It was a time much like the present. There was a economic downfall, a President with high personal popularity, a Democratic Congress sympathetic to the President’s plans, and a Supreme Court split down the middle. The ambitious President sought to deal with mitigating circumstances with dramatic solutions that would increase government involvement in everyday lives.
And what would happen next would change the course of the country for decades to come and still impact us today.
FDR and Court Stacking
President Roosevelt was enormously popular. He was elected for four terms as President, and instrumented the New Deal. However, he also has a black mark on his record for court stacking.
You see, the Supreme Court was evenly divided, with two swing votes that generally sided with the Strict Constructionists, then considered Conservatives. At issue was the concept of whether the New Deal programs represented an unconstitutional usurping of state and local law by the federal government.
This wasn’t a new debate.
The constitutional issue about the taxing power had deep roots running all the way back to the founders and to a dispute between Alexander Hamilton and James Madison. Although both Hamilton and Madison were Federalists who believed in a strong federal government, they disagreed over the interpretation of the Constitution’s permission for the government to levy taxes and spend money to "provide for the general welfare." Hamilton thought this meant that government could levy new taxes and undertake new spending if doing so improved the general welfare in a broad sense. Madison thought the federal government could only expend money for purposes specifically enumerated in the Constitution.
The Madisonian view, also shared by Thomas Jefferson, came in time to be known as the strict construction doctrine while the Hamiltonian view is called the doctrine of implied powers. 1
The conservative view was the prevalent one at the time of the New Deal, and at multiple provisions of the New Deal were being declared unconstitutional.
On May 27, 1935, in a crushing defeat for Roosevelt, it voided the National Industrial Recovery Act and the Frazier-Lemke Farm Bankruptcy Act. It struck down the Agricultural Adjustment Act on January 6, 1936, the Guffey Coal Act on May 18, and the Municipal Bankruptcy Act and a New York state law setting minimum wages for women on May 25. 2
So, President Roosevelt had a novel idea. He decided that he would press Congress to pass a law that would allow him to add a justice to every federal court that had a member over 70 years of age—up to six members. This would allow him the ability to pack the Supreme Court and get his legislation through.
The Supreme Court caved, and reversed course, basically accepting the Administration’s logic on Social Security, minimum wage in Washington, and other appropriations bills. What’s even more strange is how the SSA ruling was passed, in that it had justices on the court that voted against it, but there were no writings or opinions offered by the opposing justices.
How This Impacts Today
This court that feared for its viability and respect (in that it would have lost power and the respect that it was unbiased had it been packed) allowed for the massive growth in government that we see today. Had they not been afraid of what President Roosevelt was going to do (he had the votes for his court stacking plan), Minimum Wage acts as well as the Social Security Act would not have been accepted into law—at least not at that time.
On top of those rulings, as a framework, the Federal Government has usurped more power and control to itself, and it continues to this day. Medicare, Medicaid, and now the current Health Care bill are all based on the idea that the Federal Government can do these things—things that should be left up to the states—but the door was opened by SSA.
If SSA were to be proven unconstitutional, which I believe that it is, the government would be forced to shrink, to give back its power, and we would have a more free society.
While it stands, government will continue to grow and always claim that it’s supporting the general welfare.
These are first principles—things you have to get right otherwise they provide a lousy foundation. I’m sure these justices, while worried about their respect (and rightfully so) didn’t think that America would ever find herself where she is today because of their ruling. And that should be a sobering thought to anyone who seeks to be a justice in this nation!
Can America go back? Certainly. Will it? That has yet to be seen, but it won’t unless we change what our people know about what their government is supposed to be and change what they expect from it.