The American State from the Civil War to the New Deal The Twilight of Constitutionalism and the Triumph of Progressivism
Book contents
- Frontmatter
- Contents
- Abbreviations Used in the Footnotes
- Acknowledgments
- Introduction
- Part I The Old Regime
- Part II Early Progressivism
- Part III Late Progressivism
- Part IV The New Deal
- 18 The Hundred Days
- 19 To the Brink
- 20 The Second New Deal
- 21 The Court Fight
- 22 The Abortive Third New Deal
- 23 The New Deal Court
- Appendix A
- Appendix B
- Primary Sources
- Index
- References
22 - The Abortive Third New Deal
Published online by Cambridge University Press: 05 May 2013
Book contents
- Frontmatter
- Contents
- Abbreviations Used in the Footnotes
- Acknowledgments
- Introduction
- Part I The Old Regime
- Part II Early Progressivism
- Part III Late Progressivism
- Part IV The New Deal
- 18 The Hundred Days
- 19 To the Brink
- 20 The Second New Deal
- 21 The Court Fight
- 22 The Abortive Third New Deal
- 23 The New Deal Court
- Appendix A
- Appendix B
- Primary Sources
- Index
- References
Summary
THE COURT-PACKING REVIVAL
Roosevelt persisted in his effort to expand and pack the Supreme Court despite the Court’s reversals and the opening of Van Devanter’s seat. Roosevelt worried that the conversion of Hughes and Roberts might not last – that the justices espoused an expedient “shotgun liberalism,” as The Nation put it. Roosevelt had good reason to doubt the permanence of the switch. The Court had vacillated on minimum wages, making a permanent settlement of that issue hard to believe. Nobody could tell that Parrish meant the end of economic due process forevermore. Many lower courts had interpreted the Court’s earlier liberal decisions (Nebbia and Blaisdell) narrowly, and might do likewise with the Wagner Act cases, particularly since the latter were more unprecedented than the former. Hughes’s evasion of old precedents made even the Jones & Laughlin victory uncertain. Justice Roberts did revert to a more conservative position in the years after his switch. Above all, Roosevelt wanted more than just victories, by margins narrow or wide. As court-packing chroniclers Joseph Alsop and Turner Catledge put it, “he wanted a Court which would ‘cooperate’ with the White House. He needed six new justices who would be friendly and approachable, men with whom he could confer,” such as those on the New York Court of Appeals. The craftiness of the court-packing plan has obscured the political philosophy that Roosevelt brought to the fight. His repeated stress on the Court’s failure to “pull in tandem” in the “three-horse team” of the federal government served as a homely metaphor for a deeper, Wilsonian view of the Constitution. Roosevelt rejected the separation-of-powers, checks-and-balances basis of the Constitution for a cooperative, organic one – the Newtonian for the Darwinian basis of politics, as Wilson had put it. Such constitutional safeguards had become unnecessary in a fully democratic America.
- Type
- Chapter
- Information
- The American State from the Civil War to the New DealThe Twilight of Constitutionalism and the Triumph of Progressivism, pp. 296 - 309Publisher: Cambridge University PressPrint publication year: 2013
References
, “Against Legalism: Rebutting an Anachronistic Account of 1937,” Marquette Law Review 82 (1998), 66, 110;Google Scholar
, The Roosevelt Court: A Study in Judicial Politics and Values, 1937–47 (New York: Macmillan, 1948), 54Google Scholar
, Supreme Power: Franklin Roosevelt vs. the Supreme Court (New York: Norton, 2010), 438;Google Scholar
, “Switching Time and Other Thought Experiments: The Hughes Court and Constitutional Transformation,” University of Pennsylvania Law Review 142 (1994), 1970CrossRefGoogle Scholar
, “A Revolution Runs Wild: Mr. Justice Roberts’ Last Four Years on the Supreme Court,” Supreme Court Historical Society Yearbook (1980), 90;
and , “Did a Switch in Time Save Nine?” Journal of Legal Analysis 2 (2010), 1–45CrossRefGoogle Scholar
, “Rooseveltian Ideas and the 1937 Court Fight: A Neglected Factor,” Historian 33 (1971), 590CrossRefGoogle Scholar
, Woodrow Wilson and the Roots of Modern Liberalism (Lanham, MD: Rowman & Littlefield, 2005), 213;Google Scholar
, “The Public Philosophy of the New Freedom and the New Deal,” in The New Deal and Its Legacy, ed. (Westport, CT: Greenwood, 1989), 159Google Scholar
, “The President and the Court: Reinterpreting the Court-Packing Episode of 1937,” Political Science Quarterly 103 (1988), 280;CrossRefGoogle Scholar
, “Roosevelt the Conservator: A Rejoinder to Hofstadter,” Journal of Politics 25 (1963), 361–72CrossRef
, “The President Discusses His Political Philosophy,” New York Times, 28 Feb. 1937, p. 33Google Scholar
“Robinson Will Not Do!” The Nation, 29 May 1937, p. 617
The Secret Diary of Harold L. Ickes: The Inside Struggle, 1936–39 (New York: Simon & Schuster, 1954), II: 153
, Franklin Roosevelt and the Great Constitutional War: The Court-Packing Crisis of 1937 (New York: Fordham University Press, 2002), 472Google Scholar
, The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt (New York: Oxford University Press, 1995), 147–54Google Scholar
, Propaganda in an Open Society: The Roosevelt Administration and the Media, 1933–41 (Westport, CT: Greenwood, 1985), 33, 44Google Scholar
, “Mr. Dooley and Mr. Gallup: Public Opinion and Constitutional Change in the 1930s,” Buffalo Law Review 50 (2002), 38;Google Scholar
, “The Supreme Court and Public Opinion: A Study of the Court Fight of 1937” (Ph.D. diss., University of California at Los Angeles, 1953), 387–97
, “The Labor Union Journals and the Constitutional Issues of the New Deal,” Labor History 15 (1974), 232CrossRefGoogle Scholar
, “Supreme Court Packing and the New Deal: The View from Southwestern Michigan,” Michigan History 52 (1968), 18Google Scholar
, “Worker Lawmaking, Sit-Down Strikes, and the Shaping of American Industrial Relations, 1935–58,” Law and History Review 24 (2006), 55CrossRefGoogle Scholar
“President Quotes,” New York Times, 30 Jun. 1937, p. 1;
, “The ‘Little Steel’ Strike of 1937 in Johnstown, Pennsylvania,” Pennsylvania History 39 (1972), 219–38;Google Scholar
, “Not So ‘Turbulent Years’: Another Look at the American 1930’s,” Amerikastudien 24 (1979), 16Google Scholar
, “The Roosevelt Court-Packing Plan: The Role of Farm and Labor Groups” (M.A. thesis, American University, 1969), 82, 121–24;
, Roots of Reform: Farmers, Workers, and the American State, 1877–1917 (Chicago: University of Chicago Press, 1999)Google Scholar
, “The New Deal and Agriculture,” in The New Deal: The National Level, ed. et al. (Columbus: Ohio State University Press, 1975), 103;Google Scholar
, “C.I.O. Strike Ends at Hershey Plant,” New York Times, 13 Apr. 1937, p. 1;
, “An Independent Supreme Court and the Protection of Minority Rights,” American Bar Association Journal (1937), 254–60, 295–96;
, “Answers to the Argument that the Proposal Will Lead to a Deprivation of Civil Liberties,” 3 Mar. 1937, DHRP I: 285; Reorganization of the Federal Judiciary, 42, 426, 449, 1300
, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality (New York: Oxford University Press, 2004), 169;Google Scholar
, “When Did the ‘Switch in Time’ Actually Occur? Rediscovering the Supreme Court’s ‘Forgotten’ Decisions of 1936–37,” Arizona Law Journal 37 (2005), 1189Google Scholar
, The New Deal: The Depression Years, 1933–40 (New York: Hill and Wang, 1989), 270CrossRefGoogle Scholar
, Congressional Conservatism and the New Deal (Lexington: University of Kentucky Press, 1967), 97, 252.Google Scholar
CR 81 (22 Jul. 1937), 7381.
, “The Role of Religion in the Defeat of the 1937 Court-Packing Plan,” Journal of Law and Religion 23 (2007), 629–72;CrossRefGoogle Scholar
, “Joseph C. O’Mahoney, FDR, and the Supreme Court,” Pacific Historical Review 40 (1971), 197;CrossRefGoogle Scholar
, “Catholicism and the Supreme Court Reorganization Proposal of 1937,” Journal of Church and State 25 (1983), 469–89CrossRefGoogle Scholar
Secret Diary of Harold L. Ickes, 97; 26 Mar. 1937, ., 104
, “The Constitution as Instrument and as Symbol,” American Political Science Review 30 (1936), 1071–85CrossRefGoogle Scholar
, “Great Constitutional War,” 542; David Riesman, in The Making of the New Deal: The Insiders Speak, ed. (Cambridge, MA: Harvard University Press, 1983), 75Google Scholar
, “In Quest of Efficiency: The Ideological Journey of Thurman Arnold in the Interwar Period,” Stanford Law Review 23 (1971), 1085CrossRefGoogle Scholar
, The American Civil Liberties Union and the Wagner Act: An Inquiry into the Depression-Era Crisis of American Liberalism (Cornell: ILR Press, 1981);Google Scholar
, Labor and Liberty: The La Follette Committee and the New Deal (Indianapolis: Bobbs-Merrill, 1966), 213Google Scholar
, Jr., “Joseph Taylor Robinson: Keystone of Franklin D. Roosevelt’s Supreme Court ‘Packing’ Plan,” Southern Historian 7 (1986), 23–30;Google Scholar
, “House in Outburst,” New York Times, 14 Jul. 1937, p. 1;
“Sumners Takes Stand in House Against Supreme Court Bill,” Wall Street Journal, 14 Jul. 1937, p. 2
, “Ulysses at the Mast: Democracy, Federalism, and the Sirens’ Song of the Seventeenth Amendment,” Northwestern University Law Review 91 (1997), 515–27Google Scholar
, “The Brownlow Committee, Regulation, and the Presidency: Seventy Years Later,” Public Administration Review 67 (2007), 1030–40;CrossRefGoogle Scholar
, Executive Reorganization and Reform in the New Deal: The Genesis of Administrative Management, 1900–39 (Chicago: University of Chicago Press, 1963);Google Scholar
, “Constitution and Central Planning: The Third New Deal Revisited,” Supreme Court Review (1988), 185
, Reorganizing Roosevelt’s Government: The Controversy over Executive Reorganization, 1936–39 (Cambridge, MA: Harvard, 1969), 15–21, 42Google Scholar
and , “The President’s Committee on Administrative Management: The Untold Story and the Federalist Connection,” Administration and Society 38 (2006), 522–55CrossRefGoogle Scholar
, “Constitution and Central Planning,” 188; Gary Lawson, “The Rise and Rise of the Administrative State,” Harvard Law Review 107 (1994), 1259Google Scholar
, “Senator Josiah W. Bailey and the ‘Conservative Manifesto’ of 1937,” Journal of Southern History 31 (1965), 21–39;CrossRefGoogle Scholar
, “The National Committee to Uphold Constitutional Government, 1937–41,” Journal of American History 52 (1965), 582–98;CrossRefGoogle Scholar
, Roosevelt’s Purge: How F.D.R. Fought to Change the Democratic Party (Cambridge, MA: Belknap, 2010), 4, 29Google Scholar
and , “The Roosevelt ‘Purge’: A Reappraisal,” Journal of Politics 28 (1966), 660–70CrossRefGoogle Scholar
, “On the Origins of the Regime of Pragmatic Liberalism: John Dewey, Adolf A. Berle, and FDR’s Commonwealth Club Address of 1932,” Studies in American Political Development 7 (1993), 139;CrossRefGoogle Scholar
, “Franklin D. Roosevelt and the Transcendence of Partisan Politics,” Political Science Quarterly 100 (1985), 490;CrossRefGoogle Scholar
, “FDR, the Economic Constitutional Order, and the New Politics of Presidential Leadership,” in The New Deal and the Triumph of Liberalism, ed. and (Amherst: University of Massachusetts Press, 2002)Google Scholar
, “The Republican Congressional Comeback of 1938,” Review of Politics 24 (1962), 555–61CrossRefGoogle Scholar
, The End of Reform: New Deal Liberalism in Recession and War (New York: Knopf, 1995);Google Scholar
, “The ‘New’ New Deal: F.D.R. and American Liberalism, 1937–45,” Political Science Quarterly 105 (1990), 397–418CrossRefGoogle Scholar
, The New Deal and the Problem of Monopoly: A Study in Economic Ambivalence (Princeton: Princeton University Press, 1966), 386–471Google Scholar
, The F.D.R. Years: On Roosevelt and His Legacy (New York: Oxford University Press, 1995), 159–95;Google Scholar
, “Legislative History of the Fair Labor Standards Act,”Law and Contemporary Problems 6 (1939), 478, 466CrossRefGoogle Scholar
, “Ghost of the N.R.A.: Drafting National Wage and Hour Legislation in 1937,”Social Science Quarterly 67 (1986), 241–54Google Scholar
, “The Political Economy of the Fair Labor Standards Act of 1938,” Journal of Political Economy 103 (1995), 1316CrossRefGoogle Scholar
, “The Fair Labor Standards Act of 1938,” University of Toronto Law Journal 6 (1945), 202, 231–32CrossRefGoogle Scholar
, “New Deal Constitutionalism and the Unshackling of the States,” University of Chicago Law Review 64 (1997), 490CrossRefGoogle Scholar
, “The Original Constitution and Its Decline: A Public Choice Perspective,” Harvard Journal of Law and Public Policy 21 (1997), 203Google Scholar
, The Upside-Down Constitution (Cambridge, MA: Harvard University Press, 2012)CrossRefGoogle Scholar
, The New Deal and the States: Federalism in Transition (Princeton: Princeton University Press, 1969);CrossRefGoogle Scholar
, “The Condition of American Federalism: An Historian’s View,” in The New Federalism, ed. (Dartmouth: Public Affairs Center, 1967), 35, 49;Google Scholar
, “Federalism and Legal Process: Historical and Contemporary Analysis of the American System,” Law and Society Review 14 (1980), 663–772;CrossRefGoogle Scholar
, Keeping the Compound Republic: Essays on American Federalism (Washington: Brookings, 2001), 17Google Scholar
, , and , “Control of Licensing over Entry into the Market,”Law and Contemporary Problems 8 (1941), 234–63CrossRefGoogle Scholar
, “The Persistence of Substantive Due Process in the States,”Minnesota Law Review 34 (1950), 91–118Google Scholar
and , “Substantive Due Process in the States Revisited,”Ohio State Law Journal 18 (1957), 384–401Google Scholar
, The Roosevelt Court: A Study in Judicial Politics and Values, 1937–47 (New York: Macmillan, 1948), 81Google Scholar