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FDR and the Supreme Court
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    Frankfurter's Draft of FDR's Constitution Day Speech, 9/17/37
    Felix Frankfurter

    Publishing Information

    This is the draft of the Constitution Day speech on September 17, 1937, as prepared by Felix Frankfurter, with the assistance of Thomas Corcoran.

  1. The framers of the Constitution were men of destiny. They purposely created a governmental scheme intended for the illimitable future, to be extended over a continent still to be wrested from Nature. Whenever we have applied this statesman's attitude to the language of the Constitution, it has yielded us powers of government adequate to deal successively with the new worlds created by the steamboat, the railroad, the telegraph, the pipeline, the radio and the airplane. But the statesman's spirit has had constantly to beat off the ingenious obstructions of the lawyers who for the purposes of their individual from time to time have tried to read into both the affirmative powers and the negative denials of the instrument, limitations and qualifications which the Founding Fathers wisely refused to write into the original instrument.

  2. The history of the last 150 years of the Constitution has been an unending struggle between those who would shrivel the Constitution into a lawyer's document and a lawyer's opportunity for private obstruction, and those true to its conception as a means of founding, maintaining and promoting a great nation in the public good. Lawyers' cries of unconstitutionality are nothing to be alarmed at—they have been the normal accompaniments of every period of growth in our history.

  3. Important lawyers tried to write into the Constitution a provision giving the Supreme Court a lawyer's veto over Acts of Congress. And the Convention overruled them.

  4. Important lawyers insisted that the Constitution itself was unconstitutional under the Articles of Confederation. And the ratifying conventions overruled them.

  5. Important lawyers warned Washington and Hamilton that the protective tariff was unconstitutional—warned Jefferson that the Louisiana Purchase was unconstitutional—warned Monroe that to open roads to the West was unconstitutional. And Congress overruled them.

  6. Important lawyers persuaded a divided Supreme Court that Congress had no power to govern slavery in the territories, that the long-standing Missouri Compromise was unconstitutional. And the nation fought the War between the States to overrule them.

  7. Important lawyers persuaded the Odd Man on the Court that the methods of financing the Civil War were unconstitutional. And a new Odd Man overruled them.

  8. Important lawyers persuaded the Odd Man on the Court that democracy in taxation based on ability to pay, i.e. the commonplace Federal income tax of today, was unconstitutional—as well as Jacobinism and Communism. After twenty years of struggle with a constitutional amendment, the people overruled them. And last year the Supreme Court itself, in effect, decided that its original decision had been wrong and the struggle for the amendment unnecessary.

  9. The great constitutional authority of the United States Senate of his day, Senator Evarts, warned that body that it was unconstitutional to pass the Interstate Commerce Act and establish Federal regulation of railroad rates from the farm to the seaboard. And he turned out to be wrong.

  10. Less than two years ago the fifty highest paid lawyers in the country solemnly agreed that the Wagner Labor Relations Act was unconstitutional, and a few months later, they were wrong.

  11. For twenty years the Supreme Court Odd Man insisted that state minimum wage laws for women were unconstitutional. Six months ago he admitted that for all twenty years he had been wrong.

  12. This constant struggle between the great mass of the plain people of the United States who want national unity and justice against the lawyers who professionally complicate things in the service of those who want neither unity nor justice has not been a struggle in which any political party—mine or any other—has an unblemished record.

  13. But ultimately every effort to read a charter for the unfolding of our national life as if it were the fine type on the back of an insurance policy has failed. When the people and the lawyers have clashed on great questions of national legislative policy, ultimately the people have had their way. When Congress and the Supreme Court have clashed on questions of national legislative policy, Congress has ultimately triumphed. That triumph has come once by war, once by unnecessary resort to an unnecessary process of amendment, and otherwise by reversal of decisions. And tonight on the 1 soth anniversary of the signing of the Constitution, that triumph is temporarily complete.

  14. But the triumph is never permanently assured. And in these days when the undemocratic concentration of economic power has brought with it a corresponding concentration of legal ability against the democratic purposes of the Constitution, only the utmost vigilance and the utmost willingness to fight for our Constitutional heritage will guarantee its continuance.

  15. Furthermore, a democracy cannot help counting, and seeking ways and means to avoid for the future, the terrible cost at which its ultimate triumphs have had to be achieved. We did not need to have a Civil War to recognize the constitutional power of Congress to levy taxes upon those most able to pay. We did not need twenty years of exploitation of women's labor to recognize the constitutional power of the states to pass minimum wage laws for the protection of women. Those were unwarrantable costs in restoring to the governments of both the nation and the states powers for action which the Constitution itself had not denied them. Nothing that possibly could have been gained by delay can justify such a price. We know that it takes time to adjust government to the needs of society and that deliberation upon the remedy is indispensable to wise reform. We also know that government must keep pace with changes in circumstances substantially as the changes occur. If wise reform is delayed too long, resentments, grievances and injustices accumulate to such a degree that orderly, wise reforms are rendered impossible and unreasonable and forcible measures in one form or another come to prevail. Time is vital in statesmanship, and orderly reforms, too long delayed or denied, have too often in modern history jeopardized peace, undermined democracy, and swept away civil and religious liberties.

  16. These unwarranted delays in the accommodation of the government of today to the needs of today have not been due, I cannot too often repeat, to any language that the Fathers used in the Constitution to bind their successors. I ask you laymen for whom George Washington and Benjamin Franklin spoke at Philadelphia 150 years ago—look into the simply worded Constitution which I hope is in your hands tonight. Read it in the light of our history and in the light of its expressed purpose—to form a more perfect union and provide for the general welfare.

  17. Then see if you can find anything in it which says that the government of the nation cannot help the one-third of its population engaged in national agriculture to stabilize their national market

  18. See if you can find there anything which says that the government of the nation cannot require a system of pensions for the vast army of railway employees on whose vigilance and well-being rests the safety of everything and everyone moving on the great railway systems.

  19. See if you find anything that says the government of the nation cannot help to reorganize the sick coal industry which operates in so many states of the Union and provides the motive power for national industry and transportation.

  20. See if you can find there anything which forbids the government of the nation to regulate the unholy practices of the great network of public utility holding companies which, admittedly, have proved too powerful for State regulation.

  21. See if you can find there anything which forbids the government of the Nation to apply every resource of science to the development of a great river basin, to improve its water transportation, to end its floods, to conserve its natural resources, to demonstrate the potentialities of electricity, that greatest servant of democracy.

  22. I know and every lawyer knows that you will find nothing in our Constitution which forbids the national government to do any of these things.

  23. They have been forbidden or jeopardized, not because of anything the Constitution says but because men with axes to grind have chosen to put their lawyers' own notions of policy upon the silence or the vagueness of the Constitution. When the framers wanted to be specific, they could be specific. They forbade titles of nobility and attainder of blood, for instance, in no uncertain terms. But when they came to the great areas of governmental action, they used vagueness and silence as conscious instruments for the flexible statesmanship of the future, as they had used explicit denial as a guarantee of the observance of what to them were eternal verities unaffected by time and circumstance.

  24. To a profession trained in the exact use of words, the categories of denial in the Constitution have always been congenial and the broad and purposely vague grants of power to government have always been uncongenial. That is not a criticism of the legal profession, either as men or as citizens. It merely takes note of the fact that professional habits bend their minds in a certain direction. It was a great conservative statesman who noted the dangers that flow from the fact that "the law sharpens the mind by narrowing it."

  25. It is the limited business of most lawyers to protect the interests of the individuals by whom they are retained, not the interests of the larger society of which those individuals are a part. In more recent years, the business of lawyers has become more concerned with corporate interests than with individual interests. Therefore, the preoccupation of the legal mind of today is with these private and. corporate interests against all the rest of society.

  26. Furthermore, it is a well-known saying that men are subdued by the medium in which they work. And men whose daily work is the nice use of language in conveyances and contracts and legal instruments of every variety, where the rules of the game provide that nothing is included in the scope of the document unless expressly mentioned, instinctively forget what the statesmen of 150 years ago at Philadelphia and the statesmen of their own profession did not forget—that a Constitution is a great instrument of government—not a conveyance, not a contract, not even a statute. That is why when a great lawyer does triumph over his absorption with words and with the limited outlook of individual interests—when he adds vision to his technical skill, then he is a statesman indeed.

  27. The most important sentence ever written by Chief Justice Marshall is a part of the opinion in which over one hundred years ago that great Chief Justice established the constitutionality of the legislation which saved the banking system of this country in 1933 and insured the safety of your deposits for the future. In that opinion Marshall, who had fought through the Revolutionary War and had experienced all the difficulties of his generation in the founding of a nation, admonished those who would narrowly limit the great document to remember "that it is a Constitution we are expounding."

  28. And the modern Marshall—Mr. Justice Holmes—who like Marshall had seen the price paid on the battlefield to establish a nation, elaborated the thought of Marshall in these memorable words: "the provisions of the Constitution are not mathematical formulas having their essence in their form; they are organic living institutions transplanted from English soil. Their significance is vital not formal; it is to be gathered not simply by taking the words and a dictionary, but by considering their origin and the line of their growth." Gompers v. United States, 233 U.S. 604, 610 (1914).... "When we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago." Missouri v. Holland, 252 U.S. 416, 433 (1920).

  29. Whether the Constitution is treated primarily as a text for interpretation or as an instrument of government makes all the difference in the world.

  30. In the last 25 years government, State and Federal, has struggled particularly hard to utilize the powers given them under the Constitution to create economic conditions under which the great mass of people would feel convinced of justice and security. Those efforts have included attempts at establishment of minimum wages and maximum hours, prohibition of child labor, encouragement of the unionization of labor, reasonable stabilization

  31. of farm and industrial markets, conservation and development of natural resources, regulation of utilities and of other public businesses in private hands. Consistently the lawyers representing those interests wishing to block such efforts have invoked the Bill of Rights to protect their clients. Until last spring, for instance, they had argued successfully that it interferes with the freedom of a charwoman to work if an employer is not permitted to underpay her. And until last spring they had argued successfully that it interferes with the property of an employer to refuse him the right to discriminate against an employee who joins a union, while at the same time large corporations were indulging in espionage to root out union workers, as outrageous in essence as any search and seize prohibited to government.

  32. I have often wondered whether those interested in the realistic protection of the individual and of minorities against intolerance and arbitrary power appreciate the danger to minorities of such perverted applications of great constitutional provisions. For unless government can succeed in creating conditions under which the great mass of people do feel convinced of justice, economic security and ample scope for human dignity, that tolerance of differences and that general concern for fair play which are the real protection of the individual and minorities will disappear. As a practical matter that tolerance and that concern rest only in small part upon legal formulas. Far more importantly they are the natural reflection of magnanimity of spirit in the masses which in turn depends upon generally distributed well-being.

  33. No one cherishes more deeply than I the civil liberties achieved by much blood and anguish through many centuries of Anglo-American history. No one is more zealous that the safeguards they write into the Constitution be scrupulously and undeviatingly observed in spirit as well as in letter not only by government but by all those who wield a private power comparable to that of government.

  34. But we should be deaf to the teachings of history and the admonitions of other lands if we do not recognize that civil liberties and non-discrimination against minorities can long be maintained only in a contented society.

  35. No true student of the agony of our Southern States in the period after the War between the States can overlook the fact that courts discredited by the victorious and callous majority were able to give the South the protection of only paper and sporadic enforcement of the Bill of Rights, while hundreds of injustices which the courts could not reach were daily being done to the Southern people. And not even those of us who are most zealous for the protection of minority rights and most happy at the effectiveness of that protection today can have any illusions that if the economic crisis of '33 had not been surmounted by the responsible use of affirmative powers available to the national government through the Constitution, the practical position of minority groups today would be as unhappy as it is in some other lands.

  36. More and more the guarantees of civil liberties to which minorities have looked in this country for protection available in no other land depend for real effectiveness upon the full usefulness of the affirmative powers given to government to safeguard the life of the nation.

  37. The men who signed the Constitution 150 years ago were fundamentally much more realistic about these things than we are today.... To them the protection of civil rights was not a platform for politicians nor a breastwork for corporation lawyers. For those rights these men or their fathers had come to the new country when it was not a comfortable country to come to. And to vindicate those rights these men themselves had written the Declaration of Independence and had fought a war. Freedom of speech, freedom of religion, freedom from unreasonable searches and seizures, and a fair trial for the humblest accused—sacred from attack not simply from tyrannies and oppressions which they had known and experienced but from whatever forms of tyranny and oppression the evil ingenuity of intolerant men might devise—were at the very top of their thoughts.

  38. And yet when in the midst of such economic chaos as we faced in 1933, they came to write the Constitution, their first concern was not with written guarantees of these civil rights but with the formation of a government strong enough to bring economic order and economic security to the land. There was no Bill of Rights at all in the Constitution as it was first signed 150 years ago tonight. The Bill of Rights was added a year later by the first Congress as the first ten amendments.

  39. We profited by the spelling out of those rights which for them were so fundamental as to require no literal spelling out. But it is significant that in their judgment the first thing they felt they needed, to preserve the liberties for which they had fought, was a central government, strong enough to avert economic chaos. They knew that guarantees of tolerance written on parchment were nowhere near as important as guarantees written in the hearts and the character of the American people so long as those hearts and that character were not embittered by economic distress.

  40. Tolerance and concern for fair play are virtues which do not flourish in the stony soil of economic want and social distress. They are flowers that grow only when nurtured by a fertile soil and a warm sun. And none of us to whom the protection of minorities is a daily concern can have any illusions that in a world of aggression and of sudden and imperfectly understood economic disruptions no minority has any assurance of tolerance and fair play unless by the affirmative use of governmental power we succeed in this generation in collaborating with the private processes of economic enterprise so as to enable every class of our society to live at least on a level of civilized decency. Those of us whose circumstances have been cast in fortunate lots are too prone to bear with fortitude the hardships of a goodly portion of our fellow countrymen and women.

  41. There is a group which—either in secret despair that inevitable calamity can be averted or in reckless ignorance of the day-to-day problems of those who are not lost to fear—would deny the government powers it needs to protect us and ask it to make bricks without straw. To such people, misinterpreters of the Constitution seem fortunate allies indeed.

  42. Happily the great mass of the American people have lost neither their courage nor their common sense. And the framers of the Constitution, who had the greatest courage and common sense in history, have left us instruments with which we can use both. Their handiwork did not shackle us. They left us free if we will use all of the Constitution they bequeathed to us Their legacy was the wisdom which they embodied in the Constitution and that included the opportunity and the right to draw upon such wisdom as each generation can summon to the problems each generation has.

  43. The Bill of Rights is precious to all of us. The reserved powers of the States to deal with matters of purely local concern are also precious. But the great affirmative grants of power to a strong national government democratically responsible to all of the people, is no less precious—for without such a national government, civil liberty and states' rights would have scant chance of survival in the modern world. Let us give our allegiance not to a part but to the whole Constitution. The exercise of the whole Constitution is the real way to guarantee the effectiveness of every part of it.

  44. The perennial conflict of American history and the conflict of today centers around the way you look at the Constitution, whether you look at it through the narrow eyes of the partisan lawyer, whether you invoke the whole of the Constitution or only that part of it which seems to serve the purposes of certain limited interests in the nation which from time to time seek to appropriate the Constitution as their special shelter. This is the controversy that has cut athwart every effort of American society to adjust itself to new circumstances. For this is the question which concerns not the expedience of legislation, not the application of the method of trial and error in solving new difficulties; this is the problem that challenges the power of statesmen to find solutions. It touches the very existence of government. The misinterpretation of the Constitution is a fortress which democracy on the march simply cannot afford to leave untaken on its flank or in its rear.

  45. We shall hold to this true course; we shall be most loyal to our history and most reverent to the framers of the Constitution if we view it as the great interpreters have always viewed it, as Marshall viewed it, as Holmes viewed it

  46. Thus only will we be true to the avowed purposes of the Constitution itself—"to form a more perfect Union, establish Justice, insure domestic tranquility, provide for the common defence, promote the general Welfare and secure the Blessings of Liberty to ourselves and our Posterity...."

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