New Deal Law and Order

NEW DEAL LAW AND ORDER

In this book, a historian traces the origins of the

modern law-and-order state to a surprising source:

the liberal policies of the New Deal.

Learn more about New Deal Law and Order »

NEW

DEAL

L AW

AND

ORDER

HOW THE WAR ON CRIME

BUILT THE MODERN LIBERAL STATE

ANTHONY GREGORY

Cambridge, Massachusetts | London, England 2024

Printed in the United States of America

First printing

Cover photograph: Bettmann

Cover design by Lisa Roberts

 (EPUB)

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Publication of this book has been supported through the generous

provisions of the Maurice and Lula Bradley Smith Memorial Fund.

Te Library of Congress has cataloged the printed edition as follows:

Names: Gregory, Anthony, – author.

Title: New Deal law and order : how the war on crime built

the modern liberal state / Anthony Gregory.

Other titles: How the war on crime built the modern liberal state

Description: Cambridge, Massachusetts ; London, England : Harvard

University Press, . | Includes bibliographical references and index.

Identiers: LCCN  | ISBN  (cloth)

Subjects: LCSH: New Deal, –. | Law enforcement—

United States—History—thcentury. |

Liberalism—United States—History—thcentury. | Criminal justice,

Administration of—United States—History—thcentury. |

United States—Social conditions—–. | United States—

Politics and government—–.

Classication: LCC E .G  | DDC .—dc/eng/

LC record available at https://lccn.loc.gov/

For Nicole and Alfred, who keep my heart full every day

CONTENTS

 

Part I: The Limits of Liberal Mobilization, 1865–1932 

“

   

”



“

  

”



Part II: Perfecting the Machinery, 1933–1934 

“

    

”



“

 

”



Part III: The War on Crime Constitution, 1933–1941 

5  -     

6   :   

  

7   

viii CONTENTS

Part IV: Discipline and Welfare, 1933–1941 

8    

9 , , 

   

Part V: The Liberal Security State, 1935–1945 

10     

   

11    

12    

 

Abbreviations 

Notes 

Archival and Primary Sources 

Acknowledgments 

Index 

NEW DEAL LAW AND ORDER

INTRODUCTION

resident FranklinD. Roosevelt spoke proudly of his record on crime

as he campaigned in . Four days before voters emphatically re-

elected him, the incumbent reminded a Brooklyn audience of his rst

term’s accomplishments, from the National Recovery Administration to

the Tennessee Valley Authority. Roosevelt then credited his “successful

war on crime” for making the country’s “homes and places of business

safer against the gangster, the kidnapper and the racketeer.” In response

to those who might decry his New Deal and crime policies as “meddling

and interference,” the president celebrated these “new stones in a foun-

dation” for “a structure of economic security for all our people—a safer,

happier, more American America.” e struggle against crime, Roose-

velt suggested, was a signicant part of his plan to secure the nation.



e phrase “war on crime” was not new. Politicians and journalists

used the same language to describe national eorts under Roosevelt’s

predecessor, President Herbert Hoover, who faced a sensationalized rise

in racketeering and kidnappings. But just as his  campaign speech

suggested, Roosevelt made the war on crime his own. He dramatically

escalated it into a sweeping, multipronged oensive against lawlessness.



2 NEW DEAL LAW AND ORDER

As journalist Herbert Corey explained that same year, Roosevelt de-

livered action where his predecessors and critics offered empty talk.

According to Corey’s book Farewell, Mr.Gangster: America’s War on

Crime, President Hoover spent half a million dollars on a major crime

commission whose “report got nowhere at all.” Roosevelt and his attorney

general, Homer Cummings, in contrast, produced results. Although

America was “still the most lawless nation,” the new national leadership

was inspiring governors to convene state “conferences on crime.”



Corey described matters accurately. e New Dealers indeed over-

hauled America’s approach to crime. ey immediately amplied Presi-

dent Hoover’s reactive war, targeting the infamous outlaws of the early

s like John Dillinger and “Pretty Boy” Floyd. en the New Dealers

brought longer-term changes to law enforcement and relations between

the federal government and the states. Aer Prohibition ended, even as

crime fell, the federal criminal code swelled. e Roosevelt administra-

tion exed its interstate-commerce muscles against bank robbers and

targeted new classes of contraband, from automatic rearms to mari-

juana. Creative constitutionalism and progressive social welfare ideas

accommodated this muscular strategy. Modern regulation and crimi-

nology converged in pursuit of what would become known as white-

collar crime. Alcatraz became a civilian penitentiary, prison construc-

tion accelerated, and incarceration, parole, and probation rates broke

national records. In  the inmate population reached a per capita peak

that would not be reached again until the late s. J. Edgar Hoover’s

Bureau of Investigation was modernized and renamed the Federal Bu-

reau of Investigation (FBI) as it achieved new powers and prestige and

stamped its imprimatur on police departments nationwide. Roosevelt

recognized the importance of these criminal justice developments, even

alongside his many other groundbreaking policies.

In those same years when the New Deal gave rise to the modern Amer-

ican state, law and order became good national politics. For all of living

memory, many factions distrusted law enforcement, particularly at the

federal level. e New Dealers prevailed where previous attempts had

failed to build enduring law-and-order relations across society and the

dierent scales of government. To achieve this, Roosevelt and Cummings

in eect created a war-on-crime coalition to transcend the institutional

3 INTRODUCTION

and ideological divisions that had precluded a nationally cohesive eort.

Academia, the legal community, and law enforcement found their place.

Essential Democratic constituencies—organized labor, white south-

erners, and Black Americans—had traditionally regarded national law

enforcement as a source of hostility or neglect. e New Deal war on

crime brought these groups deeper into Roosevelt’s ambit, reconciling

and fusing individualism and progressivism, which in past eras had been

in tension.

is political triumph altered liberalism and federalism. American lib-

eralism, a political program seeking to balance freedom and social

needs in pursuit of democratic stability, has periodically adjusted to ac-

commodate each momentous development in government. Federalism,

the balancing of both deferential and adversarial relations between

national and state authority, has also undergone major changes in ac-

cordance with the great ruptures in US history. e changes in federalism

and liberalism are oen understood together. Consequential constitu-

tional innovations have coincided with commensurate renements in

liberalism, both of which have oen turned on the tension between the

freedom that politics and law have promised to secure and the limita-

tions on power they have presumed to respect.



e histories of feder-

alism and liberalism have together tracked the rise of what we might

call the modern liberal state. More specically, over time liberalism and

federalism have each made demands on law enforcement while con-

straining its activities. It makes sense that the s metamorphosis in

crime policy, no less than economic policy, chaperoned the country’s

constitutional and ideological evolution.

e war on crime was vital to the New Deal’s transformation of Amer-

ica: It advanced a new and lasting settlement across jurisdictions, among

institutions and factions, and between freedom and authority. In short,

the New Deal war on crime built American law and order. But it did so

not only in the narrow sense of modernizing law-enforcement and

criminal-justice infrastructure. It also built law and order in the broader

sense of bringing institutional and ideological stability to the American

state. Roosevelt and Cummings’s crime policies delivered legitimacy to

national enforcement authority—accommodating economic reforms

and laying the foundations of modern government. ese crime policy

4 NEW DEAL LAW AND ORDER

accomplishments were more than a “radical moment,” to borrow Ira

Katznelson’s phrase, but an enduring departure for American gover-

nance.



By the late s the transformed federalism and liberalism

could accommodate a distinctively durable and politically acceptable type

of security infrastructure. e modern liberal state that would dene the

twentieth century, with its unity of welfare liberalism, carceral repression,

and national security regimentation, arose largely from the crucible of

Roosevelt’s anti-crime campaign.



Contemporaries of the New Deal war on crime acknowledged its impor-

tance, and so have commenters and scholars ever since.



But as histo-

rians have written the story of those years, crime policy has mainly been

relegated to the periphery. Other aspects of the New Deal have dominated

our historical imagination, and thus popular narratives and scholarly treat-

ments tend not to spotlight law and order. Our general understanding of

the New Deal has widened thanks to exciting work since the s, but

accounts of interwar liberalism rarely feature its dialectic with crime.

Rarely do the early s shootouts, New Deal criminology, and the s

security and surveillance story all come together.

e few focused studies of

the New Deal war on crime do suggest

something quite signicant. In  MaryM. Stolberg observed that anti-

crime eorts revealed complexities in the development of federalism

from the Progressive Era through the Roosevelt years.



In  Claire

Bond Potter’s War on Crime unveiled the cultural importance of FBI op-

erations in the early New Deal.



Some historians have stressed the ten-

sions between the Bureau of Investigation’s expansion and the New Deal.



Others have stressed the anities.



Political scientist MatthewG.T.

Denney has recently argued that the New Deal war on crime had a ratchet

eect in state building, driven by a political consensus that excluded Black

Americans.



Historian EmilyM. Brooks has explored what northern

urban policing in the s and s reveals about the limitations of

“law-and-order liberalism” in addressing an “unequal society.”



One nagging question is whether the war on crime was simply one of

many programs sustained by the Roosevelt administration’s general state-

5 INTRODUCTION

building energy, or whether it was more central to dening the New

Deal state. Focused on the s war on kidnapping, KathleenJ. Frydl

has highlighted the “coterminous advance of the social welfare state with

the security state” in a project that “legitimized and extended the case

for federal power in general.”



Scholars have shown the larger importance

of s law to liberalism, and Michael Willrich has suggested that crime

policy in the s should be viewed as a major constitutional moment.



And although crime and punishment narratives usually feature Progres-

sive Era reform and the postwar origins of mass incarceration more

than the eight pivotal years between the end of Prohibition and World

WarII, the “New Deal war on crime” has been called out by name in re-

cent work, from Lisa McGirr’s examination of Prohibition to

James

Sparrow’s history of the “warfare state” in the Second World War.



Mean-

while, scholars have integrated the trajectories of postwar liberalism

and the modern carceral state. Jonathan Simon, Naomi Murakawa,

Elizabeth Hinton, and others have underlined the breach between the

egalitarian aspirations and punitive reality.



e importance of New Deal law and order should be intuitive, given

that the political and constitutional arc of the twentieth-century state was

fused by three stories: the anti-crime struggle, the transformation of lib-

eralism, and the reformation of state power around national security.



e formative New Deal decade would, unsurprisingly, have a lot to say

about how these three stories interlace. Margot Canaday, writing about

the midcentury criminal construction of homosexuality in peacetime

and during war, has lamented that “historians . . . have responded to the

vastness and complexity of the state (until fairly recently) by not writing

about the state at all.”



Twenty years earlier, Claire Potter asked “histo-

rians of the New Deal to consider the crucial importance of enforcement

to other statist agendas of the period.”



Despite many great histories of

the state, New Deal law and order deserves more attention.

My response to Potter and Canaday, and to the vast relevant litera-

ture, is that the New Deal war on crime delivered political legitimacy

to the modern state through the transformation of liberal ideas, liberal

6 NEW DEAL LAW AND ORDER

governance, and constitutional structure. By “political legitimacy,”

Irefer to a social status government achieves by obtaining sucient state

capacity and public support. Legitimacy is the site of political mediation

where subjective valuations provide for objective institutional stability.

Social theory has emphasized this connection between the subjective

and objective ever since Weber’s formulation of the modern state.



Soci-

ologists continue to locate legitimacy in the relationship between institutions

and the relevant populations.



In building law and order, the New Deal war on crime adopted an ex-

tensive approach to what was understood as the problem: lawlessness.

e construction of political and legal legitimacy in opposition to law-

lessness oered a special opportunity for state building in America, where

constitutional and ideological traditions had constrained the power of

government and especially the federal government. Protecting people

from crime is oen seen as a canonical government activity, but in the

United States crime was traditionally treated as a local, even private

matter. But even though crime was seen as a local and personal danger,

lawlessness was seen as a social and national problem—warranting col-

lective and federal action. American lawlessness had proven too much

for previous generations of leadership, whose ideological and constitu-

tional commitments undercut attempts at building law and order. But it

also oered a new opportunity to remake liberalism and the constitu-

tional order.

In any political system the narrower and broader law-and-order chal-

lenges are linked, but their connection was conspicuous in the United

States in . Law enforcement challenges awaiting Roosevelt revealed

deeper problems with the government’s structure and supporting ide-

ology. ese interlocking problems had frustrated national leaders since

Reconstruction. By  the New Dealers had inherited a legitimacy

problem, generations in the making and punctuated by interwar emer-

gencies. In addition to the Depression, an early-s crime surge and

Prohibition scandals cast serious doubt on law enforcement’s instruments

and authority.

As Frydl has observed, a state’s coercive management of relatively small

threats is especially revealing: “e logic of survival might legitimize the

7 INTRODUCTION

response to a predator, but a more careful consideration of norms and

limits governs the response to the pest.”



What made the s special

was that these pests achieved a critical mass that invited new modes of

peacetime focus and political action. Without wide support for federal

enforcement authority, Roosevelt would suer the distrust and skepti-

cism that constrained the s Republicans. He hoped to legalize liquor

without undercutting public trust, all while managing intense and con-

icting political pressures.

Two concepts—law and order, and lawlessness—enjoyed a capacious

meaning in the s, and the New Dealers were especially well situated

to address both concepts in their expansive forms. For them lawlessness

included political corruption and racketeering, corporate malfeasance,

and fraud. It could include anti-Black lynching and anti-labor vigilan-

tism. It came to include foreign despotism and war. e perception of

rampant lawlessness oered not just a threat but an opportunity for a new

kind of governance. As for law and order, the words meant institutional

competence, civil rights, and democratic equality, a system promising ac-

countability for all. e term “law and order” at its most expansive in-

cluded liberatory meanings. Lawlessness, oen tolerated by law ocials,

was a chief mechanism of reactionary politics from Reconstruction

through the s. Law and order was a rallying cry to expose the hy-

pocrisy of reactionary lawlessness and a hopeful appeal for genuine

change. Black activists, labor radicals, and egalitarians called, without

irony, for law and order—and continued to do so for the celebrated

decades of the New Deal order.

e Roosevelt administration’s solution to lawlessness was to reform

the war on crime—to redirect and escalate it across many dimensions,

and to integrate it as a permanent feature of government. To do so the

New Dealers nurtured an informal war-on-crime coalition that tran-

scended partisan, regional, and ideological lines. It included Republicans

and Democrats, Prohibitionists and anti-Prohibitionists, conservative

crime hawks and progressive idealists, practitioners and academics, na-

tional and local enforcers, industrialists and labor activists, white suprem-

acists and civil rights activists. ese coalitional eorts turned a narrow and

immediate challenge of law and order into a larger political undertaking

8 NEW DEAL LAW AND ORDER

at the heart of American state power, with far-reaching consequences

for liberalism and federalism.

To appreciate the New Dealers’ relationship to the war-on-crime coali-

tion, and the stakes it carries for the thorny concept of liberalism, some

terminological clarication is in order. I use the term “New Dealers”

rather conventionally, referring to those who shared Roosevelt’s goals of

restructuring political economy. is included his top ocials, especially

those directly inuencing economic policy, as well as local and state pol-

iticians, journalists, and activists who championed New Deal reforms.



e reforms that united New Dealers varied in design and implementa-

tion but shared a discernable family resemblance. Not all New Dealers

were liberals, as the term came to mean. Jim Crow Democrats and other

socially conservative interests oered their numbers to a state-building

movement ultimately directed toward Roosevelt’s vision of liberalism.

And even though the New Dealers and the war-on-crime coalition over-

lapped, they were not identical groups. Cummings was a consummate

New Dealer, liberal, and crime warrior, as was his advisor Justin Miller,

but many key New Dealers had little involvement in crime. On the other

hand, Roosevelt’s advisor Raymond Moley began as an archetypal New

Dealer; when he later became a famous anti–New Dealer, his loyalty to

the war on crime remained steady. FBI chief J.Edgar Hoover, Narcotics

Bureau chief Harry Anslinger, and many American Bar Association

personalities backed the war on crime but were indierent or hostile to

New Deal economics.

e coalitional exibility of both the New Deal and the war on crime

helps account for the dynamic complexity in how Roosevelt’s state

building changed liberalism. Such an account is possible despite disagree-

ments over how to dene liberalism. Reections on modern American

liberalism oen grapple with its dierent connotations—as an ideology, as

an approach to governance, as a description of political mobilization. But

these dierent aspects of liberalism did not exist in isolation. Liberal ideas

guided the experience of governing and mobilizing politically, which in

turn forced liberal ideas themselves to change. ese shiing ideas and

9 INTRODUCTION

ideals motivated self-identied liberals and how they saw themselves in

the political tradition they inhabited and hoped to carry forward.



Even if liberalism eludes a xed denition, some generalizations are

possible. Across historical settings, liberalism has evinced an anity

toward human ourishing, equality of rights, commercial society, civili-

zational harmony across classes and trades, and state power directed and

constrained by democratic voice and predictable legal principles. ese

values distinguish all forms of liberalism from anarchy, autocracy, the-

ocracy, the ancien régime, and the utopian total state. But the tensions

among liberal values have meant that, in practice, they could never all

be realized perfectly. Under pressure, liberals have rebalanced and repri-

oritized their delity to these values, and these attempts to recalibrate

liberal ideas, beliefs, and policies have fueled much of the history of

liberalism in transformation.

How New Deal liberalism and the larger history of liberalism are re-

lated is itself no small question.



Whether one stresses the continuities

or dierences between New Deal liberalism and other varieties, the de-

velopment of law and order oers stark, if neglected, inection points

where the liberal tradition reimagined itself. Before the New Deal, both

liberalism and law and order looked much dierent. e nineteenth-

century liberalism of free labor, contractual relations, private property

rights, and constitutional subsidiarity lost its dominance in the Pro-

gressive Era, whose reformers embraced domestic and international

intervention. eir progressivism eschewed radical or aristocratic class

interests in favor of a middle-class urban sensibility, and faced constitu-

tional limits to power, particularly federal authority. I will return to the

contestable relationship between progressivism and liberalism. For now,

suce it to note that progressivism dominated politics between the eras

of nineteenth- and twentieth-century liberalism, and its relevant per-

sonalities, agendas, and institutional history formed an important bridge

between the two liberal eras.



Progressive state building climaxed and col-

lapsed during World WarI, the Red Scare, and Prohibition. As a testament

to the volatile s, so-called classical liberalism thrived in a perhaps more

unwaveringly contractual form than ever in the federal judiciary. e

s Republicans restored an older liberalism as compared to Woodrow

Wilson’s experimentation, while accommodating immigration control,

10 NEW DEAL LAW AND ORDER

protectionism, and uneven alcohol enforcement. e chaos of Prohibi-

tion exacerbated the political and constitutional contradictions.

It is hardly controversial to say that Roosevelt aimed to remake liber-

alism.



He came to power with big plans for government but wary of

utopian crusades and the illiberal movements reshaping Europe and Asia.

He hoped to temper the individualist legacies of his own Democratic

Party while restraining the impractical impulses of earlier progressivism.

To be sure, New Deal liberals clung to the banner of progressivism and

sometimes used the term “progressive” interchangeably with “liberal.”



At any rate, for Roosevelt, progressivism served as both inspiration and

cautionary tale. His redenition of liberalism synthesized past traditions,

the wisdom of experience, and the aspiration to rebalance constitutional

values.



New Deal liberalism thus branded itself as a middle position be-

tween anachronistic laissez-faire and unbridled collectivism. Its welfare

state recognized the contractual and civil-libertarian expectations of a

capitalist culture jealous of its heritage of freedom: social welfare framed

as social insurance, federal spending disbursed through the states, the

positive “freedom from fear” articulated as the negative freedom to be

le alone. Law and order assisted in coupling these positive and nega-

tive freedoms, as a robust criminological state promised a return to the

government’s mythical primary function of securing the domestic peace.

Modern liberalism would deliver this primordial political aim where

earlier liberalism failed.

As evidence of Roosevelt’s national signicance, the New Deal refash-

ioned a liberalism with both partisan and nonpartisan legacies. Some-

times the partisan version is called le-liberalism, as it came to dene

the Democratic Party, which emphasized social welfare and economic

equality and accommodated veteran reformers along with swaths of the

labor le who straddled anticapitalist radicalism and statist compromise.

For decades this le-liberalism infused the Democratic Party with an

economic program that maintained the loyalty of factions not otherwise

very le-wing or liberal at all—namely, the Jim Crow southern Democrats

who, aside from economic planning priorities, stuck out as some of the

most culturally and socially conservative of their time. But the liberalism

established by the New Deal also harbored another paradox, as it con-

strained and arguably dened the politics of the oppositional Republicans

INTRODUCTION 11

during and aer Roosevelt’s presidency. Liberalism can indeed refer not

only to the partisan actions of the midcentury Democratic Party, but more

broadly to a shared constellation of values and practices in governance

that also captivated much of the contemporaneous Republican Party. Even

elements of the postwar conservative movement, and most clearly the

presidencies of Dwight Eisenhower and Richard Nixon, would oen ad-

vance policy corollaries to the New Deal framework.



Liberal Republicans

as well as non-liberal Democrats thus bolstered broad waves of political

development in which New Deal liberalism triumphed as the central force.

e war on crime helped give New Deal liberalism this robustness. Not

only did law and order strengthen the New Deal coalition, securing the

loyalty of Democrats with views on racial and social issues outside the

party’s rising liberal camp. e popularity of crime policies also bridged

New Deal liberals with liberal-adjacent, moderate, and conservative fac-

tions across the aisle. Indeed, anti–New Deal conservatives who joined

the war-on-crime coalition, however unwittingly, helped build one of the

pillars of the New Deal liberal state. From the s through the late twen-

tieth century, conservatives would dene their creed against the New Deal

and its legacies. While they largely remained a recalcitrant movement

within the broader tradition of liberalism, a right-liberal faction whose

clearest dierentia would be contingent on whatever best characterized

le-liberalism at the moment, conservatism long harkened back to its

s opposition to social spending, corporate regulation, and labor pro-

tections. But on crime, these conservatives were mostly allies—and in that

ecumenical sense of building law and order they were junior partners in

remaking liberalism. is overlooked s consensus on law and order

foreshadowed the conservatives’ accessory relationship to the breadth of

liberal state making later in the century. And so, the notorious bipartisan

war-on-crime consensus predated the conventionally accentuated postwar

period—or the later neoliberal period—and was consequential in the

foundational years of modern liberalism and its conservative foil.

All that said, in this book I emphasize the overlap between the New

Dealers and the war-on-crime coalition, for three major reasons. First,

many ocials in political economy had major roles in crime control—

Roosevelt himself, Cummings and later attorneys general (two of whom

became Supreme Court justices), Treasury Secretary Henry Morgenthau,

12 NEW DEAL LAW AND ORDER

key congressional allies, Works Progress Administration workers, as well

as local liberal politicians. Second, because crime ghting and state

building fueled each other, those invested in one project oen became

invested in the other. ird, as the war on crime developed alongside

Roosevelt’s agenda for liberalism, criminological forces earlier discern-

ible as “progressive” gained traction in unifying idealistic social welfare

and pragmatic social control. Activists from the American Civil Liber-

ties Union (ACLU), lawyers at the National Association for the Advance-

ment of Colored People (NAACP), criminal procedure reformers, and

idealist criminologists found real hope and voice in the rising liberal

state—not only in their concrete accomplishments but as they pursued

unrealized aspirations. New Deal law and order, no less than its eco-

nomics, accommodated and even empowered progressive, radical, and

le-egalitarian factions.

Especially vexing in this coalitional story are the twists of racial poli-

tics. e New Deal unfolded at a turning point for racialized policing, when

lawless racial terror was being socialized into both overtly segregationist

and purportedly colorblind systems of state discipline—modern policing,

prisons, and the death penalty. is took place as even racist law enforcers

saw the benet of taming lynching and brutality and bringing social

control under respectable auspices. is undertaking commenced amid

enforcement centralization. ese changes presented New Dealers an anom-

alous challenge and opportunity, as their reactionary, liberal, progressive,

and even radical constituencies could nd agreement on the short-term

importance of modernizing criminal systems. From Roosevelt’s vantage,

this modernization required a balancing of ultimately incompatible views

about the end purpose of law and order. While it broke ground in en-

forcing the slavery statute, the Roosevelt administration was infamously

slow to act nationally on lynching. But in the s the federal goal of

carceral state construction was not always or even usually racial. e con-

tinued policing of so-called street criminality was a given, complete with

the racial and class disparities. At the same time, federal ocials subsi-

dized federal and state incarceration, having in mind new targets seen

as necessary to make law and order more equitable. e New Deal war

on crime armed the importance of punishing corporate crooks and

middle-class white bandits alongside the perpetuation of the traditionally

INTRODUCTION 13

regressive aspects of the carceral state. e national New Deal thus un-

folded atop and alongside the continuities and ruptures in racial policing

inside and beyond the South. e conscious mediation between con-

icting racial visions and the conceit of purportedly race-neutral national

policymaking reinforced structural disparities of an older racist regime

even as they aspired to a future freed of white supremacist lawlessness.

Many scholars, appropriately, have critically engaged the racial dimen-

sions of postwar mass incarceration uneasily juxtaposed with midcentury

tales of civil-rights triumphs, but the conicting aspirations for law and

order in the s mark the earlier origins of these postwar ironies.



Central to the modernization of liberalism and criminal justice was the

transguration of the constitutional order. Under the Constitution, crime

ghting never became a fully national occupation; mundane lawbreaking

has always been treated as a paradigmatically local matter. But the social

condition of lawlessness has been nationally legible since at least the 

Whiskey Rebellion. Nevertheless, in what Trevor George Gardner has

called the “traditional” model of police federalism, outright federal control

over “routine subfederal police activity” was resisted until well aer World

WarII.



Local ocials’ support has always been key to legitimating a

national role against lawlessness, and to outlive an exigent crisis any sus-

tained national role would require a new understanding among ocials.

In regard to the larger history of state building, the importance of law

and order has received attention among scholars of jurisdiction and fed-

eralism.

Jonathan Obert has identied the late nineteenth-century’s

simultaneous rise of private and public legal coercion as a peculiarly

American story, fueled by republican community enforcement of rights

but complicated by the “jurisdictional decoupling” where state ca-

pacity, claims of authority, and responsibilities became mismatched

during the Market Revolution and the Civil War.



is concept of “ju-

risdictional decoupling” could be extended to the paradoxes of feder-

alism persisting in later decades, as national and local legal obligations

contradicted governing capacity or practical politics. Scholarship has

moreover shown how the twentieth-century modernization of law and

14 NEW DEAL LAW AND ORDER

order largely coincided with jurisdictional innovation. DanielC. Richman

has noted that while violent crime is the classical example of local juris-

diction, local ocials have at times called upon federal assistance.



Fo-

cusing on the FBI, Richman and Sarah Seo have also shown how the

national–local relations have at times circumvented development at the

intermediary state level.



When Roosevelt took oce, public clamoring for anti-crime action

alongside disillusionment with Prohibition provided a unique peacetime

opportunity to experiment with federalism. Yet the New Dealers’ ambi-

tions had to contend with venerated constitutional tradition. Cummings

in particular saw himself as carrying a heavy burden of constitutional his-

tory, which threatened to weigh down the activist state, even as he knew

the limits on power could not be abandoned altogether.

As with political ideology, the New Dealers staked out a middle posi-

tion. ey championed an approach between federal inaction and total

nationalization, which they leveraged toward steady federal expansion.

is posturing as moderates between extremes had analogues in their

redenition of liberalism, of which one traditional feature was the consti-

tutional separation of powers. e American national government would

never become a unitary state with plenary crime-ghting powers—a

reminder of its grand paradox. Nothing is more fundamental to au-

thority than law and order, and yet these supposedly basic functions were

among those most out of the federal government’s reach. rough the

Civil War, Indian wars, Reconstruction, Prohibition, and other major

mobilizations at home and abroad, the US government expanded its life-

and-death powers to all corners of the world but was (and remains)

jurisdictionally constrained in local courtrooms and pedestrian law-

breaking. An implication is that the federal government can balloon

toward empire without ever obtaining its supposedly minimal night-

watchman role. And so long as the Roosevelt administration forswore the

goal of usurping the last local law-and-order powers, the New Deal could

call itself constitutionally limited. e New Dealers could meanwhile

lavishly encourage states and localities to assert their own power against

lawlessness. And that is what they did.



Roosevelt and Cummings, with enthusiastic state and local participa-

tion, exploited the room they had to expand government power at all

INTRODUCTION 15

levels. By the end of the s, law and order led to some of the New

Deal’s greatest watersheds in federalism. ese included new frontiers of

interstate cooperation and the federal prohibition of marijuana, achieved

without the kind of constitutional amendment that authorized the na-

tional alcohol ban. But the formula did not mainly rely on national

usurpation. Cummings negotiated a new settlement, which I call war-

on-crime federalism, that nally overcame the zero-sum jurisdictional

contest of previous eras when ocials expended great energy competing

over control. Under the New Deal, federal, state, and local enforcement

authorities cooperated innovatively to expand their scope in concert.

Federal ocials encouraged state reforms in drug policy, criminal pro-

cedure, incarceration, and rehabilitation, and consulted localities for their

criminological expertise. Innovations in federal–state relations allowed

constituents with sharply opposed racial and social goals to cooperate—

most conspicuously Black activists agitating to make white-supremacist

terror legally legible, and white southerners seeking modern systems of

racial discipline.

e changes in federalism and liberal politics stimulated each other

through the s, providing the institutional and ideological conditions

for a new kind of security state. Blurring the lines between domestic

policy and national defense, the New Deal constructed a stable war on

crime from the beleaguered remnants of World War I—particularly

J. Edgar Hoover’s policing apparatuses, surveillance and detention

systems for wartime enemies, and Treasury powers that harmonized

regulation and criminal justice—and refashioned this machinery into a

permanent security state. e jurisdictional jealousies that previously

plagued state and local governments, federal authorities, and Treasury

and Justice ocials, yielded to a new cooperative arrangement in which

all had expansive roles to play, even as they observed a new deference

toward one another. By the late s those who had spent the s re-

pressing dissidents, and some of the dissidents themselves, could join in

the hopes that the instruments of domestic control would in the end serve

the public good.

An ever-expanding power to suppress crime through a remodeled

federalism was thus baked into the dening contours of modern lib-

eral governance. Roosevelt and Cummings successfully synthesized

16 NEW DEAL LAW AND ORDER

humanitarian reformism and old-fashioned state violence. Although the

ties between welfare and warfare have received attention, it was the war

on crime that consummated their domestic partnership in their most

precarious years. e experimentalism of war-on-crime liberalism,

uniting conservative and reformist elements, already yielded a remark-

ably stable program in the twilight of the s—a political program I

call security-state liberalism. With this fusion the New Dealers shep-

herded enforcement machinery through World WarII. eir collabo-

ration made the wartime security state, including its great injustices,

much smoother and more stable than it had been in World WarI. In the

s this stabilized infrastructure of repression could withstand the

pressures of World War II and the Cold War and became a permanent

xture of the American landscape. By transforming federalism and

liberalism—by turning the mess of lawlessness into a rened security

apparatus with social stability—the New Deal war on crime built

American law and order and the modern liberal state.



    into ve parts and twelve chapters to clarify

the larger political arc and examine its thematic components. PartI nar-

rates the long predicament for law enforcement, political authority, and

liberalism from Reconstruction through the Progressive Era, with the

structural and ideological enforcement contradictions hitting a fevered

pitch in the interwar period. PartII shows how in its rst two years the

Roosevelt administration navigated the political predicament, revolu-

tionized the criminal code, and grappled toward new coalitional means

of legitimating national authority. PartIII explores war-on-crime fed-

eralism, with chapters on a neglected consensus in constitutional and

legal thought, the jurisdictional watersheds of drug control, and how ra-

cial reformers within changing legal structures sought to dene the New

Deal’s law-and-order promises. PartIV shows how the nation’s relations

across society and the states produced penological and criminological

innovations that married progressive reform to the repressive state,

yielding a vision at once aspirational and pragmatic. PartV describes how

INTRODUCTION 17

the preceding developments gave rise to a security state, steeped in a new

class consciousness and political consensus, blurring the lines between

war and peace, and remaining stable through World War II—thus

avoiding the collapse of the infrastructure of repression that came aer

World WarI.

America entered the post–World WarII era with most of the para-

doxical components of its later twentieth-century war on crime already

in place. To those seeking the origins of these paradoxes, I argue that

there was no immaculate conception of the modern liberal state, for

one of its founding purposes was to convert the chaos of repression and

lawlessness into an ecumenical and stable system of law and order. To

fully understand the diculties this system would face in the late twen-

tieth and early twenty-rst centuries, it is fruitful to begin with how

Roosevelt’s generation addressed the mounting challenges it inherited.

INDEX

Figures and tables are denoted by f or t following the page number.

administrative law, –

Alcatraz: carceral liberalism and, ,

–, , –, , –,

, , n, n; as federal

maximum security prison, ,

, , –; improvements

to, ; World War II military role

of, 

alcohol: legalization of, , –,

; Prohibition disallowing (see

Prohibition); taxation and regula-

tion of, –, , –, 

Allred, JamesV., 

American Bar Association (ABA), ,

, –, –, , , 

American Civil Liberties Union

(ACLU): crime prevention stance

of, , ; foundations of, , ;

internment stance of, ; in liberal

state, ; political economy of law

and order and, –, , , ;

security state stance of, –,

–, , –, , ,

, n; southern strategy of,

, –, 

American Law Institute (ALI), ,

–, , 

American Legion, , , –,

, –

American Protective League (APL), 

anarchy: legislation to moderate, ;

lynching as, ; policies leading to,

; political economy of law and

order and, , ; Prohibition

leading to, . See also lawlessness

Anslinger, Harry: partisan response

to, , –; rise of, ; war on

crime stance of, , –; war on

drugs under, –, nn–

anti-crime consensus, –; on

administrative law, –;con-

stitutional accommodation for,

–, –, –, –,

, n, n, n; on

due process, –, –, ,

n, –nn–; federalism

changes with, , –; federal

judiciary and, , –, ,

–, ; on rearms laws and

policies, –, ; fractures in,

–, –; liberalism and,

; overview of, –, –,

–; on police power, –

Ashurst, Henry, , –

476 INDEX

Baker, J.N., , 

Baldwin, Roger: ACLU founding by, ,

; on crime prevention, ; on

FBI during World War II, –; on

internment, , , ; labor

issues under, , , –,

n, n; on police brutality,

; on racialized law enforcement,

; security state stance of, –,

–, , , –, –,

–, n; on wartimeliber-

alism, 

banking laws and nancial regulations,

, 

Barker-Karpis Gang, , 

Barrow, Clyde, , 

Bates, Sanford: on Alcatraz, , ,

–, ; carceral liberalism

under, –, –, –,

–, ; crime prevention

stance of, , , ; on National

Crime Conference, ; on probation

and parole, , 

Bettman, Gilbert, –

Biddle, Francis, , , –, ,

–, –

Bilbo, eodore, –

Black, Hugo, –, , , ,

, –, 

Black Americans, treatment of. See

racialized law enforcement

Black Codes (–), 

Bonus Army, 

Bourne, Randolph, –

Britt, James, 

Bureau of Investigation. See Federal

Bureau of Investigation

Calling All Cars, –

Cannady, Lola and family, –

Capone, Al, , , , 

carceral liberalism, –; brutality

rejection in, , –; carceral

conservatism vs., , –;

context for, –, f–f;

denition and description of, ;

Depression-era, –; discipline

goals in, , , , –,

–, –, n; federalism

and, , , –, , , ;

funding for, –, , –;

juvenile oenders and, , ,

n; labor issues and, ,

–, –, , ; overview

of, –, , –; racialized

law enforcement and, –, ,

, f; rehabilitation and reform

goals in, –, ; survey

informing, , –, –,

, , . See also incarcera-

tion; parole; probation

children. See juveniles

Citizens Committee on the Control

of Crime (CCCC), 

civil liberties: ACLU defense of (see

American Civil Liberties Union);

due process as (see due process);

habeas corpus as, , , , , ,

; judicial protection of, , ,

; labor issues and, , , ,

; martial law suspension of, ,

n; political economy of law

and order and, –, ; security

state and, , , , –, ,

–, –, –, –,

n; southern strategies and, ;

World War II–era, –, ,

n

Civil Rights Act (), 

Civil Rights Act (), 

civil rights issues. See gender; racial-

ized law enforcement

Civil War, US, , –, , . See also

Reconstruction

Clark, AlfredG., 

Clark, James, –

class structure: classes of crime and,

– (see also white-collar

crime); crime prevention and,

; law enforcement and, –;

political economy of law and order

and, –, , n, n;

progressivism and, , ; race and,

n; war on drugs and, 

Cleveland, Grover and administra-

tion, , 

Coca-Cola, –

Colfax massacre, , 

communism: liberalism and, –;

political economy of law and order

on, ; post–World War Irepression

of, –; security state against, ,

, –, –, –, ,

–, , ; war on crime on,

; World War II alliance with, 

Comstock, Anthony / Comstock Laws,

, –, 

Connally, Tom, 

constitutionalism: anti-crimecon-

sensus and, –, –, –,

–, , n, n,

n; court-packing opposition

under, –; due process and,

–, –, n, n;

federalism and, –, –, n;

lawlessness and, , –; liber-

alism and, , ; police power and,

–; Prohibition under, , ,

; racialized law enforcement and,

, , –, –; war on

crime and, , –; war on

drugs and, , , –, .