What’s Left of the New Deal State?

Authors

Sandeep Singh Dhaliwal, St. John's University School of LawFollow

Document Type

Book Review

Publication Title

Michigan Law Review Online

Publication Date

2025

Volume

124

First Page

20

Abstract

(Excerpt)

A vast body of scholarship situates itself in the New Deal era. Another extensive collection explores the history of criminal justice in the United States. To date, however, there has been little effort to bring these conversations together. New Deal Law and Order, written by legal historian Anthony Gregory, fills this conspicuous gap. Gregory remarkably narrates the New Deal era through the lens of President Franklin Roosevelt’s “war on crime” (p. 1), challenging how we think about both the New Deal’s legacy and the foundations of the modern security state.

In recent years, scholars have called on their community to pay greater attention to the “second face” of the American state—that is, the governing institutions involved in social control and coercion. Such focus would reveal that the current assault on the administrative state “is really an attack on only one half of it.” Carceral and national security activities have continued much the same, while agencies responsible for economic and social regulation have faced relentless judicial attack. Meanwhile, the Trump administration—through its “Big, Beautiful Bill,”—has brought the fiscal picture in line with the judicial one: unprecedented outlays for state violence paired with severe austerity for social welfare provisioning. Political theorist Melinda Cooper has aptly recognized that these multi-pronged efforts are part of a right-wing movement toward an “antisocial state,” an idea similar to what Ruth Wilson Gilmore has called the “anti-state state.” This new equilibrium threatens to further entrench and compound America’s “penal exceptionalism,” which now features U.S. Immigration and Customs Enforcement (ICE) in a starring role.

For those seeking to reconstruct disappearing forms of state capacity, the simultaneously ambitious and responsible statecraft of the New Deal era has provided a key source of inspiration. New Deal Law and Order, however, significantly complicates that history. The now hypertrophied, repressive second face of government was already present, in robust form, at the founding of the modern liberal state. In fact, according to Gregory, it wasn’t so much a second face as an inextricable, even outsized, piece of the broader New Deal project. That era, thus, is as much a story of the state’s expanding capacity for coercion as it is of its efforts to enable human flourishing. Gregory’s deeply researched book allows us to revisit the New Deal era as an object of critique and assemblage of contradictions, with the twin problems of state violence and “security” at its center.

Part I of this Review summarizes some of the book’s key contributions, including Gregory’s notion of war-on-crime federalism and his portrait of the singular Homer Cummings, Roosevelt’s attorney general, who was the main architect of the era’s anti-crime campaigns and a leading figure of New Deal legal thought. Part II emphasizes the race and class dimensions of state violence under New Deal liberalism by zooming in on the more marginal groups within the law-and-order coalition Roosevelt led.

Part III challenges the book’s conclusion. Contrary to what Gregory suggests when he discusses the National Security Act of 1947, I argue that the liberal security state had not yet coalesced into a stable form in the immediate postwar “reconversion” period. That period is worth attending to today both as a source of concrete policy ideas and as inspiration for an oppositional politics and culture that might conceive of “security” in radically different ways.

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