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.


About Matthew J. Tuininga

Matthew J. Tuininga is the Assistant Professor of Moral Theology at Calvin Theological Seminary in Grand Rapids, Michigan.

Posted on December 7, 2012, in Conservatism, Democratic Party, Supreme Court and tagged , , , , , , . Bookmark the permalink. Comments Off on How FDR eroded America’s constitutional consensus.

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