The Legal Mind of Franklin D. Roosevelt
posted by Gerard Magliocca
I am now thinking about my next book, though I still have work to do on Bingham and other projects. (More on that tomorrow.) While I’ve known for a while that I want to write about the New Deal, I’ve been uncertain about how to proceed. My focus was on Huey Long for a long time, but now I’m looking at FDR more closely. What novel angle can you take on him though?
One answer is how Roosevelt approached constitutional issues. FDR was a lawyer (though only briefly) and had a distinctive understanding of the Constitution as expressed in his major presidential speeches. (Cass Sunstein wrote a book centered on FDR’s Second Bill of Rights speech in 1944.) But nobody has woven that together into a comprehensive discussion that includes his private letters and pre-presidential views. So I’m going to look into that for the next few months and see what I come up with.
Here is one example. I think that FDR was the first president (as president) who referred to the Bill of Rights. (And he did so often.) Jefferson called the first set of amendments a bill of rights when it was under discussion, but that term then largely disappeared. Where did FDR get this from? And was it significant?
November 28, 2012 at 2:50 pm
Posted in: Constitutional Law
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Responses (10)
Orin Kerr - November 28, 2012 at 4:45 pm
The phrase “bill of rights” seems to have been a common phrase in the law for a long time. Here are a few westlaw search outcomes over different dates:
A westlaw search for (constitution /s “bill of rights” & da(bef 1933)) in the allcases-old database brings back 2915 hits.
A westlaw search for (constitution /s “bill of rights” & da(bef 1900)) in the allcases-old database brings back 1315 hits.
A westlaw search for (constitution /s “bill of rights” & da(bef 1875)) in the allcases-old database brings back 598 hits.
A westlaw search for (constitution /s “bill of rights” & da(bef 1850)) in the allcases-old database brings back 209 hits.
A westlaw search for (constitution /s “bill of rights” & da(bef 1825)) in the allcases-old database brings back 80 hits.
Gerard Magliocca - November 28, 2012 at 5:06 pm
True, but why was he the first one to pick up on that?
Orin Kerr - November 28, 2012 at 6:28 pm
Are you sure he was?
Gerard Magliocca - November 28, 2012 at 6:32 pm
No, but I’ll soon find out.
Orin Kerr - November 28, 2012 at 6:34 pm
It might have been a response to fascism in Europe. It’s interesting that former President Herbert Hoover gave a 1935 address on the Bill of Rights. http://www.usa-patriotism.com/speeches/hoover1.htm
Shag from Brookline - November 29, 2012 at 7:41 am
It might have been in response to what FDR had observed during his lifetime here in America. Considering his health at the time, it might have been a pre-emptive “Farewell Address.”
bill reynolds - November 29, 2012 at 11:01 am
When I took Con Law from Paul Freund–who certainly was in a position to know–he said that Pres FDR only used his legal background once: The occassion was a state dinner where ordinarily the senior ambassador would lead the parade. The seenior ambassador was from the UK But George VI was in town; what to do?
bill reynolds - November 29, 2012 at 11:04 am
Sorry, somehow my reply got truncated. FDR’s answer was to declare that the ambassador was only the represenative of the sovereign, and, therefore, when the King was present, the ambassador played second fiddle and the King led.
Jon Weinberg - November 29, 2012 at 1:54 pm
The incidence of the phrase “Bill of Rights” in the Google Books corpus stays pretty flat, and below 1.1 per million words, until about 1935; then it takes off, hitting a high of 2.6 by 1947. It’s varied since then, with the 2008 figure being about 2.2. So yes, the New Deal era saw a big boost in the use of the phrase “Bill of Rights” in public discourse. See
http://books.google.com/ngrams/graph?content=Bill+of+Rights&year_start=1750&year_end=2008&corpus=15&smoothing=3&share=
John Steele - December 3, 2012 at 12:34 pm
That’s a great idea for a book. The conventional wisdom, as far as I can tell, is that FDR’s career as a lawyer was too thin to make much difference to his political career. He once mockingly described his lawyering experiences as, “Unpaid bills a specialty. Briefs on the liquor question furnished free to ladies. Small dogs chloroformed without charge.” But I suppose that none of that would prevent him from developing a sophisticated legal mind from his political experiences.
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