take this and write another book. But I think liberalism isn't just the expansion of state power, it's the expansion of state power that's not as illiberal as all the other forms of state power expansion in the 20th century.

>> Niall Ferguson: I'm quite glad Tom Weber's here cuz I sense another comparative perspective is incoming.

>> Thomas Weber: You might well be right on that. I also have a question about the relationship with liberalism, cuz around the same time that Roosevelt embarks on his war on crime, of course, Hitler comes to power and also embarks on a war on crime to build what you might call the modern illiberal state.

If you look at the rhetoric rather than the reality between what's happening in Aussie Germany and in America, I think you will see that things are remarkably similar. If you read, for instance, newspaper articles and magazine articles about the new concentration camp system in 1933, you would probably find extremely similar language around rehabilitation and so on.

So where does this leave us for the relationship between your war on crime and liberal if the same narrative, and even about a new policy framework, is used both to build this modern liberal state as well as the quintessential modern illiberal state? Are you saying there is still something intrinsic in the relationship between this war on crime and liberalism?

Or are you saying that this war of crime can be used to strengthen both kinds of states and boost their legitimacy?

>> Anthony Gregory: Domestic, thank you very much. Domestic wars make the domestic state, to paraphrase Charles Tilley, and vice versa. Germany was a unitary state. So that's one reason federalism so important to the american story.

>> Niall Ferguson: But it wasn't. But it wasn't at all. It was a federal state. That's what Hitler destroyed was the federal system.

>> Anthony Gregory: I'm sorry, I meant this vision. The centralization, I think, was more complete, and it was certainly without the rhetoric of individualism. I think that the justification in thirties Germany.

>> Thomas Weber: Well, I mean, at least until 1933, Germany was a quintessential federal state. And obviously Hitler wanted to destroy, as Niall just said, the federal state that evolved over a period of several months in 1933.

>> Niall Ferguson: I mean, I think the interesting thing is that, and this goes to this question that Stephen raised, what happens in Germany is that precisely the same concerns about lawlessness exactly lead to a completely illiberal outcome in which Hitler is able to destroy federalism, destroy the rule of law, and create a system of incarceration that finally culminates in the death camps.

And that's why liberalism does play a part in your argument, because it's the thing that restrains even J Edgar Hoover. I mean, the restraints are much more potent in the United States. If you're preoccupied with lawlessness, as people in Germany were, and they're in the midst of the equally bad economic crisis, the only crisis is as bad as the American one, then you're prepared to go into very extreme lengths.

I agree with Tom. The rhetoric is very similar in 33 in the US and in Germany, but the outcomes in Germany are radically more violent.

>> Stephen Kotkin: We just saved the new deal because it's not Nazi Germany. Exactly, that's the point I was trying to make. I got a war on crime too, by the way, which I didn't bring up, and I got a gulag archipelago.

Carceral state.

>> Stephen Kotkin: Yeah, so.

>> Anthony Gregory: This is for us.

>> Stephen Kotkin: That's why I was probing.

>> Anthony Gregory: This is what interesting about the US.

>> Stephen Kotkin: And that's his really important point about what the limits of the New Deal reach or aspiration were, right? So that's why I was probing on that question, because that is one of the critical things that you get many things out of that book.

I don't want to reduce it to just this, but you get a sense in which it was not everything and anything. It couldn't overreach to everywhere even if it wanted to. And yet there are these, let's just call them aspirations or inclinations or tendencies to go for broke.

I mean, we see it in the Democratic Party, there's a wing of the Democratic Party that interprets the New Deal differently from how you interpret, right? But this problem of war on crime can get illiberal and are you talking about illiberal or are you talking. I think that's a more fruitful conversation than about the specific definition of the liberal, because war on crime, illiberal, you could make that argument potentially with some of the empirics of your story.

>> Anthony Gregory: Yeah, and I'm sorry, I didn't mean to flatten the entire 1930s German story, but I do think that by the end of the decade, you see something like a war on crime in much of the world, just as you see collectivization of the economy and much of the world.

But the American experience, we judge the New Deal as liberal kind of on the curve in all of these respects, as well as its wartime conduct. We kinda gray it on the curve. We kind of have to define liberalism in part by what we know is illiberal. And I think the Roosevelt administration saw it that way as well.

But I do take the point that there's these illiberal wars on crime as well, and that there's a divergence, because of course, Americans have been going to Prussia to learn about the security state and the welfare state in the late 19th century. And in fact, in the early 30s, some of these police reformers in America are like, what Hitler's doing, it might have some implications for what we're doing, but we're not comfortable about this or that.

But then by the late 30s, the divergence is very obvious.

>> Niall Ferguson: Lucian is next.

>> Lucian Staiano-Daniels: I think this addresses both Professor Kennedy and Professor Gregory, and I think that if we get to it, we might address what we've been sort of dancing around for the past hour, which is that the kernel of Professor Gregory's argument is that conservatives, black Americans, white Southerners, organized labor, and the ACLU are harnessed into the New Deal project in a way that is still not quite clear to me.

I am on page 116, 121, and 210, which is that the proposed thesis of the book, and this is not actually quite deliberate Professor Kennedy. The coalition building is deliberate, but everything else around it seems to me to be some sort of byproduct, which is that somehow FDR managed to make aims that directly contradict each other, all work toward his program, which is, and I use the term in its full intended irony, dialectical.

And the way this happens is, and I quote, energy. So this is not actually a book about political history. It's an extremely, well, politically contextualized book of intellectual history, which is that somehow, dialectically, people who directly oppose one another end up feeding forward into FDR's plan, the coalition is deliberate.

The energy may not be. So, how literally, how are these people feeling put into this project? Is this, in the end, like what legitimacy is doing? And if so, legitimacy is doing an awful lot of heavy lifting, cuz this isn't in the end about human social interaction at all, it's about the human mind.

So how is this happening?

>> Niall Ferguson: Are you, in fact a Hegelian?

>> Anthony Gregory: Yes and no.

>> Niall Ferguson: Have you ever been?

>> Anthony Gregory: Yeah, there's something like this, it's kinda like Ackerman's books on the constitutional revolutions of the United States, where on some level, it's operating at this level of Geist, right, the Civil War, the New Deal.

I don't know if it is an intellectual history whose ideas are we tracking? I do agree that it's a policy and intellectual history, and there's some coalitional work involved, too, and that it does have whatever limitations the history does, that seeks to kind of anthropomorphize the nation.

>> Niall Ferguson: I've got Cole Bunzel, we're beginning, we're now in the sort of final phase of the event as professors are drifting off.

If there are any other questions, try to catch my, I don't think we have any online questions that I'm aware of, or we know we have online participants, but nobody has a question, Cole.

>> Cole Bunzel: This is probably a simple question, but you showed this graph earlier of the combined federal and state prisoners, and that showed it looked like a peak in 1939.

And so the basic question is, why does it suddenly decline right after that is because the rehabilitation was just very successful. And then related to that, I'm curious if people who have kind of an infatuation with the idea of mass incarceration, there are scholars who work on that issue if they have located the so called origins of that policy in this era before or are you the first one to kind of explore this?

>> Anthony Gregory: I'm not the first one, there's some political scientists who've done some who've kind of gestured toward it in articles or even more than gestured. And I and the historiography does kind of say, well then the New Deal was actually more important than we thought. And then they kind of move on.

And so I'm not the first one, but I think I'm the first to tell the prison story and as part of the larger law and order and political story. In terms of why did the prison population fall after 39. This is a conjecture, but I feel like it's a pretty safe one.

When 16 million young men go to war, there are fewer people to commit crimes and put in jail and prison. And and then after that combined with the overall lower crime of the of say the late 40s and 50s, the prison population does to a large degree actually track crime, not.

Completely, but that's a big part of it. So they're disciplined in other ways to put in kinda more modernist or post modernist.

>> David Kennedy: I think your instinct is quite sound that there are fewer candidate criminals when people are in the armed forces, off the streets. And again, I'm just guessing at this, but I'll bet there's another correlation between the falloff in property crime and the falloff in unemployment.

>> Anthony Gregory: Yes, yes, there's some. Although the theorists spend some time, the criminologists, grappling with why those correlations aren't quite as strong as they would think. But yes.

>> Cole Bunzel: It does start to recover a bit after 1945.

>> Anthony Gregory: Yeah.

>> Cole Bunzel: It doesn't shoot right back up. That's why I'm curious.

>> Niall Ferguson: If there are no other questions, I have a last one. It's kind of the Hollywood version of the New Deal. If you viewed the United States from a British cinema in the 1930s, what you primarily saw was lawlessness and correction. The most striking thing about American law enforcement, to British eyes, was the heavy armaments that you mentioned that the G-men have.

And I was very struck by the extent to which this account of the New Deal is exactly what a British cinemagoer would have recognized about the New Deal. That it was essentially about heavily armed law enforcement dealing with a chronic problem of lawlessness. So this is Jimmy Cagney's New Deal.

It's Edward G Robinson's New Deal. I wondered if you thought at all about how Hollywood represents the New Deal, cuz it seems to me to track pretty closely with your account.

>> Anthony Gregory: Well, thanks for that. The cultural histories do emphasize this Hollywood narrative. And you can see it in just the way in the late 20s, the cops and the robbers, right?

We tended to sympathize more with the bootleggers, and the cops are kinda bumbling. In the 30s, they become the heroes. And I think that the cultural importance of this is so front and center and it's in kind of these boutique parts of the stereography that it's odd, that it's not front and center in the cultural importance of the New Deal decade itself.

It talks about noir, he says that noir, like modern policing, came from California.

>> Niall Ferguson: Well, that perhaps is an appropriate note on which to conclude this excellent seminar. Thank you so much.