Lecture 7: FDR’s March 9, 1937 Fireside Chat on Packing the Supreme Court
(My byline: “The Man Who Would Be King”)
[Before seeing what happened to the Supreme Court’s interpretation of the Commerce Clause,
we need to consider what happened to the Court itself during Franklin Delano Roosevelt’s
presidency, which is the subject of this lecture.
[FDR was a great communicator. His beautiful baritone voice tinged with his “high brow”
accents and inflections, seemed to be custom made for the radio, which had come into
widespread use while he was President. He broadcast over the radio several, what were called,
“Fireside Chats” to communicate directly with the American public. This particular fireside chat
was on of his most famous and controversial. My byline for it is: “The Man Who Would Be
King.”
[Prior to this fireside chat, the U.S. Supreme had declared much of FDR’s New Deal legislation
unconstitutional which made FDR quite mad. He hatched a plan to take over the Court’s legal
philosophy regarding constitutional interpretation by expanding the Court from 9 Justices to 15
Justices.
[On February 4, 1937, just two weeks after his second inauguration, FDR called the Democratic leaders
of both the Senate and the House to attend his cabinet meeting. He said that he only had a few minutes
because of a pending press conference he had to attend. He told them he was sending a proposed Bill to
Congress to change the makeup of the Supreme Court. He explained his plan and then excused himself
from the meeting without any opportunity for input by those present. To those present, this came across
as a dictatorial order to successfully shepherd the Bill through both houses of Congress which were both
firmly controlled by the Democrats.1 As we will soon see, this was a big mistake on his part since this
dictatorial approach angered the leaders of his own party in Congress.
[About a month later, in this “fireside chat,” he explained his plan to the American people.
[After reading this address, I wonder if it didn’t inspire one aspect of George Orwell’s book entitled
“1984” which was published about 12 years after this fireside chat. In that fictional tale, to more easily
control the people, the socialist government turned the meaning of words upside down. It used words and
phrases in its communications to the people that tended to evoke a certain positive meaning in the minds
of the listeners, but which in reality meant something entirely different to the government handlers. This
became known by the general public who read the book as “Orwellian double-speak” or “doublethink”-terms used to describe government deception. When you hear FDR speak in this address, you will
probably have a hard time believing what you hear and feel confused by much of it.
[I think this is a good illustration of what Fredrich A. Hayek meant when he said:
“The most effective way of making people accept the validity of the values they are to serve is to
persuade them that they are really the same as those they have always held, but which were not
properly understood or recognized before....And the most efficient technique to this end is to use
1
The Roosevelt Myth by John T. Flynn, pp.96-97.
1
the old words but change their meaning. Few traits of totalitarian regimes are at the same time so
confusing to the superficial observer and yet so characteristic of the whole intellectual climate as
this complete perversion of language.”2
[In this “fireside chat”, FDR accused the U.S. Supreme Court of destroying the Constitution and that the
Court needed to be saved from its own irresponsible acts. In the vernacular of his opposition, he proposed
a plan to “pack the court” with new Justices who would give a favorable constitutional interpretation to
his various New Deal policies.
[The Constitution does not prescribe the number of justices who are to sit on the Supreme Court-Congress determines that. The justices who kept voting against his legislation were seventy years old and
older. The President proposed that for each sitting justice who was seventy years old or older and who
would not voluntarily retire, the number of justices on the court would increase by one. There were six
justices who fit into this category. Thus, if such a law were passed and none of those six decided to retire,
then the membership of the court would rise from nine to fifteen.
[Of course, the President would handpick nominees for those positions who would interpret the
Constitution exactly the way he wanted which would effectively nullify the effectiveness of those older
judges virtually ensuring that the Supreme Court would allow the President and the Congress to do
whatever they pleased.
[Franklin D. Roosevelt’s constitutional philosophy was as follows:
“The United States Constitution has proved itself the most marvelously elastic compilation of
rules of government ever written.”3
[He wanted justices who were equally expansionist in their constitutional philosophy regarding what
authority had been delegated to the federal government.
[This fireside chat was his attempt to sell his plan to the American public.
[What follows is this famous fireside chat in its entirety in the President’s own words and voice.
Occasionally I will interject comments along the way:]
FDR:
Last Thursday I described in detail certain economic problems which everyone admits now face
the Nation. For the many messages which have come to me after that speech, and which it is
physically impossible to answer individually, I take this means of saying "thank you."
Tonight, sitting at my desk in the White House, I make my first radio report to the people in my
second term of office.
2
Id. pp.172-73.
3
Address as Governor of New York, March 2, 1930. Reproduced at:
http://www.lexrex.com/enlightened/writings/fdr_address.htm
2
I am reminded of that evening in March, four years ago, when I made my first radio report to
you. We were then in the midst of the great banking crisis.
[According to John T. Flynn, Hoover begged FDR to join him in addressing the banking
crisis before the transition of power took place since the Democrats controlled the House
of Representatives and would not support anything Hoover wanted to do without FDR’s
blessing. FDR refused to cooperate. His people said that FDR wanted the country to fall
as far as it could under Hoover so that FDR could ride in on his white horse and save the
country from its lowest possible level. This was a political calculation on FDR’s part to
try to destroy the Republican party for as long as he could. It didn’t matter to him that
thousands of banks were going out of business and destroying the savings of millions of
people. He was making a power play to secure political power. 4 As Richard Maybury
once observed, the psychology of a politician is the psychology of a bully because he
wants to force others to comply with his will. This fireside chat could be looked at that
way too.
[Back to the address:]
Soon after, with the authority of the Congress, we asked the Nation to turn over all of its
privately held gold, dollar for dollar, to the Government of the United States.
Today's recovery proves how right that policy was.
[Soon after this speech, the economy worsened. His advisors advised him to extend an
olive branch to business since they thought he was taking the country down the road of
socialism and consequently refused to take any risks by way of new investment.5 When
the Treasury Secretary, Henry Morganthou, made a major speech to the country’s
business leaders, he started out his speech by saying that the administration was
continuing its fight against the national deficits. This sounded so absurd to the crowd that
the comment was immediately met with raucous laughter. This angered FDR’s team so
they went back on the offensive blaming business for everything. The “pound of flesh”
comment in the next part of his recording is typical of the FDR’s contempt for the free
market system.6
[Back to the chat:]
But when, almost two years later, it came before the Supreme Court its constitutionality was
upheld only by a five-to-four vote. The change of one vote would have thrown all the affairs of
this great Nation back into hopeless chaos. In effect, four Justices ruled that the right under a
4
The Roosevelt Myth by John T. Flynn, pp.15-30.
5
Id., pp.108-09.
6
Id.
3
private contract to exact a pound of flesh was more sacred than the main objectives of the
Constitution to establish an enduring Nation.
In 1933 you and I knew that we must never let our economic system get completely out of joint
again- that we could not afford to take the risk of another great depression.
We also became convinced that the only way to avoid a repetition of those dark days was to have
a government with power to prevent and to cure the abuses and the inequalities which had
thrown that system out of joint.
We then began a program of remedying those abuses and inequalities-to give balance and
stability to our economic system to make it bomb-proof against the causes of 1929.
Today we are only part-way through that program—and recovery is speeding up to a point where
the dangers of 1929 are again becoming possible, not this week or month perhaps, but within a
year or two.
National laws are needed to complete that program. Individual or local or state effort alone
cannot protect us in 1937 any better than ten years ago.
It will take time—and plenty of time—to work out our remedies administratively even after
legislation is passed. To complete our program of protection in time, therefore, we cannot delay
one moment in making certain that our National Government has power to carry through.
Four years ago action did not come until the eleventh hour. It was almost too late.
[Please recall my prior comment a few moments ago about FDR making things worse for
about 4 months by not cooperating with Hoover before FDR took office. He was elected
in early November of 1932 but back then inaugurations didn’t take place until early
March of the following year. So for the last four months of Hoover’s administration,
Hoover could not do very much about the worsening economic conditions in the country.
As it turns out, FDR did pretty much what Hoover had recommended regarding the
banking crisis, but for that excruciating 4 months, banks continued to fail and people
continued to lose their life savings.7
[Back to the address:]
If we learned anything from the depression we will not allow ourselves to run around in new
circles of futile discussion and debate, always postponing the day of decision.
The American people have learned from the depression. For in the last three national elections an
overwhelming majority of them voted a mandate that the Congress and the President begin the
task of providing that protection—not after long years of debate, but now.
7
Id., pp.15-30.
4
The Courts, however, have cast doubts on the ability of the elected Congress to protect us against
catastrophe by meeting squarely our modern social and economic conditions.
We are at a crisis in our ability to proceed with that protection. It is a quiet crisis. There are no
lines of depositors outside closed banks. But to the far-sighted it is far-reaching in its possibilities
of injury to America.
I want to talk with you very simply about the need for present action in this crisis- the need to
meet the unanswered challenge of one-third of a Nation ill-nourished, ill-clad, ill-housed.
Last Thursday I described the American form of Government as a three horse team provided by
the Constitution to the American people so that their field might be plowed. The three horses are,
of course, the three branches of government—the Congress, the Executive and the Courts. Two
of the horses are pulling in unison today; the third is not. Those who have intimated that the
President of the United States is trying to drive that team, overlook the simple fact that the
President, as Chief Executive, is himself one of the three horses.
It is the American people themselves who are in the driver's seat. It is the American people
themselves who want the furrow plowed.
It is the American people themselves who expect the third horse to pull in unison with the other
two.
I hope that you have re-read the Constitution of the United States in these past few weeks. Like
the Bible, it ought to be read again and again.
It is an easy document to understand when you remember that it was called into being because
the Articles of Confederation under which the original thirteen States tried to operate after the
Revolution showed the need of a National Government with power enough to handle national
problems. In its Preamble, the Constitution states that it was intended to form a more perfect
Union and promote the general welfare; and the powers given to the Congress to carry out those
purposes can be best described by saying that they were all the powers needed to meet each and
every problem which then had a national character and which could not be met by merely local
action.
But the framers went further. Having in mind that in succeeding generations many other
problems then undreamed of would become national problems, they gave to the Congress the
ample broad powers "to levy taxes . . . and provide for the common defense and general welfare
of the United States."
That, my friends, is what I honestly believe to have been the clear and underlying purpose of the
patriots who wrote a Federal Constitution to create a National Government with national power,
intended as they said, "to form a more perfect union for ourselves and our posterity."
[Yes, the framers of the Constitution saw that our federal government needed more power
but the country was divided. The principal argument made by the anti-federalists against
5
adoption was that we were going too far and creating too strong of a central government
at the expense of the states—that if we went too far, our federal government would
become as venal and oppressive as the English government from which we had so
recently revolted.8 The central theme of the Federalist Papers which were the
intellectual sales pitch in favor of adoption, was that the Constitution satisfied the Goldie
Locks principle by not giving the federal government too little, or too much power, but
rather, just the right amount of power.
[Until the 1925 Butler9 case, the U.S. Supreme Court refused to look at the General
Welfare Clause as a stand alone delegation of broad, open-ended authority for Congress
to do whatever it wanted to do so long as it thought it was for the general welfare of the
country. As the 1918 Daggenhart10 Court observed, in the Constitutional Convention,
when Randolph proposed to give Congress power to “legislate in all cases to which the
separate States are incompetent, or in which the harmony of the United States may be
interrupted by the exercise of individual legislation,” the convention rejected that
proposal for open-ended authority in favor of the specific and limited delegations of
authority found in Article 1, Section 8. As Madison, Jefferson and Story argued, if the
General Welfare Clause was interpreted to mean Congress had the delegated authority to
do whatever it felt was in the general welfare of the country, then that would make the
specific and limited delegations of authority meaningless in Article 1, Section 8. If
Article 1, Section 8 were to be read as FDR wanted it read, then all of the specific
delegations of authority found within that section would become superfluous. In other
words, the lengthy Article 1, Section 8 could be reduced down to a very short and simple
sentence and all of the rest of that section erased. FDR would have us read that entire
section as meaning simply this: “Congress shall have unlimited power to tax, spend, and
or legislate so long as they think that what they are doing promotes the general welfare of
the country.”
[Yes, the Constitution would be a very easy document to understand, if that is what was
meant by the framers, but it wasn’t!
[Now let’s return to the fireside chat.]
“It has long, however, been my opinion, and I have never shrunk from its expression,... that the germ of dissolution
of our federal government is in the constitution of the federal judiciary; an irresponsible body, (for impeachment is
scarcely a scare-crow,) working like gravity by night and by day, gaining a little today and a little tomorrow, and
advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped from the States, and
the government of all be consolidated into one. To this I am opposed; because, when all government, domestic and
foreign, in little as in great things, shall be drawn to Washington as the center of all power, it will render powerless
the checks provided of one government on another, and will become as venal and oppressive as the government
from which we separated.” Letter from Thomas Jefferson to Charles Hammond, August 18, 1821, Works 7:216;
reproduced at “www.constitution.org/tj/jeff15/txt”, pp.331-32.
8
9
U. S. v. Butler, 297 U. S. 1 (1936).
10
Hammer v. Dagenhart, 247 U.S. 251 (1918).
6
For nearly twenty years there was no conflict between the Congress and the Court. Then
Congress passed a statute which, in 1803, the Court said violated an express provision of the
Constitution. The Court claimed the power to declare it unconstitutional and did so declare it.
But a little later the Court itself admitted that it was an extraordinary power to exercise and
through Mr. Justice Washington laid down this limitation upon it: "It is but a decent respect due
to the wisdom, the integrity and the patriotism of the legislative body, by which any law is
passed, to presume in favor of its validity until its violation of the Constitution is proved beyond
all reasonable doubt."
[That is not the sales pitch that was given by Hamilton in Federalist #78 which discusses
the role of the federal judiciary. According the Hamilton, our federal judges were given
life tenure for the purpose of giving them the backbone necessary to force Congress and
the President to stay within the bounds of the limited delegated authority given to them in
the Constitution. They were expected to protect state sovereignty under the notion of
federalism as specifically guaranteed by the 10th Amendment which says: “The powers
not delegated to the United States by the Constitution, nor prohibited by it to the States,
are reserved to the States respectively, or to the people.”
[Now back to the chat:]
But since the rise of the modern movement for social and economic progress through legislation,
the Court has more and more often and more and more boldly asserted a power to veto laws
passed by the Congress and State Legislatures in complete disregard of this original limitation
which I just read.
[So what does he mean by “the modern movement for social and economic progress?”
Effectively, he means socialism or fascism.
[Back to FDR:]
In the last four years the sound rule of giving statutes the benefit of all reasonable doubt has been
cast aside. The Court has been acting not as a judicial body, but as a policy-making body.
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 the Congress—and to approve or
disapprove the public policy written into these laws.
That is not only my accusation. It is the accusation of most distinguished Justices of the present
Supreme Court. I have not the time to quote to you all the language used by dissenting Justices in
many of these cases. But in the case holding the Railroad Retirement Act unconstitutional, for
instance, Chief Justice Hughes said in a dissenting opinion that the majority opinion was "a
departure from sound principles," and placed "an unwarranted limitation upon the commerce
clause." And three other Justices agreed with him.
7
In the case holding the A.A.A. unconstitutional, Justice Stone said of the majority opinion that it
was a "tortured construction of the Constitution." And two other Justices agreed with him.
In the case holding the New York Minimum Wage Law unconstitutional, Justice Stone said that
the majority were actually reading-into the Constitution their own "personal economic
predilections," and that if the legislative power is not left free to choose the methods of solving
the problems of poverty, subsistence and health of large numbers in the community, then
"government is to be rendered impotent." And two other Justices agreed with him.
In the face of these dissenting opinions, there is no basis for the claim made by some members of
the Court that something in the Constitution has compelled them regretfully to thwart the will of
the people.
In the face of such dissenting opinions, it is perfectly clear, that as Chief Justice Hughes has said:
"We are under a Constitution, but the Constitution is what the Judges say it is."
The Court in addition to the proper use of its judicial functions has improperly set itself up as a
third House of the Congress—a super-legislature, as one of the justices has called it-reading into
the Constitution words and implications which are not there, and which were never intended to
be there.
We have, therefore, reached the point as a Nation where we must take action to save the
Constitution from the Court and the Court from itself. We must find a way to take an appeal
from the Supreme Court to the Constitution itself. We want a Supreme Court which will do
justice under the Constitution—not over it. In our Courts we want a government of laws and not
of men.
[What do you think comports best with the notion of a government of laws and not a
government of men?—a Court that attempts to consistently interpret the constitution
according to the intents of those who drafted it or a Court who doesn’t care about that but
rather who just make the Constitution mean what they want it to mean? It seems to me,
the former proposition is a “government of laws” while the later proposition is a
“government of men.” The majority of the Court was trying stay true to the intents of the
framers by declaring as unconstitutional the attempts by Congress and the President to
exercise authority not delegated to them in the Constitution, but for that they were
accused by FDR of destroying the Constitution. Quite to the contrary, FDR was the one
trying to destroy the Constitution by, in the words of Jefferson, “making it a blank
document by construction [or interpretation.]”11
[Back to the chat:]
11
"Our peculiar security is in possession of a written Constitution. Let us not make it a blank paper by construction
[interpretation]." Letter to William Cory Nicholas, September 7, 1803, reproduced at
“www.constitution.org/tj/jeff10.txt”, p.419.
8
I want—as all Americans want—an independent judiciary as proposed by the framers of the
Constitution. That means a Supreme Court that will enforce the Constitution as written—that
will refuse to amend the Constitution by the arbitrary exercise of judicial power—amendment by
judicial say-so.
[Wow, I can hardly believe my ears! I would agree with every word of that sentence, but
obviously, it means something radically different to him than it does to me.
[Back to the chat:]
It does not mean a judiciary so independent that it can deny the existence of facts universally
recognized.
How then could we proceed to perform the mandate given us? It was said in last year's
Democratic platform, "If these problems cannot be effectively solved within the Constitution, we
shall seek such clarifying amendment as will assure the power to enact those laws, adequately to
regulate commerce, protect public health and safety, and safeguard economic security." In other
words, we said we would seek an amendment only if every other possible means by legislation
were to fail.
When I commenced to review the situation with the problem squarely before me, I came by a
process of elimination to the conclusion that, short of amendments, the only method which was
clearly constitutional, and would at the same time carry out other much needed reforms, was to
infuse new blood into all our Courts. We must have men worthy and equipped to carry out
impartial justice. But, at the same time, we must have Judges who will bring to the Courts a
present-day sense of the Constitution -Judges who will retain in the Courts the judicial functions
of a court, and reject the legislative powers which the courts have today assumed.
[Again, if what he wants is judges who will ignore the limited delegations of authority
given to Congress and the President under the Constitution, isn’t he effectively arguing
for a “rule of men” rather than the “rule of law?”
[Back to the President’s address:]
It is well for us to remember that in forty-five out of the forty-eight States of the Union, Judges
are chosen not for life but for a period of years. In many States Judges must retire at the age of
seventy. Congress has provided financial security by offering life pensions at full pay for Federal
Judges on all Courts who are willing to retire at seventy. In the case of Supreme Court Justices,
that pension is $20,000 a year. But all Federal Judges, once appointed, can, if they choose, hold
office for life, no matter how old they may get to be.
What is my proposal? It is simply this: whenever a Judge or Justice of any Federal Court has
reached the age of seventy and does not avail himself of the opportunity to retire on a pension, a
new member shall be appointed by the President then in office, with the approval, as required by
the Constitution, of the Senate of the United States.
9
That plan has two chief purposes. By bringing into the judicial system a steady and continuing
stream of new and younger blood, I hope, first, to make the administration of all Federal justice
speedier and, therefore, less costly; secondly, to bring to the decision of social and economic
problems younger men who have had personal experience and contact with modern facts and
circumstances under which average men have to live and work. This plan will save our national
Constitution from hardening of the judicial arteries.
[In other words, he wanted to guarantee that a majority of the judges on the U.S. Supreme
Court would implement the sociological school of jurisprudence as propounded by
Roscoe Pound, the sociologist/dean of the Harvard Law School, and discard our Common
Law Constitutional heritage which protected property rights, freedom from unnecessary
governmental intrusions upon individual liberty, and state sovereignty under the 10th
Amendment. Richard Maybury said that the two great underpinnings of the Common
Law were (1) to do what one agreed to do, and (2) to not encroach upon other people’s
rights or their property.12 The sociological school will plunder individual liberty and
property rights in order to pursue, in FDR’s words, “the modern movement for social and
economic progress” or in other words, redistribution of wealth through the force of law.
[Back to the address:]
The number of Judges to be appointed would depend wholly on the decision of present Judges
now over seventy, or those who would subsequently reach the age of seventy.
If, for instance, any one of the six Justices of the Supreme Court now over the age of seventy
should retire as provided under the plan, no additional place would be created. Consequently,
although there never can be more than fifteen, there may be 'only fourteen, or thirteen, or twelve.
And there may be only nine.
There is nothing novel or radical about this idea. It seeks to maintain the Federal bench in full
vigor. It has been discussed and approved by many persons of high authority ever since a similar
proposal passed the House of Representatives in 1869.
[What? There is nothing novel or radical about this idea? Since when has any President
before him proposed to destroy our system of checks and balances by making the Judicial
branch subservient to him in one fell swoop by stacking it with judges who will interpret
the Constitution in such a way as to let the President and/or Congress do whatever they
want to do regardless of the bounds set forth in the Constitution? Basically, FDR is
arguing for a pure democracy where the electorate gets whatever they want by majority
vote. That is what FDR is saying when he earlier emphasized three times that it is the
people who are in the driver’s seat and their will as expressed through the legislature
should rein supreme.
12
Whatever Happened to Justice?, Richard J. Maybury (Bluestocking Press), p.35.
10
[But our founders feared democracy and looked at it as little more than an everfluctuating expression of “mob rule.” They criticized Greek democracy for ordering
Socrates’ death one day and then voting to build statues to him the next.13 They
purposefully created a republic rather than a democracy in order to protect the people
from their own lack of wisdom in times of crisis.
[Moreover, they created horizontal checks and balances and separations of powers in the
three mutually cross-checking branches of government as well as vertical checks and
balances and separations of powers as expressed in the notion of federalism under the
10th Amendment which was quoted earlier. These were designed to mitigate the damage
that would likely be done in times of crisis like the Great Depression where as Hamilton
warned, we would be inclined to let into government principles that would later destroy
us.14
[Looking at things in their totality, in this fireside chat FDR is proposing to do away with
all of those protections in order to respond to our economic problems. He is arguing that
rather than changing the Constitution through the amendment process contained within it,
we should quickly change it simply by changing the prevailing philosophy of the
Supreme Court by changing the makeup of the Court.
[George Washington anticipated things like this and warned us against such rash
reactions when he said in his farewell address:
“The basis of our political systems is the right of the people to make and to alter their
constitutions of government. But the Constitution which at any time exists, till changed
by an explicit and authentic act of the whole people, is sacredly obligatory upon
all.”(emphasis added)
“It is important…that the habits of thinking in a free country should inspire caution in
those entrusted with its administration, to confine themselves within their respective
constitutional spheres, avoiding in the exercise of the powers of one department to
encroach upon another. The spirit of encroachment tends to consolidate the powers of
all the departments in one, and thus to create, whatever the form of government, a real
despotism….If, in the opinion of the people, the distribution or modification of the
constitutional powers be in any particular wrong, let it be corrected by an amendment in
the way which the Constitution designates. But let there be no change by usurpation;
though this may in one instance be the instrument of good, it is the customary weapon by
which free governments are destroyed.”15 (emphasis added)
13
Federalist #63.
14
"Nothing is more common than for a free people, in times of heat and violence, to gratify momentary passions, by
letting into the government, principles and precedents which afterwards prove fatal to themselves." Alexander
Hamilton and the Founding of the Nation, p.462.
15
Reproduced at: www.yale.edu/lawweb/avalon/washing.htm
11
[Back to the chat:]
Why was the age fixed at seventy? Because the laws of many States, the practice of the Civil
Service, the regulations of the Army and Navy, and the rules of many of our Universities and of
almost every great private business enterprise, commonly fix the retirement age at seventy years
or less.
The statute would apply to all the courts in the Federal system. There is general approval so far
as the lower Federal courts are concerned. The plan has met opposition only so far as the
Supreme Court of the United States itself is concerned. If such a plan is good for the lower courts
it certainly ought to be equally good for the highest Court from which there is no appeal.
Those opposing this plan have sought to arouse prejudice and fear by crying that I am seeking to
"pack" the Supreme Court and that a baneful precedent will be established.
What do they mean by the words "packing the Court"?
Let me answer this question with a bluntness that will end all honest misunderstanding of my
purposes.
If by that phrase "packing the Court" it is charged that I wish to place on the bench spineless
puppets who would disregard the law and would decide specific cases as I wished them to be
decided, I make this answer: that no President fit for his office would appoint, and no Senate of
honorable men fit for their office would confirm, that kind of appointees to the Supreme Court.
But if by that phrase the charge is made that I would appoint and the Senate would confirm
Justices worthy to sit beside present members of the Court who understand those modern
conditions, that I will appoint Justices who will not undertake to override the judgment of the
Congress on legislative policy, that I will appoint Justices who will act as Justices and not as
legislators- if the appointment of such Justices can be called "packing the Courts," then I say that
I and with me the vast majority of the American people favor doing just that thing—now.
[This is a very good example of what is known as the “straw man argument” where in the
process of argumentation one side ascribes to its opponents a ridiculous proposition with
which most everyone would disagree and want to oppose. That is constructing the socalled “straw man” who will shortly be vanquished in argument to the relief of the whole
audience. The problem is that FDR’s opposition was not accusing him of wanting to
place on the Court “spineless puppets who would disregard the law and would decide
specific cases as FDR wished them to be decided.” They weren’t saying that he wanted
judges who would call him on the phone in matters of constitutional interpretation and
ask: “What do you want us to do Mr. President?” and then after getting his instructions
say “Yes sir! Mr. President—your wish is our command!” Those would be spineless
puppets.
[Rather, they were accusing him of installing judges who would disregard the limitations
on federal authority embedded in the Constitution and never override the will of
12
Congress and the President based upon constitutional arguments. And he basically
admitted he would do exactly that by the last statement you just heard from him.
[Back to the address:]
Is it a dangerous precedent for the Congress to change the number of the Justices? The Congress
has always had, and will have, that power. The number of Justices has been changed several
times before, in the Administrations of John Adams and Thomas Jefferson- both signers of the
Declaration of Independence- Andrew Jackson, Abraham Lincoln and Ulysses S. Grant.
I suggest only the addition of Justices to the bench in accordance with a clearly defined principle
relating to a clearly defined age limit. Fundamentally, if in the future, America cannot trust the
Congress it elects to refrain from abuse of our Constitutional usages, democracy will have failed
far beyond the importance to democracy of any kind of precedent concerning the Judiciary.
[The “clearly defined principle” mentioned several times in this address, is that he wants
new and younger judges who will not feel constrained to interpret the Constitution the
way it was intended by its framers and the way the Supreme Court had predominantly
approached its Constitutional role of interpretation for the prior century and a half. As he
will later say, he wants to pack the court with “liberal minded” judges who will “build
anew on the Constitution ‘a system of living law’” In the modern vernacular, he wants to
stack the Court with judges who will make the Constitution into a “living document.”
[Then he says that after thus destroying our original system of checks and balances and
separations of powers and thus relying solely upon the hope that our elected officials will
not abuse their positions of power, he simply says that if it turns out that they will abuse
those powers, it will be a very sad thing to see that our democracy failed. He seems
oblivious to the idea that the very checks and balances and separations of powers he is
proposing to dismantle by his proposal were designed to prevent such abuses of power
and prevent the failure of our constitutional form of government.
In this regard, we should remember Jefferson warning:
"...[I]t would be a dangerous delusion were a confidence in the men of our choice to
silence our fears for the safety of our rights....confidence is everywhere the parent of
despotism [–] free government is founded in jealousy, and not in confidence; it is
jealousy and not confidence which prescribes limited constitutions, to bind down those
whom we are obligated to trust with power....our Constitution has accordingly fixed the
limits to which, and no further, our confidence may go....In questions of power, then, let
no more be heard of confidence in man, but bind him down from mischief by the chains
of the Constitution."16 (emphasis added)
Thomas Jefferson, Draft of Kentucky Resolutions of 1798; Subpart: “Resolutions Relative to the Alien
and Sedition laws; Resolution (7), Works 9:470-71, reproduced at “www.constitution.org/tj/jeff17.txt”,
pp.388-89.
16
13
[Back to the chat:]
We think it so much in the public interest to maintain a vigorous judiciary that we encourage the
retirement of elderly Judges by offering them a life pension at full salary. Why then should we
leave the fulfillment of this public policy to chance or make it dependent upon the desire or
prejudice of any individual Justice?
[Again this is Orwellian double-speak which is probably the best way to describe this
whole address. He doesn’t want a vigorous and independent judiciary watching over his
abuses of power. He wants a compliant judiciary who not stand in his way.
[Back to the address:]
It is the clear intention of our public policy to provide for a constant flow of new and younger
blood into the Judiciary. Normally every President appoints a large number of District and
Circuit Judges and a few members of the Supreme Court. Until my first term practically every
President of the United States had appointed at least one member of the Supreme Court.
President Taft appointed five members and named a Chief Justice; President Wilson, three;
President Harding, four, including a Chief Justice; President Coolidge, one; President Hoover,
three, including a Chief Justice.
Such a succession of appointments should have provided a Court well-balanced as to age. But
chance and the disinclination of individuals to leave the Supreme bench have now given us a
Court in which five Justices will be over seventy-five years of age before next June and one over
seventy. Thus a sound public policy has been defeated.
I now propose that we establish by law an assurance against any such an ill-balanced Court in the
future. I propose that hereafter, when a Judge reaches the age of seventy, a new and younger
Judge shall be added to the Court automatically. In this way I propose to enforce a sound public
policy by law instead of leaving the composition of our Federal Courts, including the highest, to
be determined by chance or the personal decision of individuals.
If such a law as I propose is regarded as establishing a new precedent, is it not a most desirable
precedent?
Like all lawyers, like all Americans, I regret the necessity of this controversy. But the welfare of
the United States, and indeed of the Constitution itself, is what we all must think about first. Our
difficulty with the Court today rises not from the Court as an institution but from human beings
within it. But we cannot yield our constitutional destiny to the personal judgment of a few men
who, being fearful of the future, would deny us the necessary means of dealing with the present.
This plan of mine is no attack on the Court; it seeks to restore the Court to its rightful and
historic place in our system of Constitutional Government and to have it resume its high task of
building anew on the Constitution "a system of living law." The Court itself can best undo what
the Court has done.
14
[So, according to FDR, we should not “yield our constitutional destiny to the personal
judgment of a few men”—rather, we should yield that constitutional destiny to one man,
namely, FDR.
[When he says he is only seeking to “restore the Court to its rightful and historic place in
our system of Constitutional Government,” again that is Orwellian double-speak. When
the Court declared some of his New Deal programs unconstitutional, it was occupying
“its rightful and historic place in our system of Constitutional Government.” What he is
really proposing is the Court to assume a new, wrongful, and un-historic place by no
longer serving as an effective check and balance over unauthorized federal action.
[The Constitution was not intended to be the type of “living document” envisioned by
those in the liberal political camp. It was supposed to serve as the relatively immutable
foundational base to our whole system of government. It was not supposed to change
with every particular contrary political whim that happens to be blowing through
Washington D.C. at any particular time. It was supposed to be a constant and predictable
legal and political document that is binding upon all of the branches of government—
including the judiciary. The true “rightful and historic place” of our federal courts was to
preserve its original meaning—and that is exactly the opposite of what FDR wanted.
[Back to the address:]
I have thus explained to you the reasons that lie behind our efforts to secure results by legislation
within the Constitution. I hope that thereby the difficult process of constitutional amendment
may be rendered unnecessary. But let us examine that process.
There are many types of amendment proposed. Each one is radically different from the other.
There is no substantial group within the Congress or outside it who are agreed on any single
amendment.
It would take months or years to get substantial agreement upon the type and language of an
amendment. It would take months and years thereafter to get a two-thirds majority in favor of
that amendment in both Houses of the Congress.
Then would come the long course of ratification by three fourths of all the States. No amendment
which any powerful economic interests or the leaders of any powerful political party have had
reason to oppose has ever been ratified within anything like a reasonable time. And thirteen
States which contain only five percent of the voting population can block ratification even
though the thirty-five States with ninety-five percent of the population are in favor of it.
A very large percentage of newspaper publishers, Chambers of Commerce, Bar Associations,
Manufacturers' Associations, who are trying to give the impression that they really do want a
constitutional amendment would be the first to exclaim as soon as an amendment was proposed,
"Oh! I was for an amendment all right, but this amendment that you have proposed is not the
kind of an amendment that I was thinking about. I am, therefore, going to spend my time, my
15
efforts and my money to block that amendment, although I would be awfully glad to help get
some other kind of amendment ratified."
Two groups oppose my plan on the ground that they favor a constitutional amendment. The first
includes those who fundamentally object to social and economic legislation along modern lines.
This is the same group who during the campaign last Fall tried to block the mandate of the
people.
Now they are making a last stand. And the strategy of that last stand is to suggest the timeconsuming process of amendment in order to kill off by delay the legislation demanded by the
mandate.
To them I say: I do not think you will be able long to fool the American people as to your
purposes.
The other group is composed of those who honestly believe the amendment process is the best
and who would be willing to support a reasonable amendment if they could agree on one.
To them I say: we cannot rely on an amendment as the immediate or only answer to our present
difficulties. When the time comes for action, you will find that many of those who pretend to
support you will sabotage any constructive amendment which is proposed. Look at these strange
bed-fellows of yours. When before have you found them really at your side in your fights for
progress?
[So those who support the President’s plan are for “progress” while those who oppose
him are against “progress.” I guess that all depends upon the meaning of the word
“progress.” To him, apparently socialism or fascism would be progress and liberty in the
classical sense would be retrogression.
Back to the chat:]
And remember one thing more. Even if an amendment were passed, and even if in the years to
come it were to be ratified, its meaning would depend upon the kind of Justices who would be
sitting on the Supreme Court bench. For an amendment, like the rest of the Constitution, is what
the Justices say it is rather than what its framers or you might hope it is.
[In other words, “let’s not worry about the future—let’s just worry about the here and
now. I can’t guarantee that the court will always do things the way you or I would want
them to, but if you give me the power I am asking for in this address, I can at least
guarantee that for the short term, the Supreme Court will not block what I want to do.
Back to the chat:]
This proposal of mine will not infringe in the slightest upon the civil or religious liberties so dear
to every American.
16
My record as Governor and as President proves my devotion to those liberties. You who know
me can have no fear that I would tolerate the destruction by any branch of government of any
part of Our heritage of freedom.
The present attempt by those opposed to progress to play upon the fears of danger to personal
liberty brings again to mind that crude and cruel strategy tried by the same opposition to frighten
the workers of America in a pay-envelope propaganda against the Social Security Law. The
workers were not fooled by that propaganda then. The people of America will not be fooled by
such propaganda now.
I am in favor of action through legislation:
First, because I believe that it can be passed at this session of the Congress.
Second, because it will provide a reinvigorated, liberal-minded Judiciary necessary to furnish
quicker and cheaper justice from bottom to top.
Third, because it will provide a series of Federal Courts willing to enforce the Constitution as
written, and unwilling to assert legislative powers by writing into it their own political and
economic policies.
During the past half century the balance of power between the three great branches of the Federal
Government, has been tipped out of balance by the Courts in direct contradiction of the high
purposes of the framers of the Constitution. It is my purpose to restore that balance. You who
know me will accept my solemn assurance that in a world in which democracy is under attack, I
seek to make American democracy succeed. You and I will do our part. ]
That was the end of his address. Boy, I can see how that would be pretty persuasive to an American who
was suffering during the Great Depression—especially if he was unfamiliar with our founding
philosophy. When he talked about things being “out of balance,” what he really meant was that he simply
wanted to shift the balance of power in his favor so that he could have free rein to do whatever he wanted
to do.
When I read all of that the first time, I sat is stunned amazement. It reminded me of a scene from Alice in
Wonderland: “‘When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I
choose it to mean – neither more nor less.” Many of those statements ring true in the ears of those who
believe in judicial restraint but upon closer analysis, were mere subterfuge for his own type of judicial
activism. The judges he will later install will legislate in his favor by stripping out of the Constitution its
inherent, and very important, limitations on federal authority.
Soon after FDR’s plan became public, the editorialist William Allen White characterized Roosevelt’s
actions as “ [an] elaborate stage play to flatter the people by a simulation of frankness while denying
Americans their democratic rights and discussions by suave avoidance.”17
Wikipedia, “Judicial Procedures Reform Bill of 1937,”
http://en.wikipedia.org/wiki/Judiciary_Reorganization_Bill_of_1937 (p.14 of 29)
17
17
In addition to his very offensive way of introducing his Bill to the democratic leaders of Congress, his
own party perceived it to be too open and bold of an attack on the Judiciary and refused to pass his
proposal. FDR couldn’t effectively blame the Republicans for his defeat since they largely stood on the
sidelines more than willing to let the Democrats fight things out within their own party in the Senate.
According to John T. Flynn, Democratic Senator Wheeler:
“summoned before the committee none but well-know liberals, men whose standing before the
country as liberals could not be questioned. Week after week there came lawyers, educators,
authorities on constitutional law, writers and leaders, all of whom had been critical of the
decisions of the Court, but all of whom repudiated the idea that because the Court did not agree
with them our system of government should be torn to pieces and our constitutional liberties
deprived of the incalculable bulwark of a free court against the aggressions of an executive.”18
Consequently, FDR’s proposed court-packing bill was withdrawn from consideration by the Senate.
What Did FDR Do When Even His Own Party Refused to Back His Proposal to Pack the Court?
In retribution for their opposition to his court-packing plan, during the next election cycle, FDR set about
to purge his party of those who opposed his plan.19 One of the means his people used was to pressure
those working in the various New Deal relief programs like the Works Progress Administration (WPA) to
make political contributions to FDR’s favored candidates. Of all the federal relief programs then
operating, it was estimated that 25 million people got their living from the WPA alone.20
When the newspapers reported that WPA workers in Kentucky were being forced to support the
administration candidate, the Senate investigated.21 That investigation found that some people were
thrown off the WPA roles because they (1) refused to contribute to the President’s favored democratic
candidates in the various democratic primaries or (2) refused to wear campaign buttons at work
supporting the President’s favored candidates.22
Not only were registered Democrats on government relief strong-armed to vote the way FDR wanted,
registered republicans on public relief were pressured to change their party affiliation and vote the way
FDR wanted them to vote. In one county in Pennsylvania, several republicans working for the WPA were
simply fired if they didn’t change party affiliation.23 When 18 republicans working for the WPA near
their homes in Wilkes Barre, Pennsylvania refused to discard their republican campaign buttons while on
the job, they all got transferred to a project 35 miles away from home.24 A man in Plymouth
Pennsylvania, who refused to change party affiliation, was transferred from his while-collar relief job to a
18
The Roosevelt Myth by John T. Flynn, p.100.
19
The Roosevelt Myth by John T. Flynn, p.122.
20
Id.
21
Id., p. 123.
22
Id. pp.123-26.
23
Id., p.125.
24
Id.
18
pick-axe job in a rock quarry. When he got there and talked to his new acquaintances at the rock quarry,
they indicated they had been sent there for the same reason.25
Doesn’t this illustrate the dangers of becoming dependent upon the government? That dependence opens
up the way to be politically controlled by those in power whenever they want to exercise control because
as Hamilton observed long ago in Federalist #79, "In the general course of human nature, a power over a
man's subsistence amounts to a power over his will."
In a biblical reference to Genesis 25:29-34 where Esau sold his birthright to Jacob for pot of lentils, J.
Reuben Clark, Jr. lamented America’s selling of its birthright of freedom for FDR’s “mess of pottage”
known as the New Deal and which created the modern welfare state.26
How Did FDR Lose His Battle to Pack the Court But Eventually Win His War Against the Supreme
Court?
Even though FDR lost his battle to pack the court in one fell swoop, he eventually got his way more
gradually. Apparently two justices buckled under the political pressure and changed sides effectively
shifting the majority block in favor of the President’s view of constitutional analysis.27 What used to be a
6:3 majority block which opposed him, turned into a powerless 4:5 minority block. Deflated, the old
judges started retiring and over his 3-plus terms as President, FDR had eight appointments to the Supreme
Court.28 Moreover, those retirements were effectively encouraged by a federal bill that was passed which
gave them full retirement. It was passed on the private assurances to the democrats given by Justices Van
25
Id.
Clark said: “The whole regimentation program and action has been veneered…with a pious pretense of caring for
the ‘underprivileged.’ So we have been given and have accepted food, fuel, clothing, and shelter in exchange for
our liberties and our free agency, until now, frequently pauperized, we look for sustenance, not to the results of our
own labors, not to the filial obligation of our children, not to the Christian care of our Church, but to the State, which
thus takes the place in our lives of self-effort, children, and Church.
26
“This is State socialism; it is not democracy; it is not the concept of a republic. History is repeating itself.
Esau, being hungry, sold his birthright to Jacob for a mess of pottage. We are a nation of Esaus.
“The fundamentals of this technique are as old, certainly, as Joseph, who was sold into Egypt. For he,
acting for Pharaoh, first purchased from the people with the taxes extorted from the people, all the grain produced by
the people; then when the famine came Joseph sold the grain back to the people, in the first year for all the cash they
had, which he turned over to Pharaoh; in the second year for all the flocks and herds they owned, which all went to
Pharaoh; next, for all their lands, which he turned over to Pharaoh; and finally, he gave them grain in exchange for
their bodies and they became ‘servants unto Pharaoh.’ The enslavement of the people was complete, Joseph saying
to them, ‘Behold, I have bought you this day and your land for Pharaoh’ (see Genesis 47:13-23), and thereafter
Joseph moved the people as he willed, and they rented back their lands on the terms he prescribed. There is more
than one lesson in Egypt’s seven years of plenty and seven years of famine.” J. Reuben Clark, Jr., Some Elements of
Postwar American Life, “J. Reuben Clark Selected Papers On Americanism and National Affairs,” Edited by David
H. Yarn (1945), pp.549-555.
Justices Hughes and Roberts. See Jim Powell, FDR’s Folly–How Roosevelt and His New Deal Prolonged the
Great Depression (New York: Three Rivers Press (2003), pp.210-11.
27
28
Constitutional Interpretation, 4th Ed. by Ducat and Chase, 1983, pp.406-07.
19
Devanter and Sutherland that they would retire if they could be guaranteed full pensions.29 After all of
that, it is little wonder that the predominate philosophy of the Supreme Court changed radically in favor
of federal authority-expanding judicial activism in the latter part of the 1930's.
This judicial buckling reminds us of what Hamilton observed in Federalist #78:
“But it is easy to see, that it would require an uncommon portion of fortitude in the judges to do
their duty as faithful guardians of the Constitution, where legislative invasions of it had been
instigated by the majority voice of the community.”30
In response to the change in philosophic outlook of the majority of the court by all of FDR’s court
appointments, somebody made a joke out of the old saying “a stitch in time, saves nine.” They changed it
to read “a switch in time saved nine” to explain why the Supreme Court was still comprised of only nine
members rather than fifteen.
FDR won four Presidential elections. He died part of the way through his fourth term. It seems to me my
byline for this “fireside chat” of “the man who would be king,” is an apt phrase since after FDR’s death, a
Constitutional Amendment was passed which limits all future Presidents to only two terms in office.
With how difficult it is to get any Constitutional Amendment passed, this suggests the country as a whole
feared the type of power FDR was able to exercise as President over such a long stay in public office. It
suggests the country as a whole believed he did more harm than good in his political attempts to respond
to the Great Depression, which ended up destroying more than a decade of potential economic growth for
our country. In other materials, I will share with you what type of economically destructive policies
comprised what we collectively refer to as the “New Deal.” We will see the types of political policies
which dissuaded business people from taking risks and investing capital during the Great Depression and
resulted in a stagnant economy that produced very few jobs in the public sector.
Now that we have seen what FDR did to the Supreme Court, let’s consider how his reconstituted Court
greatly expanded the interpretation of the Commerce Clause, which is the subject of the next lecture.
29
The Roosevelt Myth by John T. Flynn, p.103.
30
Federalist #78, paragraph 21.
20