Sharecropper Bud Fields and his family at home. Hale County, Alabama, 1935 or 1936.
Sharecropper Bud Fields and his family at home. Hale County, Alabama, 1935 or 1936. Credit: Walker Evans, Library of Congress

“You never want a serious crisis to go to waste,” Rahm Emanuel told a group of corporate captains in November 2008. They were at that moment staring down the barrel of the subprime crisis and Emanuel, newly appointed chief of staff for the newly elected Obama administration, was assuring them that the president would use the mess to justify ambitious reforms in areas like health care, education, energy, and taxes.

Some of those reforms succeeded, some didn’t. Toward the end of his first term, when President Obama was asked to name his biggest mistake, he replied that it was his failure to “tell a story to the American people,” explaining the policy changes he’d pursued.

Now comes a study that might’ve helped Obama build his narrative bridge between crisis and reform. In The Sympathetic State: Disaster Relief and the Origins of the American Welfare State, Stanford University law professor Michele Landis Dauber looks at the stories Franklin Delano Roosevelt and his allies told in order to sell the New Deal—to the public, sure, but also to a harsher audience, the Supreme Court, which would end up deciding its fate. According to the conventional narrative, New Deal programs represented a break from the past, an unprecedented expansion of the welfare state made possible only by the extraordinary calamity of the Depression. But Landis Dauber argues that Roosevelt’s lawyers tried—indeed, needed—to present them to the Court as little more than business as usual.

To do so, they referenced the history of government spending on disaster relief, telling a story that redefined the man-made catastrophe of the Great Depression as a natural disaster.

From its earliest years the United States Congress considered petitions for relief on an individual basis. Lawmakers responded to some crises that now seem quaint (grasshopper plagues, Indian wars) and others that don’t (floods, earthquakes). The power to authorize aid isn’t specifically enumerated in the Constitution, but it came to be accepted as part of the clause that allows taxing and spending on behalf of the “general Welfare.” And even when the constitutional grounds weren’t there, Congress found ways to spend the money. “Necessity knows neither law nor constitution, and never did in this country,” said Representative John Follett in 1884, arguing for aid after the Ohio River overflowed its banks. It’s hard to imagine anybody saying that today.

A similar justification was used early on in support of public education—illiteracy being a “disaster”—and the post-Civil War Freedmen’s Bureau, which was established to help former slaves (and, Landis Dauber says, may’ve been the “first federal public assistance agency”). The debate over the bureau engendered some rhetoric we’d call Reaganesque, skeptics worrying that blacks wouldn’t seek work if they could suck on the public teat instead. Interestingly, the same argument was turned against relief-seeking southern whites, whom northern congressmen saw as shiftless since they’d lived on slave labor. These vocabularies of work and blame prefigured the fine rhetorical line that New Deal defenders would navigate 70 years later.

“By the time of the New Deal,” writes Landis Dauber, “the idea that Congress had a virtually unfettered right to define and to spend in the general welfare was broadly although not universally accepted as settled doctrine.” New Dealers duly argued that relief was necessary because the economic disaster was virtually an act of God, with unforeseeable consequences and blameless victims. Wisconsin senator Robert LaFollette Jr. helped advance the analogy in 1931, saying, “So far as the victims are concerned, it makes little difference to them whether they are homeless, cold, and hungry as a result of a physical trembling of the earth or whether they find themselves in that condition due to an economic earthquake.” Not to be outmetaphored, an opponent complained that “a flood of laws bestowing Government alms has deluged our statute books.”

In her most engaging chapter, “Crafting the Depression,” Landis Dauber looks at how the case for New Deal policies was made publicly through art, photography, literature, and the relatively new medium of film. It’s an especially impressive feat of scholarship considering that it takes Landis Dauber outside her legal wheelhouse. She acts as cultural interpreter here, teasing meaning from the works of period luminaries like Dorothea Lange and John Steinbeck, whose challenge, she writes, was “aggregation” and “iconization,” taking disparate stories of suffering and translating them into “this object—now a ‘Depression’ with a capital D.”

To the extent that they had a political goal, pro-New Deal artists self-censored: they edited their narratives so as to give substance to “abstractions like ‘unemployment,’ ‘hunger,’ and ‘blamelessness.'” Landis Dauber claims that critics were befuddled with The Grapes of Wrath, finding it short on characterization and long on exposition, because Steinbeck wrote it to build support for federal relief funding. It works better as a political (or ethnographic) tract than as a novel. And FDR, for one, found it useful. “There are more than 500,000 Americans that live in the covers of that book,” he said.

Even when the Supreme Court couldn’t be persuaded to uphold New Deal legislation, it was careful not to interfere with congressional spending prerogatives. In overturning the Agricultural Adjustment Act, for instance, “the Court resorted to a tortured argument that the act was an improper attempt to regulate agriculture”—a Tenth Amendment issue—rather than question subsidies to farmers per se. While strategizing over how to get the Social Security Act through the Court, FDR’s labor secretary, Francis Perkins, happened to run into Justice Harlan Fiske Stone, who gave her advice on how the government should frame its arguments: “The taxing power, my dear, the taxing power. You can do anything under the taxing power.”

Which brings to mind the support Chief Justice John Roberts lent Obama’s health care bill when it came before the Supreme Court last year. Thought to be a reliable vote against, Roberts rejected the reasoning of the pro-Obamacare majority—yet came up with what conservatives might consider a tortured rationale for upholding the bill anyway. Of course, he invoked the taxing power. Roberts knew as well as Stone that you can do anything with it.

There are many such passages in The Sympathetic State, detailing arguments made many decades ago that ring familiar now. In the early 1920s, the Sheppard-Towner Act, authorizing federal money for maternity and infant care, was assailed as a “‘feminist-socialist-communist’ plot” by the intellectual ancestors of Rush Limbaugh.

I found the recurring question of Americans’ responsibility for their misfortunes most resonant. New Deal activists had to prove that the Depression’s victims were, in fact, victims—and of something so much bigger than themselves that it could fairly be compared to an act of God. A disaster that complex and inscrutable had to be mined for images that would make its casualties visible. The symbols the New Dealers developed aren’t so different from, say, the foreclosed houses of the subprime crisis, which came to represent tranches and collateralized debt obligations—concepts so abstruse that even their creators struggle to figure out what the hell they are. Counterintuitively, those who suffered during the Depression had to be abstracted in order to be seen as human.