[Before seeing what happened to the Supreme Court’s interpretation of the Commerce Clause, we need to consider what happened to the Court itself during Franklin Delano Roosevelt’s presidency, which is the subject of this lecture.
[FDR was a great communicator. His beautiful baritone voice tinged with his “high brow” accents and inflections, seemed to be custom made for the radio, which had come into widespread use while he was President. He broadcast over the radio several, what were called, “Fireside Chats” to communicate directly with the American public. This particular fireside chat was on of his most famous and controversial. My byline for it is: “The Man Who Would Be King.”
[Prior to this fireside chat, the U.S. Supreme had declared much of FDR’s New Deal legislation unconstitutional which made FDR quite mad. He hatched a plan to take over the Court’s legal philosophy regarding constitutional interpretation by expanding the Court from 9 Justices to 15 Justices.
[On February 4, 1937, just two weeks after his second inauguration, FDR called the Democratic leaders of both the Senate and the House to attend his cabinet meeting. He said that he only had a few minutes because of a pending press conference he had to attend. He told them he was sending a proposed Bill to Congress to change the makeup of the Supreme Court. He explained his plan and then excused himself from the meeting without any opportunity for input by those present. To those present, this came across as a dictatorial order to successfully shepherd the Bill through both houses of Congress which were both firmly controlled by the Democrats.1 As we will soon see, this was a big mistake on his part since this dictatorial approach angered the leaders of his own party in Congress.
[About a month later, in this “fireside chat,” he explained his plan to the American people.
[After reading this address, I wonder if it didn’t inspire one aspect of George Orwell’s book entitled “1984” which was published about 12 years after this fireside chat. In that fictional tale, to more easily control the people, the socialist government turned the meaning of words upside down. It used words and phrases in its communications to the people that tended to evoke a certain positive meaning in the minds of the listeners, but which in reality meant something entirely different to the government handlers. This became known by the general public who read the book as “Orwellian double-speak” or “doublethink”-- terms used to describe government deception. When you hear FDR speak in this address, you will probably have a hard time believing what you hear and feel confused by much of it.
[I think this is a good illustration of what Fredrich A. Hayek meant when he said:
“The most effective way of making people accept the validity of the values they are to serve is to persuade them that they are really the same as those they have always held, but which were not properly understood or recognized before....And the most efficient technique to this end is to use the old words but change their meaning. Few traits of totalitarian regimes are at the same time so confusing to the superficial observer and yet so characteristic of the whole intellectual climate as this complete perversion of language.”2
[In this “fireside chat”, FDR accused the U.S. Supreme Court of destroying the Constitution and that the Court needed to be saved from its own irresponsible acts. In the vernacular of his opposition, he proposed a plan to “pack the court” with new Justices who would give a favorable constitutional interpretation to his various New Deal policies.
[The Constitution does not prescribe the number of justices who are to sit on the Supreme Court--Congress determines that. The justices who kept voting against his legislation were seventy years old and older. The President proposed that for each sitting justice who was seventy years old or older and who would not voluntarily retire, the number of justices on the court would increase by one. There were six justices who fit into this category. Thus, if such a law were passed and none of those six decided to retire, then the membership of the court would rise from nine to fifteen.
[Of course, the President would handpick nominees for those positions who would interpret the Constitution exactly the way he wanted which would effectively nullify the effectiveness of those older judges virtually ensuring that the Supreme Court would allow the President and the Congress to do whatever they pleased.
[Franklin D. Roosevelt’s constitutional philosophy was as follows:
“The United States Constitution has proved itself the most marvelously elastic compilation of rules of government ever written.”3
[He wanted justices who were equally expansionist in their constitutional philosophy regarding what authority had been delegated to the federal government.
[This fireside chat was his attempt to sell his plan to the American public.
[What follows is this famous fireside chat in its entirety in the President’s own words and voice. Occasionally I will interject comments along the way:]
Last Thursday I described in detail certain economic problems which everyone admits now face the Nation. For the many messages which have come to me after that speech, and which it is physically impossible to answer individually, I take this means of saying "thank you."
Tonight, sitting at my desk in the White House, I make my first radio report to the people in my second term of office.
I am reminded of that evening in March, four years ago, when I made my first radio report to you. We were then in the midst of the great banking crisis.
[According to John T. Flynn, Hoover begged FDR to join him in addressing the banking crisis before the transition of power took place since the Democrats controlled the House of Representatives and would not support anything Hoover wanted to do without FDR’s blessing. FDR refused to cooperate. His people said that FDR wanted the country to fall as far as it could under Hoover so that FDR could ride in on his white horse and save the country from its lowest possible level. This was a political calculation on FDR’s part to try to destroy the Republican party for as long as he could. It didn’t matter to him that thousands of banks were going out of business and destroying the savings of millions of people. He was making a power play to secure political power.4 As Richard Maybury once observed, the psychology of a politician is the psychology of a bully because he wants to force others to comply with his will. This fireside chat could be looked at that way too.
[Back to the address:]
Soon after, with the authority of the Congress, we asked the Nation to turn over all of its privately held gold, dollar for dollar, to the Government of the United States.
Today's recovery proves how right that policy was.
[Soon after this speech, the economy worsened. His advisors advised him to extend an olive branch to business since they thought he was taking the country down the road of socialism and consequently refused to take any risks by way of new investment.5 When the Treasury Secretary, Henry Morganthou, made a major speech to the country’s business leaders, he started out his speech by saying that the administration was continuing its fight against the national deficits. This sounded so absurd to the crowd that the comment was immediately met with raucous laughter. This angered FDR’s team so they went back on the offensive blaming business for everything. The “pound of flesh” comment in the next part of his recording is typical of the FDR’s contempt for the free market system.6
[Back to the chat:]
But when, almost two years later, it came before the Supreme Court its constitutionality was upheld only by a five-to-four vote. The change of one vote would have thrown all the affairs of this great Nation back into hopeless chaos. In effect, four Justices ruled that the right under a private contract to exact a pound of flesh was more sacred than the main objectives of the Constitution to establish an enduring Nation.
In 1933 you and I knew that we must never let our economic system get completely out of joint again- that we could not afford to take the risk of another great depression.
We also became convinced that the only way to avoid a repetition of those dark days was to have a government with power to prevent and to cure the abuses and the inequalities which had thrown that system out of joint.
We then began a program of remedying those abuses and inequalities-to give balance and stability to our economic system to make it bomb-proof against the causes of 1929.
Today we are only part-way through that program—and recovery is speeding up to a point where the dangers of 1929 are again becoming possible, not this week or month perhaps, but within a year or two.
National laws are needed to complete that program. Individual or local or state effort alone cannot protect us in 1937 any better than ten years ago.
It will take time—and plenty of time—to work out our remedies administratively even after legislation is passed. To complete our program of protection in time, therefore, we cannot delay one moment in making certain that our National Government has power to carry through.
Four years ago action did not come until the eleventh hour. It was almost too late.
[Please recall my prior comment a few moments ago about FDR making things worse for about 4 months by not cooperating with Hoover before FDR took office. He was elected in early November of 1932 but back then inaugurations didn’t take place until early March of the following year. So for the last four months of Hoover’s administration, Hoover could not do very much about the worsening economic conditions in the country. As it turns out, FDR did pretty much what Hoover had recommended regarding the banking crisis, but for that excruciating 4 months, banks continued to fail and people continued to lose their life savings.7
[Back to the address:]
If we learned anything from the depression we will not allow ourselves to run around in new circles of futile discussion and debate, always postponing the day of decision.
The American people have learned from the depression. For in the last three national elections an overwhelming majority of them voted a mandate that the Congress and the President begin the task of providing that protection—not after long years of debate, but now.
The Courts, however, have cast doubts on the ability of the elected Congress to protect us against catastrophe by meeting squarely our modern social and economic conditions.
We are at a crisis in our ability to proceed with that protection. It is a quiet crisis. There are no lines of depositors outside closed banks. But to the far-sighted it is far-reaching in its possibilities of injury to America.
I want to talk with you very simply about the need for present action in this crisis- the need to meet the unanswered challenge of one-third of a Nation ill-nourished, ill-clad, ill-housed.
Last Thursday I described the American form of Government as a three horse team provided by the Constitution to the American people so that their field might be plowed. The three horses are, of course, the three branches of government—the Congress, the Executive and the Courts. Two of the horses are pulling in unison today; the third is not. Those who have intimated that the President of the United States is trying to drive that team, overlook the simple fact that the President, as Chief Executive, is himself one of the three horses.
It is the American people themselves who are in the driver's seat. It is the American people themselves who want the furrow plowed.
It is the American people themselves who expect the third horse to pull in unison with the other two.
I hope that you have re-read the Constitution of the United States in these past few weeks. Like the Bible, it ought to be read again and again.
It is an easy document to understand when you remember that it was called into being because the Articles of Confederation under which the original thirteen States tried to operate after the Revolution showed the need of a National Government with power enough to handle national problems. In its Preamble, the Constitution states that it was intended to form a more perfect Union and promote the general welfare; and the powers given to the Congress to carry out those purposes can be best described by saying that they were all the powers needed to meet each and every problem which then had a national character and which could not be met by merely local action.
But the framers went further. Having in mind that in succeeding generations many other problems then undreamed of would become national problems, they gave to the Congress the ample broad powers "to levy taxes . . . and provide for the common defense and general welfare of the United States."
That, my friends, is what I honestly believe to have been the clear and underlying purpose of the patriots who wrote a Federal Constitution to create a National Government with national power, intended as they said, "to form a more perfect union for ourselves and our posterity."
[Yes, the framers of the Constitution saw that our federal government needed more power but the country was divided. The principal argument made by the anti-federalists against adoption was that we were going too far and creating too strong of a central government at the expense of the states—that if we went too far, our federal government would become as venal and oppressive as the English government from which we had so recently revolted.8 The central theme of the Federalist Papers which were the intellectual sales pitch in favor of adoption, was that the Constitution satisfied the Goldie Locks principle by not giving the federal government too little, or too much power, but rather, just the right amount of power.
[Until the 1925 Butler9 case, the U.S. Supreme Court refused to look at the General Welfare Clause as a stand alone delegation of broad, open-ended authority for Congress to do whatever it wanted to do so long as it thought it was for the general welfare of the country. As the 1918 Daggenhart10 Court observed, in the Constitutional Convention, when Randolph proposed to give Congress power to “legislate in all cases to which the separate States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation,” the convention rejected that proposal for open-ended authority in favor of the specific and limited delegations of authority found in Article 1, Section 8. As Madison, Jefferson and Story argued, if the General Welfare Clause was interpreted to mean Congress had the delegated authority to do whatever it felt was in the general welfare of the country, then that would make the specific and limited delegations of authority meaningless in Article 1, Section 8. If Article 1, Section 8 were to be read as FDR wanted it read, then all of the specific delegations of authority found within that section would become superfluous. In other words, the lengthy Article 1, Section 8 could be reduced down to a very short and simple sentence and all of the rest of that section erased. FDR would have us read that entire section as meaning simply this: “Congress shall have unlimited power to tax, spend, and or legislate so long as they think that what they are doing promotes the general welfare of the country.”
[Yes, the Constitution would be a very easy document to understand, if that is what was meant by the framers, but it wasn’t!
[Now let’s return to the fireside chat.]
For nearly twenty years there was no conflict between the Congress and the Court. Then Congress passed a statute which, in 1803, the Court said violated an express provision of the Constitution. The Court claimed the power to declare it unconstitutional and did so declare it. But a little later the Court itself admitted that it was an extraordinary power to exercise and through Mr. Justice Washington laid down this limitation upon it: "It is but a decent respect due to the wisdom, the integrity and the patriotism of the legislative body, by which any law is passed, to presume in favor of its validity until its violation of the Constitution is proved beyond all reasonable doubt."
[That is not the sales pitch that was given by Hamilton in Federalist #78 which discusses the role of the federal judiciary. According the Hamilton, our federal judges were given life tenure for the purpose of giving them the backbone necessary to force Congress and the President to stay within the bounds of the limited delegated authority given to them in the Constitution. They were expected to protect state sovereignty under the notion of federalism as specifically guaranteed by the 10th Amendment which says: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
[Now back to the chat:]
But since the rise of the modern movement for social and economic progress through legislation, the Court has more and more often and more and more boldly asserted a power to veto laws passed by the Congress and State Legislatures in complete disregard of this original limitation which I just read.
[So what does he mean by “the modern movement for social and economic progress?” Effectively, he means socialism or fascism.
[Back to FDR:]
In the last four years the sound rule of giving statutes the benefit of all reasonable doubt has been cast aside. The Court has been acting not as a judicial body, but as a policy-making body.
When the Congress has sought to stabilize national agriculture, to improve the conditions of labor, to safeguard business against unfair competition, to protect our national resources, and in many other ways, to serve our clearly national needs, the majority of the Court has been assuming the power to pass on the wisdom of these Acts of the Congress—and to approve or disapprove the public policy written into these laws.
That is not only my accusation. It is the accusation of most distinguished Justices of the present Supreme Court. I have not the time to quote to you all the language used by dissenting Justices in many of these cases. But in the case holding the Railroad Retirement Act unconstitutional, for instance, Chief Justice Hughes said in a dissenting opinion that the majority opinion was "a departure from sound principles," and placed "an unwarranted limitation upon the commerce clause." And three other Justices agreed with him.
In the case holding the A.A.A. unconstitutional, Justice Stone said of the majority opinion that it was a "tortured construction of the Constitution." And two other Justices agreed with him.
In the case holding the New York Minimum Wage Law unconstitutional, Justice Stone said that the majority were actually reading-into the Constitution their own "personal economic predilections," and that if the legislative power is not left free to choose the methods of solving the problems of poverty, subsistence and health of large numbers in the community, then "government is to be rendered impotent." And two other Justices agreed with him.
In the face of these dissenting opinions, there is no basis for the claim made by some members of the Court that something in the Constitution has compelled them regretfully to thwart the will of the people.
In the face of such dissenting opinions, it is perfectly clear, that as Chief Justice Hughes has said: "We are under a Constitution, but the Constitution is what the Judges say it is."
The Court in addition to the proper use of its judicial functions has improperly set itself up as a third House of the Congress—a super-legislature, as one of the justices has called it-reading into the Constitution words and implications which are not there, and which were never intended to be there.
We have, therefore, reached the point as a Nation where we must take action to save the Constitution from the Court and the Court from itself. We must find a way to take an appeal from the Supreme Court to the Constitution itself. We want a Supreme Court which will do justice under the Constitution—not over it. In our Courts we want a government of laws and not of men.
[What do you think comports best with the notion of a government of laws and not a government of men?—a Court that attempts to consistently interpret the constitution according to the intents of those who drafted it or a Court who doesn’t care about that but rather who just make the Constitution mean what they want it to mean? It seems to me, the former proposition is a “government of laws” while the later proposition is a “government of men.” The majority of the Court was trying stay true to the intents of the framers by declaring as unconstitutional the attempts by Congress and the President to exercise authority not delegated to them in the Constitution, but for that they were accused by FDR of destroying the Constitution. Quite to the contrary, FDR was the one trying to destroy the Constitution by, in the words of Jefferson, “making it a blank document by construction [or interpretation.]”11
[Back to the chat:]
I want—as all Americans want—an independent judiciary as proposed by the framers of the Constitution. That means a Supreme Court that will enforce the Constitution as written—that will refuse to amend the Constitution by the arbitrary exercise of judicial power—amendment by judicial say-so.
[Wow, I can hardly believe my ears! I would agree with every word of that sentence, but obviously, it means something radically different to him than it does to me.
[Back to the chat:]
It does not mean a judiciary so independent that it can deny the existence of facts universally recognized.
How then could we proceed to perform the mandate given us? It was said in last year's Democratic platform, "If these problems cannot be effectively solved within the Constitution, we shall seek such clarifying amendment as will assure the power to enact those laws, adequately to regulate commerce, protect public health and safety, and safeguard economic security." In other words, we said we would seek an amendment only if every other possible means by legislation were to fail.
When I commenced to review the situation with the problem squarely before me, I came by a process of elimination to the conclusion that, short of amendments, the only method which was clearly constitutional, and would at the same time carry out other much needed reforms, was to infuse new blood into all our Courts. We must have men worthy and equipped to carry out impartial justice. But, at the same time, we must have Judges who will bring to the Courts a present-day sense of the Constitution -Judges who will retain in the Courts the judicial functions of a court, and reject the legislative powers which the courts have today assumed.
[Again, if what he wants is judges who will ignore the limited delegations of authority given to Congress and the President under the Constitution, isn’t he effectively arguing for a “rule of men” rather than the “rule of law?”
[Back to the President’s address:]
It is well for us to remember that in forty-five out of the forty-eight States of the Union, Judges are chosen not for life but for a period of years. In many States Judges must retire at the age of seventy. Congress has provided financial security by offering life pensions at full pay for Federal Judges on all Courts who are willing to retire at seventy. In the case of Supreme Court Justices, that pension is $20,000 a year. But all Federal Judges, once appointed, can, if they choose, hold office for life, no matter how old they may get to be.
What is my proposal? It is simply this: whenever a Judge or Justice of any Federal Court has reached the age of seventy and does not avail himself of the opportunity to retire on a pension, a new member shall be appointed by the President then in office, with the approval, as required by the Constitution, of the Senate of the United States.
That plan has two chief purposes. By bringing into the judicial system a steady and continuing stream of new and younger blood, I hope, first, to make the administration of all Federal justice speedier and, therefore, less costly; secondly, to bring to the decision of social and economic problems younger men who have had personal experience and contact with modern facts and circumstances under which average men have to live and work. This plan will save our national Constitution from hardening of the judicial arteries.
[In other words, he wanted to guarantee that a majority of the judges on the U.S. Supreme Court would implement the sociological school of jurisprudence as propounded by Roscoe Pound, the sociologist/dean of the Harvard Law School, and discard our Common Law Constitutional heritage which protected property rights, freedom from unnecessary governmental intrusions upon individual liberty, and state sovereignty under the 10th Amendment. Richard Maybury said that the two great underpinnings of the Common Law were (1) to do what one agreed to do, and (2) to not encroach upon other people’s rights or their property.12 The sociological school will plunder individual liberty and property rights in order to pursue, in FDR’s words, “the modern movement for social and economic progress” or in other words, redistribution of wealth through the force of law.
[Back to the address:]
The number of Judges to be appointed would depend wholly on the decision of present Judges now over seventy, or those who would subsequently reach the age of seventy.
If, for instance, any one of the six Justices of the Supreme Court now over the age of seventy should retire as provided under the plan, no additional place would be created. Consequently, although there never can be more than fifteen, there may be 'only fourteen, or thirteen, or twelve. And there may be only nine.
There is nothing novel or radical about this idea. It seeks to maintain the Federal bench in full vigor. It has been discussed and approved by many persons of high authority ever since a similar proposal passed the House of Representatives in 1869.
[What? There is nothing novel or radical about this idea? Since when has any President before him proposed to destroy our system of checks and balances by making the Judicial branch subservient to him in one fell swoop by stacking it with judges who will interpret the Constitution in such a way as to let the President and/or Congress do whatever they want to do regardless of the bounds set forth in the Constitution? Basically, FDR is arguing for a pure democracy where the electorate gets whatever they want by majority vote. That is what FDR is saying when he earlier emphasized three times that it is the people who are in the driver’s seat and their will as expressed through the legislature should rein supreme.
[But our founders feared democracy and looked at it as little more than an ever-fluctuating expression of “mob rule.” They criticized Greek democracy for ordering Socrates’ death one day and then voting to build statues to him the next.13 They purposefully created a republic rather than a democracy in order to protect the people from their own lack of wisdom in times of crisis.
[Moreover, they created horizontal checks and balances and separations of powers in the three mutually cross-checking branches of government as well as vertical checks and balances and separations of powers as expressed in the notion of federalism under the 10th Amendment which was quoted earlier. These were designed to mitigate the damage that would likely be done in times of crisis like the Great Depression where as Hamilton warned, we would be inclined to let into government principles that would later destroy us.14
[Looking at things in their totality, in this fireside chat FDR is proposing to do away with all of those protections in order to respond to our economic problems. He is arguing that rather than changing the Constitution through the amendment process contained within it, we should quickly change it simply by changing the prevailing philosophy of the Supreme Court by changing the makeup of the Court.
[George Washington anticipated things like this and warned us against such rash reactions when he said in his farewell address:
“The basis of our political systems is the right of the people to make and to alter their constitutions of government. But the Constitution which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all.”(emphasis added)
“It is important…that the habits of thinking in a free country should inspire caution in those entrusted with its administration, to confine themselves within their respective constitutional spheres, avoiding in the exercise of the powers of one department to encroach upon another. The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism….If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; though this may in one instance be the instrument of good, it is the customary weapon by which free governments are destroyed.”15 (emphasis added)
[Back to the chat:]
Why was the age fixed at seventy? Because the laws of many States, the practice of the Civil Service, the regulations of the Army and Navy, and the rules of many of our Universities and of almost every great private business enterprise, commonly fix the retirement age at seventy years or less.
The statute would apply to all the courts in the Federal system. There is general approval so far as the lower Federal courts are concerned. The plan has met opposition only so far as the Supreme Court of the United States itself is concerned. If such a plan is good for the lower courts it certainly ought to be equally good for the highest Court from which there is no appeal.
Those opposing this plan have sought to arouse prejudice and fear by crying that I am seeking to "pack" the Supreme Court and that a baneful precedent will be established.
What do they mean by the words "packing the Court"?
Let me answer this question with a bluntness that will end all honest misunderstanding of my purposes.
If by that phrase "packing the Court" it is charged that I wish to place on the bench spineless puppets who would disregard the law and would decide specific cases as I wished them to be decided, I make this answer: that no President fit for his office would appoint, and no Senate of honorable men fit for their office would confirm, that kind of appointees to the Supreme Court.
But if by that phrase the charge is made that I would appoint and the Senate would confirm Justices worthy to sit beside present members of the Court who understand those modern conditions, that I will appoint Justices who will not undertake to override the judgment of the Congress on legislative policy, that I will appoint Justices who will act as Justices and not as legislators- if the appointment of such Justices can be called "packing the Courts," then I say that I and with me the vast majority of the American people favor doing just that thing—now.
[This is a very good example of what is known as the “straw man argument” where in the process of argumentation one side ascribes to its opponents a ridiculous proposition with which most everyone would disagree and want to oppose. That is constructing the so-called “straw man” who will shortly be vanquished in argument to the relief of the whole audience. The problem is that FDR’s opposition was not accusing him of wanting to place on the Court “spineless puppets who would disregard the law and would decide specific cases as FDR wished them to be decided.” They weren’t saying that he wanted judges who would call him on the phone in matters of constitutional interpretation and ask: “What do you want us to do Mr. President?” and then after getting his instructions say “Yes sir! Mr. President—your wish is our command!” Those would be spineless puppets.
[Rather, they were accusing him of installing judges who would disregard the limitations on federal authority embedded in the Constitution and never override the will of Congress and the President based upon constitutional arguments. And he basically admitted he would do exactly that by the last statement you just heard from him.
[Back to the address:]
Is it a dangerous precedent for the Congress to change the number of the Justices? The Congress has always had, and will have, that power. The number of Justices has been changed several times before, in the Administrations of John Adams and Thomas Jefferson- both signers of the Declaration of Independence- Andrew Jackson, Abraham Lincoln and Ulysses S. Grant.
I suggest only the addition of Justices to the bench in accordance with a clearly defined principle relating to a clearly defined age limit. Fundamentally, if in the future, America cannot trust the Congress it elects to refrain from abuse of our Constitutional usages, democracy will have failed far beyond the importance to democracy of any kind of precedent concerning the Judiciary.
[The “clearly defined principle” mentioned several times in this address, is that he wants new and younger judges who will not feel constrained to interpret the Constitution the way it was intended by its framers and the way the Supreme Court had predominantly approached its Constitutional role of interpretation for the prior century and a half. As he will later say, he wants to pack the court with “liberal minded” judges who will “build anew on the Constitution ‘a system of living law’” In the modern vernacular, he wants to stack the Court with judges who will make the Constitution into a “living document.”
[Then he says that after thus destroying our original system of checks and balances and separations of powers and thus relying solely upon the hope that our elected officials will not abuse their positions of power, he simply says that if it turns out that they will abuse those powers, it will be a very sad thing to see that our democracy failed. He seems oblivious to the idea that the very checks and balances and separations of powers he is proposing to dismantle by his proposal were designed to prevent such abuses of power and prevent the failure of our constitutional form of government.
"...[I]t would be a dangerous delusion were a confidence in the men of our choice to silence our fears for the safety of our rights....confidence is everywhere the parent of despotism [–] free government is founded in jealousy, and not in confidence; it is jealousy and not confidence which prescribes limited constitutions, to bind down those whom we are obligated to trust with power....our Constitution has accordingly fixed the limits to which, and no further, our confidence may go....In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution."16 (emphasis added)
[Back to the chat:]
We think it so much in the public interest to maintain a vigorous judiciary that we encourage the retirement of elderly Judges by offering them a life pension at full salary. Why then should we leave the fulfillment of this public policy to chance or make it dependent upon the desire or prejudice of any individual Justice?
[Again this is Orwellian double-speak which is probably the best way to describe this whole address. He doesn’t want a vigorous and independent judiciary watching over his abuses of power. He wants a compliant judiciary who not stand in his way.
[Back to the address:]
It is the clear intention of our public policy to provide for a constant flow of new and younger blood into the Judiciary. Normally every President appoints a large number of District and Circuit Judges and a few members of the Supreme Court. Until my first term practically every President of the United States had appointed at least one member of the Supreme Court. President Taft appointed five members and named a Chief Justice; President Wilson, three; President Harding, four, including a Chief Justice; President Coolidge, one; President Hoover, three, including a Chief Justice.
Such a succession of appointments should have provided a Court well-balanced as to age. But chance and the disinclination of individuals to leave the Supreme bench have now given us a Court in which five Justices will be over seventy-five years of age before next June and one over seventy. Thus a sound public policy has been defeated.
I now propose that we establish by law an assurance against any such an ill-balanced Court in the future. I propose that hereafter, when a Judge reaches the age of seventy, a new and younger Judge shall be added to the Court automatically. In this way I propose to enforce a sound public policy by law instead of leaving the composition of our Federal Courts, including the highest, to be determined by chance or the personal decision of individuals.
If such a law as I propose is regarded as establishing a new precedent, is it not a most desirable precedent?
Like all lawyers, like all Americans, I regret the necessity of this controversy. But the welfare of the United States, and indeed of the Constitution itself, is what we all must think about first. Our difficulty with the Court today rises not from the Court as an institution but from human beings within it. But we cannot yield our constitutional destiny to the personal judgment of a few men who, being fearful of the future, would deny us the necessary means of dealing with the present.
This plan of mine is no attack on the Court; it seeks to restore the Court to its rightful and historic place in our system of Constitutional Government and to have it resume its high task of building anew on the Constitution "a system of living law." The Court itself can best undo what the Court has done.
[So, according to FDR, we should not “yield our constitutional destiny to the personal judgment of a few men”—rather, we should yield that constitutional destiny to one man, namely, FDR.
[When he says he is only seeking to “restore the Court to its rightful and historic place in our system of Constitutional Government,” again that is Orwellian double-speak. When the Court declared some of his New Deal programs unconstitutional, it was occupying “its rightful and historic place in our system of Constitutional Government.” What he is really proposing is the Court to assume a new, wrongful, and un-historic place by no longer serving as an effective check and balance over unauthorized federal action.
[The Constitution was not intended to be the type of “living document” envisioned by those in the liberal political camp. It was supposed to serve as the relatively immutable foundational base to our whole system of government. It was not supposed to change with every particular contrary political whim that happens to be blowing through Washington D.C. at any particular time. It was supposed to be a constant and predictable legal and political document that is binding upon all of the branches of government—including the judiciary. The true “rightful and historic place” of our federal courts was to preserve its original meaning—and that is exactly the opposite of what FDR wanted.
[Back to the address:]
I have thus explained to you the reasons that lie behind our efforts to secure results by legislation within the Constitution. I hope that thereby the difficult process of constitutional amendment may be rendered unnecessary. But let us examine that process.
There are many types of amendment proposed. Each one is radically different from the other. There is no substantial group within the Congress or outside it who are agreed on any single amendment.
It would take months or years to get substantial agreement upon the type and language of an amendment. It would take months and years thereafter to get a two-thirds majority in favor of that amendment in both Houses of the Congress.
Then would come the long course of ratification by three fourths of all the States. No amendment which any powerful economic interests or the leaders of any powerful political party have had reason to oppose has ever been ratified within anything like a reasonable time. And thirteen States which contain only five percent of the voting population can block ratification even though the thirty-five States with ninety-five percent of the population are in favor of it.
A very large percentage of newspaper publishers, Chambers of Commerce, Bar Associations, Manufacturers' Associations, who are trying to give the impression that they really do want a constitutional amendment would be the first to exclaim as soon as an amendment was proposed, "Oh! I was for an amendment all right, but this amendment that you have proposed is not the kind of an amendment that I was thinking about. I am, therefore, going to spend my time, my efforts and my money to block that amendment, although I would be awfully glad to help get some other kind of amendment ratified."
Two groups oppose my plan on the ground that they favor a constitutional amendment. The first includes those who fundamentally object to social and economic legislation along modern lines. This is the same group who during the campaign last Fall tried to block the mandate of the people.
Now they are making a last stand. And the strategy of that last stand is to suggest the time-consuming process of amendment in order to kill off by delay the legislation demanded by the mandate.
To them I say: I do not think you will be able long to fool the American people as to your purposes.
The other group is composed of those who honestly believe the amendment process is the best and who would be willing to support a reasonable amendment if they could agree on one.
To them I say: we cannot rely on an amendment as the immediate or only answer to our present difficulties. When the time comes for action, you will find that many of those who pretend to support you will sabotage any constructive amendment which is proposed. Look at these strange bed-fellows of yours. When before have you found them really at your side in your fights for progress?
[So those who support the President’s plan are for “progress” while those who oppose him are against “progress.” I guess that all depends upon the meaning of the word “progress.” To him, apparently socialism or fascism would be progress and liberty in the classical sense would be retrogression.
Back to the chat:]
And remember one thing more. Even if an amendment were passed, and even if in the years to come it were to be ratified, its meaning would depend upon the kind of Justices who would be sitting on the Supreme Court bench. For an amendment, like the rest of the Constitution, is what the Justices say it is rather than what its framers or you might hope it is.
[In other words, “let’s not worry about the future—let’s just worry about the here and now. I can’t guarantee that the court will always do things the way you or I would want them to, but if you give me the power I am asking for in this address, I can at least guarantee that for the short term, the Supreme Court will not block what I want to do.
Back to the chat:]
This proposal of mine will not infringe in the slightest upon the civil or religious liberties so dear to every American.
My record as Governor and as President proves my devotion to those liberties. You who know me can have no fear that I would tolerate the destruction by any branch of government of any part of Our heritage of freedom.
The present attempt by those opposed to progress to play upon the fears of danger to personal liberty brings again to mind that crude and cruel strategy tried by the same opposition to frighten the workers of America in a pay-envelope propaganda against the Social Security Law. The workers were not fooled by that propaganda then. The people of America will not be fooled by such propaganda now.
I am in favor of action through legislation:
First, because I believe that it can be passed at this session of the Congress.
Second, because it will provide a reinvigorated, liberal-minded Judiciary necessary to furnish quicker and cheaper justice from bottom to top.
Third, because it will provide a series of Federal Courts willing to enforce the Constitution as written, and unwilling to assert legislative powers by writing into it their own political and economic policies.
During the past half century the balance of power between the three great branches of the Federal Government, has been tipped out of balance by the Courts in direct contradiction of the high purposes of the framers of the Constitution. It is my purpose to restore that balance. You who know me will accept my solemn assurance that in a world in which democracy is under attack, I seek to make American democracy succeed. You and I will do our part. ]
That was the end of his address. Boy, I can see how that would be pretty persuasive to an American who was suffering during the Great Depression—especially if he was unfamiliar with our founding philosophy. When he talked about things being “out of balance,” what he really meant was that he simply wanted to shift the balance of power in his favor so that he could have free rein to do whatever he wanted to do.
When I read all of that the first time, I sat is stunned amazement. It reminded me of a scene from Alice in Wonderland: “‘When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean – neither more nor less.” Many of those statements ring true in the ears of those who believe in judicial restraint but upon closer analysis, were mere subterfuge for his own type of judicial activism. The judges he will later install will legislate in his favor by stripping out of the Constitution its inherent, and very important, limitations on federal authority.
Soon after FDR’s plan became public, the editorialist William Allen White characterized Roosevelt’s actions as “ [an] elaborate stage play to flatter the people by a simulation of frankness while denying Americans their democratic rights and discussions by suave avoidance.”17
In addition to his very offensive way of introducing his Bill to the democratic leaders of Congress, his own party perceived it to be too open and bold of an attack on the Judiciary and refused to pass his proposal. FDR couldn’t effectively blame the Republicans for his defeat since they largely stood on the sidelines more than willing to let the Democrats fight things out within their own party in the Senate. According to John T. Flynn, Democratic Senator Wheeler:
“summoned before the committee none but well-know liberals, men whose standing before the country as liberals could not be questioned. Week after week there came lawyers, educators, authorities on constitutional law, writers and leaders, all of whom had been critical of the decisions of the Court, but all of whom repudiated the idea that because the Court did not agree with them our system of government should be torn to pieces and our constitutional liberties deprived of the incalculable bulwark of a free court against the aggressions of an executive.”18
Consequently, FDR’s proposed court-packing bill was withdrawn from consideration by the Senate.