In this prize-winning and provocative book, law professor and sociologist Michele Landis Dauber joins the ranks of those who debate whether the New Deal was “new” or not. Opting for the latter, she argues that the New Deal was based on precedents set at the very inception of the American state, ones that permitted the federal government to respond to the needs of victims of disasters. Specifically, the precedents she cites are legislative policies based on the General Welfare Clause of the American Constitution. In her view, the degree to which courts supported congressional claims that this clause “permits” the federal government to tax and spend in response to the needs of disaster victims serves as the rationale and reason for the success of New Deal legislation.

In this way, Dauber credits herself with introducing a new explanation for the New Deal. It was not the case, she argues, that the New Deal constituted a “third American revolution,” as Carl Degler suggested, nor that it sprang from nowhere because earlier efforts were thwarted by the “twin evils of laissez-faire economic theory and laissez-faire constitutionalism (p. 3). To the contrary, those promoting the New Deal, such as Robert La Follette, adhered to tradition rather than breaking with tradition (p. 4). As Dauber establishes, private bills for the relief of the suffering for individuals date back to 1790, and by 1822 these private bills had become general relief bills (p. 5). The key to passing relief bills was the “disaster narrative” depicting claimants as suffering from events beyond their control, that is, “blameless suffering” (p. 6). Thus, the author claims that the New Deal more than a hundred years later is little more than the “disaster narrative writ large” (p. 7).

In her fascinating analysis, Dauber is careful to trace the way disasters are defined initially as deriving from natural causes outside the control of human beings, such as fires, floods, hurricanes, and so on, and then she brilliantly documents how welfare advocates succeeded in expanding that definition to include economic emergencies for which there appears to be no “natural” cause, such as the economic emergencies defining the Great Depression (p. 17). The easy part about disasters stemming from nature is that they obviously affect all people within their range, thereby avoiding the need to distinguish deserving from nondeserving victims.

To facilitate the expansion of disaster relief to include the unemployed, the sick, and the elderly, however, Dauber carefully explicates how welfare advocates concocted narratives and images to depict the entire category of those in need as “deserving” (Chap. 4). In this effort, she analyzes John Steinbeck’s Grapes of Wrath as successfully crafting a disaster narrative comparable in political impact for achieving welfare relief to Uncle Tom’s Cabin for promoting abolitionists’ goals. She notes how Steinbeck portrayed his characters as an aggregated group so that the reading audience would grasp the need felt by a category of people for relief, rather than particularized individuals. Similarly, Dauber argues that the photography of Dorothy Lange and others succeeded in the iconization of the victims of the Depression (Chap. 4). She also documents the “vocabulary of motives” as reflected in the deluge of letters sent in the midst of the Depression to Eleanor and Franklin Roosevelt requesting assistance from the federal government as validating the disaster narrative as a rationale for federal assistance (Chap. 7).

The legal philosophy that Dauber argues is the foundation of the New Deal, therefore, is what Jerome Frank termed “experimental jurisprudence” in 1933, what “we now call legal realism” (p. xv). This perspective considers jurisprudence, ethics, and constitutional interpretation to be historically contingent practices rather than fixed and timeless rules, constituting nothing more than “heartless proceduralism” (pp. xv, xvi). In this way, law is seen as a “human contrivance” to relieve misery and to ensure substantive justice as exemplified by instituting “a compassionate welfare state for the poor and sick” (p. xvi). Dauber provocatively declares, therefore, that the many lawyers in Congress did not seek to define a new legal theory to justify the New Deal, but instead crafted pragmatic legal arguments, rendering the New Deal the product of “mundane lawyering” rather than a revolutionary break with the past (pp. 77, 84, 184).

Dauber gives us much to think about, but leaves some topics undeveloped or omitted altogether. For example, her book begs for additional clarification on the status of the American state as “exceptional.” According to her, the “moral economy of redistribution based on fault” is “particularly American” (pp. 12, 223). Yet there are no cross-national comparisons to back up this claim, and even a cursory look at England’s historical treatment of the poor dramatically demonstrates a consistent legal distinction between the undeserving and the deserving poor. As early as 1495, for example, statutes declared vagabonds and beggars as deserving of harsh punishments rather than aid, in contrast to the “impotent” poor, women, children, and disabled men who did merit aid.

In addition, it would have been helpful to have a more explicit discussion of the particular theory of the state that informs Dauber’s analysis. Her goal is to show “how” and “what” welfare advocates did to secure welfare provision, but she does not discuss “why” in so doing they all but limited themselves to arguments that the Constitution’s General Welfare Clause “permitted” the state to tax and spend on welfare policies (pp. 17, 19, 63, 133–4), Why did they not interpret the Constitution as “obligating” the state to do so? Perhaps to do so, of course, would have been considered radical, and hence not a tactic consonant with their pragmatism. Yet cross-nationally, it appears that it is not a radical strategy, since most (though not all) Western European constitutions do just that. The Weimar Republic’s Constitution of 1919, for example, provided for free public education, Canada’s Constitution specifically requires that the government make efforts to “reduce disparity in opportunities,” and Sweden’s Constitution makes it “incumbent” upon the government “to secure the right work, housing and education, and to promote social care and social security and a good living environment.” Dauber would have added greater breadth to her perspectives had she located the American state in relation to cross-national comparisons, in addition to her discussion of cultural norms as reflected in literature and photographic art.

Related to the distinction between “permitting” rather than “requiring” the state to assist those in need is the general issue of vulnerability. Dauber does deal with this somewhat in her discussion of the ways that reformers deftly expanded the disaster narrative to include the woes of the elderly (p. 123). However, although she cites Martha Fineman in the bibliography (though not in the index), she does not focus on vulnerability theory and the state in the context of Fineman’s work or that of any other scholar, where vulnerability is an ongoing condition of life. Missing, therefore, from her analysis is a discussion of what T. H. Marshall termed “social citizenship,” meaning the “right” of individuals to have assistance from a state “obligated” to provide that assistance. In addition, Dauber also omits a discussion of the vast literature on the welfare state that empirically establishes how Western European countries get a proactive welfare state on the basis of competition and cooperation between economic interests as determined most importantly by political parties mediated by political structures, such as parliamentary rather than presidential systems. Yet in Dauber’s analysis, these crucial components are virtually absent.

In sum, there is much to admire and celebrate about The Sympathetic State, particularly the way the author carefully analyzes a long trajectory of political activity that succeeded in making the most of the General Welfare Clause. It is a new and valuable way to think about welfare policies and the American state, and it is written in a clear, concise, and readable style. It will enhance the perspectives for everyone seeking tp explain American political development, constitutional law, the New Deal, and welfare provision as a continuing though not last step in this endeavor.