The President's Court Proposal

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Raymond Moley

Editor, News-Week Over WABC, March 6, 1937

Publishing Information

Some of the arguments emanating from Washington would have you believe that those who oppose this particular plan are, in reality, the irreconcilable enemies of all progress, that those who are against this particular proposal rejoice in the exploitation of labor, the under-nourishment of children, the flooding of river valleys, dust storms locust plagues, disease, devastation and death. I am one of a great majority of those who oppose this plan who deplore all of these things and who think that all of them, except death, can be prevented or mitigated by enlightened and resolute social and governmental action. To believe otherwise would truly be to believe in defeatism. And I, for one, am neither a defeatist nor a lawyer.
I think that these problems of social, economic and governmental engineering can be mastered. I think that the Federal government should be given sufficient power to deal with such of these problems as can be solved only by Federal faction. I am, and have always been, a nationalist, a believer in enlarging the power of the Federal government to occupy that No Man's Land of which Theodore Roosevelt spoke, between state and Federal authority. To seek these ends I would favor most a straight amendment to the interstate commerce and due process clauses. But I would not see danger in the Wheeler amendment. I would also favor the Borah amendment. But I am for amendment, not usurpation by Congress.
We must, in approaching this subject, keep our feet on the ground of reality and our heads out of the clouds of emotion and misrepresentation. I should welcome the opportunity to speak to the man of whom we heard last week, to the man who, in the sweat of his brow, piles sand bags on the levee at Cairo. And if I spoke to him I would say that there is no evidence whatsoever that the Supreme Court has ever placed obstacles in the way of flood control. I would tell him, too, that there is no evidence whatsoever that the Supreme Court stands or has stood in the way of the efforts of the Federal government to provide work for the unemployed, to protect home owners and farm owners from foreclosure, to guarantee the safety of bank deposits, to expand credit or restrict it, to aid local governments in slum clearance, to protect the small investor on the stock exchange, to adjust the value and nature of the currency or to do any one of many other things in the interest of the little fellow. I would ask him to remember that no one, including the Court, doubts the constitutionality of a large part of the New Deal. I would say that the real point at issue between the President and Congress on the one side, and the Court on the other, is the authority of the Federal government to enact the NRA, the Triple A and two or three additional measures kindred in nature.
Now let me make myself perfectly clear. I believe that the Court has been unduly conservative in some instances. I believe that in others, notably the NRA decision, the Court has simply said that that the time has come to stop straining this or that clause of the Constitution by reading new meanings into it and to ask the American people, point-blank, whether or not they wish to amend the Constitution so that the national government can regulate their economic life. But that fact was clear enough two years ago, and no one more insistently and persistently said so than I did. Two years ago I published a statement in which I said among other things: "The advantages of the general purposes of the NIRA are altogether too great to admit of doubt as to the ultimate need for their adoption into the governmental scheme of this country. . . . But if the American people want fair trade practices, collective bargaining, minimum wage and maximum hour standards and an orderly agriculture, Congress and the American people ought to protect their efforts to attain these ends through an amendment to the Constitution. . . . Provision should be made for the preparation of a constitutional amendment and for its initiation by Congress in its next session. Let the election of 1936 be a great and solemn referendum on this question..."
I then proceeded (and we are back again in 1935) to discuss this question with many men high in the Democratic Party in Washington). I begged them to formulate their demands in words and to present them to the people. Only one or two joined me in a public insistence upon this demand. That was two years ago—two years which were left to slip away. And now we are told that we have not the time to wait for an amendment. Apparently the Democratic Party then—when there still remained the vestiges of a profound and immediate economic crisis—was not ready to insist upon a delegation to the Federal government of power to deal adequately with industrial and agricultural problems. Apparently the Democratic leaders did not feel then—when we were still struggling with a national emergency—that it was imperative to act and to act at once to protect the objectives of the New Deal. Apparently the Democratic Party did not feel then that there was any hurry about devising mechanisms to further the great social values which were at stake.
Oh, no indeed. This issue was dropped. Was there not an election in the offing? True, the platform subsequently presented to and adopted by the Convention at Philadelphia pledged itself to advocate amendment "if necessary." But no word of amendment was said during the campaign. No word of crisis or emergency leaked out. We were vouchsafed only the assurance that the country was out of the red or coming out of the red, that workmen had money in their pockets again, that farmers were rising from their poverty, in short, that the crisis had passed. Apparently in the face of this year's crop of "crises," last year's romance of recovery doesn't have a chance.
I did not believe two years ago, and I do not believe now that permanent prosperity can come to this country until we deal with our fundamental economic problems. But we should have enough faith in democracy to submit our belief to the methods tested by experience. We should have enough faith in democracy to trust the people to make decisions of so fundamental a character. And it seems to me that the charge of defeatism, hysteria, reaction and cowardice comes with poor grace from those who were afraid to submit a constitutional amendment to the people two years ago and who did not take the public into their confidence in the year 1936—the one year when the people were permitted a voice in government. That is not democracy: it is not even the pretense of democracy. This is the suspension of democracy.
We are told, in extenuation, that the Court has been packed in the past. If those who rely on this argument will read their history, they will find that the outstanding instance of Court-packing, a device to which even Jefferson in his anger at the Court did not resort, was the work of the Reconstruction Congress that followed the war between the states. That Congress, as history sees it now, was the most discredited, the most vicious Congress that this country has ever seen. It was, as every student of history knows, a rump Congress, representative not of the whole country, but of those states that had prevailed in the bloody war they have just passed through. It sought to dominate the Executive and, when he did not yield, it brought about his impeachment. It, too, sought to "unpack" the Court: it reduced its size to prevent President Johnson from appointing judges. Then, with Johnson out of the way, it "unpacked" it again by giving Grant two more judges. Thus it sought to bend the Court to its will. I am sure that no one who respects, as I do, the high personnel of this present Congress, can conceivably justify this proposal by comparing its method with that of the wretched Reconstruction Congress which followed the war between the states.
We are invited by Democratic advocates of the Court-packing proposal to look at the long delay in the Child Labor amendment as evidence of the difficulty of getting a constitutional amendment. But I should like to remind those gentlemen that in the drafting of their platform in Philadelphia last summer, either by deliberation or by oversight, the Party failed to put itself squarely behind that Child Labor amendment. And there has been in evidence no great compelling effort to bring about its passage in the states in which the Democratic Party possesses plenary power.
We are told that the problems of the farmer and the wage-earner and the businessman will not wait, that by 1941, we must be well on the road to their final solution. But let us not lose our sense of proportion in the face of talk about immediate and desperate crises. All of the problems that beset human life are not going to be solved by this generation or by this Administration or by this Congress wise as I think they have been in the past four years. I believe in the purposes of this New Deal. But I am not for this New Deal alone. I am for future New Deals as well, unhampered by the dead hand of the past, even if that past be the resplendent past of the Administration of Franklin D. Roosevelt. I am not just against the dead hand represented, by the majority of this Court; I am against all dead hands through which the past seeks to control the future. Our New Deal will be an Old Deal sometime. All of us believe in the reforms of the past four years and who had some part in bringing about those reforms, will become old. Even the rubber stamp Court that the President now wants to appoint will become old, and, as the President says, will wear glasses fitted to the needs of another generation. I do not want Presidents then—as now—to feel free to remake that Court again and again and again—as Presidents will, if we set this bad example—now. Nor do I want to fasten our present reforms upon future generations. I want a sound method followed—now—which will be workable then—that reforms that our children and our children's want can be attained through orderly means. I do not want this generation to teach future generations to sacrifice to ends.
That is why the method of change is so important. Needs and purposes change; methods, when tested, should remain. Our forefathers left us a method in the Constitution by which the changing needs of all generations in the future, might find orderly expression. We will have to answer to our conscience and to future generations if we abandon that American method which, despite minor flaws, has proved to be the truest and best avenue to the achievement of desirable ends. That method, the American method, is to tell the public in an orderly fashion precisely what is necessary in the way of economic and social change, to seek to convince the people of its wisdom, and then to ask approval of the change. That method will be the shortest way to achieve the high purposes which Mr. Roosevelt has so courageously made his own. Such ends can be achieved within the grand mosaic of the American constitutional tradition.
But to seek to achieve them through the destruction of the American tradition is to open the way to the death of the ideals that gave them birth.