V. Roosevelt's Rebels Against the Constitution

v. Roosevelt Rebels Against the Constitution A FUNDAMENTAL principle of the American Constitution is the separation of powers it vests in the legislative, executive, and judicial branches of the government. James Madison, who has been called the father of the Constitution, declared in The Federalist: "The accumulation of all powers, legislative, execu tive and judiciary, in the same hands, whether of one, a few or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny." It would labor the obvious to maintain that any president who could impose his will upon both the legislative and the judicial branches of the government.would be a tyrant. Yet that is precisely what Franklin D. Roosevelt endeavored to do. In 1937, he tried to pack the United States Supreme Court, because he did not like its decision. In 1938, he tried to "purge"

Democratic senators who had helped defeat his court packing scheme. Revolutionaries in the New Deal had never put in any faith in constitutional government. In The Industrial Discipline and the Governmental Arts published in 1933, Professor Rexford Guy Tugwell had written: "Any people which must be gov erned according to the written codes of an instrument which defines the spheres of individual· and group, state and federal actions must expect to suffer from the constant maladjustment of progress. A life'which changes and a constitution for gover nance which does not must always raise questions which are difficult for solution." Roosevelt himself disclosed in his first inaugural address, delivered on March 4, 1933, that his concept of leadership 64 THE TWENTY-YEAR REVOLUTION did not exclude dictatorship. He warned that if Congress failed to support his recommendations, "I shall not evade the clear course of duty that will then confront me. I shall ask the Con gress for the one remaining instrument to meet the crisis-broad executive power to wage a war against the emergency as great as the power that would be given me if we were in fact invaded by a foreign foe.... The people of the United States have asked for discipline and direction under leadership. They have made me the present instrument of their wishes."

In his annual message to Congress on January 3, 1936, Roosevelt boasted that his administration had developed "new instruments of public power," and declared: "In the hands of a people's government this power is wholesome and proper. But in the hands of political puppets of an economic autocracy such power would provide shackles for the liberties of the peo ple. Give them their way and they will take the course of every autocracy in the past-power for themselves, enslavement for the public." The first intimation that Roosevelt would not tolerate an independent judiciary came on May 31, 1935, four days after the Supreme Court had declared the NRA unconstitutional. At a press conference, he said the Court's decision had put the United States back in the "horse and buggy age." He predicted, correctly, that the court would invalidate the AAA, and incor rectly that five-cent cotton and forty-cent wheat would be the result. In their book about the Supreme Court crisis of 1937, called The 168 Days, Joseph Alsop and Turner Catledge re port that Roosevelt first declared war on the court an hour or so before the "horse and buggy" press conference. Felix Frank furter of the Harvard Law School and General Hugh Johnson, NRA administrator, were summoned to the White House where they found Roosevelt in a fighting mood. He said the country was with him, not with the court. He swore angrily to bring the court into line if he had to "pack it" or "deny it appellate juris diction."

Roosevelt's "horse and buggy" attack on the court produced ROOSEVELT REBELS AGAINST THE CONSTITUTION 65 a storm of popular and editorial indignation, which may have shaken his conviction that the country was with him. He se cretly put Homer Cummings, his Attorney General, to work on the problem of bringing the court "into line," but he concealed his intentions all through the 1936 election campaign. How ever, on July 5, 1935, in a letter to Representative Samuel B. Hill of Washington, the President manifested contempt for the Constitution. Hill was chairman of a subcommittee which was considering the Guffey-Vinson bill to regulate the coal industry. Roosevelt, who had taken a solemn oath on a Bible that had been in his family for more than 300 years to "preserve, protect and defend the Constitution of the United States," wrote to Representative Hill: "1 hope your committee will not permit doubts as to constitutionality, however reasonable, to block the suggested legislation." The purpose of the legislation was to re-establish, for the coal industry, the NRA code system which the Supreme Court had unanimously declared unconsti tutional. Therefore the doubts about its constitutionality were reasonable indeed, as Roosevelt acknowledged when he said he wanted the legislation anyway. The Supreme Court further confirmed the reasonableness of the doubts on May 18, 1936, when it held the Guffey-Vinson Act unconstitutional.

In 1936 the court held the AAA unconstitutional. In the same year it invalidated a New York State minimum wage law for women. Roosevelt sarcastically remarked that the judges seemed determined to create a "no man's land" in which neither the federal government nor the states could act. In March, 1937, however, the court upheld a Washington State minimum wage law, reversing the effect of its decision in the New York State case a year earlier. It was a five to four decision in each case. A switch by Justice Roberts changed the result. On April 12, 1937, the court handed down a five to four decision sustaining the Wagner Labor Relations Act. On May 24 it upheld the New Deal's socialsecuritylaw. Meanwhile the President, having won re...election by a land slide of 27,476,000 votes to 16,679,000 for Landon, carrying 66 THE TWENTY-YEAR REVOLUTION every state except Maine and Vermont, assumed that he had a mandate to govern the people without let or hindrance from Congress or the Supreme Court. On February 5, 1937, he as tonished Congress and the country with a message demanding the right to appoint to the Supreme Court and all inferior courts an additional justice for each sitting member who, having served ten years and attained the age of seventy, should refuse to re sign or retire within six months. Such legislation, in the absence of retirements, resignations, or deaths, would have given Roose velt the right to enlarge the Supreme Court from nine to fifteen members.

The Democratic leaders of the Senate and House were not advised of the revolutionary proposal until the morning be fore the President sent his message to Congress. He received Vice President Garner, Speaker Bankhead, Majority Leader Joe Robinson of the Senate, Majority Leader Sam Rayburn of the House, Senator Ashurst of Arizona, chairman of the Senate JUdiciary Committee, and Representative Sumners of Texas, chairman of the House Judiciary Committee, at the White House a half hour before he announced his plan at a press con ference.He did not consult them; he told them. Hurriedly, he read brief excerpts from his message. On the way back to the Capitol, Sumners announced: "Boys, here is where.1 cash in my chips." Senator Ashurst, who recently had denounced court packing as a "prelude to tyranny," issued a one-line statement late that afternoon saying he was in "favor of the President's proposal."

. As expected, conservative Democrats promptly condemned the proposal. Virginia's venerable Carter Glass, almost eighty years old, was in Lynchburg. "Of course 1 shall oppose it," he told a reporter. "1 shall oppose it with all the strength which remains in me, but I don't imagine for a minute that it will do any good. Why, if the President asked Congress to commit suicide tomorrow they'd do it." What the administration had not anticipated was opposition from many so-called liberals, both in and out of Congress, who had been ardent New Dealers. Foremost in the congressional ROOSEVELT REBELS AGAINST THE CONSTITUTION 67 group was Senator Burton K. Wheeler (D., Mont.), who was chosen leader of the Senate opposition. The Republicans wisely decided to keep quiet and let the Democrats lead the fight. However, the late Senator Borah of Idaho, a member of the Judiciary Committee, worked closely with Wheeler and was an effective leader because of his prestige in the senate. The unhappy Ashurst, half statesman and half clown, probably contributed as much as anyone else to the defeat of the court packing scheme, which he privately abhorred and publicly damned with faint praise. He adopted a Fabian strategy, in sisting that protracted hearings should be held, that all comers should be heard, and that the people should be educated on all the issues involved. "We court hesitation, neglect, and de lay," he said. Administration leaders were frantic, but they could not hurry him.."No haste, no hurry; no waste, no worry,"

he quipped. On June 14, a bipartisan majority of the Senate Judiciary Committee submitted an adverse report condemning the court packing bill as a plan to "subjugate the courts to the will of Congress and the President and thereby destroy·the independ ence of the judiciary, the only certain shield of individual rights." "It applies force to the judiciary," the report declared. "It violates all precedents in the history of our government and would in itself be a dangerous precedent for the future." In his message to Congress, the President said the legislation was needed to expedite the work of the courts and to invigorate them by the "permanent infusion of new blood." In a radio address to the nation, on March 9, 1937, however, the Presi dent said: "When the Congress has sought to stabilize national agriculture, to improve the conditions of labor, to safeguard business against unfair competition, to protect our national resources, and in many other ways to serve our clearly national needs, the majority of the court has been assuming the power to pass on the wisdom of these acts of Congress and to approve or disapprove the public policy written into these laws."

"Here," said the Judiciary Committee's report, "is the frank 68 THE TWENTY-YEAR REVOLUTION acknowledgement that neither speed nor 'new blood' in the judiciary is the object of this legislation, but a change in the decisions of the court-a subordination of the views of the judges to the views of the executive and legislative, a change to be brought about by forcing certain judges off the bench or increasing their number." Opposition to the packing plan increased with the Supreme Court's decisions upholding the Washington minimum wage law in March, the Wagner Act in April, and the social security legislation in May. The opposition grew even stronger when Justice Willis Van Devanter retired on June 2, creating a va cancy for Roosevelt's first appointment. On July 20, the morn ing after his return from Joe Robinson's funeral on a train with congressional leaders on both sides of the court packing fight, Vice President Garner went to see Roosevelt and told him his project was dead beyond any hope of resurrection. Two days later, when Senator Logan (D., Ky.) moved by pre-arrange ment to send the court packing plan back to the Judiciary Com mittee and instruct it to report out a harmless measure for the reform of judicial procedure, California's aged and ailing Hi ram Johnson struggled to his feet and asked: "The Supreme Court is out of the way?"

"The Supreme Court is out of the way," said Logan. "Glory be to God!" Johnson exclaimed. The motion was adopted by a vote of seventy to twenty-five. Roosevelt lost the court packing battle, but won his war to change the American form of government. When the Supreme Court upheld the Wagner Labor Relations Act on April 12, 1937, the United States ceased to be a republic with a govern ment of limited powers, expressly enumerated in the Constitu tion, and became a welfare state on the European model, in which the national legislature has power to regulate industry, agriculture, and virtually all the activities of the citizens. This concept of government was not completely established until the court upheld the Social Security Act on May 24, 1937, and the compulsory marketing quotas of the new AAA on April ROOSEVELT REBELS AGAINST THE CONSTITUTION 69 17, 1939; but the New Deal principle of unfettered legislative authority was accepted when the court pronounced the Wagner Act constitutional. We still have the Bill of Rights, which safe guards the fundamental liberties of the people, but even this protection could be destroyed by treaties.

In 1935, when the Supreme Court upheld the New Deal's repudiation of the gold payment clause in government obliga tions as well as private contracts, Justice McReynolds declared in a dissenting opinion that "the Constitution as we have known it is gone." He was widely derided. Two years later, however, it could be demonstrated that the Constitution, as a majority of the court had known it before Roosevelt declared war on the judiciary, was indeed gone. In the NRA case, the Supreme Court cited with approval its dictum in Industrial Association v. United States (268 U.S. 64): "The alleged conspiracy and the acts here complained of spent· their intended and direct force upon a local situation, for building is as essentially local as mining, manufacturing, or growing crops; and if by resulting diminution of the commercial demand, interstate trade was cur tailed, either generally or in specific instances, that was a for tuitous consequence so remote and indirect as plainly to cause it to fall outside the reach of the Sherman act."

Here was a specific dictum, quoted with approval as late as May 27, 1935, that such activities as building, mining, manu facturing, and the growing of crops, are local, and therefore beyond the purview of Congress. Even more significant was the court's 6 to 3 decision invalidating the Guffey-Vinson Coal Act on May 18, 1936, less than a year before Roosevelt sought to pack the court. This law had two parts, one setting up price fixing and marketing provisions and one regulating labor rela- • tions. Justices Cardozo, Brandeis, and Stone dissented from the majority opinion invalidating the whole law. Chief Justice Hughesdissentedfrom that part of the majorityopinionwhich struck down the marketing provisions, but concurred in the ruling that the labor relations provisions were unconstitutional. The majority opinion declared that "the relation of employer 70 THE TWENTY-YEAR REVOLUTION and employee is a local relation." To the government argu ment that interstate commerce was affected by struggles be tween employers and employees, the court replied that such "evils are all local evils over which the federal government has no legislative control." This was about as specific as the court could be in denying the power of Congress to regulate labor relations. Chief Justice Hughes,·in a separate concurring opin ion, declared that Congress has adequate authority to maintain the orderly conduct of interstate commerce, but may not use it to regulate activities and relations within the states which af fect interstate commerce only indirectly.

Vehemently, he continued: "Otherwise in view of the multi tude of indirect effects Congress in its discretion could assume control of virtually all the activities of the people to the sub version of the fundamental principles of the Constitution. If the people desire to give Congress the power to regulate indus tries within the state and the relations of employers and em ployees in those industries they are at liberty to declare their will in the appropriate manner, but it is not for the court to amend the Constitution by judicial decision." Eleven months later, Chief Justice Hughes, speaking for the majority, pronounced the Wagner Labor Relations Act con stitutional. Congress has power, he said, to regulate labor re lations in manufacturing plants to protect interstate commerce "from the paralyzing consequences of industrial war." The court's construction of the constitutional power of Con gress to "regulate commerce . . . among the several states" in the Wagner Act decision was followed by an equally revolu tionary interpretation of the so-called "general welfare" clause in the decisions upholding the social security law and the new .AAA. In Article 1, Section 8, the Constitution gives Congress power "to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and gen eral welfare of the United States." In all previous interpreta tions of this provision since the founding of the Republic the court had held that the power of Congress to tax and spend ROOSEVELT REBELS AGAINST THE. CONSTITUTION 71 for the general welfare is limited by the other powers enumer ated in Article 1, Section 8. These enumerated powers do not include authority to tax and spend for the regulation of agri culture or for the payment of old age pensions and other social security benefits. Yet that is the effect of the court's decisions upholding the Social Security Act and the secondAAA. With that principle established, the only limitation on the power of Congress to tax and spend for the general welfare is its own discretion as to what the general welfare is.

Chief Justice Hughes may have believed that "amending the Constitution by judicial decision," which he had condemned so fervently in the coal act case, was a lesser evil than the pos sible subjugation of the judiciary, as proposed by the President. It may be the verdict of history, however, that he saved the court by sacrificing the Constitution. He acceded toa doctrine which-to use his own words in the coal act case-would give Congress power in its own discretion "to assume control of vir tually all the activities of the people to the subversion of the fundamental principles of the Constitution." When retirements and deaths gave Roosevelt an opportu nity to "pack" the Supreme Court with New Deal zealots, his victory was complete. His first appointee was Senator Hugo L. Black of Alabama, a former police court judge and Ku Klux Klansman, who had denounced the Supreme Court as intem perately as any New Deal Jacobin in the Senate. Black con cealed his former membership in the Klan until he was safely confirmed by the Senate, and there is no evidence that Roose velt knew anything about it when he made the appointment.

However, even supporters of the President attributed the Black appointment to spite. Roosevelt wished to humiliate the··Senate and degrade the court by making the worst possible appoint Inent. After Black's Ku Klux past had been disclosed by a news paper, he confessed it in a nation-wide radio speech. The standard of judicial appointments established by Roose velt was continued by Truman. Justice Clark, the last Truman appointee, refused to accept the invitation of a House Judiciary 72 THE TWENTY-YEAR REVOLUTION Subcommittee which wanted to question him about tax fixing scandals, the paroling of Capone gangsters, and other irregu larities when he headed the Justice Department. In the 1938 primaries, Roosevelt attempted to purge Demo cratic candidates up for re-election that year who had fought his court-packing bill and other New Deal proposals. Senators on the purge list included George of Georgia, Smith of South Carolina, Tydings of Maryland, Gillette of Iowa, Clark of Missouri, McCarran of Nevada, Adams of Colorado, Van Nuys of Indiana and Lonergan of Connecticut. Rep. John O'Connor of New York, chairman of the Rules Committee, headed the list of several members in the House. Attacking Sen. George in a speech at Gainesville, Ga., Roosevelt implied that those who opposed him had been purchased by vested interests. He ascribed the South's difficulties to "old fashioned feudalism,"

adding: "When you come down to it, there is little difference between the feudal system and the fascist system. If you be lieve in the one you believe in the other." O'Connor was the only Democrat on the purge list who failed to win renomina tion. Harry Hopkins' WPA, which had billions of dollars of tax payers' money to spend for relief, was turned into a political machine in the campaign to purge anti-New Deal Democrats and reelect the New Deal faithful. A Senate committee, headed by the late Senator Sheppard of Texas, found that in Kentucky all reliefers were canvassed by the WPA foremen and asked to sign papers pledging themselves to vote for the renomination of Alben Barkley, the Senate Majority Leader. Gov. "Happy" Chandler was running against Barkley. WPA supervisors were shaken down for contributions to the Barkley campaign fund. Conditions were similar in Pennsylvania, where Sen. Joe Guf fey, a New Deal yes-man, was seeking re-election, and in Illi nois, where the New Deal Senate candidate was Scott Lucas.

When questioned by the Senate Commerce Committee on Janu ary 11, 1939, regarding his appointment as Secretary of Com merce, Hopkins acknowledged that his own activities in behalf ROOSEVELT REBELS AGAINST THE CONSTITUTION 73 of New Deal candidates were improper and that he should have fired the "whole kaboodle" of WPA officialsin Kentucky. Harry Hopkins, a seedy, impecunious ex-social worker who never had been and never could be elected to any public office, already had acquired a position of greater influence in the gov ernment than Felix Frankfurter enjoyed. Soon he would move into the White House as one of the most powerful figures in history, swaying kings, dictators, and prime ministers, com manders of mighty fleets and armies, all in the name of a presi dent whose vanity he flattered and whose mind he enthralled. Roosevelt's aggrandizement of the executive function has left the nature of American government permanently altered.

Numerous assumptions of broad executive power have become accepted precedents. A series of Supreme Court rulings have destroyed the legal limitations on the scope of federallegisla tion. A chief executive has attempted to eliminate from Con gress members of his own party personally unacceptable to him. Public funds have been used lavishly to coerce the votes of citizens. "The Constitution as we have known it is gone."