A New Discovery About FDR’s Court-Packing Plan
posted by Gerard Magliocca
The biggest thrill that a researcher can have (and that is not meant as an ironic statement) is to find something new, interesting, and unexpected about a famous event. I think that I have done that with respect to FDR’s 1937 Court-packing plan in the course of my inquiry into the Child Labor Amendment.
Consider the following paradox. In February 1937, FDR proposed his plan to expand the size of the Court. One of his arguments for that plan was that pursuing constitutional change through Article Five amendments would take too long or be futile because of the requirement that 3/4 of the states had to ratify. Exhibit A for that point was the Child Labor Amendment, which was passed by Congress in 1924 and was still languishing unratified thirteen years later.
Two weeks before proposing his judicial “reorganization,” however, FDR wrote a public letter to all of the Governors in the 19 states that had not ratified the Child Labor Amendment and urged them to do so. He was also active in the debate on the Amendment in New York (which was one of the 19 states), writing public telegrams to Mayor LaGuardia, Governor Lehman, and others on behalf of ratification.
What was going on here? If Article Five was such a poor instrument for achieving constitutional change, why was FDR putting his personal authority behind such efforts? And why would he do this while his supporters on Capitol Hill were using the failure of the Child Labor Amendment as a reason for enacting the Court-packing plan? This is especially interesting because FDR was privately dismissive of the whole Article Five process.
The answer is the the President was pumping up the Child Labor Amendment because he knew that it would fail and give a boost to Court-packing. There is a fascinating illustration of this in The New York Times of March 10, 1937. One side of the front page has a big headline talking about FDR’s fireside chat the previous evening defending the Court plan. On the other side there is a headline describing the defeat of the Child Labor Amendment by the New York Assembly. The timing of these two events must be a coincidence, but the message conveyed was clear — Article Five is not the way to go.
But wait . . . there’s more! Members of Congress then tried to call the President’s bluff by reintroducing the Child Labor Amendment in 1937 (actually, a slightly amended version of the 1924 text) and require that ratification occur through state conventions (rather than through state legislatures) within ninety (90) days. In effect, this was an Article Five answer to the “it-takes-too-long” criticism that built on the ratification of the repeal of Prohibition via state conventions in 1933. Needless to say, FDR was not interested in that solution. The commentary in the press was that this was no surprise — endorsing that idea would undercut the argument for Court-packing,
I’m in the process of writing up this research, so I’m still trying to think through what all of this means. One obvious question is whether we would be better off if Article Five was (by practice) implemented by state conventions on a very rapid timetable. Congress can do this tomorrow, after all. Another (though this is not shocking given my work on FDR’s tangle with Huey P. Long) is that the man from Hyde Park played hardball as well as anyone in our history.
August 9, 2009 at 6:59 am
Posted in: Constitutional Law
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Responses (6)
Brett Bellmore - August 9, 2009 at 6:28 pm
Claiming that article V amendment is futile because the states refuse to ratify an amendment you want, is like a bank robber claiming that regular withdrawals are futile because they don’t actually have an account. That the states will sometimes refuse to ratify an amendment is part of the POINT of giving them a part in the process.
Orin Kerr - August 9, 2009 at 11:08 pm
This is interesting, but I’m not entirely sure if this is particularly savvy hard ball or just a common strategy among politicians to gin up support for their policies.
Gerard Magliocca - August 10, 2009 at 4:03 am
Hi Orin (and welcome back),
I think you’re right, though it depends on your definition of “hardball.” In FDR’s case, the really nasty stuff was reserved for Huey Long (e.g., FBI wiretapping, IRS harassment). With respect to Court-packing, savvy or canny is probably a better description.
A.W. - August 10, 2009 at 6:35 am
so… are you suggesting that FDR tanked the amendment to make his point…?
This post is a little confused as to the bottom line…
Gerard Magliocca - August 10, 2009 at 11:37 am
A.W.,
Actually, I’m not sure what the bottom line is. That’s part of the fun of research-in-progress!
Orin Kerr - August 10, 2009 at 2:07 pm
Interesting. Thanks, Gerard.
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