WHO killed Article Five?
Not the President, not the Congress, but the Supreme Court.
How did the Justices do it?
By negotiating their “switch in time,” thereby taking the wind out of a debate over formal amendments that threatened to weaken the Court permanently.
Or so the last chapter argued, as it urged lawyers and judges to look beyond the four corners of Article Five to recognize that the New Dealers accomplished their revolution through other institutional means, and with different legal texts. For purposes of this argument, I accepted the formalist supposition that it would have been better if the American people had been led by Wheeler and Roosevelt to express their constitutional will through the classical Article Five system.
But it is time to expose this premise to critical scrutiny.
While there was a real chance of success through Article Five, it was only a chance. Other scenarios loomed. Suppose, for example, that the Court had refused to switch, that Roosevelt and Congress had responded with a package of New Deal amendments, but that the Democrats didn’t find it so easy to win the rapid support of thirty-six states. As the country prepared for the 1938 Congressional elections, well-financed opponents in a scattering of small states began to defeat the amendments, leaving the Old Court in command. Does anybody suppose that Roosevelt and the Democrats would have taken defeat lightly?
To the contrary, Roosevelt would have returned to the People to renew his mandate in the elections of 1938: “In the Spring of 1937, I deferred to my critics, and tried to gain the consent of the states to constitutional amendments. But, as I warned you, this has only allowed ‘economic royalists’ to sabotage the national will by manipulating the vote of a few small states. We can no longer afford to let the workers, the farmers, the old folks wait for a few of the Nine Old Men to leave the Court.”
Given the overwhelming New Deal majorities of the time, it is inconceivable that Republicans could have retaken either House in 1938 by urging the People to protect a Court that had recently struck down the Labor and Social Security Acts.1 Having returned to Congress after a campaign that had demonized the Justices as the enemies of popular sovereignty, the Democrats could have claimed an express mandate for the President’s court-packing measure. At the very least, such a claim would have led to a further deepening of the constitutional crisis.
It is pointless to spin out prophecies further, but do not ignore one point—a world war was already looming on the horizon in 1938. By pushing its constitutional challenge beyond 1937, the Court ran the risk that the country would remain in the throes of a constitutional crisis at the time of Pearl Harbor.2 In contrast, its switch permitted Americans to confront their next great challenge with a sense that they had sucessfully weathered the storms of the previous decade.
Constitutional moments must come to an end. The People must be allowed to move on to other things with a sense that all of their passionate political argument and activity hasn’t been in vain: that government has heard their voice in a way that will not be long forgotten. Granted, the Court’s switch meant that lawyers and judges would have to memorialize the New Deal revolution in a different way: through judicial opinions rather than through formal amendments. But was this too large a price to pay for bringing the matter to a successful conclusion?
I do not think so—especially when the New Dealers had serious doubts about the power of Article Five to express the distinctive character of their revolution.
New Deal doubts about Article Five reflected the larger pragmatic revolt against formalism that had swept through much of American culture during the early twentieth century.3 They also expressed the distinctive ideological orientation of the New Deal itself—occupying a political space somewhere between Locke and Marx, exploring the possibility of a “third way” between capitalism and socialism. The New Deal spirit was ostentatiously pragmatic: experimenting, building on what seemed to work, applauding creative adaptation, and so forth. It went against the grain to enshrine some definitive-seeming formula into the Constitution that might freeze further pragmatic adaptations. Let the Europeans kill each other off with their final ideological solutions; Americans would confront the challenges of the twentieth century in a different spirit. As Robert Jackson explained in The Struggle for Judicial Supremacy:
What we demanded for our generation was the right consciously to influence the evolutionary process of constitutional law, as other generations had done. And my generation has won its fight to make its own impression on the Court’s constitutional doctrine. It has done it by marshalling the force of public opinion against the old Court through the court fight, by trying to influence the choice of forward-looking personnel, and, most of all, by persuasion of the Court itself. It must not be forgotten that many of the most important changes in legal theory were announced before there was any change in Justices.4
Hear the note of satisfaction in Jackson’s discovery that the Old Court turned out to be pragmatic in the end.
Perhaps a half-century of constitutional experience with New Deal pragmatism can teach us something about the costs, as well as benefits, of its approach to constitutional change. Perhaps we should rethink Jackson’s praise of informal adaptation and inject new formal structures into the modern higher lawmaking process. This is, at any rate, my conclusion in the final chapter.
But it is one thing to urge (partial) reformalization; quite another, to impose this preference retroactively on the 1930’s and refuse to appreciate the constitutional achievements of the New Deal. So far as the New Dealers were concerned, formalism was the problem, not the solution. America’s constitutional crisis could not be solved by adding a few more formulae, but required the Justices to undertake their interpretive task with a different cast of mind.
The Court’s “switch” served as an apt symbol of the pragmatic spirit that Americans were endorsing in giving their sustained support to the New Deal revolution.
It also provided an elegant solution to an aching problem threatening the adaptive capacities of the system as a whole: the veto power given to the states by Article Five. So far as the Founding Federalists were concerned, Article Five was a technique for weakening the veto that the states were wielding under the Articles of Confederation. But by Reconstruction, this weakened federalism was still too strong: America was now a nation, and it was wrong to allow a minority of states to veto new constitutional solutions that had gained the sustained and considered support of mobilized national majorities. We have already heard Roosevelt making this same point in his defense of court-packing. Rather than contesting it further, wasn’t the Court wise to recognize its saliency by adapting constitutional law to the national will without insisting upon Article Five?
The Court’s switch did not, of course, deprive Americans of the classical Article Five system based on dual federalism. It simply provided the People with another, more nation-centered, alternative in which the Court responds pragmatically to the sustained demands for constitutional change voiced by the President and Congress on the basis of an escalating series of electoral mandates from the citizenry. Wasn’t such an adaptation appropriately expressive of the nationalist spirit of the New Deal’s popular mandate?
No less important, the New Deal system has probably worked a lot better than the formal amendments Americans were likely to enact in the 1930’s. As we have seen, leading partisans of Article Five like Senator Wheeler had no intention of defending federalism to the death. They merely wished to provide it a different burial. If they had had their way, two-thirds of Congress could have overridden Supreme Court vetoes by reenacting statutes after a single general election, without any referral to the states. We have also seen that the President might well have endorsed such Progressive ideas if he had been politically required to join Wheeler in traveling down the path of Article Five.
Consider how such a scheme might have worked in practice. The Court declares that the Constitution requires X; Congress overrides and declares that not-X but Y is the more appropriate ideal in one-or-another area of life. Henceforward, the Court’s X governs in one area, and Congress’s Y in another. Or worse yet, the overriding statute might contain a host of details without very much in the way of organizing vision. Henceforward, the Court’s X is eclipsed by a mass of statutory detail. As time marches on, repeated Congressional overrides would have generated a crazy-quilt Constitution that increasingly mocked the very idea that the People might give a series of coherent directions to their governmental agents.
The Court’s switch allowed Americans to avoid this fate. By undertaking to rework the fabric of existing law so as to express the New Deal vision of activist government, the Court retained institutional responsibility for giving overall coherence to the shape of constitutional doctrine. My next volume, Interpretations, will follow the Court as it struggled to reconcile older constitutional traditions of liberty and equality with newer affirmations of activist government for the general welfare.
For now, it is enough to contrast the dialogic character of the Court’s effort with the mechanical solution that would have prevailed if a Wheeler-Roosevelt amendment had been enacted under Article Five. Under this alternative, the Court might have continued to uphold the Lochnerian tradition in its opinions while Congress episodically asserted New Deal activism in a proliferating set of overriding statutes—without any organ of American government attempting to synthesize the old with the new. Whatever difficulties the modern Court has experienced in its synthetic enterprise, would America have been better off with a mechanical alternative?
I doubt it. By holding up a vision of a constitutional order that sought to synthesize New Deal activism with older traditions of liberty and equality, the Court has not only challenged the modern bureaucratic state to live up to its claims to constitutional legitimacy. It has encouraged others to make the same demand—yielding a far more serious public dialogue over constitutional principle than would have obtained under Wheeler’s mechanical alternative.
I refuse, then, to join a formalist lament at the failure of an earlier generation of Americans to announce their constitutional intentions through Article Five amendments. My attitude is closer to celebration than disdain. After sixty years, many New Deal doctrines have been found wanting, and more are in need of rejuvenation. But the ongoing need for doctrinal reconstruction should not divert us from the central achievement of New Deal constitutionalism. Rather than forcing Americans into federalist formalisms, its unconventional adaptations enabled the citizenry to express sustained support for a more nationalistic, activist, pragmatic, and dialogic understanding of its commitments as a People. Will Americans of the twenty-first century respond to future crises with similar creativity?
Imagine yourself an ordinary citizen observing the Washington scene from afar in the summer of 1937. No longer did you confront an ongoing struggle between the New Deal and the Old Court that challenged the People to decide between different visions of American government. Nor were you immersed in a bitter debate between President and Congress on whether a formal amendment was needed in order to compel the Court to heed the People’s will. With the switch in time, all three branches were now operating on the premise that the New Deal spoke for the People in enacting revolutionary reforms like the Wagner Act and Social Security Act.
As a result, ordinary citizens could begin to relax: if the big boys in Washington played their cards right, normal folk might move on to other matters—either public or private—that had been pushed aside as the great constitutional debate occupied center stage. Since the ordinary citizen’s perspective is crucial to the project of dualist constitutionalism, I shall say that the “switch” marked the beginning of the process of ratification—the point at which citizens might plausibly assume that their representatives in Washington had begun to heed their demand for fundamental change.
But it was only the beginning, and it could have broken down.
If Hughes and Roberts had voted so differently in 1936 and in 1937, couldn’t they switch back again in 1938?
The depth of this anxiety was revealed by the big impact on public opinion of Justice Van Devanter’s announcement of retirement in May of 1937. His departure promised to make another switch less likely, and so increased the probability of a steady flow of opinions elaborating the activist vision. The Court’s course was still uncertain, depending on the character of appointments, their willingness to revolutionize reigning doctrine. But wasn’t it sensible to wait and see?
This is the tack taken by a 10-to-8 majority of the Senate Judiciary Committee in its June report on the President’s court-packing proposal. Writing after Van Devanter’s announcement, as well as the Court’s decisions upholding the Labor and Social Security Acts,5 the majority opposed the President’s court-packing proposal:
Even if every charge brought against the so-called “reactionary” members of this Court be true, it is far better that we await orderly but inevitable change of personnel than that we impatiently overwhelm them with new members. Exhibiting this restraint, thus demonstrating our faith in the American system, we shall set an example that will protect the independent American judiciary from attack as long as this Government stands.6
As in the general debate, the majority report did not attempt a fullscale defense of the Old Court’s effort to preserve the Constitution of the middle republic. Its protest was focused on the manner in which the transition to the new regime was to be accomplished—rejecting the President’s desire to “impatiently overwhelm” the Supreme Court in favor of a more “orderly” process of change in response to the “inevitable.”
But what would this “orderly” process look like? Would the President take advantage of openings to appoint committed New Dealers prepared to endorse a revolutionary transformation of constitutional doctrine? If so, would the Senate confirm them?
Neither answer should be taken for granted. It is rare for Presidents to use Supreme Court nominations for transformative purposes. Normally, they lack the will to do so. Even when they are dissatisfied with existing doctrine, other factors often bulk larger: paying off political debts, appealing to a politically important region or interest, or simply appointing a long-cherished friend. Indeed, Roosevelt had already expressed this normal political logic by promising Senator Joseph Robinson a Supreme Court seat. While Robinson had been a loyal majority leader, his elevation to the Supreme Court did not augur well for the New Deal. Rooted in the Jeffersonian traditions of Southern Democracy, Robinson would have been deeply attracted to the states’-rights conservatism of Justices like McReynolds (who, it should be noted, had been appointed by Woodrow Wilson).7 It is simply impossible to say whether this ideological affinity would have triumphed over his partisan loyalties to Roosevelt.
Robinson’s sudden death not only killed the court-packing initiative, but liberated the President to explore a different logic of judicial appointment—characteristic of rare moments of constitutional politics. Only then are Supreme Court nominations something more than juicy political plums—which may, or may not, be used by the President to gratify his taste in constitutional philosophy. They become crucial counters in the ongoing struggle over the looming transformation. At such times, constitutional ideology regularly becomes more salient in Presidential nominations—though even then, it has not been the only factor.
This was true in the days of Jefferson, and Jackson, and Lincoln and Grant. And it became true once again as Roosevelt successfully reasserted Presidential leadership in times of constitutional politics. Between 1937 and his death in 1945, Roosevelt made eight nominations to the Court. Only once—in the case of James Byrnes in 1941—did he indulge the normal nomination logic. Byrnes was a disappointed Vice-Presidential candidate and a long-time friend whose constitutional philosophy—if he had one—was traditional Southern Jeffersonian. But Roosevelt indulged himself on this appointment only after his others had consolidated the New Deal revolution, and in any event, Byrnes didn’t like the job and resigned after a year in office.8
Otherwise, the President restricted his nominations to public adherents of the New Deal philosophy of activist government. And it is here where he broke new ground—creating a founding precedent of the modern republic. For good or for ill, the image of the President redeeming the voice of the People by a series of transformative appointments has profoundly shaped the modern understanding of legitimate constitutional transformation.
I shall be taking up the latter-day consequences of this precedent in the next chapter. For now, I concentrate on how Roosevelt managed to turn the trick the first time around. It was one thing for him to make transformative appointments a central Presidential priority; quite another, for the Senate to agree; and yet another, for the new Justices to redeem the President’s intentions by revolutionizing constitutional doctrine. Consider each of these steps in turn.
Why didn’t conservatives in the Senate prevent the President from implementing a strategy of transformative appointment? Liberals had not shown equal restraint when Herbert Hoover was in the White House. They waged a successful ideological campaign against Hoover’s nomination of John Parker; and even Charles Evans Hughes—one of the most distinguished statesmen of the age—was bitterly opposed as a big business candidate and won confirmation by 52 to 26 in 1930.9 Why, then, didn’t the Congressional conservatives prove equally rambunctious during the late 1930’s?
Undoubtedly, Roosevelt had such questions in mind when nominating Hugo Black to replace Van Devanter in the wake of the court-packing crisis. While Black was an emphatic New Dealer, he was also a Senator—and therefore could count on Senatorial courtesy to win support. Despite this advantage, Black’s nomination did not float through, but prompted bitter debate and partisan division, with 16 Republicans voting against 63 Democrats at a time when passions were still very raw.10
With the nomination of Stanley Reed, conservatives began to confront their moment of truth. As Solicitor General, Reed had been making the New Deal’s case before the Court and could be expected to uphold liberal arguments consistently as a Justice. Roosevelt’s transformative intentions could not be more obvious.
The President sent Reed’s name to the Senate in January of 1938, at a time when the Republicans were looking forward with anticipation to November. Not only had they begun to score against Roosevelt in the court-packing controversy, but the economy had recently taken a nose dive, calling into question the New Deal’s capacity to lead the nation out of the Depression.11 Would conservatives continue their political initiative by launching a campaign against the President’s nomination? Even if they lost the battle against Reed, wouldn’t it serve as an ideal campaign issue, as Republican candidates solemnly promised to filibuster against further liberal nominations?
The question becomes sharper when we place it against the background of analogous developments during Reconstruction. The “switch in time” of 1937 was hardly the first occasion on which leading defenders of the traditional Constitution have retreated before the aggressive assertion of a mandate from the People. As in March of 1937, so in March of 1868, the conservative branches were on trial before public opinion—with President Johnson facing the prospect of conviction at his impeachment trial and the Court weighing the prospect of the loss of its jurisdiction in McCardle.
As in 1937, these unconventional threats were followed by rapid conservative retreat. By the next regular election, both President and Court had acquiesced in the authority of the Convention/Congress to impose Reconstruction and the Fourteenth Amendment in the name of the American people. But was the conservative switch merely a tactical retreat, or did it represent an enduring recognition that the People had spoken?
It was here that the election of 1868 played a crucial role in consolidating the switch by giving the conservatives a final realistic chance to challenge the emerging institutional consensus. The Democrats took advantage of this opportunity—with their candidate for Vice President, Frank Blair, threatening an all-out repudiation of the Republicans’ constitutional solution. While Blair’s threat backfired, helping Grant to win the election, it was still taken very seriously. Only after beating back this threat in 1868 could the Republicans proceed in earnest to use their control over all three branches to consolidate the new constitutional order.
So too here. The switch of 1937 had given institutional momentum to the New Deal revolution, but the Republicans were still free to make a Blair-like effort to reverse the bandwagon. Would the elections of 1938 and 1940 display a similar pattern of conservative challenge?
The answer is no and yes. While Republicans in the Senate failed to make the President’s transformative strategy a campaign issue in 1938, their nominee for the Presidency showed no similar reluctance two years later.
Begin with the dog that didn’t bark. After the successful nomination of Black, Senatorial resistance to Roosevelt’s strategy simply collapsed. Reed was confirmed without opposition.12
No less remarkable was the Republican response to their electoral victory in November. For the first time in the 1930’s, the party experienced an upswing in support. Granted, the shift only increased the number of Republican Senators from 16 to 23.13 But wasn’t this enough to encourage them to join with conservative Southern Democrats to hold back the New Deal revolution in the courts?
While this conservative coalition was very powerful in other areas,14 it did not seriously challenge the nomination of three emphatic liberals to the Court in the next two years.* Frankfurter and Frank Murphy won unanimous confirmation from the Senate; and the only thing that inspired four Senators to oppose William O. Douglas was a fear that he was too cozy with big business while serving as chairman of the SEC!15
As the Presidential election approached, matters were reaching a point of no return. Here is Wendell Willkie describing the situation in the nationally circulated Saturday Evening Post of March 9, 1940:
Mr. Roosevelt has now won. The court is now his.
In order to understand what this means, it is necessary to be clear concerning the nature of law itself. The full import of the law is not to be found in written enactments or constitutional provisions and amendments. These are parts of the skeleton, but the body of law is progressively built—with occasional interruptions and diversions—by deciding each case upon precedents furnished by prior decisions….
[W]hen a series of reinterpretations overturning well-argued precedents are made in a brief time by a newly appointed group of judges, all tending to indicate the same basic disagreement with the established conception of government, the thoughtful observer can only conclude that something revolutionary is going on. And that is what has happened here….
Now the people of the United States may approve of what is happening, and if they do, that is their affair, but legal decisions are couched in language difficult for the layman to understand. Consequently, the average citizen may well be unaware of the revolutionary nature of the court decisions….
After an intelligent review of the Court’s recent decisions dealing with interstate commerce, taxation, and social welfare legislation, Willkie presented his readers with some striking conclusions:
These decisions have made the United States a national and no longer a Federal Government….
The American public … has not yet tested all the whims, vagaries and caprices of a securely enthroned central government reaching into the daily lives of all the people. And the social philosopher may well speculate what that public’s reaction will be when the tests have been made. If the present public is anything like its ancestors, I wager that when it does understand, it will mightily rebel.16
But, of course, Willkie was not just any ordinary “social philosopher.” Articles like this one were propelling him into the center of Republican politics. His meteoric rise was itself remarkable, since Willkie was a big businessman who had never run for public office and had only recently changed his registration from the Democratic Party. Nevertheless, the Republican convention chose him as its Presidential standard-bearer on the sixth ballot over such party stalwarts as Robert Taft.17
The Republicans got what they paid for. In his acceptance speech, Willkie declared himself “a liberal Democrat who changed his party affiliation because he found democracy in the Republican party rather than the New Deal party.”18 And he was quite unwilling to make his jurisprudential essay in the Post the basis of a campaign onslaught against the New Deal Court. It was far more important for him to reach across party lines by repeatedly emphasizing his support for the National Labor Relations Act, the Social Security Act, and the Fair Labor Standards Act.19 Given his fealty to these New Deal landmarks, it was quite impossible for him to pine too visibly for the good old days when the conservative Four Horsemen were triumphant on the Court.20
Instead, Willkie trained his sights on a much more inviting constitutional target: Roosevelt’s decision to break hallowed precedents of self-limitation stretching back to Washington and run for a third term. Roosevelt had invoked the outbreak of war in Europe to justify this breach with Washington’s principle;21 but for Willkie, this was just a facile cover for Roosevelt’s slide toward dictatorship.22 Willkie’s constitutional critique of a third term resonated powerfully; but it was not enough to defeat Roosevelt, who beat his “liberal Democratic” rival by a 55 to 45 margin.23
Nonetheless, it is enlightening to imagine the implications of a Willkie victory. On this scenario, once the Republican’s “liberal Democratic” nominee was safely in the White House, he might have taken the themes of his Post essay more seriously. As Hughes and McReynolds retired from the Court during his term, President Willkie might have urged Americans to reassess the doctrinal revolution that had “made the United States a national and no longer a Federal Government.” Pointing to Roosevelt’s series of liberal appointments, he might have begun a campaign for “balance” on the Court. With the Court tilting so heavily in the direction of activist nationalism, wasn’t it time to nominate strong conservatives to continue McReynolds’s impassioned defense of the traditions of an earlier day?
Perhaps Willkie’s answer might have been yes. Perhaps he might have convinced the Senate to go along. But after Roosevelt won his unprecedented third term, the time for such questions was past. Both Roosevelt and the country had other matters to worry about—notably the raging world war and its implications for America. So far as the New Deal revolution of the 1930’s was concerned, Roosevelt had absolutely no reason to change the strategy he had developed to assure its further consolidation. As Hughes and McReynolds retired from the bench, he nominated replacements who would predictably support the New Deal vision of activist national government. Though the number of Republican senators continued to move upward from 23 to 28 after the elections of 1940, all of the President’s transformative appointments were confirmed without a single vote of opposition—the liberal Stone replacing Chief Justice Hughes, the liberal Jackson replacing Stone, the liberal Wiley Rutledge replacing the misplaced Byrnes replacing the conservative McReynolds.
I draw three lessons from this story. First, the constitutional significance of the Supreme Court’s transformation was no secret to ordinary Americans. Second, if the Republicans wanted to make it into a big issue, they would have selected a candidate like Robert A. Taft, rather than Willkie, to raise the banner of old-style conservatism. Third, they did not take this step because they knew that the country had no inclination to refight the constitutional battles of the 1930’s. The Republican convention of 1940 correctly understood that the country was proud of the way in which it had weathered the storms that had destroyed so many democracies in Europe; and that it would have no patience with a party that promised to fight to the bitter end for lost constitutional causes.
These conclusions may seem so obvious that they hardly needed a couple of elections to establish them. But this is a mistake. I am not interested in what a political scientist or a newspaper pundit might say about the evolution of public opinion in the late 1930’s. I am interested in the way Americans themselves conducted a political dialogue that finally led to the considered conclusion that the People had spoken. From this vantage point, the elections of 1938 and 1940 forced the conservative opposition to a moment of truth: Now that they had beaten back the President’s frontal assault on the Court’s formal independence, did they continue to contest his claim that the People had given him a mandate to constitutionalize the principles of New Deal Democracy?
The Republicans’ answer may have been reluctant, but their performance in the Senate, and in the campaigns, was loud and clear: It was time to jump on the institutional bandwagon, concede that the People had indeed endorsed activist national government, and define a new opposition strategy that might garner majority support within the new constitutional consensus.
We can now look back upon an evolving pattern of events and search for their larger constitutional meaning:
Triggering Election of 1936 → Unconventional Threat by President →
Switch in Time → Transformative Appointments →
Consolidating Election of 1938 → Transformative Appointments →
Consolidating Election of 1940 → Transformative Appointments →
Final Acts of Judicial Consolidation
We have been considering this pattern from the vantage point of ordinary American citizens, people who have not suffered through the ordeals of a professional legal education. From their perspective, the bandwagon effect had generated a plain meaning by the consolidating election of 1940. At that point, it was clear to ordinary Americans that the folks in Washington had finally gotten the message: We the People had endorsed the New Deal vision of activist government.
I now change perspective and consider how the legal community integrated this message into the emerging constitutional order. Having killed off Article Five amendments, the Court filled the gap it created with a series of landmark opinions. Since these texts have decisively shaped the law of the modern republic, their formulation deserves careful attention.
To manage its doctrinal revolution, the Court took full advantage of the disjointed character of common law reasoning. Common lawyers traditionally pride themselves in their skeptical treatment of judicial opinions. Whatever the Court says, they are more impressed by what it does. Over the centuries, they have cultivated the art of distinguishing an opinion’s sweeping “dicta” from its “holding”—the latter consisting of those legal propositions strictly necessary to decide the particular case before the Court. While later judges are free to abandon “dicta” they find unpersuasive, the principle of stare decisis requires them to take prior “holdings” more seriously.
Under normal circumstances, the distinction between dicta and holding operates as a brake on judicial innovation. While one court may make revolutionary proclamations in its opinions, the next court may dismiss them as dicta and whittle its predecessor’s judgments down to size. But in the context of a constitutional revolution, this disjunction operates quite differently. During the early stages of the revolution, the Court’s dicta may give the naive reader an impression of substantial doctrinal continuity. The only trouble is that a yawning gap has opened between these quasi-traditional dicta and the course of concrete decisions—making it clear to a common lawyer that some new propositions of law, unexpressed in the opinions, are doing much of the real work.
This disequilibrium between revolutionary holdings and traditional dicta creates cultural pressure for a second stage of opinion-writing—in which a transformed Court elaborates new canonical doctrines that make sense of its earlier revolutionary holdings.
This two-stage process enabled the Justices to satisfy two different audiences as the Court worked itself out of the constitutional crisis. Most obviously, the Court had to reassure the President, Congress, and the general public that it had called off its assault on the New Deal. But throughout 1937, the Justices had to satisfy a second crucial audience as well, consisting of two people: Hughes and Roberts, who had to be persuaded to continue joining Brandeis, Cardozo, and Stone in support of New Deal constitutionalism.
These two audiences had different interests. The general public was primarily interested in the bottom line—was the Court going to uphold the Labor Act, the Social Security Act, and other activist legislation? To put this point into legalese, the general public was most interested in the Court’s holdings.
The swing Justices were particularly interested in the dicta. They were concerned with the principled character of their own performance. Since they understood the Constitution in relatively traditional terms, they would find it easier to endorse the switch if opinions created the appearance of doctrinal continuity. Hence the path of least resistance: traditionalist dicta, revolutionary holdings.
It was a path, moreover, that fit beautifully into the larger dynamics of constitutional legitimation I have described. As we have seen, it was still open to the Republican Party to contest the constitutional legitimacy of the New Deal in the elections of 1938 and 1940. Only after Roosevelt defeated Willkie did it become obvious that further serious appeals to the People to reverse the judicial revolution were utterly fruitless.
And it was precisely then that the New Deal Court reached a second and final phase in the process of constitutional consolidation. In landmark opinions during Roosevelt’s third term, a transformed Court was no longer content to conjoin revolutionary holdings with traditional constitutional dicta in the manner of 1937. It settled for nothing less than a root-and-branch repudiation of the old constitutional learning, and a new equilibrium between theory and practice, dicta and holding. The Court’s transformative opinions of the early 1940’s have served as the functional equivalents of Article Five amendments, establishing fixed points for legal reasoning during the next era.
Suppose, however, that Willkie had won the election of 1940. Then the Justices of the 1940’s might have resolved the tension generated by the mix of traditionalist dicta and revolutionary holdings in a different way. Rather than announcing newly authoritative principles to legitimate the revolutionary holdings, they might have reasserted traditional dicta and repudiated some of the revolutionary holdings of 1937. There was nothing inevitable about the New Deal Court’s movement from phase one to phase two. The dynamic should be viewed as part of the larger story of constitutional creation brought about by continuing acts of Presidential leadership in gaining Senate assent to a stream of transformative appointments.
This two-phase view contrasts with the standard account presented by scholars in thrall to the myth of rediscovery. For them, the Old Court’s resistance was a waste of time, a painful comedy of errors. To minimize the pain, many of them minimize the extent of the judiciary’s blunders. Adopting an apologetic framework, they portray the Old Court’s struggle as a passing aberration, concentrated principally in the bad years of 1935 and 1936.24 Apologists concede that the Justices blundered badly for a while, but they can barely conceal their impatience with the Court’s bungling. As soon as they can decently end their tale of woe, they bring the Court out of the wilderness into the promised land of 1937. Once the Justices rediscover “the truth” in 1937, their story comes to an end. Roosevelt’s additional appointments don’t accomplish anything important. In David Currie’s words, they only put the “icing on the cake; the essential change had occurred before any new appointments were made.”25
But is Currie right?26
Writing for the New Republic on January 13, 1937, Harvard’s Thomas Reed Powell considered “it almost certain that the Wagner Labor Act will be denied application to manufacturing concerns by six votes and possibly by nine.” Probably the leading court-watcher of his time, Powell was especially noted for his political realism, and yet he supposed that the Court had bound its hands in its recent decisions: the National Labor Relations Act was doomed. Three months later, Chief Justice Hughes managed to uphold the Act for a five-man majority, but did he overrule the decisions that Powell considered such insuperable obstacles?
No. He repeatedly and ostentatiously emphasized his fidelity to Schechter’s “distinction between what is national and what is local” and proclaimed it “vital to the maintenance of our federal system.”27 His opinion in NLRB v. Jones & Laughlin Steel called for the empirically sensitive application of traditional ideas. After all, wasn’t it silly to treat a giant steel company as if it were like Schechter’s chicken business? Given the giant firm’s “far-flung activities,” Hughes refused to “shut our eyes” to the “obvious” and potentially “catastrophic” impact of a strike on interstate commerce. Given these facts, the Court’s prior cases “are not controlling here.”28 What could be more sensible?
Since Hughes had voted in favor of earlier decisions distinguishing the “direct” from the “indirect,” his commitment to limited federal intervention seemed entirely credible. Indeed, his opinion explicitly refused to give the Labor Act an unconditional bill of health, vindicating it only as it applied to vast companies like Jones & Laughlin. On the surface, his opinion seemed utterly unrevolutionary.
Until you turn to a companion case in the same volume, involving the Friedman–Harry Marks Clothing Co.29 This company looks much more like Schechter, selling only $800,000 worth of clothes in 1932, and $2 million in 1933. Yet Hughes does not even deign to mention this obvious point, blandly upholding the act “for the reasons stated in our opinion in NLRB v. Jones & Laughlin Steel Corp.”30 End of opinion! Who is Hughes trying to fool?
Certainly not Mr. Justice McReynolds, who spoke for four dissenters: “The Clothing Company is a typical small manufacturing concern which produces less than one-half of one per cent of the men’s clothing produced in the United States and employs 800 of the 150,000 workmen engaged therein. If closed today, the ultimate effect on commerce in clothing obviously would be negligible.”31 When placed against this dissent, Hughes’s silence about Schechter is deafening. The 5-to-4 decision in Friedman–Harry Marks reveals a classic phase-one disequilibrium between dicta and holding. The Court speaks the language of continuity while the holding bespeaks the fact of rupture. A similar disjunction is visible in another crucial decision upholding the Social Security Act.32
A third great case involved the states, not the federal government: West Coast Hotel v. Parrish33 upheld state laws establishing minimum wages and maximum hours for women and minors. Standard accounts get carried away by the melodrama of the moment. Parrish was the first great decision to be announced in the spring. Coming down a couple of months after Roosevelt’s court-packing plan, it revealed that Justice Roberts had changed his mind on the issue. Only last term, he had joined four conservatives to strike down a very similar law on the authority of Justice Sutherland’s 1923 opinion in Adkins v. Children’s Hospital. Now Roberts joined Hughes and the three liberals to uphold the statute without writing an opinion explaining his sudden change. As a consequence, his motivations have been subjected to endless controversy—with realists making his switch into a symbol of the potency of the President’s unconventional threat, and legalists defending Roberts against the taint of political jurisprudence.
But this entire debate proceeds on an exaggerated view of the case’s importance. Insofar as Roberts was crucial, it is not because of his single vote in Parrish, but because of the remarkably consistent support he now gave to activist statutes that offended his previously proclaimed principles. If he had switched back to the conservative side in subsequent cases, the decision in Parrish would have been insufficient to defuse the crisis.34 Moreover, the opinion in the case is a typical phase-one product, which could have easily been reversed in future years but for the success of the President’s subsequent strategy of transformative appointments.
After all, even the Lochner court had upheld a maximum-hours statute for women three years after it struck down one for men, finding that “woman’s physical structure and the performance of maternal functions place her at a disadvantage in the struggle for subsistence.”35 This 1908 decision was overruled in 1923 by a 5-to-3 vote in Adkins. Now that Parrish overruled Adkins with Roberts’s help, this hardly meant that he had signed up for a legal revolution.
To the contrary, Hughes’s opinion cited Lochner with approval,36 accepted the idea that the Due Process Clause contains a principle of freedom of contract, and patiently reviewed the cases limiting this basic Lochnerian principle. After engaging in an extended lawyerly analysis, he concluded that the Court’s judgment in 1908 was sounder than in 1923: the health interests of the weaker sex justified a special measure of protection against “unscrupulous and overreaching employers.”
Up to this point, Hughes’s opinion seems similar to one written by Justice Roberts in 1934 for a six-man majority in Nebbia v. New York. In that case, Roberts had upheld New York’s minimum price for milk after an examination of the economics had convinced him that it had “a reasonable relation to a proper legislative purpose, and [was] neither arbitrary nor discriminatory.”37 In saying this, Roberts had recast the balance of preexisting doctrine, but he had not overturned the entire structure. Indeed, when he and Hughes revisited the same New York milk marketing scheme in 1936, they struck down another provision as an “arbitrary” infringement of economic liberty protected by the Fourteenth Amendment.38
If a catchword is useful, Parrish largely reads as one of the countless mid-course corrections that a healthy system is making all the time in the elaboration of fundamental constitutional principles. Rather than calling these principles into question, an ongoing process of judicial recalibration attests to their vitality. But then Hughes concluded Parrish on a discordant note:
There is an additional and compelling consideration which recent economic experience has brought into a strong light. The exploitation of a class of workers who are in an unequal position with respect to bargaining power and are thus relatively defenceless against the denial of a living wage is not only detrimental to their health and well being but casts a direct burden for their support upon the community. What these workers lose in wages the taxpayers are called upon to pay. The bare cost of living must be met. We may take judicial notice of the unparalleled demands for relief which arose during the recent depression and still continue to an alarming extent…. The community is not bound to provide what is in effect a subsidy for unconscionable employers. The community may direct its law-making power to correct the abuse which springs from their selfish disregard of the public interest.39
These words open up new constitutional vistas. Justice Rufus Peckham, the author of Lochner, would have been shocked by the claim that the community provides “a subsidy” to employers when it allows them to pay market wages to their workers. Granting that wages might be very low, he would have denied that the employer was “unconscionable” in using the market price as his reference point. For Peckham, the boss didn’t owe his workers a decent living; nor did the community. It was up to each individual to fend for himself, and for charity to care for those who couldn’t.
Within this Lochnerian vision, the market operated as a prepolitical baseline establishing basic entitlements. It was only the state that could provide unconstitutional “subsidies” when it enacted “class legislation” that picked the pockets of one group merely to enhance the welfare of another. It is precisely this wanton redistributionism that Lochner set itself against.40
Hughes’s welfarist vision sets the minimum-wage problem against a different background. The political community owes each citizen a minimum entitlement: “[t]he bare cost of living must be met.” If it is not met by the employer, the taxpayers must take on the burden. Given this framework, the market system loses its constitutionally privileged status as a baseline. If the market fails to discharge the community’s obligation to provide a “living wage,” the community may constitutionally find that it is the employer, not his worker, who is failing to live up to his social obligations.
This is indeed a revolutionary reversal of constitutional baselines, and one which has profoundly shaped the course of post–New Deal jurisprudence.41 But Parrish introduces this reform cautiously—it serves as “an additional and compelling consideration” that supplements, but does not displace, the classical Lochnerian analysis with which Hughes’s opinion is largely concerned. If the Court of 1938 had been so minded, it would have been entirely within its common law rights to declare that Hughes’s welfarist notions weren’t nearly as “compelling” as he imagined, and that it was far sounder to return to the grand Lochnerian tradition of the (contextually sensitive) vindication of market freedom.
Nevertheless, given Hughes’s remarkable conclusion, it would be wrong to treat Parrish as if it were merely a garden-variety example of a mid-course correction; better call it an uncertain herald of revolutionary reform.
This brief tour of the leading cases of 1937 has revealed a rich variety of mid-course corrections, uncertain trumpets, and arbitrary fiats—in other words, nothing very unusual. Any lawyer will tell you that the Supreme Court fills the United States Reports with an abundant supply of similar specimens every year. Have we been wrong, then, in marking 1937 as a fabled anno mirabilis in the life of the Constitution?
No. But we will have to reconceive the basis of 1937’s distinctiveness. Its special character emerges only by juxtaposing it to the judicial production of 1936 and 1938. Normally, each year generates a rich and varied judicial harvest, but there isn’t a dramatic difference in succeeding vintages. What is more, it is usually folly to examine a year’s production in search of a master theme. Different cases propel different areas of law in different directions. Perhaps patterns will emerge that reconcile antagonistic impulses. But it takes a lot of time to figure them out. Year one’s mid-course correction may provoke another in Year five and yet another in Year ten—a generation later, an entire area of law may be unrecognizable. Many uncertain trumpets go unheard, and others resound only after a decade or two. Most ipse dixits sink without a trace; but others provoke serious efforts to elaborate legal principles that redeem the intuitions expressed by the anomalies. And so forth.
For all these reasons, a single year is usually much too short to mark something as pretentious as a “judicial revolution.” Indeed, the whole idea of revolution generally serves as an extravagant conceit concealing a more evolutionary reality. In any single doctrinal area, significant change typically occurs after a decade or two of probing and testing; the entire constitutional terrain shifts even more slowly as judges modify one thing, then another, then another, and these changes interact to suggest new argumentative strategies, distinctive legal principles. The very effort to transform the entire framework of constitutional thought may strike legal cognoscenti as hopelessly naive: think of the countless unintended consequences that inevitably follow such hubristic acts of self-confidence!
This exclamation, I am happy to concede, captures the normal mentality of common law development—and thereby provides a measuring rod for assessing the truly distinctive character of the late 1930’s. In contrast to the common law norm, a year like 1936 or 1937 does not display the dispersive tendencies of case-by-case decisions. Cases in different areas do march to the beat of the same drummer. Despite the variety of facts and doctrines, the Justices are transparently struggling with the same question: will they continue to defend the federalist and free market Constitution? Despite the common law disdain for such grand abstractions, the Justices—and every other lawyer—are perfectly aware that the very framework of constitutional thought is on the line. Moreover, the Court’s answer to this Big Question changed with blinding speed: in 1936, the answer was Yes to the traditional Constitution; in 1937, it was No.
To be sure, the 1937 Court had expressed its No in a common-lawish way. Whereas Roberts and Hughes often voted with the conservatives in 1936, they suddenly and systematically voted with the liberals all the time in 1937—not only in “leading” cases, but in all cases where federal power was challenged. Given the common law’s sensitivity to a systematic pattern of holdings, lawyers had no trouble detecting the deeper theme: Despite the Court’s quasi-traditionalist dicta, the partisans of the traditional Constitution were now always on the losing side.
Since lawyers are interested in winning cases, they do not take this point lightly. As the Justices opened their next term of Court, their messages would be of especial legal interest. Would the new judicial majority begin to expound principles of New Deal constitutionalism that would make more sense of its emphatically changed behavior?
By the end of the Court’s 1938 term, President Roosevelt had gained Senate confirmation of his first two transformative appointments—Black and Reed replacing Van Devanter and Sutherland. As a consequence, Hughes and Roberts no longer played the same strategic role: Black, Reed, Brandeis, Cardozo, and Stone could make a majority without them. Of course, neither Hughes nor Roberts was particularly inclined to reconsider his epochal decision of the year before. And the new Justices understood that the constitutional authority of the emerging activist vision would be greatly enhanced if moderates like Hughes and Roberts remained on board the constitutional bandwagon. Nonetheless, the new math created a new atmosphere, encouraging the emerging majority to move beyond quasi-traditional formulations in support of genuinely transformative opinions—texts that gave affirmative doctrinal meaning to the constitutional revolution under way.
Two decisions from the 1938 term are indicative. In contrast to the leading cases of the prior term, United States v. Carolene Products42 did not involve a statute of great political importance. While the larger public was deeply concerned with the validity of the Labor and Social Security Acts, it would little note nor long remember the fate of the Federal Filled Milk Act. Carolene is important for what it said, not for what it did.
In challenging the act, the company offered to prove that its filled milk was entirely safe, and that the federal ban was an arbitrary abridgment of the economic freedom the Court had traditionally protected under the Due Process Clause. On the merits, this was not a frivolous claim.43 But speaking for the Court, Justice Stone announced a fundamental change in the rules of the game. He flat-out denied that the Justices were regularly required to conduct a contextualized inquiry into the arbitrariness of “regulatory legislation affecting ordinary commercial transactions.” Not only did he “presume” that activist legislators knew what they were doing, but he made this presumption virtually irrebuttable. Critics were given the impossible burden of producing facts that would “preclude the assumption that [the statute] rests upon some rational basis within the knowledge and experience of the legislators.”44 Since these words were written, the Court has never again struck down a regulatory statute as arbitrary. Carolene’s “rational basis” test has become a fixed star in the modern constitutional universe—no less important than formulae like “equal protection” that derive directly from the constitutional text.45
Fixed operational formulae play a crucial role in the life of the law. Tests like “rational basis” operate to place vast areas of policy beyond legal question, and thereby allow courts to define a manageable constitutional agenda. But to take the next step in developing an operational approach, courts require something more than fixed formulae; they need a jurisprudence that sets out the broad orienting lines for further legal development. Given the demise of traditional principles of limited government and economic freedom, what alternative principles could discharge this role?
Here too Carolene pointed the way. Its famous Footnote 4 began to fill the gap left by the disintegration of traditional principles. Instead of states’ rights, property, and contract, Carolene offered up a theory of New Deal democracy as an organizing framework. While judges should defer to the legislature in ordinary economic disputes, “a more exacting judicial scrutiny” might be required when the democratic process malfunctioned—either when the majority denied opponents crucial political rights or when legislation was motivated by prejudice against “discrete and insular minorities.” At this stage, such suggestions were little more than trial balloons, suitable for discussion in footnotes. It would take years for the emerging majority to wrestle with their affirmative implications in full-blown opinions of the Court.46
In contrast, 1938 was not too soon for a self-conscious assault on the jurisprudential foundations of the old order. Without giving any notice to the parties, the new majority transformed Erie Railroad v. Tompkins into a vehicle for a root-and-branch repudiation of the premises of Lochnerian thought. On its surface, the case was utterly humdrum: “Tompkins, a citizen of Pennsylvania, was injured on a dark night by a passing freight train of the Erie Railroad Company while walking along its right of way,”47 and he sued to collect damages for negligence under the common law. But its everydayness invited Justice Brandeis to plunge into the philosophical depths. For a century since Justice Joseph Story’s decision in Swift v. Tyson, the Court had resolved such disputes on the basis of the common law of torts, contracts, and property. Of course, the Justices sometimes found that their understanding of the common law diverged from the views of state courts, but they did not find this fact terribly disturbing. For them, the common law was something bigger than any single court. It was the collective wisdom of the Anglo-American judiciary working itself out over time; ongoing dispute between courts was part of a common search for the best answers. Within this traditional framework, the common law of property, contract, and tort was not the outcome of political will, but the product of judicial reason—and it was the self-evident obligation of the highest court in the land to make an independent contribution to this more general effort.
Whatever the jurisprudential merits of this idea, one thing was clear: it could not survive the triumph of the activist regulatory state. For twentieth-century critics of laissez-faire, the common law was the problem, not the solution: its vision of property, contract, and tort had created a false vision of economic freedom—ignoring the questions of distributive injustice, monopoly power, and other market failures that condemned millions to poverty and exploitation. Rather than genuflecting before this common law vision, the New Dealers sought to create a new foundation for economic freedom through democratic politics and legislative reform. From this perspective, the great sin of the Lochnerian era was the Court’s effort to constitutionalize the categories of the common law—striking down legislative reforms in the name of their own judge-made definitions of property, contract, and torts.
Now that the New Deal Court had seen the light, it moved decisively to destroy the foundations of Lochnerian jurisprudence by demystifying the common law. In applying its understanding of the common law to humdrum railroad accidents, a long line of previous Courts had supposed they were engaged in the judicial search for right reason; but now Brandeis exposed the “common law” as another name for the exercise of sheer political will. With this jurisprudential turn, Tompkins raised a new question: What gave Nine Old Men in Washington the right to impose their will on this railroad accident and dismiss the contrary law worked out by the legislature and courts of Pennsylvania?
Brandeis’s answer was loud and clear: Nothing at all. Unless and until Congress legislated on the problem of railroad accidents, the Court had no business meddling in state decisionmaking in the name of “common law”:
The fallacy [of the existing doctrine] … is made clear by Mr. Justice Holmes. The doctrine rests upon the assumption that there is a “transcendental body of law outside of any particular State but obligatory with it unless and until changed by statute,” that federal courts have the power to use their judgment as to what the rules of common law are; and that in the federal courts “the parties are entitled to an independent judgment on matters of general law”:
But law in the sense in which courts speak of it today does not exist without some definite authority behind it. The common law … is not the common law generally but the law of that State existing by the authority of that State without regard to what it may have been in England or anywhere else….
Thus the doctrine of Swift v. Tyson is, as Mr. Justice Holmes said, “an unconstitutional assumption of powers by courts of the United States which no lapse of time or respectable array of opinion should make us hesitate to correct.”48
These remarks are sometimes read as if they were a professorial lecture expressing an emerging jurisprudential consensus about the nature of law.49 But the nature of the common law is an essentially contestable matter; both in 1938 and today, one may find profound spokesmen on both the rationalist and voluntarist sides of the debate.50 Brandeis’s opinion is important not because it adds new philosophical arguments, but because it authoritatively put the Court on a different side of the jurisprudential barricades. Henceforward, it was unconstitutional for the Court to indulge rationalist phantasies about the common law of property, contract, and tort; these common law frameworks were merely judicial expedients that could be revised at will by democratic legislatures. This holding made the inquiry suggested by Carolene’s Footnote 4 even more pressing. If it was unconstitutional for the Court to follow Lochnerian presuppositions about the common law, what were legitimate grounds for judicial review in the New Deal era?
Erie was silent on this crucial question: it was intent on destroying the old jurisprudential world, rather than defining the new one. But if one digs a bit deeper, there are two elements of Brandeis’s opinion that were more constructive. First is its remarkable resuscitation of federalism: just at the moment that the New Deal Court was destroying the old notion that Congress had limited powers over the economy, Brandeis was creating a new—if more modest—constitutional role for states’ rights in the courts. Unless Congress intervened with a statute, federal judges were to give a new deference to the common law judgments reached by state courts.51 Over time, this Brandeisian vision would spawn an elaborate body of constitutional lore of great professional interest—though of secondary importance to the larger public.52
Erie also supplied methodological tools for the construction of new constitutional foundations. It inaugurated a remarkable act of transvaluation. Normally, lawyers and judges are trained to follow majority opinions and look skeptically on arguments found only in dissents. But with Erie, the Court began to promote a very different orientation: Holmes’s dissents were canonized, while the solemn decisions of the pre-1937 majority were demonized as jurisprudential monstrosities.
This remarkable transvaluation would play a central role in the final stages of consolidation. But in 1938, it was still too soon for confident predictions about the future. For one thing, Brandeis’s opinion gained the express endorsement of only five members of the Court, with even a New Dealer like Reed denying the need to reach such high constitutional ground; for another, Erie was only a single case, though an important one, and it might have proved a mutant in legal evolution. While the New Deal Court had taken a quantum leap forward during the 1938 term, judicial consolidation could have been reversed by the outcome of the 1940 elections.
But the majority of Americans were not inclined to rethink the New Deal. They were not even willing to elect a self-declared “liberal Democrat” like Wendell Willkie—despite his powerful invocation of the constitutional taboo against a third-term Presidency. As a consequence, Roosevelt could continue his strategy of transformative appointment, enabling the Court to carry the process to its final stage.
A landmark was reached on February 3, 1941, when the Court handed down United States v. Darby. The case involved the Fair Labor Standards Act of 1938, which made it a crime to ship any goods in interstate commerce that were manufactured either by children or by workers making less than the national minimum wage.
Darby upheld the statute, but by 1941, this was utterly predictable. The remarkable thing was the Court’s opinion. It was unanimous. Three days earlier, the last of the Lochnerian jurists, James Clark McReynolds, had retired from the Court;53 as a consequence, when a lawyer consulted Darby, he found no indication that the Lochnerian principles elaborated over two full judicial generations were still to be taken seriously.
The significance of unanimity cannot be underestimated. Even when one or two Justices are willing to elaborate a doctrinal tradition, the older principles remain a vital part of the living constitution. Not only does a constant stream of dissenting opinions testify to the continuing relevance of the tradition, but practicing lawyers will continue to study them with painstaking care—if only because dissenters vote and may make a difference when splits in the majority ranks appear. Over the long haul, the dissenters may have a larger impact. Their ongoing critique may subtly influence the opinions expressed by the dominant majority. No less important, they will serve as a priceless resource should a new President come into office responsive to the constitutional values the dissenting tradition emphasizes. If he convinces the Senate to support his nominations to the Supreme Court, the new appointments can reinforce a living tradition of constitutional discourse, already containing a familiar and elaborate critique of the prevailing doctrine. Through a gradual process of evolutionary reinterpretation, the dissenting doctrine will begin increasingly to shape the path of the law.
But once McReynolds abandoned the field, practical men and women of affairs no longer had any reason to learn or remember the intricate doctrine fashioned by the Justices of the middle republic—especially when they looked at the Court’s unanimous opinion. Justice Stone’s text reinforced the tendencies already visible in 1938. On the level of doctrinal statement, Darby was even more categorical than Carolene in its sweeping affirmation of national regulatory authority. So far as the powers reserved to the states were concerned, Justice Stone announced that the Tenth Amendment “states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory …”* Stone wasted only a single paragraph dismissing the notion that the Due Process Clause might restrict the government’s power to regulate “free market” bargains between workers and their bosses. Lochner’s contrary holding was not even cited, much less discussed.54
But Stone could not so easily evade a second great case from the middle republic: Hammer v. Dagenhart. In this decision from 1918, a divided Court had declared unconstitutional an earlier effort by Congress to ban the products of child labor from interstate commerce. Since Hammer’s reasoning condemned the more ambitious New Deal statute, Stone had little choice but to confront it, if only to inter it. In discharging this task, he recurred to the technique Brandeis used in Erie, overruling Hammer on the basis of “the powerful and now classic dissent of Mr. Justice Holmes setting forth the fundamental issues involved.”55
This opinion vastly reinforced the remarkable transvaluation of majority and dissent that is a defining feature of modern constitutionalism. Over time, the great Holmes would be joined by Brandeis and other dissenters of the middle republic to join in a privileged canon of jurisprudential truth, while the majority opinions of the Old Court were sweepingly consigned to the junk heap of “discarded” precedent.56 Justices on the modern Court predictably disagreed about the best way to avoid the bad mistakes of Lochner, but everybody agreed that the best way to discredit an argument was to taint it with the sin of “Lochnering.”
The only real parallel for this root-and-branch repudiation is Reconstruction. Just as the Supreme Court would never again cite Dred Scott with approval after the Slaughterhouse Cases of 1873, it would never again cite Lochner with approval after Darby in 1941. In both transformations, the previously dominant view of the Constitution had not been reshaped and reevaluated by the slow and subtle processes of common law critique and adaptation. Within the short space of a decade, the old structure had been leveled to the ground and replaced with a new foundation: from slavery to freedom; from laissez-faire to the activist welfare state.
I need hardly remind you that these two consolidations occurred through different legal means: the Republicans won their juridical revolution with the assistance of formal amendments that had pretensions to an Article Five pedigree, while the Democrats dispensed with these amendment-simulacra and built their new foundation directly out of transformative judicial opinions. This difference in legal materials prompts an obvious question: did the fact that the Republicans used amendment-simulacra contribute to the greater endurance of their achievements than those of the New Deal?
On formalist accounts, there is nothing like an Article Five text to secure the long-run impact of a generation’s constitutional contribution; a constitutional revolution marked only by judicial opinions is somehow less secure. But this simple theory does not square with the facts. Today’s Justices of the Supreme Court are far more ready to ignore some of the greatest texts left by Reconstruction than they are to ignore the New Deal charge of Lochnerism. For example, all legal historians recognize that the Reconstruction Republicans—both in and out of Congress—placed their highest hopes on the Fourteenth Amendment’s solemn guarantee that no state shall “abridge the privileges or immunities of citizens of the United States.” And yet the courts have never seriously redeemed the promise of this text. While judges are constantly on the lookout for the least signs of the Lochnerian heresy, most go to their graves without giving an hour’s thought to the provision of the Fourteenth Amendment that the Republicans supposed would serve as the central memorial of their achievement.57
Darby’s staying power also challenges conventional wisdom on the role of stare decisis in constitutional law. According to the usual banalities, modern law is characterized by its casual treatment of precedent, its disrespect for the principles of stare decisis. How, then, to account for the enduring character of the New Deal landmarks?
By refining our idea of precedent. Most judicial opinions are merely markers in an ongoing professional conversation; as they are exposed to new factual circumstances, and ongoing professional critique, many will be found wanting. Their rise and fall is simply the product of the gradual and inevitable change in professional opinion. Rather than a cause for mourning, this flux is a sign of vitality—a recognition that lawyers must forever be adapting their craft to new insights and realities.
But there is another kind of precedent. These decisions do not mark the provisional conclusions of a narrowly professional discourse. They memorialize the rare determinations of a massive and sustained conversation by the American people. These transformative precedents have, and should have, a special status in the legal conversation. Since lawyers did not make them, lawyers cannot unmake them. Darby is one of these great precedents.58
Not that all Americans of the early 1940’s had been magically converted to the New Deal vision of the Constitution, any more than a previous generation had all been converted to the Republican vision of the Union. There were millions of traditionalist Republicans in the 1930’s who still believed in Hammer, just as there had been millions of traditionalist Democrats in the 1860’s who still believed in Dred Scott. But by 1941, it was clear to the dissenters that most Americans had soberly repudiated the old views. Perhaps a time would come when a new Lincoln or Roosevelt would seek to challenge the New Deal consensus; perhaps the American people would respond affirmatively to this challenge, and, after a long struggle, perhaps the new President and his rising party would earn authority from the People to repudiate Darby and replace it with the laissez-faire vision expressed by Lochner and Hammer?
But this would not come about without another generation taking on the burden of constitutional politics. For the present, the People had spoken decisively on behalf of activist national government, and the Court was now determined to elaborate the doctrinal implications of this new constitutional commitment.
Americans of the 1930’s knew what they were doing—and were not shy about saying that they were rebuilding, and not merely rediscovering, the foundations of popular sovereignty in America. While I have been scattering bits and pieces of their conversation into these chapters, I have saved the best for last. Shortly after the Senate rejected court-packing, it fell to the President to celebrate the 150th anniversary of the Philadelphia Convention. This is what he said:59
One hundred fifty years ago tonight, thirty-eight weary delegates to a Convention in Philadelphia signed the Constitution….
A third of the original delegates had given up and gone home. The moral force of Washington and Franklin had kept the rest together. Those remained who cared the most; and caring most, dared most….
The Constitution of the United States was a layman’s document, not a lawyer’s contract. That cannot be stressed too often. Madison, most responsible for it, was not a lawyer; nor was Washington or Franklin, whose sense of the give-and-take of life had kept the Convention together.
This great layman’s document was a charter of general principles, completely different from the “whereases” and the “parties of the first part” and the fine print which lawyers put into leases and insurance policies and installment agreements….
But for one hundred and fifty years we have had an unending struggle between those who would preserve this original broad understanding of the Constitution as a layman’s instrument of government and those who would shrivel the Constitution into a lawyer’s contract.
Those of us who really believe in the enduring wisdom of the Constitution hold no rancor against those who professionally or politically talk and think in purely legalistic phrases. We cannot seriously be alarmed when they cry “unconstitutional” at every effort to better the condition of our people.
Such cries have always been with us; and, ultimately, they have always been overruled.
Lawyers distinguished in 1787 insisted that the Constitution itself was unconstitutional under the Articles of Confederation. But the ratifying conventions overruled them….
Lawyers distinguished in their day persuaded a divided Supreme Court that the Congress had no power to govern slavery in the territories, that the long-standing Missouri compromise was unconstitutional. But a War Between the States overruled them.
Lawyers distinguished in their day persuaded the Odd Man on the Supreme Court that the methods of financing the Civil War were unconstitutional. But a new Odd Man overruled them.
Less than two years ago fifty-eight of the highest priced lawyers in the land gave the Nation (without cost to the Nation) a solemn and formal opinion that the Wagner Labor Relations Act was unconstitutional. And in a few months, first a national election and later the Supreme Court overruled them.
For twenty years the Odd Man on the Supreme Court refused to admit that State minimum wage laws for women were constitutional. A few months ago, after my message to the Congress on the rejuvenation of the Judiciary, the Odd Man admitted that the Court had been wrong—for all those twenty years—and overruled himself.
In this constant struggle the lawyers of no political party, mine or any other, have had a consistent or unblemished record. But the lay rank and file of political parties has had a consistent record.
Unlike some lawyers, they have respected as sacred all branches of their government. They have seen nothing more sacred about one branch than about either of the others. They have considered as most sacred the concrete welfare of the generation of the day….
[The] lay rank and file can take cheer from the historic fact that every effort to construe the Constitution as a lawyer’s contract rather than a layman’s charter has ultimately failed. Whenever legalistic interpretation has clashed with contemporary sense on great questions of broad national policy, ultimately the people and the Congress have had their way.
But that word “ultimately” covers a terrible cost.
It cost a Civil War to gain recognition of the constitutional power of the Congress to legislate for the territories.
It cost twenty years of taxation on those least able to pay to recognize the constitutional power of the Congress to levy taxes on those most able to pay.
It cost twenty years of exploitation of women’s labor to recognize the constitutional power of the States to pass minimum wage laws for their protection….
We know it takes time to adjust government to the needs of society. But modern history proves that reforms too long delayed or denied have jeopardized peace, undermined democracy and swept away civil and religious liberties….
We will no longer be permitted to sacrifice each generation in turn while the law catches up with life.
We can no longer afford the luxury of twenty-year lags.
You will find no justification in any of the language of the Constitution for delay in the reforms which the mass of the American people now demand.
Yet nearly every attempt to meet those demands for social and economic betterment has been jeopardized or actually forbidden by those who have sought to read into the Constitution language which the framers refused to write into the Constitution.60
My aim has been to provide materials that will allow a serious confrontation with this Presidential text. Along with Roosevelt, we have located the struggle between the New Deal and the Old Court as part of a recurring dialectic between populism and legalism in American history. We too have glimpsed the institutional patterns generated by proponents of fundamental change who refuse to be “seriously alarmed” when their opponents “cry ‘unconstitutional’ at every effort to better the condition of our people.” We too have used the Founding and Reconstruction as the best precedents for understanding the New Deal.
At the same time the President recalls America’s unconventional history of popular sovereignty, there is a disturbing blindness—indeed arrogance—to his address. Not once does he mention that his proud claims to speak for the People had only recently been rejected by the Senate in the court-packing controversy. He cannot conceal his impatience with the “twenty-year lags” that the separation of powers requires before it allows “the law [to] catch up with life.” So far as he is concerned, “we can no longer afford the luxury” of such lengthy periods of institutional testing. It is as if Roosevelt had emerged from the court-packing struggle with a total victory.
There is a sense in which the modern view of the New Deal tracks the blind side of the President’s speech. Like the President, modern constitutionalists hold that the period of conflict between 1932 and 1937 was a ghastly mistake; that it would have been better if the Old Court had upheld the New Deal in 1933 and 1934; that the Court’s precipitous retreat in 1937 was a constitutional debacle of the first magnitude.
Perhaps, then, I can best conclude my critique by reflecting on the inadequacies of the President’s speech. Begin with his claim that the American people cannot “afford the luxury of twenty-year lags” which “sacrifice each generation in turn while the law catches up with life.” The question the President begs is that many different visions of “life” compete with one another in the United States, and that the effort of the law to “catch up” with “life” in one direction often demands a departure from much in “life” that other Americans value.
Moreover, the particular vision of social life elaborated by the New Deal had not dominated American public opinion during the long period of Republican ascendancy between the Civil War and the Great Depression. Thus, before the President could credibly claim a popular endorsement for a new vision of American government, he and his fellow Democrats had their work cut out for them. They had to move beyond the ambiguities of their 1932 Party platform and give the American people a clearer sense of direction; only then could they return to the people and convince them that their experiment in activist government was worth endorsing; having gained sweeping electoral victories, they would have to convince millions of doubters that this triumph was not some momentary flash in the pan, but was best interpreted as a considered judgment by a majority of Americans that activist government deserved a fundamental place in our political system; and as popular consent was at last secured, they would have to define more clearly the legal principles that would shape the new regime.
In all of this, legalistic resistance was not a pointless “luxury.” The Old Court’s early show of opposition encouraged the President and Congress to make some hard choices between the full-blown corporatism of the NIRA and the more focused strategy of structural reform that sought to control, but not abolish, the free market system. As a consequence of the Court’s constitutional critique, even the 17 million Americans who voted against Roosevelt in 1936 would find it hard to deny that the People had embraced the ideal of regulated capitalism with their eyes open. In short, the Old Court’s early effort to say No to the New Deal made the People’s Yes in 1936 more credible, especially to those who remained unconvinced on the merits. When the Old Court finally began to respond with its switch in time, surely it was time for the conservatives in the country to begin to reconcile themselves, however bitterly, to the thought that the People had spoken?
This dialectical process of legitimation is entirely missed by the President in his Constitution Day Address. Rather than contenting himself with an important role, Roosevelt wants to be all-important—as if a President invariably speaks with the voice of the People whenever he demands that Congress and the courts “catch up with life.” But this, to put it gently, is an exaggeration.61 My model of modern constitutional change recognizes the rise of the Presidency to a plebliscitarian role, but roots this development in a larger process mediated by Congress, the Supreme Court, and ordinary Americans at the polls. Within this framework, the initial election of a President can at best serve as a signal for serious debate on the nation’s constitutional future, a signal that can ripen into a serious constitutional proposal only if the Congress gives the President its sustained support despite the Court’s sustained constitutional critique; only if the Presidential/Congressional initiative is then emphatically endorsed by the voters at the next Presidential election should the Old Court begin to consider whether a switch in time is in order.
If, after sober second thought, the Court concedes that a mobilized majority of Americans is demanding fundamental change, it may begin to retreat from judicially entrenched constitutional principles, giving the President and Congress an opportunity to consolidate their reformed constitutional vision by replacing retiring justices with transformative appointments. Only if the Presidentially led movement maintains electoral support for the period required to transform the bench will the time come when the Supreme Court consolidates the new regime by unanimous opinions that repudiate the old order in the name of new principles.
This reading of the New Deal precedent forces modern constitutionalists beyond the myth of rediscovery. At the same time, it urges them to focus on the perils of ignoring the very real role the modern Presidency plays in the process by which We the People debate and decide our constitutional future. Such blindness has its source in the formalistic belief that the rules of Article Five are the beginning and the end of our historical engagement with the complexities of higher lawmaking. As the President’s Constitution Day Address suggests, this blindness was not shared by the New Dealers themselves, who were perfectly aware, and very proud, of their relationship to the tradition of unconventional transformation symbolized by the Philadelphia Convention and the Reconstruction Congress. If modern lawyers allow formalist presuppositions to ignore the constitutionally creative aspect of the New Deal, they are not doing justice to the protagonists’ own understanding of the period. Worse yet, they are depriving themselves of essential insights for understanding today’s Constitution, which owes more than formalists suppose to the constitutional achievements (and failures) of the New Deal generation.
It is past time for us to turn to this crucial aspect of the matter.
*A vignette beautifully expresses the spirit of the President’s strategy: “On New Year’s Day of 1939, President Roosevelt met with Robert H. Jackson, Homer Cummings, and Harry Hopkins to discuss candidates who might be suitable to fill a vacancy on the Supreme Court created by the death of Benjamin N. Cardozo. There was some support for candidates from the west, but Jackson, who supported Felix Frankfurter, opposed them. He maintained that too much was at stake—no less than the course and direction of constitutional interpretation—to approach the appointment in terms of geography. The crucial consideration, he thought, was the prospective appointee’s ability to interpret the Constitution ‘with scholarship and with sufficient assurance to face Chief Justice Hughes in conference and hold his own in the discussion.’ ‘Any man you would be likely to appoint from the west,’ he told the President, ‘would be possessed of an inferiority complex in the presence of the Chief Justice, who looks like God and talks like God. He would be completely unable to help give direction to the action of the Court.’ Whereupon FDR said, ‘I think Felix is the only man who could do that job, Bob.’ Four days later Frankfurter was named to the Court.” David Danelski and Joseph Tulchin, The Autobiographical Notes of Charles Evans Hughes xxviii (1973).
*United States v. Darby, 312 U.S. 100, 124 (1941). This message was reinforced by Wickard v. Filburn, 317 U.S. 111 (1942), rejecting a farmer’s protest against a federal effort to limit the amount of wheat he could grow for use on his own farm. Since this wheat would never leave the farm, how could it be involved in interstate commerce?
A decade earlier, this question would have admitted only one answer. Even more than the kosher butcher in Schechter, the family farm in Wickard was a paradigm case of local production activity previously immune from the centralizing grasp of the federal government.
But no longer: “Even if we assume that it is never marketed, it supplies a need of the man who grew it which would otherwise be reflected by purchase on the open market.” Id. at 128. The Court’s unanimity emphasized the decisive character of this revolutionary transformation.