Frankfurter Letter to Roosevelt, 2/7/37

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Felix Frankfurter

Publishing Information

Cambridge, Mass., Sunday
[February 7, 1937]

Dear Frank:

And now you have blown me off the top of Vesuvius where you sat me some weeks ago. Yes, you "shocked" me by the deftness of the general scheme for dealing with the mandate for national action which you received three times, in '32 and '34 and '36, and each time with increasing emphasis. You "shocked" me no less by the dramatic, untarnished secrecy with which you kept your scheme until you took the whole nation into your confidence. Dramatically and artistically you did "shock" me. But beyond that—well, the momentum of a long series of decisions not defensible in the realm of reason nor justified by settled principles of Constitutional interpretation had convinced me, as they had convinced you, that means had to be found to save the Constitution from the Court, and the Court from itself. No disinterested student of our Constitutional system and of the needs of our society could view with complacency the impasse created by a blind and stubborn majority of the Court. There was no perfect easy way out. Risks had to be taken—for you had to consider the costs and limitations of possible choices of action, as well as the risks of non-action.

And so it was clear that some major operation was necessary. Any major action to the body politic, no less than to the body physical, involves some shock. But I have, as you know, deep faith in your instinct to make the wise choice—the choice that will carry intact the motley aggregation that constitutes the progressive army toward the goal of present-day needs, and that will, at the same time, maintain all that is good in the traditional democratic process.

With all good wishes,

Ever faithfully yours,
F.F.