When Facts Are Really Interpretations
posted by Gerard Magliocca
Last week I was at the FDR Library in Hyde Park to continue my research on the link between the Child Labor Amendment and the Crisis of 1937, which I’ve blogged about previously. Doing work in archives is always fun. You just feel more scholarly in these places (no more so than in the Reading Room at the Library of Congress.) Plus, old depositories are quirky. They tend, for example, to be fanatically anti-pen. Pens — as opposed to pencils — can leave marks on the documents. Presidential libraries are especially strange because they are memorials for their guy. When I was at the Nixon Library a few years ago, the Watergate section was “Closed for Renovation,” which I found hysterical. At the FDR Library, the term of choice for the President’s 1937 proposal is “judicial reform,” not “Court-packing.”
So what did I learn during my visit?
We accept as a fact (or assumption) that amending the Constitution is very hard. My argument is that this is actually an interpretation of Article Five that emerged from the Court-packing fight. I have amassed a great deal of evidence to support this proposition, and I hope to have a draft complete by January.
Consider the following. Congress ratified the Child Labor Amendment (CLA) in 1924. In the prior decade, four constitutional amendments were ratified. From that vantage point, Article Five was not a significant barrier at all. Indeed, the debate on the CLA was filled with comments about how easy the amendment process was (some liked this, some didn’t).
Furthermore, when opponents of the CLA tried to kill the proposal, they offered an amendment that would require ratification by state conventions rather than state legislatures. Why? Because they said that state legislatures were a rubber-stamp that provided no check on Congress! This is very different from our view, which is that state legislatures are the place where amendments (the ERA, giving the District of Columbia representation in Congress) go to die.
What changed? Part of the answer is that the CLA ran into unprecedented difficulties during the 1920s tin part because of the unpopularity of Prohibition. More important, FDR popularized the idea that state ratification was impossible in his “Fireside Chat” defending the Court-packing plan. He also cleverly coordinated his support for the CLA with advocates of Court-packing as a kind of stalking horse. (“Look, I tried to use Article Five and it didn’t work. Now we have to have reform the Court.” Herbert Hoover and The New York Times both exposed this game at the time.) Finally, the Court switched as the CLA was on the verge of ratification. This allowed Congress to pass the Fair Labor Standards Act instead. (There are also interesting implications for Coleman v. Miller from this analysis, but I’m still working that out.)
In sum, the record shows that from January and March 1937, when the debate over the Court was at a fever pitch, the debate over the CLA also reached a climax and was closely bound up with those issues.
October 1, 2009 at 4:56 pm
Posted in: Constitutional Law
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Responses (1)
Brett Bellmore - October 2, 2009 at 3:25 am
“We accept as a fact (or assumption) that amending the Constitution is very hard.”
What group would this “we” be? In the circles I run in, the claim that it’s hard to amend the Constitution is widely viewed as nothing more than an excuse for violating it.
Though there is some truth to it: It’s hard to amend the Constitution in the ways Federal officeholders would want it amended, because the states would refuse to ratify. And it’s hard to amend the Constitution in ways state legislatures (And the public!) would like it amended, because Congress won’t originate the amendments. Witness the balanced budget and term limits amendments.
“Fortunately” for Congress, they don’t need amendments, the courts are only too happy to interpret the Constitution as meaning whatever Congress finds convenient. So the federal government has no need for amendments, and doesn’t bother even trying.
Whereas the states are rather nervous about resorting to a constitutional convention to circumvent Congress. I think mounting pressure will lead to one soon, though, and we’ll see if the federal government will permit it to occur.
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