IN THE LAST CHAPTER I challenged the reigning view of the struggle between the Old Court and the New Deal. Received opinion discredits the Court and suggests that the Nine Old Men should have given the First New Deal their constitutional seal of approval. I emphasized how judicial resistance contributed to the democratic character of the outcome. First, it forced Americans to recognize that the emerging New Deal did challenge their constitutional commitments to free markets and limited national government. Second, it invited Americans to discriminate between the full-blown corporatism of the NIRA and an activist liberalism that sought to regulate the market, not abolish it. Third, it deepened the political dialogue: What did the American people really think about the principles behind the minimum wage laws,1 or old age pensions,2 or agricultural subsidies?3 Finally, it emphasized—as nothing else could—that the political elite in Washington, D.C., had not yet authoritatively decided the questions of constitutional identity raised by the New Deal; and that it was up to the American people to make this decision, against a background that emphasized the principled aspect of the struggle.
All this might have been lost if, as the reigning myth suggests, the Court had approved the first wave of New Deal initiatives. On this scenario, the 1936 election would have occurred under foggier conditions. President and Congress might have been teetering uncertainly between full-blown corporativism and liberal welfarism. Roosevelt might have run a campaign that focused entirely on personal charisma and presidential pork. Such factors always play an important role in American politics, but the Court’s opposition made it impossible to evade the questions of principle. In fact, Roosevelt’s campaign of 1936 elaborated the basic premises of the emerging New Deal far more incisively than anything Roosevelt had said in 1932.
At the same time, Landon and his partisans emphasized the danger of court-packing in their last-ditch efforts to mobilize the American people. In the words of H. L. Mencken:
During his second term, if he has one, [Roosevelt] will have the choosing of at least three judges, and perhaps of all nine, for the youngest of the sitting ones is beyond sixty…. That he will appoint men who actually believe in the Constitution is hardly likely. It is immensely more probable that they’ll be advocates of the kind of revision that will greatly enlarge his own powers.
Thus his reelection will set off the most violent attack upon the Constitution ever made, at least since the Hon. Abraham Lincoln adjourned it during the Civil War. He will waste no time (and run no risk) trying to change it by the orderly process of amendment. Instead, he will set his juridic stooges upon it, asking them only to make a thorough job.4
Mencken was stating the obvious—the traditional Constitution was reaching the point of no return.
To put my thesis in terms of a single (if much abused) word, the reigning myth is insufficiently dialectical. It focuses on each No handed down by the Supreme Court without trying to understand how these rejections helped shape the subsequent Yeses by the New Dealers in Washington and the American people at large. The Court’s No in Schechter forced the New Deal to make up its mind on corporatism and say Yes to systematic structural reform; the Court’s No to particular liberal reforms gave concrete meaning to the New Deal’s assault on traditional principles. In response to the Court’s emphatic warning that there was something new about the New Deal, would the American people reign in the Democrats in the election of 1936?
The results were overwhelming. Democrats returned to Congress and the White House with a show of popular support that has not been seen before or since. But brute numbers never interpret themselves. It was up to the President, the 331 Democrats in the House, and the 76 Democrats in the Senate to elaborate the meaning of their mandate—all the time aware that they would be obliged, once again, to defend their interpretation at the polls in two short years.
This chapter focuses on the way the constitutional issues were defined during the period before the Court began its famous switch in the spring of 1937. Until then, neither the President nor the Congress nor the country had any inkling that the Justices might help resolve the constitutional crisis. Instead, they had to rely on themselves to define the crucial constitutional issues raised by the triggering election.
Roosevelt made the first big move with his plan for judicial reorganization—which would have allowed him to make six new appointments to the Supreme Court. This provoked a remarkably sophisticated constitutional debate.5 The President’s leading opponents did not present themselves as staunch defenders of the traditional jurisprudence. No less then Roosevelt, they recognized that the People were demanding a fundamental change in constitutional direction.
They denied, however, that the President had hit upon the right way to implement the shift. On their view, there was only one way the President and his party could credibly speak for the People in a higher lawmaking voice—and that was by using the forms provided by Article Five of the original Constitution. To establish their good faith, opponents came forward with constitutional amendments and pleaded with the Administration to put its weight behind one or another proposal. In response, the President was obliged to explain why Article Five was inadequate, presenting an increasingly self-conscious defense of Presidential leadership in higher lawmaking.
The President’s initiative, in short, catapulted the country into a great debate of central importance to my main thesis: Was the President right in claiming that the Democrats’ electoral victories had given the New Dealers a mandate from the People to take unconventional action to constitutionalize their revolutionary reforms? Or were his opponents right in insisting on a monopolistic interpretation of Article Five?
Just then, the Court chose to make its switch in time. While particular decisions became landmarks, the Justices’ new-found consistency was even more important. Never again would the Court find a New Deal reform beyond the power of government. As a consequence, the political protagonists relaxed their own creative efforts to work out the terms of a new constitutional solution and allowed the Court to codify the terms of the New Deal revolution.
This point allows us to put the “switch in time” into a new perspective. We have all been taught that the Court waited far too long before it decided to retreat. Modern constitutional law looks with undisguised relief as the Court responds to court-packing by vindicating the New Deal on the basis of some Ancient Truths handed down by John Marshall and the Federalists. If, however, the President, Congress, and the country were doing quite well confronting the crisis without the Court’s assistance, we must ask a different question: Did the Court retreat too soon?
I shall take up this question later, but one point needs emphasizing here. The Court’s strategic role in aborting the higher lawmaking debate further undermines the case for hypertextualism. On numberless occasions, I have encountered thoughtful lawyers who respond to my arguments by raising the same question: If the New Dealers won a mandate from the People on behalf of a new constitutional solution, why didn’t they use Article Five to codify the terms of their mandate?
This chapter shows that Americans were asking themselves this very question until the Supreme Court killed the debate by making its switch in time. Of course, we will never know what would have happened if the Court had remained intransigent. Perhaps Roosevelt would have convinced Congress that its mandate from the People extended to unconventional steps like court-packing. Perhaps his opponents would have forced him to yield to their demands that he put forward a package of Article Five amendments. We will explore both possibilities. But these alternative scenarios should not divert attention from my central thesis: in the American system, the Supreme Court largely determines whether a constitutional revolution will be codified in Article Five terms. Only if the Justices refuse to recognize the legitimacy of a transformation do the President and Congress have an incentive to take the Article Five path.
If this is right, it places a new burden upon the hyperformalist demand for New Deal amendments. It was one thing for the New Dealers to have failed to enact amendments in the face of a continuing challenge from the Court; quite another for them to keep pushing down the Article Five track after the Justices’ emphatic 1937 signal that they could be trusted to codify the New Deal revolution without the further need for formal instruction.
Given this judicial signal, and its predictable impact on the evolving debate, a special kind of hyperformalism is required before lawyers and judges of today might suppose themselves justified in ignoring the constitutional achievements of the 1930’s. On this line of argument, the New Dealers were constitutionally derelict when they decided to wind down their debate about the need for Article Five amendments in response to the emphatic signals from the Court. So far as the hyperformalist is concerned, Roosevelt and the Congress should have ignored the Court’s offer of cooperation and insisted on laboring in the vineyards of Article Five. The fact that the Democrats were lulled by the Court’s switch into a sense of security should not provide an excuse for their failure to continue pushing down the formal track. As a consequence, tomorrow’s lawyers may legitimately ignore the New Deal Court’s efforts to heed the People’s will and put American government on a new foundation.
But isn’t this very implausible?
The New Deal–Old Court confrontation had already generated a wave of proposals for constitutional amendment before the 1936 election. Thirty-nine distinct amendments directed at the crisis were submitted during the preceding Congressional term. They ranged widely, but most focused on the issues of federal power and free market freedom raised by the President in his front-page assault on Schechter. As the Seventy-fifth Congress began its work after the election, both the Senate majority leader, Joseph Robinson, and the Speaker of the House, William Bankhead, gave the question a high priority: “Admittedly such an amendment would provoke much debate and require time,” Robinson stated on January 2, but it “may prove the best method.” This announcement made the front page of the New York Times, which concluded that “Senator Robinson’s support of the amendment idea served to make the question one of the main issues awaiting the new Congress.”6 On January 8, the Times ran another front-page headline, “Basic Law Change Gains in Congress”:
Declaring himself in complete sympathy with President Roosevelt’s objectives, Speaker Bankhead said: “I hope a way can be found to reach these objectives without resort to a constitutional amendment, but, unless the personnel of the Supreme Court changes we will run head-on into the same situation we faced before. I still do not see how we can escape a constitutional amendment.”7
The Congressional leadership, naturally enough, focused on the possibility of formal amendment, since this would give them the greatest control in formulating the terms of the New Deal revolution.
But the next move was Roosevelt’s. Since Article Five does not explicitly involve the Presidency in the process, he could afford to speculate more broadly about his options. In the aftermath of the electoral landslide, we hear him telling close associates: “Since the election he had received a great many suggestions that he move for a constitutional convention for the United States and observed that there was no way of keeping such an affair from getting out of hand what with Coughlin and other crackpots about. But there is more than one way of killing a cat.”8
Roosevelt’s remark is arresting. At a time when Stalin was running Show Trials and Hitler was proclaiming Nuremberg Laws, could Americans show the world that a mobilized citizenry might radically reconstruct their government “through reason and choice”?9
What is more, the modern republic has paid a heavy price for the President’s failure to seize the moment. In many ways the 1787 text is unequal to the realities of Presidential leadership and bureaucratic government. America might have a better constitution today if Americans of the 1930’s had tried to rewrite the text to confront these emergent realities.
Then again, Roosevelt might well have been right to shy away. Perhaps his fears of a demagogic field day expressed more than his personal anxieties about losing control over the agenda. Even if a convention had come up with a serious response to the problems and promises of activist government, perhaps its solutions would not have withstood the test of time?
We will never know. Our task is to understand the Constitution we have, not the one that might have been. And the real Constitution owes much to Roosevelt’s decision to “kill his cat” without calling a convention—and without ceding his leading role to Congress.
On February 5, the President unveiled his famous court-packing plan. He proposed a statute that would give him the power to nominate a new Supreme Court Justice whenever any sitting member reached the age of 70. Incumbents would not be required to resign; but if they held on, the Court would be expanded in size to admit the younger Justice as an equal. The size of the Court would be in the control of the elder Justices; if they tightened their grip on power, the panel could expand to the new statutory limit of fifteen; but if they took the hint, the Court would remain at nine: it is a “subject of delicacy,” the President gently put it, but the old folks were not generally up to the physical and intellectual challenges of modern litigation. So why shouldn’t the Justices do the right thing, accept a guaranteed pension tendered by the statute in the name of a grateful nation, and give way to younger jurists more in tune with the times?
In his opening presentation, Roosevelt avoided a direct critique of the Court’s constitutional doctrine. He presented his initiative as part of a broader reform that applied to judges at all levels. His rejuvenation effort was, in turn, presented as only one part of a larger reorganization of the entire judicial system.
Rather than attacking the conservatives on the court, the President playfully pointed out that the very conservative Justice McReynolds had made a similar proposal when he was Wilson’s Attorney General—except that McReynolds had restricted himself to the lower courts. Roosevelt blandly assured his audience that he was simply extending McReynolds’s clever idea to all courts. In the same spirit, Attorney General Homer Cummings supplied a technocratic appendix suggesting that old-timers on all levels needed help keeping up with their dockets. Overall, the President presented himself as if he were a pragmatic problem solver more than a constitutional revolutionary.10
In the eyes of opponents, this pose merely added deceit to the President’s other sins. But from a technical point of view, the President’s initial indirection improved his legal position. There is nothing in the constitutional text that specifies the size of the Court—which, as we have seen, was changed especially frequently during the Civil War and Reconstruction. No serious constitutionalist has ever denied that Congress and the President have the power to reorganize the judiciary to enhance its efficiency. By explicitly placing his actions on this ground, the President vastly increased the likelihood that the Old Court would accept the constitutionality of court-packing, should it be adopted.11
Moving beyond such (important) questions of strategy, the President’s proposal was grounded in a more general approach to constitutional change. As William Leuchtenburg has shown (in the single best article on the subject),12 Roosevelt’s initiative was not—as is sometimes thought13—patched together in a few hurried post-election sessions with his Attorney General. It came after years of reflection. Roosevelt’s mind repeatedly recurred to the way English Prime Ministers had reduced the veto power of the House of Lords over legislation through a process one might call “Lords-packing.” When confronting a resistant upper house, prime ministers had threatened to ask the King to name a sufficient number of peers to guarantee passage by the Lords of the bill approved by the Commons. Such threats were effective in gaining the Lords’ assent to the great reform bill of 1832 that began to democratize the House of Commons; two generations later, the strategy was employed in response to the Lords’ veto of Lloyd George’s budget, which made a first effort to correct the prevailing maldistribution of wealth. On neither occasion was the prime minister obliged to carry out his threat; the very prospect of “Lords-packing” induced the upper house to back down.14
Roosevelt repeatedly referred to these precedents as he mulled over his constitutional options during his first term.15 Since the President understood his New Deal as a continuation of this trans-Atlantic tradition of liberal reform,16 he was understandably impressed by the British technique. If the threat of “Lords-packing” had been effective in overriding the veto by unelected aristocrats in England, why not use the same technique against the legal aristocracy on the Supreme Court?
This is hardly the first time American revolutionaries had lifted English precedents for their constitutional purposes. As you will recall from Chapter 3, the Federalists had drawn from the well of English precedent in calling for a “constitutional convention” to reorganize the frame of government. Just as Madison looked back to the Glorious Revolution, Roosevelt looked back to the glory days of the 1832 reform bill and the Lloyd George budget.
The difference in historical reference should not blind us to a common understanding of the constitutional project. So far as both Madison and Roosevelt were concerned, they were participating in a larger trans-Atlantic enterprise that had been attempting for centuries to secure and broaden the foundations of constitutional democracy in the English-speaking world.
When Roosevelt went public with judicial reorganization, he had every reason to expect success. With 331 Democrats in the House and 76 in the Senate, he could afford lots of defections and win the bare majorities needed to pass the statute. Loud protest from the tiny band of Republicans in Congress would only play into his hands—as would the predictable outcry of the overwhelmingly Republican press. He had defeated these “economic royalists” in November and he could defeat them again. The more assertively the Republicans took the lead, the more Roosevelt could portray their protest as a refusal to accept the electoral verdict of 1936.
Recognizing this, the Republicans in Congress did something quite remarkable for politicians. They shut up and tried to recruit Democrats to play the leading oppositionist role.17 Some conservative Democrats were happy to oblige, but the crucial question was whether any Democrats with liberal credentials would join.
Senator Burton Wheeler’s quick and affirmative decision was crucial. A long-time Roosevelt supporter, Wheeler was a strong New Dealer. His bitter break with the Administration cost him a lot back home in Montana, a state exceptionally dependent upon federal largesse. Nonetheless, he took on the leadership of the bipartisan Senate opposition.18 His place in the national spotlight dramatized to the folks back home that even good New Dealers might find that the President had overstepped the limits of his mandate.
It also deprived Roosevelt of a priceless organizational advantage. Without somebody like Wheeler leading the resistance, the President could have quickly lined up a solid majority through a combination of personal charm, political patronage, and an appeal to the bandwagon effect—get on board now, before I get enough of your fellow Democrats to join and your vote isn’t necessary any more! Once Wheeler and a few others put themselves out on a limb, it made sense for other Democrats to play a waiting game—would the tide of public opinion turn for or against the President?
Despite Wheeler’s centrality, his constitutional views have not been given adequate attention. Operationally, they represented the terms for a potential compromise. By calling Wheeler into the Oval Office and accepting his terms, Roosevelt would have cut the heart out of the opposition. Nor can there be any doubt that Wheeler—a man who harbored serious Presidential ambitions19—would have been happy to return to the fold on his own terms.
Wheeler’s views were well-developed. First, he did not try to defend the Old Court’s case law. No less than Roosevelt, he recognized that the People were demanding a fundamental change in constitutional direction. Second, and more surprisingly, Wheeler was a strong critic of Article Five. This became clear on February 17, when he introduced (along with Senator Homer Bone) a resolution “that the following article [be] proposed as an amendment to the Constitution”:
Section 1. In case the Supreme Court renders any judgment holding any Act of Congress or any provision of any such Act unconstitutional, the question with respect to the constitutionality of such Act or provision shall be promptly submitted to the Congress for its action at the earliest practicable date that the Congress is in session …; but no action shall be taken by the Congress upon such question until an election shall have been held at which Members of the House of Representatives are regularly by law to be chosen. If such Act or provision is re-enacted by two-thirds of each House of the Congress to which such Members are elected at such election, such Act or provision shall be deemed to be constitutional and effective from the date of such reenactment.20
This proposal is not different in ultimate aim from the President’s. If Wheeler’s amendment had been enacted, the Supreme Court would have wielded a “suspensive veto,” conditional on an override by elected politicians.
But this was precisely the force of Roosevelt’s analogy to “Lords-packing.” After the crisis provoked by Lloyd George’s budget, the Lords had not been reduced to a constitutional nullity. The King’s threat to pack the Lords had induced them to trade their traditional veto on legislation for a more conditional one. Henceforward, the Lord’s veto could be overridden by the Commons after a pause for reconsideration. Similarly, if Roosevelt had prevailed, most Presidents would have accepted most decisions of the Court without great protest. But if the Justices came down with a line of precedents that generated great public uproar, Presidents would have undoubtedly cited Roosevelt’s court-packing precedent and threatened the Court with further packing unless it reconsidered.
In short, both Wheeler and Roosevelt were devising mechanisms that sought to supplement the existing provisions of Article Five by limiting the Supreme Court to a suspensive veto rather than the absolute veto it had traditionally exercised over democratic legislation. Indeed, there was a sense in which Wheeler’s proposal was more radical. As Harvard’s Thomas Reed Powell pointed out in a lead article in the magazine section of the New York Times:
There is a curious paradox about the [President’s] proposal…. It involves the least interference with existing judicial power of any suggestion that has been made. The court may still act as it has acted before, by ordinary majority and free from overriding of its judicial veto by any legislative reenactment or from recall by any popular vote. All that happens is that the present holders of judicial office are given some helpmates to add fresh viewpoints to their counsel.21
Powell is a bit disingenuous, since the precedent-setting character of the President’s initiative would have undoubtedly cast a shadow into the future. Nonetheless, isn’t he right to suggest that, by providing a formalized mechanism that enabled two-thirds of Congress to overrule the Court, Wheeler was establishing a mechanism that could be used far more regularly than Presidential threats of court-packing?
The remarkable convergence between the President and his leading critic is suggested further if we return to the path Roosevelt followed in framing his own proposal. As early as December 1935, the President was already consulting his Cabinet about alternatives. Here is how Secretary of the Interior Harold Ickes summarized his views at that time:
The President pointed out that there were three ways of meeting such a situation: (1) by packing the Supreme Court, which was a distasteful idea; (2) by trying to put through a number of amendments to the Constitution to meet the various situations; and (3) by a method that he asked us to consider very carefully.
The third method is, in substance, this: an amendment to the Constitution conferring explicit power on the Supreme Court to declare acts of Congress unconstitutional, a power which is not given anywhere in the Constitution as it stands. The amendment would also give the Supreme Court original jurisdiction on constitutional questions affecting statutes. If the Supreme Court should declare an act of Congress to be unconstitutional, then—a congressional election having intervened—if Congress should repass the law so declared to be unconstitutional, the taint of unconstitutionality would be removed and the law would be a valid one. By this method there would be in effect a referendum to the country, although an indirect one. At the intervening congressional election the question of the constitutionality or unconstitutionality of the law would undoubtedly be an issue.22
In short, Roosevelt and Wheeler were on the same wavelength.
This convergence is no surprise. Both Wheeler and Roosevelt were expressing opinions that had gained broad currency after decades of political initiatives against the courts by the Progressive and labor movements.23 Indeed, the roots of Wheeler’s proposal reach back to his days as Robert La Follette’s running mate on the Presidential ticket of the Progressive Party in 1924. The slate had pledged itself to a similar constitutional amendment as part of a campaign to reinvigorate popular sovereignty: “over and above constitutions and statutes and greater than all, is the supreme sovereignty of the people, and with them should rest the final decision of all great questions of national policy.”24 While Roosevelt remained a regular Democrat during this period, he was in constant contact with Progressive and labor circles.25
The President continued to consider Wheeler-style amendments seriously up to the very last moment. Even as he was working with Attorney General Cummings on a court-packing proposal, he was encouraging two leading staffers, Ben Cohen and Tom Corcoran, to work up their own favored option: a formal Article Five amendment. By the time the President went public on February fifth, Cohen and Corcoran had developed an elaborate memo in support of an Article Five amendment similar to Senator Wheeler’s.26 I have also uncovered a memorandum from Cohen to the President, written in the midst of the crisis, that continues to assess the Wheeler-Bone amendment as one of the President’s principal alternatives: “If it is possible for any one within the present session to draw an amendment that will command the support of the Senate, I know no one better equipped to do the job than … the Senator from Montana [Wheeler].”27
I will return to the larger implications of this point later. For now, it is enough to suggest that Wheeler’s leadership helped focus the ensuing debate on a narrow, but fundamental, issue—not the need for a substantive revolution in constitutional doctrine, nor even the need for a supplement to the classical amendment procedure of Article Five, but the meta-question: How should the appropriate supplement to Article Five be enacted into higher law?
Wheeler thought that Article Five should be used to amend Article Five; Roosevelt thought that past precedents authorized him to act through court-packing.
The President’s Court proposal hit the country like a bombshell. “For five months, the mass media, Congress, and the president focused on little else … the Court has not since then surfaced so long and so prominently on the public agenda, even during the salad days of the Warren Court”—in the words of Greg Caldeira, whose quantitative study of public opinion should be required reading.28 The public debate raged on in rallies, assemblies of countless groups and associations, newspaper stories—and also, a sign of the times, the radio. The networks handed out prime time for speechmaking with great generosity.
Another sign of modernity was the Gallup Poll. George Gallup had emerged as the principal beneficiary of the notorious poll conducted by the Literary Digest predicting a Landon victory in 1936. The Digest had used a telephone survey at a time when few had the device; Gallup deployed more scientific sampling methods and detected the impending landslide. He now followed up by providing weekly probes on the Court issue. Given the primitive state of polling, I do not want to put much weight on the results. But the data do suggest that the broader public was actively engaged. By the seventeenth of February—twelve days after Roosevelt’s announcement—only 10 percent of Gallup’s sample failed to express an opinion, and this number did not fluctuate much until the “switch in time” began.29 Gallup’s polling also suggested that public opinion was in flux. In its regular broadcasts of Gallup’s results, NBC reported that a strong majority favored some basic change in the Court, but the country was sharply divided on Roosevelt’s particular proposal—with New England and the Midwest opposed, the mid-Atlantic states in a dead heat, and the South and West in favor of the President. NBC regularly reported national opinion as narrowly against court-packing during February; but, as we shall see, it evolved significantly as the debate proceeded.30
Tapes of network radio broadcasts confirm Wheeler’s central role. Not only did he give a hard-hitting speech on February 19 but other progressives—ranging from Senator Gerald Nye31 to former Brain Truster Raymond Moley32—presented prime-time speeches in support of the Wheeler-Bone approach. Even Herbert Hoover began his radio address by saying that he would “gladly follow” the leadership of “eminent Senators belonging to the President’s own party”33 and endorsed their insistence on Article Five as the proper path for constitutional revision.34
At the same time, the Administration fielded a powerful set of speakers for the radio audience. Attorney General Cummings took the lead on February 14, recounting the long history of efforts to encourage the retirement of elderly judges and denying that any constitutional violation was involved in reinvigorating the judiciary with younger men.35 He was followed by Senator Sherman Minton, who treated his listeners to a long historical account of Presidential struggles against the Court—placing special emphasis on Reconstruction precedents involving Court contraction and expansion.36 The political case was developed further in a powerful speech by the governor of Wisconsin, young Phil La Follette, who specifically argued against the amendment proposal of Burton Wheeler, his father’s 1924 running mate.37
The debate culminated with two addresses by the President in early March. His first speech targeted the Court and asked how the Administration could fulfill its campaign commitments to farmers, workers, and other groups given judicial resistance to “a progressive solution of our problems.”38 Democracy had failed throughout the world because people had “become so fed up with futile [d]ebate and party bickerings.” The “three horse team of the American system of government” could not function “if one horse lies down in the traces or plunges off in another direction.”39 He then invoked his popular mandate: “In three elections during the past five years great majorities have approved what we are trying to do. To me, and I am sure to you, those majorities mean that the people themselves realize the increasing urgency that we meet their needs now. Every delay creates risks of intervening events which make more and more difficult an intelligent, speedy, and democratic solution of our difficulties.”40
This message contrasts sharply with Roosevelt’s initial presentation in February. He no longer treats court-packing as a bland matter of enhancing efficiency. He now advances the proposal as a spokesman for “the people themselves,” who insist on a Court that expresses the will of the “great majorities” the Democratic Party has gained “[i]n three elections during the past five years.”
Roosevelt’s second speech came the night before the Senate Judiciary Committee began its hearings. In his “fireside chat,” Roosevelt directly confronted the demand for a formal amendment:
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….
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?
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. 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.41
This radio broadcast marks the first higher lawmaking success of 1937. A crucial test for a dualistic constitution, especially at moments of crisis, is to induce protagonists to join issue on central problems. This is tougher than it sounds, given the strategic temptations to evade arguments rather than answer them. And yet, in this fireside chat, the most powerful politician of the twentieth century was obliged to accept dialogic discipline even in the aftermath of his greatest electoral triumph.
This turnaround is, pretty transparently, a product of the separation of powers. But we should avoid an unduly mechanistic account of the dynamic: it took courage for Senator Wheeler to accept the big political risks involved in leading the opposition in February. Wheeler’s decision, in turn, altered the Presidential calculus. Since court-packing would now pass through a serious process of Senatorial deliberation, Roosevelt would have been foolish to let his critics monopolize the field of constitutional principle. It was in Roosevelt’s interest not only to speak in a higher lawmaking voice, but also to mobilize public support for his side of the argument.
The impact of Wheeler’s leadership went further. The President would have vastly preferred treating his opponents’ praise of Article Five as a smokescreen for a cynical conservative effort “to block the mandate of the people.” With New Dealers like Wheeler at the forefront of opposition, Roosevelt was now obliged to recognize the good faith of “those who honestly believe the amendment process is best.”
Part of Roosevelt’s response was fundamental but familiar: Article Five gives a small minority of states too large a role in the higher lawmaking system. Like the Reconstruction Republicans before him, Roosevelt believed his Party had won a “mandate” from the People by winning a series of decisive victories on the national level. So far as he was concerned, Five was defective in allowing a small minority to frustrate this national mandate: “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.” And like Madison and Bingham before him, he refused to allow this to occur.
Only this time, he could appeal to the People of the United States with far greater confidence than his predecessors. He was speaking at a unique moment in American history—unlike eighteenth-century Federalists or nineteenth-century Republicans, twentieth-century Democrats had swept all regions of the country by wide margins. Given this fact, the President was on strong ground in arguing that Article Five was unnecessary to protect a powerful regional interest from a national override. He could plausibly portray formal amendment as a mechanism enabling special interests to concentrate their financial resources on a few unrepresentative states and frustrate the broad and deep judgments of the Nation. So far as federalism was concerned, the case for unconventional action was stronger in 1937 than it was in 1866 or 1787.
There is a second and more novel aspect to Roosevelt’s fireside chat. It explicitly questions the capacity of Article Five formalisms to channel constitutional law into new directions: “An amendment … is what the Justices say it is rather than what its framers or you might hope it is.” Neither Federalist Founders nor Republican Reconstructers held such deep doubts about the power of legal formulae to shape the future.42 This jurisprudential strand of Roosevelt’s argument was powerfully reinforced at the Senate hearings.
The opening days of the hearings mirrored the evolution of the Administration’s position over the past weeks. Attorney General Cummings presented the line of early February: old judges couldn’t keep up the pace, and the fact they were on the Supreme Court did not make the problem go away. He was followed by Robert Jackson, the Assistant Attorney General, who elaborated more recent Presidential themes.
Like Roosevelt’s fireside chat, Jackson’s testimony defended court-packing as a legitimate “method of bringing the elective and nonelective branches of the Government back into a proper coordination. Its frequent use has avoided amendments which would make the Constitution a document of patches and details.”43
As in the radio debates, Jackson emphasized that the size of the Court had changed six times in American history, making particularly powerful use of Reconstruction-era precedents.44 He also pointed to the limited success of previous efforts to overrule the Court by amendment. The efforts of the Reconstruction Congress to overrule Dred Scott with three formal amendments had not transformed the Court into a reliable guardian of minority rights. The Court had not fully respected constitutional amendments that had overruled its decisions on the income tax and sovereign immunity from suit in federal court. Yet these problems were easy in comparison with the ones faced by the New Dealers: “To offset the effect of the judicial attitude reflected in recent decisions it would be necessary to amend not only the commerce clause and the due-process clause, but the equal protection clause, the privilege and immunities clause, the tenth amendment, the bankruptcy power, and the taxing and spending power.”45 Jackson challenged his listeners to grapple with the formalist idea, at the core of Article Five, that constitutional law may be transformed through a few cogent formulae: “It may be possible by more words to clarify words, but it is not possible by words to change a state of mind.”46 If “you cannot amend a state of mind,” isn’t court-packing the best way to push constitutional law in a new direction?
Eager for a quick vote, the Administration called a halt to its testimony after two weeks, leaving it to Wheeler to open the argument for the opposition. He began by brandishing a surprise weapon: a letter from Chief Justice Hughes confronting the efficiency arguments presented by Roosevelt in early February. Far from slacking at their job, Hughes assured the Senate that the Justices were up on their work. Indeed, an expansion from nine to fifteen only threatened to bollix up the works. Hughes’s letter was a public relations bombshell—marking the express entry of the Court into constitutional politics.47
But Wheeler was much more than the Court’s publicity agent. As a result of his efforts, both Roosevelt and Jackson had moved the case for court-packing far beyond the efficiency questions with which Hughes’s letter was concerned. And Wheeler was determined to use his platform to reassert the constitutional principle that separated him from the President. As before, he denied that he spoke for a bunch of Senatorial stand-patters who rejected the need for constitutional revision: “if the President will abandon the scheme to pack the Supreme Court, [we will] vote to submit to the people of this country any reasonable amendment to carry out his objective that he will submit to this Congress.”48 To establish his good faith, Wheeler restated the case for his amendment:
SENATOR WHEELER…. The necessities of the time have made it necessary for us to pass many laws where there may be doubt as to whether they are constitutional and when we do we say that after all the Supreme Court will pass upon it, and if it is not constitutional then they will so decide. If the Supreme Court held that some of these laws were unconstitutional, there would be very few of their decisions, in my judgment, which would be overruled, and they would not be overruled unless there was an overwhelming sentiment in this country against those decisions; and if there was such sentiment, then I think that it should be declared the law, notwithstanding, because I am one of those who believe in democracy with a small “d.” …
SENATOR PITTMAN. But is it not a fact that waiting until after another election would make it a political question?
SENATOR WHEELER. No; not at all. The object is to give time for deliberate consideration to the Senate of the United States and to the House…. [I]f you allowed that cooling time, then the House and the Senate would say, after they had looked at that decision, “After all, the Supreme Court has said this is unconstitutional. I voted for it then, but I never gave it much consideration as to its constitutionality; or I thought it was constitutional, but I have got before me the decision of the Supreme Court saying it is unconstitutional.”
SENATOR PITTMAN…. [I]t seems evident that, as you place it after a congressional election, you desire that the people should have the right to elect a Congress to act upon that matter.
SENATOR WHEELER…. I think the question would undoubtedly be made an issue in the next campaign. The question would be whether or not the people of this country favor this law, and if the overwhelming majority of two-thirds is elected which favor that law, and the people demand it, I think if we are going to preserve democracy in this country it is entirely proper, the people having spoken, that we should pass that law, notwithstanding the decision of the Supreme Court.49
These remarks share a common aspiration with Roosevelt’s. The Senator, no less than the President, is searching for a new higher lawmaking mechanism that will cut the states out of the process.
They differ only in selecting the national institution that should take the lead in speaking for the nation. Wheeler built his model on Congressional leadership—designing a procedure through which two-thirds of the House and Senate could plausibly claim a mandate from the People for taking action after a general election. According to Roosevelt, the Democrats had already won such a mandate: “In three elections during the past five years great majorities have approved what we are trying to do. To me, and I am sure to you, those majorities mean that the people themselves realize the increasing urgency that we meet their needs now.”50
The competition between models of Presidential and Congressional leadership also structured the protagonists’ proposed remedies. Under Wheeler’s scheme, the Presidency did not have any role in overriding the Supreme Court. A Congressional super-majority, after an intervening electoral debate and decision, was enough to do the trick. Under Roosevelt’s approach, a constitutional revolution could occur if the President obtained the consent of a majority of the Senate to a series of transformative judicial appointments. Congress qua Congress was cut out of the system.
The same competition informed the debate about Article Five. Since Wheeler was unprepared to accept the model of Presidential leadership, he believed that an appropriate popular mandate had not yet been elaborated, and that a formal amendment was needed to make it clear, once and for all, that We the People could legitimately speak through national institutions. In contrast, Roosevelt held that the Democrats had already won the requisite mandate.
But Wheeler did more than testify. He was busily at work generating Senatorial support for his proposal. On March 2, Republican Senator Arthur Vandenberg took to the radio, and in the words of the New York Times: “Abandoning the earlier Republican strategy of letting the Democrats fight out the issue of Supreme Court reorganization among themselves, Senator Vandenberg tonight denounced the President’s proposal and expressed favor for the Wheeler-Bone amendment.” The Senator added an important caveat: “Measures violating the human rights guaranteed in the first ten amendments … would be excepted, perhaps, in this amendment.”51 Wheeler was quick to agree to Vandenberg’s suggestion52—though the bipartisan coalition never seemed to worked out explicit language on this point. Two weeks later, the first page of the New York Herald Tribune was reporting that the “leaders of the Senate opposition … had agreed to consolidate on a constitutional amendment as a ‘constructive alternative’”:
The choice today appeared to be narrowing to two proposals. One is the Wheeler-Bone amendment permitting Congress after an intervening election to override by a two-thirds vote a judicial invalidation …
The other is the O’Mahoney amendment requiring at least two-thirds of the Supreme Court to agree on the unconstitutionality of an act of Federal or State Legislatures before such a law should be invalidated.
Within two weeks a meeting is expected to be held at which a definite choice will be determined by the opposition spokesmen.53
Wheeler’s dramatic testimony at the hearings gave a further boost to his alternative. But as the opposition considered its next step, a new reality began to emerge. On Monday, March 29—the precise day named by the Tribune for the unveiling of the opposition’s “constructive alternative”—the Supreme Court went public with its first great decision announcing a doctrinal “switch in time.”
Before assessing the significance of this move, reflect on the remarkable evolution of debate in the two months since Roosevelt’s initiative of February 5. At that point, the President dressed up his constitutional revolution in the language of normal politics and confronted his Democratic supporters in Congress with a fait accompli. If Roosevelt had possessed the powers of a British prime minister, he could have whipped his Party in line despite the shouts of a few backbenchers.
But the constitutional separation of powers had enabled Wheeler to pick apart the constitutional issues that the President had hoped to jumble together. Wheeler spoke for New Dealers who were fully prepared to accept Roosevelt’s demand for substantive constitutional change but insisted that it be channelled through Article Five. There was more than drama here: Wheeler’s proposed amendment showed a genuine effort to struggle with many of the very themes that motivated Roosevelt’s end run around Article Five.
It was now in the President’s strategic interest to confront his constitutional critics and explain why the federalist forms of Article Five could not be relied upon to codify the nation-wide mandate the Democrats had obtained through repeated landslide victories. The Administration pursued its critique before a variety of audiences and at different levels of sophistication: in fireside chats by the President, in legal presentations by Assistant Attorney General Jackson. In response, the opposition was hard at work formulating its own constructive alternatives.
By any reckoning, this give-and-take must be reckoned as one of the great triumphs of America’s dualist constitution. Until the Court intervened, the protagonists were leading the nation into a profoundly serious debate about the future of higher lawmaking in the next era of American public life.
But the Court did intervene, by switching sides, and thereby took the steam out of this great debate. Gallup polls, analyzed by political scientist Greg Caldeira, show that early public reaction to court-packing was unfavorable, with negatives outpolling positives by seven or eight percentage points during the first four weeks. But once the President changed his rhetorical strategy and took to the airwaves in early March, the polls tell a different story. On the eve of the Court’s “switch,” Gallup was reporting a close division of opinion.54
Then came two sharp, and statistically significant, breaks in Presidential support. The Court’s 5-to-4 decision upholding the Wagner Act in April was immediately followed by a drop of almost five percentage points. When conservative Justice Van Devanter announced his resignation in May, support for the President dropped by five more points—for good reason, since it suggested that the “switch” was not temporary, but that the liberals would gain further judicial reinforcement without the need to expand the court. Only at this point had the balance of public opinion swung decisively against the President. All in all, these data suggest that large sections of the public were following the debate very closely and quite rationally withdrew their support from Roosevelt after the Court gave a visible assurance that it would no longer endanger the emerging constitutional order. In Caldeira’s words, “regardless of the intentions of the participants, the Supreme Court’s behavior made a difference [on public opinion]…. Through a series of shrewd moves, the Court put President Roosevelt in the position of arguing for a radical reform on the slimmest of justifications.”55
It is easy to find similar assessments in the commentary of the period. In its banner headline story on the Supreme Court’s surprising decision to uphold the Labor Act, the New York Times reported that “Senator Wheeler, generalissimo of the fight in Congress against the President’s court plan, seemed particularly elated…. ‘The decisions were great,’ he said, ‘I feel now that there cannot be any excuse left for wanting to add six new members to the Supreme Court.’”56 Joseph Alsop and Turner Catledge, two leading newspapermen, interviewed the leading participants in the crisis, except for Roosevelt himself, and published an insightful book, The 168 Days. Here is their assessment: “Two great tactical advantages … helped the President—the Democratic party tie, and the need for a solution to the court problem—and it was pretty clear that unless the second advantage could somehow be taken from him he would win in the end.”57 By the time the Justices were coming down with their final big decision of the term, upholding the Social Security Act, Time Magazine was reporting that “to many an ardent New Dealer there would have been a very silvery lining in a decision finding this New Deal law unconstitutional. That would have given them fresh proof that more Justices were needed to liberalize the Court.”58
But the switch not only undercut popular support for the President. It also took the sails out of the movement for Article Five amendments. It was increasingly unclear which amendments, if any, were still necessary. Perhaps the Court’s switch would make all further work unnecessary? By May, Congressional leaders were already putting Article Five back on the shelf until they got a chance to see what the Court would do next.59
And then there was the challenge of obtaining the support of three-fourths of the states. It was one thing to leap over this barrier if the Court kept provoking public opinion by striking down New Deal measures on behalf of workers, farmers, and the elderly. But why spend time and energy on an exhausting campaign for formal amendment when the Court was legitimating activist government through its transformative opinions?
All this returns us to an issue posed at the outset: Did the switch come too soon? A speculative question, but a useful one if we hope for a deeper understanding of the New Deal revolution. So let us consider the range of likely outcomes that an intransigent Court might have provoked.
Most obviously, the President could have won the battle for court-packing.60 Just as the Court’s switch prompted a marked decline in Roosevelt’s public support, continued judicial resistance would have played into his hands, allowing him to present court-packing as the only practical solution to the crisis. Would Wheeler and the rest have been able to withstand the resulting Presidential juggernaut?
The fragility of the opposition is suggested in an outstanding study by William Leuchtenburg. Despite the President’s loss of public support by May, his court-packing initiative underwent a remarkable renaissance in June. Roosevelt then reluctantly accepted his Congressional leaders’ proposal of a “compromise” under which he would have to wait until a Justice turned 75, rather than 70, to nominate a replacement, and would be limited to one such nomination in a single year. Since there were four members (in addition to Van Devanter) over 75, this would have guaranteed the President five appointments by 1940. When viewed in political terms, this represented a significant concession by the President—since the original plan allowed him to make six appointments all at once. But from the long-term view of constitutional principle, it was no compromise at all.
And yet, as Leuchtenburg shows, the Congressional leadership used the “compromise” to engineer a remarkable recovery in the President’s political fortunes. By the time the amended bill reached the Senate floor in July, Majority Leader Robinson was confidently claiming majority support. Leuchtenburg argues that he wasn’t only puffing: “[t]hough the press was overwhelmingly antagonistic to the proposal, Capitol Hill correspondents credited Robinson with fifty or more commitments.”61 It is true, Leuchtenberg concedes, that “the opposition, with its estimated forty-four votes, might well mount a filibuster, but many doubted that a filibuster would succeed.”62
We will never know, thanks to one of the great accidents of constitutional history. After the first days of impassioned debate, Senator Robinson died of a heart attack, and with his death expired all the political debts he had cashed to create the Administration’s majority. Roosevelt found his support melting in the heat of a particularly hellish Washington summer. Worse yet, a fierce struggle broke out amongst the Senate Democrats for Robinson’s position. Roosevelt responded by concentrating his energies on putting a committed New Dealer into this crucial position. He succeeded, but only at the cost of jettisoning the court plan.
I do not claim that only Robinson’s death stopped court-packing; to me, the speedy collapse of support suggests the opposite.63 But Leuchtenburg’s study suggests how formidable the President would have been if his support had been soaring instead of sagging as an intransigent Court continued to provoke public opinion. If the Congressional leadership got so far despite the loss of popular support, how hard would it have been to win assent from 49 of 76 Democrats in the Senate and 218 of 331 Democrats in the House when the public was up in arms?
Not that Congressional passage of a court-packing bill would have ended matters. The Republicans could have responded by making court-packing the centerpiece of the upcoming elections—filibustering against the nominations of new Justices, denouncing the crime of 1937, and so forth. At this point, 1938 might have been marked down with 1866 as an “off-year” election of epic significance. With Roosevelt and the Democrats campaigning forcefully in favor of court-packing, and the Republicans declaiming against, the results would have been redolent with constitutional meaning. Given the lopsided Democratic majorities of the time, it is hard to imagine an all-out Republican victory.64 But would a sufficient increase in Republican support have precipitated a movement to repeal court-packing?
Of course, if the Democrats had won in 1938, the result would have had a powerful “bandwagon effect”—once the President had gotten both the Congress and the voters behind court-packing, could there be any serious doubt that he had won the People’s support for his unconventional initiative?
Suppose, in contrast, that Wheeler and his coalition had managed to sustain a filibuster even as the Administration organized blocs of workers, farmers, and old folks enraged by the Court’s continued war on the liberal welfare state. After seeing his court-packing initiative bogged down in endless guerrilla war in the Senate, suppose the President called the Senator into the Oval Office to recall Wheeler’s promise at the hearings:
Do not misunderstand me. I have no pride of authorship. I am willing to submerge my views. I am more than willing, and every other man I have talked to who has introduced an amendment is willing to submerge his views, and we are willing to accept, if the President will abandon the scheme to pack the Supreme Court, to vote to submit to the people of this country any reasonable amendment to carry out his objective that he will submit to this Congress.65
Taking up this offer, Roosevelt would have had little trouble persuading his fellow Democrats in Congress to extricate themselves from their internecine battle by giving their overwhelming support to the Wheeler-Roosevelt amendments.
What would these missing amendments have said?
The crisis had provoked the submission of sixty-six distinct proposals for amendment during the Seventy-fifth Congress, but all were not created equal. Only a few were taken seriously by the press and the Congress, and they displayed recurring patterns.
The first group consisted of federal power enhancers. These took the Old Court at its word when it insisted that the 1787 Constitution had created a federal government of limited powers, and sought to add more to the list. Speaker Bankhead and Senate leader Robinson had already moved in this direction before the President sprung his February surprise. Their proposals were relatively modest, granting the federal government authority over hours, wages, and working conditions. The amendment sponsored by the powerful Chairman of the Senate Judiciary Committee, Henry Ashurst, was broader, enabling Congress “to regulate agriculture, commerce, industry, and labor.”66 I suspect that Roosevelt would have insisted on more encompassing language along the lines proposed by “Senator Costigan of Colorado [who] urged the president to seek an amendment empowering Congress to legislate for the general welfare where states could not effectively do so … FDR thought enough of the proposal to want to discuss it further with Costigan in a White House meeting.”67 Since the President would have taken an embarrassing step by withdrawing his court-packing proposal and seeking a compromise with Wheeler, the Congressional leadership would have given him broad leeway in formulating the Article Five alternative.
Congressional debate on a second front was less advanced. There was a pervasive recognition of the Court’s yeoman’s service in protecting individual rights, but Congress found it hard to frame amendments that would preserve this function without causing other difficulties. The most obvious problem was posed by the “due process” clauses of the Fifth and Fourteenth Amendments. The Old Court had used these provisions primarily to protect private property and freedom of contract, but it had also safeguarded other rights—most notably, freedom of expression and religion. How were the New Dealers to separate the wheat from the chaff?
Proposed solutions lacked the incisiveness displayed by the powergranting amendments. A proposal by Senator Edward Costigan, for example,68 began by granting the federal government “power to regulate hours and conditions of labor and to establish minimum wages in any employment and to regulate production, industry, business, trade, and commerce to prevent unfair methods and practices.” It went on:
Sec. 2. The due process of law clauses of the fifth and fourteenth amendments shall be construed to impose no limitations upon legislation by the Congress or by the several states with respect to any of the subjects referred to in section 1, except as to the methods or the procedure for the enforcement of such legislation.
This “linking strategy” expressed the New Deal determination to bar the Court from obstructing the use of government’s new powers over the economy. But it did so in a blunderbuss fashion. Suppose, for example, that a state denied unemployment compensation to Jews and Seventh-Day Adventists who refused to work on Saturday. Section two would have barred a court from scrutinizing this practice. But wasn’t this going too far?69
Some amendments tried to be more discriminating. Senator Hamilton Lewis restricted the Fourteenth Amendment “only to natural persons and not to corporate or other artificial persons created by law.”70 But this was too timid, allowing a conservative Court to strike down maximum-hours legislation as a violation of workers’ contractual rights.
Some proposals were more ingenious. Senator William Borah’s amendment, like Costigan’s, insisted that the “due process clause” should be restricted “only to the procedure [used in connection with] the execution and enforcement of the law.” It then went on to enumerate particular rights, traditionally protected by “substantive due process,” that should be preserved in the emerging regime:
No State shall make or enforce any law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble; and to petition the State or the Government for a redress of grievances.71
Borah is filling the conceptual vacuum left by the disintegration of Lochnerian notions of private property and freedom of contract by lifting some hallowed formulae from the First Amendment. This approach would have a bright future in the modern republic. Over time, the Court would go beyond Borah’s limited “incorporation” of First Amendment formulas and impose on the states all provisions of the Bill of Rights it considered fundamental to American liberty. Indeed, the Court would move beyond “incorporation” of traditional texts to redefine basic rights in terms that spoke in the twentieth-century language of New Deal liberalism.72
It is hard to say whether a similar conversation would have taken place in the New Deal Congress if it had been forced by an intransigent Court to take its higher lawmaking responsibilities seriously. This particular debate had not gotten very far at the time of the Court’s switch. An approach to rights-definition might well have emerged that was very different from Costigan’s or Lewis’s or Borah’s.
Turning finally to a third strand in the Congressional conversation, a host of proposals sought to redefine institutional relationships. Some were simple spin-offs of the court-packing controversy. For example, diehard opponents of the President proposed amendments that explicitly limited the number of Justices to nine, while others in the middle sought to constitutionalize aspects of the President’s plan—requiring the Justices to retire at 70 or 75.73 Of the relatively modest proposals, Senator Joseph O’Mahoney’s was taken most seriously. This would have required a two-thirds vote by the Justices before the Court could strike down a statute as unconstitutional.74 This would have made a short-term difference to particular pieces of New Deal legislation, but its long-term impact would have depended on how the Justices administered the rule.75
In contrast to Senator O’Mahoney, Senator Wheeler had much larger ambitions—aiming for nothing less than a broad-ranging redefinition of the relationships between Court, Congress, and the People. Moreover, the President was himself strongly attracted to Wheeler’s plan—which shared his own ambition of creating a system whereby the People of the United States could make their constitutional will known independently of state political processes. It seems a good bet, then, that a Wheeler-style amendment would have had a prominent place in the New Deal proposal, joined by a suitable federal power enhancer and an individual rights guarantee.
This is, to be sure, a formidable package. But after all, the New Deal Democrats who were preparing these proposals had actually won the kind of broad and sustained mandate from the People that the Founding Federalists and Reconstruction Republicans had only dreamed about. Surely they were no less entitled to make higher law than their predecessors?
Of course, the question remains whether the New Dealers could have carried three-fourths of the states in the campaign for ratification. We have already heard Roosevelt attack this federalist feature of Article Five, and there can be no doubt that he genuinely feared the power of “economic royalists” to buy their way to victory in thirteen states. At the same time, defeat was by no means foreordained. Here is the way Wheeler put the point in his radio address of February 19:
We have just taken part in an election in which the President of the United States carried 46 out of the 48 states. In 38 states Democratic governors were elected and in three other states liberal governors were elected. In view of this recent election, if the President of the United States would put his influence back of an amendment such as [I propose], it would be ratified in a very short time. Apparently there are those among the President’s advisors who suggest that such a measure could not be enacted, but I say to them that if the recent election was not a mandate for social reform, as I believe it was, then it is time for all of us to find out who won the election….
I am for a liberal Constitution. I recognize that the instrument is the fundamental expression of the People’s will…. I am ready for the amendment to the Constitution, and I believe that the people of this country are ready for such an amendment, but I want it to be amended by the People in the way they have provided and not by packing the Court to make it subservient to anyone’s desires….
We must do the right thing in the right way. This is no strategy of delay. It is the strategy of the right, of permanence, of real and abiding relief.76
While Wheeler emphasizes the results of the gubernatorial races, the 1936 elections had also swept Democrats into power in the state legislatures throughout the land, putting them in charge of both houses in thirty-three states. Of the remainder, two states were non-partisan, seven were divided between Democrats and Republicans, and only six were solidly Republican.77
Wheeler’s audience was also well aware that Prohibition repeal had gained approval after Congress specified that the amendment be ratified through special conventions elected for the purpose in each state. The result was a quick series of special elections that resembled referenda—with slates of delegates pledged to opposite sides of the Prohibition question. As Wheeler noted, these special elections generated the necessary three-fourths majority within the short space of ten months.78 There was nothing to prevent Congress from taking a similar step if Roosevelt were seriously troubled by the prospect of special interests sabotaging the New Deal initiatives in the state legislatures.79
After a detailed study of the underlying data, Rafael Gely and Pablo Spiller have recently concluded that “the 1936 election results … provided for the first time a realistic threat of a constitutional amendment being enacted at the state level.”80 If this is true, perhaps we have been too quick to applaud as Chief Justice Hughes and Mr. Justice Roberts finally saw the light and led the Court to embrace the New Deal revolution?
The next chapter takes this question up in earnest. But let me conclude this one by returning to the problem with which it began—my encounters with lawyers and judges who suppose that the absence of Article Five amendments preclude them from self-consciously recognizing the constitutional creativity of the New Deal.
Of course, this entire book tries to establish that a monopolistic reading of Article Five does not make sense of either the Founding or Reconstruction, let alone the New Deal. But I think that this chapter’s microhistory provides independent support for a pluralistic reading of our great higher lawmaking precedents. It not only reveals that the Court killed off a great debate that could well have led the People to express themselves in the way the formalist demands. It also suggests that the Court was a prime target of this debate—with Article Five’s leading defender, Burton Wheeler, proposing to use the formalist system to destroy the Court’s traditional veto power over ordinary legislation. Even if Wheeler had forced Roosevelt to take the Article Five path, the Court was the likely loser. In short, the Justices were confronting a fundamental decision in March of 1937: on the one hand, they could stick to their guns in defense of the Lochnerian Constitution and run the clear and present danger that the People would formally repudiate the Court’s traditional role in the separation of powers; on the other hand, they could eliminate the risk of hostile Article Five amendment by unequivocally recognizing the constitutional legitimacy of the New Deal vision of activist government. Given this reality, it would be especially wrong for today’s judges to dismiss the significance of the New Deal revolution on the ground that it had not given birth to formal amendments—when it was only by avoiding such amendments that the Supreme Court eliminated the risk of permanent institutional damage.
I want to distinguish this point from the old and tired debate about the subjective motivations of the two Justices—Hughes and Roberts—who engineered the switch by forming a solid bloc with the three so-called liberals, Brandeis, Cardozo, and Stone. Unsurprisingly, the evidence on this matter is equivocal.81 But even if Roberts and Hughes had been apolitical legalists of legendary proportion, I could not care less. I am not interested in the hidden wellsprings of their private motives, but in the constitutional meaning of their public actions. Whatever they intended, their actions had a predictable meaning in the Court’s ongoing conversation with the President, the Congress, and the People of the United States. Instead of asserting the continued relevance of the old Constitution, the switch allowed the Court to put a new question into play in its dealings with the outside world: “Now that we have switched, is it really necessary to consider seriously a fundamental change in the structure of the Supreme Court? Or should you trust us to consolidate the New Deal by handing down a series of landmark opinions legitimating the new vision of activist national government?” In response to this question, the spokesmen for the People in both Congress and the White House quite reasonably gave the Court a second chance to redeem its continued democratic legitimacy without imposing harsher measures in the form of court-packing or an Article Five amendment.
This judgment commands our respect. I have no doubt that the lives of today’s lawyers would be easier if the New Dealers had played by the Article Five rules. Formalism does allow people who have forgotten (or never learned) their history to identify the constitution-building intentions of their predecessors. If the New Dealers had sent us some neat time capsules of meaning in the classic Article five mode, lawyers could have set down to work at once, without confronting the ponderous tome you are now reading—and that would have been an advantage. But there are more important things than the cognitive convenience of lawyers and judges.
I mean to raise a question of legitimacy.82 I write as a member of a generation that, over the last twenty years, has conspicuously failed to gain broad and deep popular support for any major constitutional initiative. During such times as these, our principal task is to keep alive the American tradition of popular sovereignty by preserving, as best we can, the memory of previous achievements. Rather than throwing the New Deal out of the court of constitutional opinion on a formalism, the higher calling is to understand its profound contribution to the sense that Americans still live under government by the People.
Granted, this sense of a common project is in jeopardy today; granted, the recollection of past achievements does not guarantee future success. But we do not improve our future prospects by cutting ourselves off from past successes.