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The Great Constitutional War

ISSUE:  Autumn 1942

By some perversity I have been thinking of the great constitutional war of 1934-37—lingering and almost nostalgic thoughts. This may seem a curious time to let one’s mind slip back to the years when the newspaper reports of what happened on a Decision Monday seemed as crucial as the bulletins on the air-sea battle of Midway Island or the fighting in the Caucasus seem to us now. Today, when the surface of the earth is mottled with the blood of men, those bloodless battles of the legal categories seem far away and muted. Yet they have more than an only-yesterday appeal. They have left an enduring mark on the anatomy of the national will. They were part of the road we had to travel before we could become even the imperfect fighting democracy that we are.

I fear lest what I am about to set down be called mere poetry—at least by Wordsworth’s definition: “emotion recollected in tranquillity.” For the emotions that the Court fight stirred were once fervid but are now, when seen through the perspective of distance and recollection, tranquil enough. What was it that happened? I rummage among my books and notes and memories. . . .

It was less than a decade ago, though it seems a whole generation removed. What stabbed at us in America was a combination of economic and constitutional crisis. In Europe the continent was being darkened by a racial madness and an imperialist dream. Few saw at the time that Hitler, just beginning to build his machine of total war, was counting on internal crises within the democracies before he struck. Roosevelt was in his first term, having come into office just when the industrial crisis turned into a bank panic. The men of action on the Right had abdicated their rule; the men of thought on the Left were convinced that this was the end of capitalism, and that if Roosevelt acted, it would be toward Fascism. As for the President himself, although he never lost his buoyancy and his unflagging will and although he commanded a motley company in the form of what the press quaintly called a Brain Trust, he had really neither plan nor program. He had only a list of things about which something had to be done: bank security, the crushing structure of debt, the heaven and hell of speculation in stocks, the collapsing price and wage structure in overcompetitive industries, the impoverished “independent farmers,” the problem of labor’s purchasing power and collective bargaining, the problem of immediate relief and long-run social security.

We know now how blind and blundering were the first steps in many of these projects. But we know also that they accomplished the purpose of giving the people an image of decisiveness as they gave the economy a scaffolding of support. They were part not so much of a philosophy as of a mood—the mood of an affirmative state. The people responded to it, just as Thomas Jefferson in his First Inaugural had said that a democratic people would respond to any great crisis; and the government’s program of decisive, even if sometimes contradictory, action opened up new social energies that had been locked away since the days when an expanding American economy was in itself an affirmation.

How this new mood of affirmation came close to being broken by the adverse decisions of the Supreme Court is part of the story of the constitutional war. The Lords of Creation, having recovered from their initial fright, were soon overwhelmed by a different one: they were going to have to pay for economic recovery by economic reform. And so they fought back, with every weapon they had, but mainly through the Court, which since Jefferson’s day had been the final defense line of the owning groups against every upsurge of the majority will. They said in effect that however necessary the New Deal measures might be, they were denied by the Constitution; that a modern democracy, confronting the crisis of a modern economy, does not possess what Walton Hamilton has called “the power to govern.” And the Court, after hesitating for several years, finally said exactly that.

What sort of Court was it? I like to think of it as part of the neo-classical phase of Supreme Court history. The greatness of the tradition of Marshall and Taney was gone. Lesser men had come, with narrower minds, and with economic doctrines that no longer bore any relation to the real world outside; but they spoke none the less with the magisterial assurance of trusteeship.

Of the group of four “die hards,” Justice Van Devanter was the leader—a craggy man, powerful in the councils of the Court even though there was some insurmountable inner block that kept him from putting pen on paper. The most articulate of the group was Justice Sutherland, who wore constitutional blinkers with the same primness with which he wore his pince-nez, and who could wield a lethal axe on some measure with the gentle assurance that it hurt him just as much. The third member was Justice McReynolds, a man of consuming hatreds, a feudist rather than jurist, around whose gnarled and crotchety person a whole mythology of anecdotes had grown, and who did not trouble to adorn his economic primitivism even by a humanism of language. And finally there was Justice Butler, a Minnesota railroad lawyer to whom even elevation to the Court had not given either distinction of mind or tolerance of spirit. This group of four voted almost always as a massive and monolithic unit. Homer Cummings, Attorney General at the time, spoke from bitter experience when he said they would vote against a New Deal measure “even if the Angel Gabriel himself made the argument.”

Having four votes the die-hard group needed only one more to make a majority. That one came from the balance-of-power group, consisting of Chief Justice Hughes and Justice Roberts. Though history threw them together thus, they were of different stature. The Chief Justice was the very model of a Supreme Court judge in bearing and demeanor: with his commanding presence, his piercing eyes and his whiskers he was, someone remarked, a perfect picture-book Jove, who might at any moment hurl his thunderbolt through the heavens at mere non-judicial mortals. His ruling passion was his desire to keep the Court from attack, but he was also not averse to a discreet monkey wrench thrown into the New Deal machinery. As long as he could carry Justice Roberts with him, during 1933 and 1934, they joined the three liberals to form a majority. But when, in the Railway Retirement case, Roberts swung over to the die-hards, Hughes followed—partly to keep every decision from being split five to four, partly because he felt the same way.

Despite his lesser stature, Justice Roberts proved to be the tail that wagged the balance-of-power dog. He was a Philadelphia lawyer who had been government prosecutor in the Teapot Dome frauds, and had thus rubbed shoulders with liberalism. The thing about Justice Roberts was that he was so true to type. There were thousands of lawyers like him all over the country—honest, able, alert, but without the capacity to look beyond the limited horizon of those who had spent their lives guarding the interests of corporate clients. While still a lawyer he had adjured his hearers, perhaps unnecessarily since it was in a speech before the American Bankers Association while Coolidge was President, not to let the government “go into a state of socialism,” but to “get out, take off your coats, and root for good old-fashioned Anglo-Saxon individualism.” Today he is the Forgotten Man on the Court: but from 1934 to 1937 history, by a cruel irony, cast him in the role of the marginal justice, on whom everything else turned.

These were the six from whom the anti-New Deal majorities were drawn when there was a Court cleavage. Filtered through the few but turbulent years that have given us some perspective since—the years of the Spanish war, the Russian purges, Munich, Dunkirk, the fall of France, the Nazi attack on Russia—it seems curious now that only seven years ago our world should have hung on what these men did, read, wrote, thought, said. Allen and Pearson gave them the banner chapters in the book they devoted to the Court, “The Nine Old Men.” David Lawrence countered with “The Nine Honest Men,” matching an often malicious irreverence with an always righteous indignation. Fortune devoted the better part of an issue to them, with John Chamberlain striving heroically to keep from doing them an injustice while avoiding the ruthlessness of doing them justice. I was also one of the sinners, absorbed in writing about them; and I remember the anxiety we all felt in discovering the minutest details of their lives. What had Justice Van Devanter been reading on his return trip from a summer in Europe: was it —as someone whispered who knew someone who had been a fellow passenger—Pareto? What was the latest dinner table gossip about what Justice McReynolds had said about Mr. Roosevelt? What had Justice Butler said and done when he was a Regent of the University of Minnesota? What was the inner political meaning of a legal question the Chief Justice had thrust at one of the government counsel? What was the meaning of the continual raillery between Justices Roberts and McReynolds: did it mean that Roberts was swinging toward the die-hards or away from them?

This was, of course, the sheerest gossip. But Lincoln Steff ens once had the insight to write that “all gossip is true,” and while this gossip may have shed but a faltering light on the judges, it illumined the whole social situation. I was just about to ask whether there ever was a time when so mediocre a group of men had held in their hands the fate of a nation. But, of course, there have been parallels, as we have learned since. There was the Chamberlain group in England at the time of Munich: we can still recall the expenditure of anxiety over every personal detail about Chamberlain and Simon and Hoare and Runciman and Neville Henderson. And there was the group around Daladier and Rey-naud before the fall of France. Mediocrity is always with us; its tragedy comes only when it forms the gateway to historic destiny.

I have kept for separate discussion the three liberals on the Court. One need not be a partisan to say that between them and the rest (with the exception of Chief Justice Hughes) there was the gap of infinity. Their leader was Justice Brandeis, the friend and associate of Holmes, the enemy of “the curse of bigness” whether in business or government, a cross between Abraham Lincoln and a Hebrew prophet. Next to him was Justice Stone, now Chief Justice, a corporation lawyer and Coolidge appointee whose Puritan conscience blended with the nee is of the nation to produce a judicial amalgam alien to his former associates. The youngest was Justice Cardozo, a newcomer on the Court but already one of the great legal minds of his day: sensitive, a recluse, a man who could write like an angel but who was no Poor Poll when he talked about economics and administration.

They behaved well during the whole period of crisis up to the President’s court plan—never shrill, never losing their tempers, showing a readiness to make every possible concession to the majority, leaning backward to vote against the government in the doubtful cases. Their work seemed at the time heartbreakingly futile, but we see now that it was crucial. Without their cool but devastingly reasoned dissents the people might have had to give the New Deal up as unconstitutional, and the affirmative state might have died even before it was born. As it was, they saw that the justices were not writing into their decisions an inexorable Constitution but their own economic preferences; and the President was able to appeal from the Court Hyde to the Court Jekyll, When finally in 1937 Justices Hughes and Roberts swung back to a liberal constitutional view, the three dissenters reaped what they had kept alive in the dry season.

But before that happened, a good deal else did first. For almost two years both Court and Administration pursued an appeasement policy toward each other. But once the initial panic was over, the Court majority was more impelled by its fear of economic control than by its fear of economic collapse. There were premonitions of the storm in January, 1935, when the “hot oil” section of the NIRA was held an improper delegation of power to the President. There was something of the comic-grotesque when the Court discovered that a crucial executive order had somehow got lost, and the legal austerity of even the liberals was stirred to blast the government. But whoever was responsible for the administrative slip-up, the dams were down so far as hot oil was concerned, and the oil industry, chronically a jungle of greed, waste, and piracy, fell into greater confusion than ever. Then there was the Gold Clause case in February in which the Chief Justice twisted himself into legal knots in an attempt to save both the monetary structure and his judicial face, and ended by saying that while the government had acted outside of its powers, there was nothing anyone could do about it legally: and Justice McReynolds, departing from his written text in his oral opinion, declaimed a jeremiad about the dying Constitution. And on May 6th Justice Roberts read a five-to-four decision holding the Railway Retirement Act outside the scope of the commerce power.

After that came “Black Monday,” May 27, 1935, with the triple blow of the Schechter, Humphries, and Farm Mortgage decisions on a single day. At the time it seemed sudden and savage. But in perspective, given the meaning of Justice Roberts’ switch three weeks earlier, it followed inexorably. It left little doubt that the New Deal had a fight on its hands.

There are several minor mysteries about what happened afterward. For one, who was it that killed the NRA? Was it the Supreme Court by the Schechter decision? Or was it Hugh Johnson and Donald Richberg, through the administrative chaos within the NRA and the poor selection of a test case? Or was it the President, who might have asked Congress to put through a revised act, as he did afterward with the AAA, but who welcomed a chance to get this albatross off his neck? My own guess would be a combination of all three.

The second mystery is, what happened between the NRA decision and the President’s “horse and buggy” press conference? It seems clear that at various times he saw Hugh Johnson, Professor Felix Frankfurter, Donald Richberg, and Raymond Moley. But their accounts are so divergent on what they advised him to do, that someday the historical sleuths, evidence sifters, and probability weighers will have to get busy. For the present the best guides are the massive volumes of Mr. Roosevelt’s “State Papers.” The President held three press conferences in which he discussed the decisions—on May 27, May 31, and June 4, 1935. The second was the fullest: he had probably had a chance to pump his legal advisers, and he proceeded with unconcealed anger to read a long legal lecture to the Washington correspondents. It was all off the record except for the now famous “horse and buggy” analogy with which he stigmatized the Court’s archaic outlook. The burden of his several hour discourse— and he was right—was that the Court had other doctrinal alternatives open, and that its choice of a narrow interpretation of the commerce power and of the doctrine of delegation was political rather than legal. There can be little question now that this was when the President made up his mind that he would accept the gage of battle. But he kept his council, made his plans, bided his time.

For a year after Black Monday the Court majority waged what can only be described as a war of annihilation against the New Deal. Never in a single year before or since has so much crucial legislation been undone, so much declared public policy nullified. The number of amateur constitutional sages, never a small one in a nation which De Tocque-ville had once described as being ruled by the lawyer’s mentality, became a bumper harvest.

Nor was the situation lacking in the dramatic for them. There was the AAA case, for example, in which the Court took a successful administrative program and applied to it the old legerdemain that had been useful to the conservatives since Justice Field. Justice Roberts’ assignment was no easy one. He saw a fiscal loophole in the Act and used it; but to make sure that even a plugging of it would not avail the New Deal, he went on to say that the regulation of agriculture was not a national concern but had to be left to the states. In his dissent Justice Stone reached one of the high points of his career. He wrote what may prove to be the best essay on the limits of judicial supremacy in the whole literature of the Court. “Our only restraint,” he warned his colleagues, “is our self-restraint.” The unintended effect of the Roberts decision was that the Court virtually handed over to Mr. Roosevelt several million farm votes.

Then there was the TV A case, in which the Court hesitantly held that having developed hydro-electric power for the valid purposes of national defense and navigation control, the government owned it and could therefore sell it. It is interesting to speculate what might have happened to our war production today without the resources of TVA power —had the Court majority insisted on holding the dam unconstitutional. Why the majority relented may be explained by a New Yorker cartoon, printed while the nation was waiting for the decision. It showed a worker amidst a tangle of engineering construction while another came running toward him with the cry, “My God, Henry, the whole damn thing’s unconstitutional.” It was the most profound commentary on the Court war that appeared. And there was a report that one of the Justices had said wistfully, “I suppose we couldn’t very well ask the government to rip up the dam and plug up the hole.” There was the case of Jones vs. SEC in which Justice Sutherland accused the Commission of being a Star Chamber, while Justice Cardozo answered gently that this was a “sanguinary hyperbole.” There was the Carter Coal case in which the Court held in essence that the coal industry was a matter of concern only within a state and not a matter for the nation as a whole. And there was, finally, the case of Morehead vs. Tipaldo, holding invalid a New York state minimum wage act. Since the Court had in 1923 in the Adkins case held that the federal government did not have the power which was now denied to the state governments, the President had a heaven-sent chance to point out that the Court had created a “No-Man’s Land.”

This was in its way a symbol: for while the Court had denied to the Administration the power to govern and had sought to assume it instead, its whole function was a negative one, and the result could only be an administrative vacuum. We know now what such a vacuum might have meant in the history of a democracy in crisis. The Court’s war went beyond the decisions of that historic year. It had invalidated large portions of the New Deal program, but by the logic of the decisions already announced it was clear that the rest of the New Deal was doomed as well—and that included the Public Utility Holding Company Act, the Social Security Act, and the National Labor Relations Act. But the President went right on, getting the rest of his legislative program passed, patching up the invalidated parts as best he could, waiting for the election and what lay beyond. In fact, the Court compelled him to do what he would otherwise have been reluctant to do—confront the massed corporate power for which it spoke. The real sequel to the year of decisions was the Madison Square Garden speech (“we have only just begun to fight”) and the electoral vote. The Supreme Court, from Black Monday to the Tipaldo decision a year later, seems now to have been mainly occupied in giving the President precious campaign material.

With the election returns in, the Supreme Court majority might have been expected, in Mr. Dooley’s phrase, to follow them. There are some who maintain that Justices Hughes and Roberts had already made up their minds to retreat before the President announced his Court plan. We shall never know for certain what went on between the Justices during the Saturday sessions at which they discussed their coming decisions. On February 5, 1937, the President startled his cabinet, his Congress, and the whole nation by a plan for retiring Justices at full pay when they reached seventy, and for appointing in place of those that failed to retire additional justices up to the number of six. What added to the President’s pleasure, as he read the proposal to the reporters, was that it had first been suggested (to apply to the lower federal courts) by Justice McReynolds when he was Attorney General.

I do not want to go into the history of the fight over the Court plan. Some day a historian with a feeling for literary and political values will do it justice. So far the historians have left it to two journalists, Joseph Alsop and Turner Catledge, who in their “168 Days” have sought to give it a Napoleonic stature while too close to it to separate the trivial from the crucial. It was a bitter, implacable fight. From the jumble of memories of it, several things emerge.

For one thing, the President learned that he could not give free rein to his dramatic impulses. Secrecy and surprise are well enough in the close-knit circle around the President, or in the atmosphere of a war state; but they proved fatal on a domestic issue of national importance in peace time. The Court plan, it is now clear, was a secret between Attorney General Cummings and the President. The Cabinet knew nothing of it, and even those administrative twins, Corcoran and Cohen, on whom the blame was laid for every act the tories did not like, were in this case wholly innocent.

The President learned also not to be too disingenuous in the grounds that he gave for public policy. If he had said quite directly at the very start that the Court had played politics rather than followed the main and clear line of decisions, and that it was necessary to get new blood, the nation might well have gone along with him, although even that is doubtful. But to put it all on the basis of the crowded Court calendar and the ravages of old age was a good deal too slick, and the President had to pay for his lack of candor. He tried to make up for it later by his admirable fire-side talk to the nation, but it was too late. I think he is now the better war leader for that experience.

He did have two triumphant occasions when the Court majority had to eat crow. One was the set of decisions in the five Labor Act cases, in which the Court upheld the Administration in every instance, destroying the Schechter opinion on the scope of the commerce power, and (despite the Carter Coal case) giving the government power to regulate labor relations even in industries of far less national importance than coal. No decisions since the Dred Scott case had been more eagerly awaited by the country. When they came the President knew he had won the war, whatever might happen to his Court plan. In his press conference he gleefully presented to the reporters two editorials from the New York Herald-Tribune. One, after the passage of the Act, had praised the opinion of the panel of Liberty League lawyers declaring the Act unconstitutional; the second, from that very morning’s issue, called the Supreme Court opinion upholding the act a triumph of judicial statesmanship. The other occasion on which the President showed some exultation was when the Court upheld by a five to four vote a Washington state minimum wage act undistinguishable from the New York law that the Court had killed in the Tipaldo case. Mr, Roosevelt may perhaps be pardoned for having added to the reporters that while “Roberts-land” was a good deal better than “No-man’s land,” it was not safe enough.

And so the President carried on his battle for the Court plan. But if it had been a difficult one to start with, the switch of the balance-of-power judges now made it an impossible one to win. The fight in Congress marked the debut of Senator Wheeler as the generalissimo of the combined anti-Administration forces of both parties. It was the first sharp break between Wheeler and the President, and only a foreshadowing of what was to come later. But even the generalship of Wheeler, the almost solid phalanx of the press, and the tragedy of Senator Robinson’s death in the thick of the fight (Wheeler warned the President to withdraw the bill “lest he appear to be fighting against God”) could not have availed by themselves to beat the Court proposal. What beat it was the fact that the President had not reckoned with the strength of the Constitutional image in the minds of the American people. To be sure, the people were wrong in their associations with the image: the Supreme Court is not the only guardian of the Constitution, and for a year the Court had been doing its best to destroy the effectiveness of a democracy in action without which the Constitutional image could not survive. Yet one does not argue with a symbol-structure. One reckons with it. And the President had failed wholly to reckon with it.

What was the trial balance at the end of the Constitutional war? The President finally, with the resignation of Justice Van Devanter, accepted the defeat of his plan, agreeing to a substitute bill with only minor procedural reforms. The Supreme Court die-hards knew the game was up when the balance-of-power judges switched to the liberals. The field was seemingly left in the possession of the opponents of the President’s plan, but it was an empty victory. The New Deal, which had before been unconstitutional, now became constitutional. In his usual buoyant fashion the President claimed that while the New Deal had lost the battle, it had won the war. In a less military image he remarked once that “we had a bad season, but we won the Yale game.” The two statements do not exactly jibe. Yet for a political leader one or the other was probably true enough.

The whole episode showed the free and unfree peoples of the world alike that under a militant leadership a democracy need not succumb to its internal crises, no matter how monstrous they may loom. We survived the severest economic-and-constitutional crisis in our history. It required heroic remedies, the creation of an affirmative mood in the nation that tried them, the defense of that mood against the principalities of reaction. Nevertheless the difficulties were surmounted—if not entirely, then at least sufficiently; if not forever, then at least for the calculable future. We cleared our decks for action on the more tempestuous seas of world struggle. And we did it without damaging seriously either the vigor of the Administration or the long-run confidence in the Court’s exercise of its functional role. If we had been beaten here we could not have done what we have done in mobilizing a war economy, however falteringly, and in achieving adequate constitutional powers for it.

I do not want to underestimate the cost of the battle to the democratic forces. When the 1918 decision in Hammer v. Dagenhart, holding federal control of child labor under the commerce clause invalid, was overruled by the Court in 1941 in upholding the Pair Labor Standards Act, Edith Abbott wrote a letter to the New Republic. She asked whether the Court could restore the “stunted growth and the ruined lives” of the thousands of children whom it had surrendered to exploitation in factories and fields during the quarter-century interval. This question cannot be answered brashly. On a larger scale, if for a shorter period, the same question may be asked about the social costs of the obstruction, delay, and wastes of the constitutional war of annihilation.

One thing more. The Court fight brought the President closer to political disaster than anything he ever did. It laid him open to continuing attacks on the score of “dictatorial” ambitions. It showed the power of a Congressional opposition when it is linked in a reactionary cause with the massed power of the press and with the vulnerable symbolism of the American tradition. It left a scar not only on the President’s consciousness but also on the consciousness of all progressives. The President was to remember this later—on the occasion when he came close to lifting the embargo on goods to Spain and then thought better of it; and even more during the whole struggle over American “neutrality” in the war, when he had to walk on Congressional eggshells while the Nazi tanks were thundering on. The reader may think that such an attitude of caution is all to the good. For myself I can only say that caution is a doubtful political virtue in a period (both war and post-war) in which the affirmative word and the decisive deed will be crucial.

Finally we have managed to perform a miracle in political economy—to have our cake and to eat it. It is not often that things work out so well in the history of political systems, but in this case they did. One might have expected that so crucial an obstacle as the Court interposed to our economic recovery could have been removed only at the cost of smashing the judicial institution itself, or at the least seriously injuring it. One might have expected that the new constitutional directions of the present Supreme Court would have been fought bitterly by the tories, who had grown accustomed to think of the Court as a protection against all forms of governmental control. There have, of course, been a few voices that have raised the cry that the present Court is not properly a court but actually a revolutionary body. In fact, Mr. Wendell Willkie himself had a brief spell in which he joined in this cry, thinking perhaps that it might become a good campaign slogan. But, to change the figure, the flames of constitutional controversy could not be fanned for the simple reason that there was no fuel in the mind of the common American to nourish them. It is difficult today for any conservative group to attack the Court as a whole, because the Court rests on the essential judicial foundation for which the conservatives themselves fought so bitterly. They won that fight, and they must content themselves with the fruits of their victory, even though the taste of the fruits is sometimes bitter in their mouths.

And so the past telescopes itself. “Black Monday” was succeeded by “White Monday,” and that in turn by a set of decisions which involved not only a “retreat to the Constitution” but a real task of rebuilding the body of constitutional doctrine to make it fit the needs of a new age. A new Court came in, with new faces, new ages, a new mood. Only Justices Stone and Roberts remained from the old—the former in the middle-of-the-road group now, the latter the sole member to carry on the spirit of the Old Guard. There are new cleavages and alignments on the Court, raising new problems in terms of the long-run struggle for power. But there is no immediate danger of another constitutional war.

The justices are going to other wars. Justice Murphy is now a Lieutenant-Colonel in the Army; Justice Douglas is being mentioned for a high war post and even for the Presidency in 1944; the Chief J. stice, Justices Byrnes, Jackson, Frankfurter, Black, and Roberts have made speeches against Hitlerism abroad and in our midst. To many these may seem non-judicial, extra-constitutional activities. But we have learned that the real Constitution of our nation goes deeper into the roots of our society than any single document or body of precedents can go. We have learned that the Constitution is not only a basic structure of legal powers and permissions, but also a structure of long-range economic needs, of human ideals, of the social cohesion and community values which make it possible for a government to operate amid conflicting claims without breaking the social fabric. We have learned finally that the Constitution includes also the framework of social order in the world community outside of the nation, without which a nation could not continue.


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