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Peace Without Victory
January 16, 1937
Vol. 144, No. 3, P. 59-60
Three conclusions emerge from Mr. Roosevelt's message to Congress. One is that, despite his overwhelming victory in the election, he does not intend in the next four years to follow up the gains made in the past four years. Another is that the New Deal has evolved no new points of view, has not clarified its economic thinking, has produced no new techniques for improving or controlling the social system. We may pretty much expect the Administration to go back to its earlier program, that which prevailed in the period before the Supreme Court began its career of devastation. The third conclusion is that on the most important issue before the country todaythat of the Supreme Court and the ConstitutionMr. Roosevelt intends to select, of the courses open, the most conservative.
To be sure, there was still a hazy liberalism hovering about the message, as in the old days. But as Harold Laski has shown in "The Rise of Liberalism," there has never been any incompatibility between the capitalist position and the so-called liberal outlook. Mr. Roosevelt, with his program of large professions for the welfare of the common man and the smallest possible concessions by the rulers of industry, is the crowning proof of Mr. Laski's thesis. It is no accident that the reactionary and conservative press now joins with the Administration papers in hailing Mr. Roosevelt's message.
What does the message actually say? It says we must have some sort of labor legislation, a farm-tenancy law, some amendments to the Social Security Act, and some control of the speculative market. It says, more vaguely, that the government must still find a remedy for unemployment, that federal rather than state action is required for labor and agricultural legislation, that oligarchies breed militarism and democracies peace. It says, above all, that the Supreme Court must behave itself and not upset the apple-cart of liberal legislation.
The way in which Mr. Roosevelt handled the issue of the Supreme Court and the Constitution is the final proof of the trend of his policy. To many he will appear courageous for daring to read a lecture to the justices at all. But considering the temper of Congress and the country on this issue, considering the avalanche of bills ready to be introduced that would do almost everything to the justices short of deporting them to General Franco's army, Mr. Roosevelt's words were calculated not to channel this energy into political results but to dampen the ardor of what the newspaper editors like to call "the Congressional hotheads." There were four courses of action open on this issue. One, the most conservative, was to wait for the court to pass on the important cases to come, meanwhile warn it of the need for a liberal and human construction of the Constitution, and ultimately hope for a chance to fill court vacancies with liberals. A second was to conclude from the record of the last eighteen months that the present court would continue to prove an obstruction to any sensible social program, and proceed to enlarge it with new appointments. A third was to conclude that any group of nine former corporation lawyers is likely to contain a majority of fossils and therefore to give Congress in one way or another power to override the court's veto. A fourth was to leave the court alone, but clarify Congressional power by a constitutional amendment.
Mr. Roosevelt has chosen the first and most conservative approach. That he has done so should occasion little surprise. Mr. Roosevelt is the Great Equiliberator. His idea of the function of government is to effect an equilibrium between the contending social pressures so as to preserve in a healthy state the broad outlines of the existing system. To do this he is not averse to playing one side against the other. In his first administration he used the left to frighten the industrialists into making concessions. But now he is himself a bit frightened at the swing of opinion to the left, and not a little overcome by the extent of his own electoral victory. He does not want to push his social program any farther. He wants to go back to the old NRAstripped of some of its faultsand the old AAA. He wants to finish such unfinished business as housing and farm tenancy. But there he wants to stop. He wants the Supreme Court to grow less relentless, so that the old program can be restored. But he does not want to curb the judicial power as such. He knows that for the Supreme Court to learn how to behave will be a long and tedious process, dragging out perhaps through his whole second administration, and serving to control its pace. If the judicial power were curbed, or if there were a dear constitutional amendment, the barriers would be down, and a genuine program of socialization of industry might be enacted. At this prospect Mr. Roosevelt shrinks back in horror. Hence he asks the justices to become enlightened, thereby leaving the essential power of the court untouchedready to be used whenever necessary to block radical advance.