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More on FDR and the Bill of Rights
Posted By Gerard Magliocca On November 30, 2012 @ 3:10 pm In Constitutional Law,Uncategorized | 18 Comments
To pick up on a post from the other day, here is the first major speech in which a President discussed the Bill of Rights. It was a Fireside Chat delivered in 1934 that defended the New Deal from critics. Here is the relevant passage:
“Have you as an individual paid too high a price for these gains? Plausible self-seekers and theoretical die-hards will tell you of the loss of individual liberty. Answer this question also out of the facts of your own life. Have you lost any of your rights or liberty or constitutional freedom of action and choice? Turn to the Bill of Rights of the Constitution, which I have solemnly sworn to maintain and under which your freedom rests secure. Read each provision of that Bill of Rights and ask yourself whether you personally have suffered the impairment of a single jot of these great assurances. I have no question in my mind as to what your answer will be. The record is written in the experiences of your own personal lives.”
Why do I find this interesting? First, it elevates the Bill of Rights to a higher plane by linking them to fundamental freedom. Second, it does so through an argument by negative implication. So long as the Bill of Rights is not being violated, any action by Congress is OK. This was a major conceptual change that was the first step towards wiping out the older idea of enumerated powers as rights-protective. In these presidential statements, we see the outlines of what the Supreme Court would after 1937.
Of course, FDR did not accept that “the liberty of contract” was part of the Bill of Rights. More on that later.
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