This is No Lawyer's Dispute over Legalisms

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Herbert Hoover
Chicago. February 20, 1937

Publishing Information

I have been glad to meet a long-standing invitation of this society. The Union League Club of Chicago was farmed in the time of a great constitutional crisis and for the purpose of fighting for human liberty. It is now a non-partisan body. But it is no less devoted to constitutional government. And today with President Roosevelt's proposals as to the Supreme Court we are faced with the greatest constitutional question in these seventy years.
It is a magnificent thing for the nation that the debate upon it has risen far above partisanship. The proposal is too grave to be dealt with on such terms. It is an inspiring thing that in this question the leadership to maintain the integrity of the American form of government has been begun by eminent Senators belonging to the President's own party. The leadership, which we all gladly follow, places this issue on the highest plane of citizenship without regard to party, to partisan politics, to personal ambition.
Neither is the country divided upon group or class lines. Some people seem to think that all Americans can be divided into radicals, tories, liberals, conservatives, progressives, reactionaries, "right wing" or "left wing." These imported terms do not fit very well in America. They are used often as epithets to express our bad opinions of somebody else. But whatever they do mean, we find leading members of each of these classifications carrying the banner of opposition to the Presidents proposals.
Some months ago I made an address at Cleveland in which I directed attention to the problems of human liberty. Nationwide the press, even those who had long been my opponents, were extraordinarily eulogistic of that speech.
As a method of spreading flowers over the termination of my party career the opposition press insisted on electing me to the office of elder statesman.
I have not assumed that high office. But at least it marks the acceptance of the fact that the era in my life has gone by when party aspects of such an issue concern me.
At least our opponents cannot associate me either with the Liberty League, whose leading members were so opposed to my views of government and so bitterly opposed my election nor with those radicals with whose ideas of a collectivist America I have so often been in collision.
I am speaking tonight not as a Republican; I am speaking as an American who has witnessed the decay and destruction of human liberty in many lands, who as President has witnessed the movement of these great floods which are testing the American levees built to protect free men.
Seldom has debate so quickly flamed up across the nation. It is not alone public men and journalists who are engaged in this discussion. It is alive today between farmers in the field, workers at the bench, women in their homes, and men in their offices. The very extent of the debate illuminates the gravity of the issue.
By this debate the issue has already been greatly clarified. That real issue is whether the President by the appointment of additional judges upon the Supreme Court shall revise the Constitution—or whether change in the Constitution shall be submitted to the people as the Constitution itself provides.
This is no lawyers' dispute over legalisms. This is the people's problem. It reaches to the very duty of every Citizen to concern himself with this question.
We may quickly dismiss the secondary parts of the President's proposals. We can accept the view that justice would be expedited if we had more Federal District Courts. There may not be enough Circuit Courts of Appeals. But there can be only one Supreme Court.
Here Mr. Roosevelt demands the power to appoint a new justice parallel with every existing justice who is over 70 years of age. This means that two-thirds of the court, or six of them, are to be given a sort of intellectual nurse, having half of the vote of each patient. It is the implications of this proposal which have thrust us with startling suddenness into an issue greater and deeper than any in our generation.
We may also deal quickly with the reasons for this proposal upon which Mr. Roosevelt has given emphasis.
It has been shown by the reports of the Department of Justice that the Supreme Court is not behind with its work. Moreover, more members of the Supreme Court would not speed action. The fact is, each justice must in every case individually give his own opinion. Certainly each individual among fifteen justices is likely to take as long in making up his individual mind as each individual among nine justices.
One of the reasons given for the President's proposal is old age. Mr. Walter Lippmann has said: "By an act of lawless legality he would force two-thirds of the court to choose between resignation and being publicly branded as senile." I do not for a moment believe that was the purpose of this proposal, but it might be the consequence.
I wonder if those noble interpreters of human liberty, John Marshall and Oliver Wendell Holmes, would have served America as well in the last years of their lives had they possessed an intellectual nurse who also divided their vote.
But the President's proposal is far deeper and more far-reaching in purpose than these details. The people must probe it in the light of its background, of the incidents that have led up to it. They must probe it in the light of its real effect upon their own security. They must probe it in the light of the forces moving in the world today.
Mr. Roosevelt has sought many acts of Congress which lead to increase the personal power of the Executive. He has sought to more greatly centralize the government. I am not for the moment debating the merits of these measures, for some of them are of good purpose. The Supreme Court has found in fourteen of these laws which profoundly affect the public welfare that Mr. Roosevelt was within the Constitution in six cases and violated the Constitution in eight cases.
In many of those decisions justices supposed to be of Mr. Roosevelt's realm of thought have concurred. Of eight important decisions adverse to Mr. Roosevelt's wishes four have been decided unanimously, and of the six cases where the decisions were favorable three were unanimous.
There can therefore be no real charge that the court has not decided in accord with what the Constitution means. The court was not engaged in vetoing Mr. Roosevelt's proposals, as his Attorney General alleges. It was finding according to the law as established by the people of the United States.
And what was the effect of these decisions which are now criticized? The unanimous decision on the NRA relieved the American people of a gigantic system of monopolies conducted by big business—a monopoly that even reached down to a jail sentence for pressing pants for less than the Presidential approved price. Another of these acts was thrown out because it was based upon coercion of men to surrender their rights of freedom. And coercion is the antithesis of liberty.
Mr. Roosevelt has felt it necessary repeatedly to criticize the decisions, even those which were unanimous. To complain of the umpire is real human. However, nobody in this country can believe that if these decisions had been in accord with his wishes that he would have made these proposals to add six new justices. Most of the supporters of the President's proposal have ceased to defend it on the grounds of either expedition of justice or old age. Their support is now boldly that it means quick and revolutionary change in the Constitution. And that without reference to the people and we are not even told where the Constitution is at fault or what changes they would make. They are asking for a blank check upon which they can write future undisclosed purposes.
In the light of this background no one can conclude other than that the President seeks to secure a Supreme Court not that will find in accordance with the Constitution as it stands but rather that will revise the Constitution so it will mean what he wishes it to mean.
And this is not a loose assertion. Mr. Roosevelt himself specifically confirms this purpose. In his message to Congress he says that if these proposals be accepted then "we may be relieved of the necessity of considering any fundamental changes in the powers of the courts or the Constitution of our government."
Thus are we plainly told that constitutional change is sought not by open and frank amendment of the Constitution, but by judicial decision.
If this is to be accomplished the new judges must necessarily be men who will ratify Mr. Roosevelt's projects. Unless they are pledged to Mr. Roosevelt's way of thinking he would not be, to use his own words, relieved of the necessity of considering fundamental changes in the Constitution. I am wondering what esteem these pledged judges would hold with the people.
If Mr. Roosevelt can change the Constitution to suit his purposes by adding to the members of the court any succeeding President can do it to suit his purposes. If a troop of "President's judges" can be sent into the halls of justice to capture political power, then his successor with the same device can also send a troop of new "President's judges" to capture some other power. That is not judicial process. That is force.
The court and the Constitution thus become the instrument of the Executive and not the instrument of the people. A leading newspaper which usually supports the President sums it up: "It proposes to sanction a precedent which would make any President the master of the Supreme Court by the mere process of enlarging it." Thus we are face to face with the proposition that the Supreme Court shall be made subjective to the Executive. Stripped to its bare bones that is the heart of this proposal. And that reaches to the very center of human liberty. The ultimate safeguard of liberty is the independence of the judiciary.
In all the centuries of struggle for human freedom the independence of the judiciary from political domination has been the first battle against autocratic power.
In America we have builded over these two centuries certain sacred rights which are the very soul of human freedom. Upon the protection of these rights depends religious freedom. Upon them depends freedom of speech. Upon them depends security from individual oppression.
Our Constitution was not alone a statement of these rights. It was a framework of government for the safe-guarding of these rights. Every school boy and girl knows that the very pillars of that temple are the independence of the Supreme Court, the legislative branch, the Executive and the division of powers with the States.
But these rights and these guarantees are no stronger than their safeguards. And of these safeguards none is so final and so imperative as the independence of the courts. It is here alone where the humblest citizen and the weakest minority have their only sanctuary.
Self-government never dies from direct attack. No matter what his real intentions may be, no man will arise and say that he intends to suspend one atom of the rights guaranteed by the Constitution.
Liberty dies from the encroachments and disregard of the safeguards of those rights. And unfortunately it is those whose purposes have often been good who have broken the levees of liberty to find a short-cut to their ends.
These are serious times. Liberty is crumbling over two-thirds of the world. In less than a score of years the courts in a dozen nations have been made subjective to political power, and with this subjection the people's securities in those countries have gone out of the window. And, mark you this—in every instance the persuaders have professed to be acting for the people and in the name of progress. As we watch the parade of nations down that suicide road every American has cause to be anxious for our Republic.
This is the people's problem. It is the Supreme Court defending the people's rights guaranteed by the Constitution, which time and again has protected the people from those who seek for economic power or political power or to suppress free worship and free thought. It is the people's rights that are endangered. Once political power makes use of the court, its strength and its moral prestige are irretrievably weakened, When those are weakened, the very safeguards from coercion are in decay.
It is not that our Constitution is a shackle on progress. It is a commonplace to repeat that the growth of social ideas and mechanical invention and the ingenuity of wickedness force new problems in our national life. So far as they relate to government the vast majority of them are solvable within the Constitution.
When specific problems arise which do require constitutional amendment then the people have ever been willing to grant it. Such changes are not lightly to be undertaken. But the Constitution provides an open and above board method by which they may be quickly accomplished.
What is the hurry in all this? The nation is recovering from depression. There is no emergency. Surely a year or two is no waste in the life of a great nation when its liberties are the stake of haste.
If historic liberalism cannot be maintained under the present provisions of the Constitution, I shall be the first to support the President in amendment of it.
But there are certain things that must not be changed. These things are the fundamental safeguards of human rights. We have already gone far on the road of personal government. The American people must halt when it is proposed to lay hands on the independence of the Supreme Court. That is the ultimate security of every cottage. It is the last safeguard of free men.
Ladies and gentlemen, I offer you a watchword—hands off the Supreme Court.