How FDR eroded America’s constitutional consensus

Last week I described some of the reasons why Franklin Delano Roosevelt was a president from whom conservatives have much to learn. Ronald Reagan, who supported FDR in every one of his presidential campaigns, self-consciously emulated the Democratic president in both his attitude toward ordinary Americans and in his popular mode of speech. Conservative Republicans admire Reagan (and long for his reincarnation) but aren’t always very good at detecting what made him so effective.

Roosevelt’s effect on the country was not entirely positive, however. And while we could critique his policies at many points, both the successful and unsuccessful ones, one could make a pretty good case that the most negative part of FDR’s legacy was the extent to which it hailed the breakup of the American legal and constitutional consensus. The Supreme Court and its rulings have always been controversial, of course, but never has that court been so politicized, never has it been so divided between judges with utterly contrary philosophies of constitutional interpretation, than it is today.

In the early years of the New Deal the only effective roadblock to FDR’s legislation was a Supreme Court that was more than willing to overturn laws passed by an overwhelmingly Democratic Congress. The court’s opposition angered Roosevelt, but as Chief Justice Charles Evans Hughes (who had been the Republican presidential candidate in 1916) pointed out, the problem was with the administration’s quite cavalier attitude towards the Constitution.

If we had an Attorney General in whom the President had confidence, and in whom the Court had confidence, and in whom the people had confidence, the story might have been different. But the laws have been poorly drafted, the briefs have been badly drawn and the arguments have been poorly presented. We’ve had to be not only the Court but we’ve had to do the work that should have been done by the Attorney General.

The problem was that Roosevelt wanted to use the federal government to achieve things that the courts had long interpreted as being out of step with the Constitution. Yet despite being the leader of the party that had the most powerful grip on politics (at both the federal and state levels) in American history, before or since, FDR didn’t want to go through the trouble of amending the Constitution in the manner of previous presidents, the manner outlined by the Constitution itself, and the manner called for by the Democratic party platform.

It’s not that he and his advisers didn’t understand the problems with their proposals. As Justin Dyer recently wrote at Public Discourse, Roosevelt and labor secretary Frances Perkins were well aware of what they called the “constitutional problems.”

New Deal-era Secretary of Labor Frances Perkins once recounted a conversation she had with Franklin Roosevelt about how feasible it was to create a government-administered system of social insurance for the elderly. “Well, do you think it can be done?” the president asked his longtime advisor and friend. “There are constitutional problems, aren’t there?” To this Perkins conceded, “Yes, very severe constitutional problems.” Under the traditional understanding of the enumerated powers of the federal government, there simply was no congressional power to create a national system of social insurance. “But what have we been elected for except to solve the constitutional problems?” Perkins asked. “Lots of other problems have been solved by the people of the United States, and there is no reason why this one shouldn’t be solved.”

Perkins included this story in a speech at the Social Security Administration headquarters in 1962, and she was remarkably candid about her view that the Constitution was an obstacle to be overcome rather than a legal framework to work within. “The constitutional problem was the greatest one,” she said. “How could you get around this business of the State-Federal relationships? It seemed that it couldn’t be done.”

In the end Roosevelt got his way, of course, but a big part of the reason for his success was his intimidation of the Supreme Court. In a political move that biographer Jean Edward Smith describes as nothing short of “hubris” the president proposed the Bill to Reorganize the Judicial Branch of Government, calling for up to fifty new federal judges to sit alongside judges who were over the age of seventy, including six of the nine sitting justices on the Supreme Court. If he couldn’t persuade the Court to break with its longstanding tradition of constitutional interpretation, FDR was going to pack it with his own supporters.

The opposition in Congress was firm, though it took the soaring Roosevelt administration by surprise, and that opposition solidified with the appearance of the unprecedented letter from the chief justice quoted above (not since Chief Justice John Marshall in 1819 had a chief justice intervened in a public controversy like this, according to Smith).

Nevertheless, while FDR’s attempt at court-packing failed, seriously eroding the president’s until then solid congressional support, the Supreme Court was from then on much more amenable to the New Deal legislation. As Smith tells the story,

On March 29 [1937, eight days after the appearance of his letter], in a tense, packed courtroom, the chief justice read the Supreme Court’s decision upholding the State of Washington’s minimum wage law, which was almost identical to the New York law it had overturned six months earlier… When Hughes finished reading his opinion, the Court went on to uphold three recent pieces of New Deal legislation, all by unanimous vote.

Two weeks later, in the most eagerly anticipated ruling of the term, the Court, speaking again through Hughes, upheld the Wagner Labor Relations Act – the most ambitious undertaking of the New Deal since the NRA, and the most controversial. Hughes rejected the distinction between direct and indirect effects on commerce that had governed the Court’s approach since 1895, restored the commerce clause to the full sweep of John Marshall’s expansive definition in Gibbons v. Ogden, and dismissed the recent holdings Schechter Poultry Corp. v. United States and Carter v. Carter Coal Co. “These cases are not controlling here,” said Hughes majestically.

When the Court subsequently sustained the Social Security Act (7-2), even the most rabid New Dealer recognized that whatever rationale there was behind FDR’s Court-packing scheme had evaporated. (FDR, 387)

FDR would go on to appoint eight Supreme Court justices over the course of his presidency (it is very important to note that he had appointed none of the justices that upheld Social Security and the other pieces of legislation noted above), in the process laying the foundation for a whole new approach to constitutional law that has been dominant to this day. It would take constitutional conservatives decades to recover even the bare credibility of views that until the 1930s were considered standard and authoritative. Today, as we well know, the Court is sharply divided between liberals and conservatives, the appointment of justices subject to politicization like never before. The suspicion and bitterness of the culture wars is in no small part due to conservatives’ feelings of betrayal by the judicial establishment, feelings that go back to 1937 but that run through numerous controversial cases in the following decades, the most divisive of which is perhaps Roe v. Wade.

One can’t help but wonder what would have happened had Roosevelt taken a different route, that of constitutional amendment. But that, of course, is water under the bridge. We’re now stuck with the jurisprudence – and the controversy – that shows no sign of abating any time soon.

The Supreme Court’s refusal to fight a culture war; for the good of the country

There are now a bejillion articles on the Internet examining yesterday’s Supreme Court decision and trying to figure out the implications of it all. There is no way one person can keep up with it all, and for many people it is all somewhat bewildering. Many conservatives in particular wonder how in the world it is possible for the Roberts-led decision to have been good for this country if it upheld the constitutionality of the Affordable Care Act. Some liberals think that the conservatives who try to find silver lining in the case are giving nothing more than a desperate attempt to come to terms with grief.

What’s really going on?

There are many people, on both the right and the left who think that every significant issue that faces this country should be viewed through the zero sum lens of the culture wars. If Obamacare survives, one side wins, and if it falls, the other side wins. Take no prisoners. Give up no ground. Everything is at stake. All compromise is bad. People like this don’t tend to care about the long term ability of our political institutions to handle the stress of culture war. To them the concern of a conservative chief justice to ensure the credibility of the Supreme Court in a nation that includes both liberals and conservatives is nothing short of betrayal.

More sober minds, whether or not they agree with this particular decision, look at the long term implications of the decision in all of its nitty-gritty detail, both in terms of what it means for conservative constitutional theory and the long term viability of the great experiment that we call the United States of America.

Taking this approach, Walter Russell Mead writes,

The decision should also remind people that despite the increasingly partisan nature of the process by which justices are appointed and confirmed, the court is not a partisan organization. Chief Justice Roberts and Associate Justice Kennedy both surprised much of the world with their votes; whatever one thinks of the conclusions they reach it seems reasonably clear that all nine justices vote with their legal convictions rather than their partisan interests.

Many who hate Obamacare will curse the Court and many who like the law will bless it, but the Court is functioning as a Court of law and not a political tribunal. That the Chief Justice appointed by George W. Bush cast the deciding vote to save President Obama’s most important legislative achievement is a clear signal that partisanship in this country goes only so far.

In contrast, Mead notes, look at the inability of Europe to solve its problems through the ordinary structures of government. I would add that in many countries of the world a dispute of this magnitude would lead to national collapse or even war. Mead writes,

I don’t think the health care policy we’ve adopted is a particularly good one, but at least our institutions more or less worked. The President made a proposal, the Congress then in office debated the proposal and, after much agony and pork peddling, passed a law. The law was and is controversial; it is being relitigated in two forums. Judicially, it moved through the Court system and received a full and thorough review, and a definitive decision has been pronounced. This is the law of the land, and it will and should be enforced until changed.

Like me, Mead thinks Jay Cost’s initial analysis of the decision contains great wisdom.

It’s going to take some time for the dust to settle, but the most interesting early take in my view comes from Jay Cost, who wrote in a tweet no less, “It is about scoring your side a huge legal victory while quieting the heat of opponents; that’s ONLY way to effect enduring change.” Jay’s theory is that the limit on the powers of Congress under the commerce clause will matter more for America’s future development than Obamacare — a law whose weak financial base ensures it will have to be revisited sooner rather than later. That’s why he compares the decision to the famous Marbury vs Madison when the astute John Marshall secured Jeffersonian acquiescence for the Court’s power to nullify Congressional acts by making the overturn of a law the basis for a decision that, in practical terms, got the results Jefferson wanted.

Ah, the long term. It is the actual argument that matters, not just the outcome. If you want to hear more about what exactly happened with Marbury vs Madison check out Sean Trende’s analysis at RealClearPolitics.

Trende notes that in this ruling the Federalist Society, which represents the conservative and essentially strict constructionist view of the Constitution, got virtually all that it wanted.

But judicial conservatives who are not just concerned about the outcome got more than they could have reasonably hoped for. Doctrinally speaking, this case will likely be remembered as a watershed decision for conservatives.

Five justices just signaled to lower courts that, but for the unique taxation power argument, they were prepared to rule that a major act of Congress that plainly touched upon economic activity exceeded Congress’ commerce powers…

The court just constricted its Commerce Clause jurisprudence; if liberal commentators are correct, they did so by a lot. It doesn’t matter today, but 10 years from now, it will probably be a different story…

Seven justices just agreed to real limits on Congress’ ability to attach strings to legislation. This is significant. Until today, these limits were hypothetical, and it was believed that Congress could, for example, remove all Medicaid funding as a punishment for a state’s refusal to comply with the Medicaid expansion. I did not expect the court to rule the way it did here, much less to do so by a 7-2 vote.

What’s more, Trende points out, Roberts achieved much of this even though it was in part irrelevant to the case at hand.

One of the interesting features of Marburyis that the Court didn’t have to decide that Marbury was entitled to his commission.  Indeed, it probably should have decided the jurisdictional issue first, then left the remaining issues for the Courts to decide upon refiling.  But Marshall wanted to get the most favorable for Federalists that he could, while still maintaining the Court’s credibility.

Similarly, Roberts actually didn’t have to reach the commerce clause/necessary and proper issues.  Having decided the tax issue, he actually probably could have stopped there.  That he didn’t suggests that he wanted to make sure that, even in defeat, there were five clear votes for the conservatives’ view of the commerce clause and necessary and proper clause.

Of course, for those who think that there is only one Christian view of health care and that the Supreme Court should have known enough about the Bible to detect that view and therefore throw out Obamacare, none of this matters at all. Who cares about procedures? Who cares about maintaining national institutions that can resolve disputes between liberals and conservatives, even if not always in favor of conservatives? Who cares about arcane matters like the commerce clause?

But as the conservative Matthew J. Franck writes as a guest on the Washington Post blog, there is no Christian view of health care that can decisively mediate between liberals and conservatives on how to solve the health care problem. In fact, there may have been just as many Christians praying that the law would be upheld as were praying that it would be overturned. As Franck puts it,

is there a single “Christian view” on health-care policy—or even a single Catholic view?

Not exactly. Like everyone else, those who take a self-consciously Christian perspective on health care fall out along familiar liberal-vs.-conservative lines. Some will claim that the responsibility for “the least of these” necessarily falls chiefly on government, because government really is all of us. The responsibility being everyone’s, the response must be collective, and what is government but the active arm of the whole society? Therefore, according to this view, the Christian love for neighbor is frustrated wherever the government is held back from doing all it can do, in mercy and charity.

Others will point out that this obscures the extent to which “everyone’s responsibility” means each individual’s. Human needs are personal, one by one, and the works of charity and mercy must be equally personal, calling forth the virtues of voluntary action. The state is by nature impersonal (viewed in the right light, this is actually one of its virtues); it cannot love anyone, and is not a reliable channel for the love of neighbors for one another. On the way from Neighbor A to Neighbor B, if the love has to be transmitted through the state, what might have begun in charity and mercy will wind up distorted by coercion, inattention to the human element, and stunting of the free actions of persons.

The big picture in all of this is that our system is working. You may not like the results. I certainly would have hoped things worked out a little bit differently. But the fact remains that the institutions of American government are successfully channeling the process of America self-government in a way that is peaceable and procedurally just. Nothing is set in stone. If you don’t like Obamacare, there is still a fairly decent chance that it will be overturned. But the way in which that may happen will be the right way, through the political process. All of this is reflective of the fact that our country, the great experiment of the founding fathers, is working.

The Supreme Court Ruling: upholds Obamacare; upholds the Constitution; refutes Obama

The Supreme Court decision on the health care law just announced is a remarkable decision. No one expected conservative Chief Justice Roberts to cast the key vote that upheld the law, with sharp opposition from moderate Justice Kennedy. No one thought the decision would revolve around the government’s power to tax. No one thought that a ruling upholding the health care law would create a big electoral headache for President Obama in his campaign for reelection. Yet all of this has now happened.

Jay Cost provides a sharp analysis over at the Weekly Standard:

First, the Roberts Court put real limits on what the government can and cannot do. For starters, it restricted the limits of the Commerce Clause, which does not give the government the power to create activity for the purpose of regulating it. This is a huge victory for those of us who believe that the Constitution is a document which offers a limited grant of power.

I would actually argue that this was the most important issue at stake in the case, far more important in the long run than Obamacare itself. If the administration had won on its interpretation of the commerce clause, the idea of the Constitution as a limit on federal power would have been dead in the water. The commerce clause would have truly have become the Trojan Horse for anything the government wants to do. Thankfully, the constitution remains meaningful.

Cost also notes a second way in which the ruling upholds the Constitution.

Second, the Roberts Court also threw out a portion of the Medicaid expansion. States have the option of withdrawing from the program without risk of losing their funds. This is another major victory for conservatives who cherish our system of dual sovereignty. This was also a big policy win for conservatives; the Medicaid expansion was a major way the Democrats hid the true cost of the bill, by shifting costs to the states, but they no longer can do this.

In other words, the ruling is a big win for states’ rights, arguably the second most important issue in the case. States can and will defy the Obama administration on this issue. Federalism is preserved.

But, you may say, what about the power to tax? Does this not simply expand government power by placing it all in the power to tax, rather than in the commerce clause? No, it does not, because the government has always had radical power to tax. Yet this is not a great threat to American liberty, because as we have seen in the last decade and a half, Americans are very touchy about taxation. It is very difficult to raise taxes, even for a Democratic president who controls both houses of Congress. That is why when Obama campaigned for his health care law he was adamant that the penalty attached to the individual mandate was categorically not a tax.

What the court has done, then, was to tell Obama that he was wrong, and that the penalty is a tax. In other words, the centerpiece of Obama’s administration amounts to a tax increase that Obama himself vowed not to support. Note carefully, then, what this means for the future. Had Obama admitted that the health care law contained a very important tax, it probably would not have passed. The bill only passed because it was based on a false assumption. Now in the upcoming election the country will essentially vote in a referendum on whether or not it wants that tax increase. And if history is any guide, that does not bode well for Obama. Americans don’t generally vote to raise their own taxes.

As Cost polemically describes the situation:

The Democrats were at pains not to call this a tax because it is inherently regressive: the wealthy overwhelmingly have health insurance so have no fear of the mandate. But now that it is legally a tax, Republicans can and will declare that Obama has slapped the single biggest tax on the middle class in history, after promising not to do that.

To be sure, it is by no means sure that the Republicans will win in November, and even if they do, it is by no means clear that they will successfully destroy Obamacare. I am not trying to portray this ruling as a great victory for conservatives.

But I do want to suggest that we keep all of this in perspective. The ruling is a lot more complicated than the headlines suggest. The winners and losers are not as obvious as immediately meets the eye. And the most important thing in all of this – the integrity of the constitution – was upheld.