CHAPTER TWENTY-ONE:
The Deception of Roosevelt's "New Deal"
"We Could Never Go Back to the Old Order"
In his 1949 essay entitled, "Emergencies and the Presidency," Albert L. Sturm made the following observation: "Emergency powers are not solely derived from legal sources. The extent of their invocation and use is also contingent upon the personal conception which the incumbent of the Presidential office has of the Presidency and the premises upon which he interprets his legal powers. In the last analysis, the authority of a President is largely determined by the President himself."(1) It was the emergency powers latent in the Trading With the Enemy Act that were assumed by Franklin Delano Roosevelt when he took office scarcely over a decade later during the crisis of the Great Depression. As Clinton Rossiter noted, "[T]he crisis government of 1933 was marked by an unprecedented breakdown of the constitutional barriers separating Congress and the President."(2) Indeed, Roosevelt's views, expressed in his first Inaugural Address of 4 March 1933, bore a striking similarity to that of his predecessor in the 1860s:
It is to be hoped that the normal balance of Executive and Legislative authority may be wholly adequate to meet the unprecedented task before us. But it may be that an unprecedented demand and need for undelayed action may call for a temporary departure from that normal balance of public procedure.
I am prepared under my constitutional duty to recommend the measures that a stricken Nation in the midst of a stricken world may require. These measures, or such other measures as the Congress may build out of its experience and wisdom, I shall seek, within my constitutional authority, to bring to a speedy adoption.
But in the event that the Congress shall fail to take one of these two courses, and in the event that the national emergency is still critical, I shall not evade the clear course of duty that will then confront me. I shall ask the Congress for the one remaining instrument to meet the crisis — broad Executive power to wage a war against the emergency, as great as the power that would be given to me if we were in fact invaded by a foreign foe. And when the war is won, the power under which I act will automatically revert to the people of the United States — to the people to whom these powers belong.(3)
The day after delivering this address, Roosevelt issued a Presidential Proclamation calling Congress into special session to discuss unspecified "public interests." However, before Congress had the chance to convene, he shut down the nation's banks on the sixth of March, and then, after deceptively altering the 1917 Trading With the Enemy Act in his proposed legislation, he duped Congress into declaring the American people to be enemies of the U.S. Government on the ninth of March, which directly resulted in the confiscation of their property in gold. How all this was accomplished was a stroke of despotic genius. In Presidential Proclamation 2039, Roosevelt stated:
Whereas there have been heavy and unwarranted withdrawals of gold and currency from our banking institutions for the purpose of hoarding; and
Whereas continuous and increasingly extensive speculative activity abroad in foreign exchange has resulted in severe drains on the Nation's stocks of gold; and
Whereas these conditions have created a national emergency; and
Whereas it is in the best interest of all bank depositors that a period of respite be provided with a view to preventing further hoarding of coin, bullion or currency or speculation in foreign exchange and permitting the application of appropriate measures to protect the interests of our people; and
Whereas it is provided in Section 5(b) of the Act of October 6, 1917, (40 Stat. L. 411) as amended, "That the President may investigate, regulate, or prohibit, under such rules and regulations as he may prescribe, by means of licenses or otherwise, any transactions in foreign exchange and the export, hoarding, melting, or earmarkings of gold or silver coin or bullion or currency ***"; and
Whereas it is provided in Section 16 of the said Act "that whoever shall willfully violate any of the provisions of this Act or of any license, rule, or regulation issued thereunder, and whoever shall willfully violate, neglect, or refuse to comply with any order of the President issued in compliance with the provisions of this Act, shall, upon conviction, be fined not more that $10,000, or, if a natural person, imprisoned for not more than ten years or both; ***";
Now, therefore, I, Franklin D. Roosevelt, President of the United States of America, in view of such national emergency and by virtue of the authority vested in me by said Act and in order to prevent the export, hoarding, or earmarking of gold or silver coin or bullion or currency, do hereby proclaim, order, direct and declare that from Monday, the sixth day of March, to Thursday, the ninth day of March, Nineteen Hundred and Thirty Three, both dates inclusive, there shall be maintained and observed by all banking institutions and all branches thereof located in the United States of America, including the territories and insular possessions, a bank holiday, and that during said period all banking transactions shall be suspended. During such holiday, excepting as hereinafter provided, no such banking institution or branch shall pay out, export, earmark, or permit the withdrawal or transfer in any manner or by any device whatsoever, of any gold or silver coin or bullion or currency or take any other action which might facilitate the hoarding thereof; nor shall any such banking institution or branch pay out deposits, make loans or discounts, deal in foreign exchange, transfer credits from the United States to any place abroad, or transact any other banking business whatsoever.
Pertinent sections of the Bank Holiday Act, which Roosevelt and his advisors authored, are as follows:
An act to provide relief in the existing national emergency in banking and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the Congress hereby declares that a serious emergency exists and that it is imperatively necessary speedily to put into effect remedies of uniform national application.
TITLE I
Section 1. The actions, regulations, rules, licenses, orders and proclamations heretofore or hereafter taken, promulgated, made, or issued by the President of the United States or the Secretary of the Treasury since March 4, 1933, pursuant to the authority conferred by subdivision (b) of section 5 of the Act of October 6, 1917, as amended, are hereby approved and confirmed.
Sec. 2. Subdivision (b) of section 5 of the Act of October 6, 1917 (40 Stat. L. 411), as amended, is hereby amended to read as follows:
"(b) During time of war or during any other period of national emergency declared by the President, the President may, through any agency that he may designate, or otherwise, investigate, regulate, or prohibit, under such rules and regulations as he may prescribe, by means of licenses or otherwise, any transactions in foreign exchange, transfers of credit between or payments by banking institutions as defined by the President, and exporting, hoarding, melting, or earmarking of gold or silver coin or bullion or currency, by any person within the United States or any place subject to the jurisdiction thereof...."
It should be noted that the original Trading With the Enemy Act defined "enemy" in Section 2(a) as "any individual, partnership, or other body of individuals, of any nationality, resident within the territory (including that occupied by the military and naval forces) of any nation with which the United States is at war, or resident outside the United States and doing business within such territory...." (emphasis added) "Citizens of the United States" were expressly excluded from the definition of "enemy" in Section 2(c). However, Roosevelt's proclamation and his bill for a bank holiday clearly ignored the obvious intent of the original Act and applied the term "enemy" to any person conducting business "within the United States or any place subject to the jurisdiction thereof" (emphasis added).(4) Consequently, while the original Trading With the Enemy Act was intended by Congress to define, regulate, and punish war-time trading with a foreign enemy without a license, Roosevelt's rewording changed its scope to the definition, regulation, and punishment of trading among the enemy — the American people themselves — during a national emergency.
Furthermore, "hoarding," or merely possessing, gold was made illegal by the Emergency Banking Relief Act of 9 March 1933(5) and all gold held by private persons in the United States was required to be surrendered to the Government, even though the actual wording of the Trading With the Enemy Act, which Roosevelt pretended to quote for his authority in his initial proclamation, said nothing at all about hoarding. Such was the convenient addition which Roosevelt used to pin the blame for the economic crisis on the American people, rather than on the corrupt Federal Reserve System,(6) where it belonged, and to justify the subsequent confiscation of the "enemy's" property.(7) To add insult to injury, the Gold Reserve Act of 1934 removed the gold backing of Federal Reserve Notes, as provided for in Section 16 of the Federal Reserve Act of 1913. Section 2 of the Gold Reserve Act stated:
Upon the approval of this Act all right, title, and interest... in and to any and all gold coin and gold bullion shall pass to and are vested in the United States....
Any gold withheld, acquired, transported, melted or treated, imported, exported, or earmarked or held in custody, in violation of this Act or of any regulation issued hereunder, or licenses issued pursuant thereto, shall be forfeited to the United States, and may be seized and condemned by like proceedings as those provided by law for the forfeiture, seizure, and condemnation of property imported into the United States contrary to law; and in addition any person failing to comply with the provisions of this Act or of any such regulations or licenses, shall be subject to a penalty equal to twice the value of the gold in respect of which such failure occurred.(8)
This Act left the people with mere interest-bearing debt-instruments, or "direct obligations of the United States," to use as money. Later, in 1964, silver certificates were also removed from circulation by Executive Order and the content of the coins was changed from silver to nickel-clad copper. There is currently now no constitutional money in circulation in the United States.
It was clear from his hasty actions that Roosevelt never had any intention of maintaining the "normal balance of Executive and Legislative authority," but that he desired to force Congress to comply with a predetermined agenda. In its report of 19 November 1973, the U.S. Senate stated:
In actual fact, it could appear that the President called the Congress into special session to sanction his emergency banking action and then continued the meeting for as long as it suited the mutual purposes of the two branches. When the proclamation for the gathering was issued on March 5, no purpose for the assembly was specifically indicated or even alluded to generally. Roosevelt knew what he wanted to do but had no Legislative plans. Before arriving in Washington, he had rough drafts of two presidential proclamations: one calling a special session of Congress; the other declaring a bank holiday and controlling the export of gold by invoking forgotten provisions of the wartime Trading With the Enemy Act. The bank holiday proclamation was issued on March 6. Between the evening after the inauguration and the opening of Congress, William Woodin, Roosevelt's Treasury Secretary, Raymond Moley, a Roosevelt assistant, and a few others wrote the Emergency Banking Bill. When Congress convened, the House had no copies of the measure and had to rely upon the Speaker reading from a draft text. After thirty-eight minutes of debate, the House passed the Bill. That evening, the Senate followed suit.
The emergency banking measure extended government assistance to private bankers to reopen their banks. The Bill validated actions the President had already taken, gave him complete control over gold movements, penalized hoarding, authorized the issue of new [non-redeemable] Federal Reserve Bank notes, and arranged for the reopening of banks with liquid assets and the reorganization of the rest.(9)
One important detail which is missing in the above report is that Roosevelt's banking bill had not even been completed when Congress convened at noon on the ninth of March. As John T. Flynn pointed out in his book The Roosevelt Myth, "A folded newspaper was tossed into the hopper to serve as a bill until the document could be completed."(10) The copy from which the Speaker of the House of Representatives read on the floor was merely a rough draft; the Senate did not even have that much to work from, and yet, both Houses passed the unfinished bill into law. Representative Louis T. McFadden of Pennsylvania later complained of this irregularity with these words: "Mr. Speaker, I regret that the membership of the House has had no opportunity to consider or even read this bill. The first opportunity I had to know what this legislation is was when it was read from the Clerk's desk. It is an important banking bill. It is a dictatorship over finance in the United States. It is complete control over the banking system in the United States."(11) The truth of McFadden's observation would soon become very apparent to all Americans.
A year after his inauguration, Roosevelt wrote his book entitled On Our Way, in which he attempted to justify himself in the eyes of the American people. In his own words, the proclaimed emergency "related to far more than banks," for "it covered the whole economic and therefore the whole social structure of the country."(12) Roosevelt was correct in pointing out that his grab for power was not limited to the banking system. In fact, immediately after seizing control of the banks and money of the American people, he proceeded to seize control of agriculture and industry as well through the Agriculture Adjustment Act (AAA) of 12 May 1933 and the National Industrial Recovery Act (NIRA) of 16 June 1933. Both of these Acts, having the phrase "national emergency" in their titles, were based on the same Trading With the Enemy war powers as was the preceding Bank Holiday Act. It was Roosevelt's assertion that the crisis could only be overcome "by a complete reorganization and a measured control of the economic structure.... It called for a long series of new laws, new administrative agencies."(13) He went on to solicit the "understanding on the part of the people," and concluded, "We could never go back to the old order."(14) Combined with the amended Trading With the Enemy Act, the various Acts of Congress passed at Roosevelt's behest gave him nearly absolute control over the economic and social structure of the nation. Consequently, his "New Deal" was, in reality, a complete and deliberate destruction of the last remaining vestiges of constitutional government in America — the "old order" — and the permanent establishment of an Executive dictatorship on its ruins. Contrary to the clear wording of Article I, Section 9, Clause 3 of the U.S. Constitution, Roosevelt's usurpation of power was "remedied"(15) by Congress' ex post facto passage of the Emergency Banking Act, the following clause of which remains on the books to this day at Title 12, United States Code, Section 95(b): "The actions, regulations, rules, licenses, orders and proclamations heretofore or hereafter taken, promulgated, made, or issued by the President of the United States or the Secretary of the Treasury since March 4, 1933, pursuant to the authority conferred by subsection (b) of section 5 of the [Trading With the Enemy] Act of October 6, 1917, as amended, are hereby approved and confirmed."
The Supreme Court Opposes the "New Deal"
A provision of the Constitution, it is hardly necessary to say, does not admit of two distinctly opposite interpretations. It does not mean one thing at one time and an entirely different thing at another time.... This view, at once so rational in its application to the written word, and so necessary to the stability of constitutional principles, though from time to time challenged, has never, unless recently, been put within the realm of doubt by the decisions of this court. The true rule was forcefully declared in Ex parte Milligan, 4 Wall. 2, 120, 121, in the face of circumstances of national peril and public unrest and disturbance far greater than any that exist to-day. In that great case this court said that the provisions of the Constitution there under consideration had been expressed by our ancestors in such plain English words that it would seem the ingenuity of man could not evade them, but that after the lapse of more than seventy years they were sought to be avoided. "Those great and good men," the Court said, "foresaw that troublous times would arise, when rules and people would become restive under restraint, and seek by sharp and decisive measures to accomplish ends deemed just and proper; and that the principles of constitutional liberty would be in peril, unless established by irrepealable law. The history of the world had taught them that what was done in the past might be attempted in the future." And then, in words the power and truth of which have become increasingly evident with the lapse of time, there was laid down the rule without which the Constitution would cease to be the "supreme law of the land," binding equally upon governments and governed at all times and under all circumstances, and become a mere collection of political maxims to be adhered to or disregarded according to the prevailing sentiment or the legislative and judicial opinion in respect of the supposed necessities of the hour: "The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism...."
Chief Justice Taney, in Dred Scott v. Sandford, 19 How, 393, 426, said that, while the Constitution remains unaltered, it must be construed now as it was understood at the time of its adoption; that it is not only the same in words but the same in meaning, "and as long as it continues to exist in its present form, it speaks not only in the same words, but with the same meaning and intent with which it spoke when it came from the hands of its framers, and was voted on and adopted by the people of the United States. Any other rule of construction would abrogate the judicial character of this court, and make it the mere reflex of the popular opinion or passion of the day." And in South Carolina v. United States, 199 U.S. 437, 448 , 449 S., 26 S.Ct. 110, 111, 4 Ann.Cas. 737, in an opinion by Mr. Justice Brewer, this court quoted these words with approval and said: "The Constitution is a written instrument. As such its meaning does not alter. That which it meant when adopted, it means now.... Those things which are within its grants of power, as those grants were understood when made, are still within them; and those things not within them remain still excluded." The words of Judge Campbell, speaking for the Supreme Court of Michigan in People ex rel. Twitchell v. Blodgett, 13 Mich. 127, 139, 140, are peculiarly apposite. "But it may easily happen," he said, "that specific provisions may, in unforeseen emergencies, turn out to have been inexpedient. This does not make these provisions any less binding. Constitutions can not be changed by events alone. They remain binding as the acts of the people in their sovereign capacity, as the framers of Government, until they are amended or abrogated by the action prescribed by the authority which created them. It is not competent for any department of the Government to change a constitution, or declare it changed, simply because it appears ill adapted to a new state of things."(16)
So wrote George Sutherland of the U.S. Supreme Court in 1934. As was the case with Lincoln, the Court was a formidable foe with which Roosevelt had to contend, for a majority of the justices opposed his emergency legislation at nearly every opportunity. For example, in the 1934 Home Building and Loan Association v. Blaisdell decision, Chief Justice Charles Hughes attacked the very foundation of the "New Deal" with the following observations: "Emergency does not create power. Emergency does not increase granted power or remove or diminish the restrictions imposed upon power granted or reserved. The Constitution was adopted in a period of grave emergency. Its grants of power to the federal government and its limitations of the power of the States were determined in the light of emergency, and they are not altered by emergency. What power was thus granted and what limitations were thus imposed are questions which have always been, and always will be, the subject of close examination under our constitutional system."(17)
In the 1935 United States v. Butler decision, the Court ruled against the AAA because it gave to the Government power to tax the people far beyond the constitutional "general welfare" limitation. In effect, the AAA was a thinly disguised socialist plan to redistribute the wealth of the country from one class of citizens to another:
A tax, in the general understanding and in the strict constitutional sense, is an exaction for the support of government; the term does not connote the expropriation of money from one group to be expended for another, as a necessary means in a plan of regulation, such as the plan for regulating agricultural production set up in the Agricultural Adjustment Act....
The regulation of a farmer's activities under the statute, though in form subject to his own will, is in fact coercion through economic pressure; his right of choice is illusory. Even if a farmer's consent were purely voluntary, the Act would stand no better. At best it is a scheme for purchasing with federal funds submission to federal regulation of a subject reserved to the states.(18)
The Court went on to warn that the policies reflected in the AAA, as well as other New Deal legislation, "would furnish the means whereby the provisions of the Constitution, sedulously framed to define and limit the powers of the United States and preserve the powers of the States," could be "subverted, the independence of the individual states obliterated, and the United States converted into a central government exercising uncontrolled police power in every state of the Union, superseding all local control or regulation of the affairs or concerns of the states."(19)
Another example of this "uncontrolled police power" which was created by Roosevelt and his advisors was the National Industrial Recovery Act. Under this Act, each industry in the country was organized into a Government-supervised trade association called a "code authority," and then, under these code authorities — a total of 700 of them created by 13,000 pages of administrative orders(20) — all commercial production, wages, and prices were regulated by the National Recovery Administration (NRA). Prior to its passage, Representative Ernest W. Marland of Oklahoma protested these drachonian measures with this warning:
No law has been written which so much affected human rights, human happiness and human destiny since the writing of the Magna Carta on the field of Runnymeade 718 years ago as will the passage of the National Industrial Act. It may mean that by the passage of this act we shall have repealed the great charter of human rights which guaranteed government by law instead of government by discretion which had hitherto prevailed. By this National Industrial Recovery Act we will confer upon the President of the United States wider discretionary powers of government than have ever been held by any but an absolute monarch.(21)
As usual, such voices of dissent were in the minority and the bill was enacted on 16 June 1933. A tailor by the name of Jack Magid was the first victim of the new law — he was arrested and thrown into jail for pressing a suit of clothes for thirty-five cents rather than forty cents as fixed by the Tailors' Code.(22) However, the price-fixing of the NRA soon produced a formidable black market which in turn required a large police force to combat. In the garment industry, for example, code enforcers would "enter a man's factory, send him out, line up his employees, subject them to minute interrogation, take over his books on the instant."(23) Moreover, since night work was prohibited, "squadrons of these private coat-and-suit police went through the district at night, battering down doors with axes looking for men who were committing the crime of sewing together a pair of pants at night."(24) The NRA was finally abandoned by the Roosevelt Administration because "the American people were not yet conditioned to regimentation on such a scale"(25) and "it attempted to do too much in too short a time."(26) In other words, the NRA was too strong a dose of fascism and the American people choked on it. Roosevelt learned thereafter to give his "medicine" in smaller doses.
How instructive are the following words of Justice Jackson, who wrote the concurring opinion in the Youngstown Steel case:
The appeal, however, that we declare the existence of inherent power ex necessitate to meet an emergency asks us to do what many think would be wise, although it is something the forefathers omitted. They knew what emergencies were, knew the pressures they engender for authoritative action, knew, too, how they afford a ready pretext for usurpation. We may also suspect that they suspected that emergency powers would tend to kindle emergencies. Aside from suspension of the privilege of the writ of habeas corpus in time of rebellion or invasion, when the public safety may require it, they made no express provision for exercise of extraordinary authority because of a crisis. I do not think we rightfully may so amend their work, and, if we could, I am not convinced it would be wise to do so, although many modern nations have forthrightly recognized that war and economic crises may upset the normal balance between liberty and authority. Their experience with emergency powers may not be irrelevant to the argument here that we should say that the Executive, of his own volition, can invest himself with undefined emergency powers.(27)
Roosevelt Attempts to "Pack" the Court
It was Roosevelt's bitter complaint that "we have been relegated by the Supreme Court to the horse-and-buggy definition of interstate commerce."(28) Faced with an impending decision by the Court on both the Social Security Act and the National Labor Relations Act, Roosevelt immediately went to work with Attorney-General Homer Cummings on a Court Reform bill under "the most absolute secrecy"(29) to "streamline" the Supreme Court "in order that it also may function in accord with modern necessities." The essence of the bill would give Roosevelt the power to appoint an additional justice to the Court for every one of the current justices who were over the age of seventy, but were refusing to retire. In his presentation message to Congress of 5 February 1937, Roosevelt wrote, "In exceptional cases, of course, judges, like other men, retain to an advanced age full mental and physical vigor. Those not so fortunate are often unable to perceive their own infirmities.... A lower mental or physical vigor leads men to avoid an examination of complicated and changed conditions. Little by little, new facts become blurred through old glasses fitted, as it were, for the needs of another generation; older men, assuming that the scene is the same as it was in the past, cease to explore or inquire into the present or the future."(30)
Roosevelt initially justified his proposal by claiming that it would assist the "aged, overworked justices" to deal with a growing backlog of cases. However, this excuse was immediately rebutted by Chief Justice Hughes, who informed Congress that the Court's docket was completely up-to-date. At this point, Roosevelt changed his tactic to an all-out attack on the integrity of the justices, blaming them for "cast[ing] doubts on the ability of the elected Congress to protect us against catastrophe by meeting squarely our modern social and economic conditions." He described the American form of government as a "three-horse team provided by the Constitution to the American people so that their field might be plowed" and said, "Two of the horses, the Congress and the executive, are pulling in unison today; the third [the Court] is not." He went on: "When the Congress has sought to stabilize national agriculture, to improve the conditions of labor, to safeguard business against unfair competition, to protect our national resources, and in many other ways, to serve our clearly national needs, the majority of the Court has been assuming the power to pass on the wisdom of these acts of the Congress — and to approve or disapprove the public policy written into these laws.... We have, therefore, reached the point as a nation where we must take action to save the Constitution from the Court and the Court from itself." His plan would "bring into the judicial system a steady and continuing stream of new and younger blood" and would "save our national Constitution from hardening of the judicial arteries."(31)
The primary targets of Roosevelt's criticisms were James McReynolds, Pierce Butler, Willis Van Devanter, and George Sutherland — the four conservative justices who consistently opposed him. However, there were two others — the moderate Chief Justice Hughes and the liberal Louis D. Brandeis — who were also over seventy. Thus, if the bill were passed by Congress, the number of justices on the Supreme Court would increase from nine to fifteen — the six new members, of course, being appointed by Roosevelt himself.
For Roosevelt, who had become emboldened by his recent landslide re-election, the ensuing backlash in the press against what many derided as an attempt at "court packing," was somewhat unexpected. One political cartoon showed a tiny Supreme Court justice fleeing to escape being crushed by a gigantic Executive thumb; another depicted the President ascending steps labeled "Government Reorganization" and "Supreme Court Revision," to a throne marked "Dictator." His plan was also repeatedly likened to the dictatorships of Stalin, Hitler, and Mussolini. For example, the following editorial appeared in the Chicago Tribune:
The change which Mr. Roosevelt has proposed is revolutionary. The word is used advisedly. The essential difference between free government in America and dictatorial government in Europe is the independence of our three branches of government. Mussolini dominates not only the executive branch of government but the law making and the judicial branches as well. Otherwise he would be no dictator. Precisely the same description applies to Hitler and Stalin. They are dictators because they write the laws, they put them into effect and there is no independent judiciary to which the citizens can appeal against the autocrat.
Mr. Roosevelt is the chief executive by election and he holds congress in the hollow of his hand. How lightly he regards its theoretical independence in framing the nation's laws is indicated by the fact that he gave them a draft of his judiciary bill with orders to pass it. If the bill is passed by a supine congress, as he expects, he will have control over the courts, too. From that moment the will of the President will be the constitution of the United States. And his successors will take the same view of the matter. Power once seized is rarely relinquished.(32)
The Washington Star of the tenth of February opined:
If the American people accept this last audacity of the President without letting out a yell to high heaven, they have ceased to be jealous of their liberties and are ripe for ruin. This is the beginning of pure personal government....
The Executive is already powerful by reason of his overwhelming victory in November, and will be strengthened even more if the reorganization plan for the administration, presented some weeks ago, is adopted. We have, to all intents and purposes, a one party Congress, dominated by the President. Although nearly 40 percent of the voters repudiated the New Deal at the polls, they have less than 20 percent representation in both houses of Congress. And now the Supreme Court is to have a majority determined by the President and by a Senate which he dominates. When that happens we will have a one-man Government. It will all be constitutional. So, he claims, is Herr Hitler....
And let us not be confused by the words "liberal" and "conservative" or misled into thinking that the expressed will of the majority is the essence of democracy. By that definition Hitler, Stalin and Mussolini are all great democratic leaders. The essence of democracy is the protection of minorities. Nor has a majority of this generation the right to mortgage a majority of the next. In the Constitution of the United States is incorporated the rights of the people, rights enjoyed by every American citizen in perpetuity, which cannot be voted away by any majority, ever. Majorities are temporary things. The Supreme Court is there to protect the fundamental law even against the momentary "will of the people." That is its function. And it is precisely because nine men can walk out and say: "You can't do that!" that our liberties are protected against the mob urge that occasionally arises. The Court has been traditionally divorced from momentary majorities.(33)
Even the Congress, which had previously been so compliant, proved to be an obstacle which Roosevelt could not overcome and he was forced to abandon his proposed bill in July of that same year. However, due to the resignation of Willis Van Devanter later that year, and the resignations and deaths of four more justices over the next two years, Roosevelt eventually succeeded in "packing" the Court anyway. He initially appointed Felix Frankfurter, Hugo Black, Stanley Reed and William O. Douglas to fill the vacancies — men who had little or no prior judicial experience(34) but who were liberals upon whom he could rely to push his agenda through.(35) By 1941, even the moderate Chief Justice Hughes was gone and four more justices were appointed — Frank Murphy, James F. Byrnes, Robert H. Jackson, and Wiley B. Rutledge. With no more conservatives left to stand in Roosevelt's way, this newly "revitalized" Court immediately went to work to reverse dozens of prior decisions which stood as obstacles to the "New Deal" socialist democracy. Like the Congress had in 1933, the Court thereafter "rubber-stamped" everything that Roosevelt wished to do, often resorting to convoluted interpretations of the interstate commerce clause in the Constitution to justify the expansion of Executive power into the local matters of the States. For example, this Court, with Harlan F. Stone at the helm, ruled in Kirschbaum v. Walling that the elevator operator in a privately-owned building in New Jersey was engaged in interstate commerce and therefore subject to Government regulation because one of the businesses in the building sold its products in other States.(36) In Wickard v. Filburn, the Court upheld a Government-imposed fine on a farmer who had, without a license, planted twelve acres of wheat which he fed to animals raised on his own farm to be used as food for his own family. Roscoe Filburn insisted that his actions did not involve interstate commercial activity, but the Court countered that if he had not used his own wheat for feed, he would have purchased wheat from another source, which could possibly have affected the price of wheat in other States.(37)
Another accomplishment of the Roosevelt-controlled Supreme Court was the appointment of an advisory committee to develop a unified system of procedural rules for the official establishment and operation of a uniform "summary judgment" civil court system to uphold and enforce the new administrative measures. These rules, known as the Federal Rules of Civil Procedure of 1938, when adopted by all the States, had the effect of abolishing courts of Common Law throughout the country and instituting in their place a system of courts-martial under the authority of the President as Commander-in-Chief. Thus, it is no longer necessary for citizens to be indicted for crimes by a grand jury of their peers, as guaranteed in the Fifth Amendment of the Constitution, but they are now summarily tried before military tribunals for offenses in violation of the codes, rules, and regulations created by a myriad of unelected bureaucrats under the control of the Executive. Even in the case of a jury trial, the members of the jury are carefully screened and instructed to find according to Government policy in all cases whatsoever. This will be discussed at greater length in a later chapter.
In a speech against the bill which would become the Agricultural Adjustment Act, delivered in the House of Representatives on 22 March 1933, James M. Beck of Pennsylvania stated:
I think of all the damnable heresies that have ever been suggested in connection with the Constitution, the doctrine of emergency is the worst. It means that when Congress declares an emergency, there is no Constitution. This means its death. It is the very doctrine that the German chancellor [Adolf Hitler] is invoking today in the dying hours of the parliamentary body of the German republic, namely, that because of an emergency, it should grant to the German chancellor absolute power to pass any law, even though the law contradicts the constitution of the German republic. Chancellor Hitler is at least frank about it. We pay the Constitution lipservice, but the result is the same....
But the Constitution of the United States, as a restraining influence in keeping the federal government within the carefully prescribed channels of power, is moribund, if not dead. We are witnessing its death-agonies, for when this bill becomes a law, if unhappily it becomes a law, there is no longer any workable Constitution to keep the Congress within the limits of its Constitutional powers.(38)
Beck was only partially correct: since April of 1861, it has not been necessary for Congress to declare an emergency in order to "suspend" the Constitution — that is the assumed prerogative of the President of the United States in his capacity as Commander-in-Chief of the military. It is beyond dispute that the political sovereignty, which Roosevelt himself acknowledged was the rightful possession of the people of the several States, was once again usurped in the 1930s and thereafter permanently retained by the Executive branch of the U.S. Government. We shall see how the lives, property, and financial transactions of the American people are almost entirely subject to the control of the President who, as pointed out in 1862 by Benjamin Curtis, has the "power to delegate his mastership to such satraps as he may select." The foul tree of despotism which was planted in American soil over one hundred and forty years ago by Lincoln, watered by the radical Republicans during Reconstruction, and fertilized by Roosevelt, has at last come to full fruition — America is now a socialist police State, the people have been reduced to abject slavery, and the Constitution has become little more than a curiosity in the museum of historical relics:
Constitutional dictatorship is a dangerous thing.... The most obvious danger of constitutional dictatorship, or of any of its institutions, is the unpleasant possibility that such dictatorship will abandon its qualifying adjective and become permanent and unconstitutional. Too often in a struggling constitutional state have the institutions of emergency power served as efficient weapons for a coup d'etat....
[Another risk] inherent in the constitutional employment of dictatorial institutions is the simple fact that changes less than revolutionary, but nonetheless changes, will be worked in the permanent structure of government and society. No constitutional government ever passed through a period in which emergency powers were used without undergoing some degree of permanent alteration, always in the direction of an aggrandizement of the power of the state.(39)
Endnotes
1. Albert L. Sturm, "Emergencies and the Presidency," Journal of Politics, February 1949, pages 125-126.
2. Rossiter, Constitutional Dictatorship, page 256.
3. Franklin D. Roosevelt, inaugural address, 4 March 1933; in Samuel Irving Rosenman (editor), The Public Papers and Addresses of Franklin D. Roosevelt (New York: Random House, 1938), Volume II, page 16.
4. Bank Holiday Act, Section 2(b).
5. Statutes at Large, Volume XLVIII, page 2; Title 12, United States Code, Section 248.
6. See Chapter Twenty-Two.
7. Even when such Roosevelt defenders as Clinton Rossiter have admitted the "questionable authority of section 5b of the Trading With the Enemy Act" and that FDR had acted "undoubtedly beyond the [war-time] purview of the Act of 1917" (Constitutional Dictatorship, pages 257, 258), they invariably neglect to point out these deceptive alterations in the actual wording of the Act.
8. Gold Reserve Act, Section 2(a), 4.
9. U.S. Senate, Emergency Powers Statutes.
10. John T. Flynn, The Roosevelt Myth (San Francisco, California: Fox and Wilkes, 1998), page 10.
11. Louis T. McFadden, Congressional Record — House, 9 March 1933, page 80.
12. Franklin Delano Roosevelt, On Our Way (New York: The John Day Company, 1934), page 35.
13. Roosevelt, ibid., page 36.
14. Roosevelt, ibid.
15. United States v. Briddle (1962, D.C. Cal.) 212 F.Supp. 584. What is interesting about this particular case is the court admitted that "the President was not authorized to declare a bank holiday by the Trading With the Enemy Act, but the lack of authority was remedied by the passage of 12 USCS, Section 95b." It was constitutionally impossible for the Congress to so "remedy" a violation of the Constitution and the trust of the people, and, had the Government still been bound by that document, Roosevelt would have been a prime candidate for impeachment.
16. Home Building and Loan Association v. Blaisdell (1934), 29 U.S. 398, at 448-451.
17. Ibid., at 425.
18. United States v. Butler (1936), 297 U.S. 1, 77.
19. Ibid.
20. Rossiter, Constitutional Dictatorship, page 262.
21. Ernest W. Marland, Congressional Record — House, Volume LXXVI, Part Six, pages 5698.
22. Flynn, Roosevelt Myth, page 41.
23. Flynn, ibid.
24. Flynn, ibid.
25. Flynn, ibid.
26. Ernest K. Lindley, Half Way With Roosevelt (New York: Viking Press, 1946), page 151.
27. Youngstown Sheet & Tube Co. v. Sawyer (1952), 343 U.S. 579.
28. Roosevelt, remarks at a press conference on 31 May 1935; in Rosenman, Papers and Addresses of Franklin D. Roosevelt, Volume IV, page 221.
29. Flynn, Roosevelt Myth, page 97.
30. Roosevelt, message to Congress of 5 February 1937; quoted by William E. Leuchtenburg, The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt (New York: Oxford University Press, 1995), pages 133-134.
31. Roosevelt, "Fireside Chat" of 9 March 1937.
32. "The Future of the Supreme Court," Chicago Tribune, 7 February 1937.
33. Dorothy Thompson, editorial, Washington Star, 10 February 1937.
34. Black was a trial lawyer in the 1920s in Birmingham, Alabama.
35. Felix Frankfurter immigrated with his Jewish family to the United States from Vienna, Austria in 1894. Even though he initially spoke no English, he graduated from Harvard Law School in 1906 and went on to join its faculty in 1914. During his time at Harvard, he was vilified as a Communist and many alumni demanded that he be fired for his radical political views. He was a regular contributor in the 1920s to the Progressive (Socialist) periodical, The New Republic, and was one of the principal authors of Roosevelt's "New Deal" legislation.
Hugo Black, a former member of the 1920s incarnation of the Ku Klux Klan and a Southern Populist, had been a supporter of FDR's "court packing" plan and an outspoken critic of the Hughes Court. The Populists, also known as "the People's party," claimed to be the ideological descendants of Thomas Jefferson, but were, in reality, a socialist labor movement which, according to their 1892 and 1896 platforms, opposed American industrialization, and advocated Government-ownership of public transportation and utilities, a graduated income tax in defiance of the Supreme Court's ruling in the 1895 Pollack v. Farmers' Loan and Trust Company decision (finally realized in the Sixteenth Amendment), popular election of the President and U.S. Senators (the latter realized by the Seventeenth Amendment), and, finally, called for a general expansion of the power of the central Government. The Populist philosophy was commonly referred to as "agrarianism" and the most famous of their number was Theodore Roosevelt. Populism is generally viewed by historians as the ground-breaker for the "New Deal."
Stanley Reed was a former attorney from Kentucky and a liberal Democrat who, as U.S. Solicitor General, argued for the constitutionality of the original "New Deal" before the Hughes Court. Denying that the Constitution was a "gaoler to preserve the status quo," Reed supported FDR's confiscation of gold from the American people and the nation's departure from the gold standard in 1935. He is often identified by historians as a "moderate" because he moved somewhat slower than his fellow justices.
William O. Douglas was a former professor at Columbia and Yale Law schools, but left that profession to serve on FDR's Securities and Exchange Commission in 1933. He was also a staunch supporter of the "New Deal," and at the age of 40, was both the youngest and the longest-serving justice on the Court. Douglas' liberal philosophy was best described by judicial historian Henry J. Abraham as follows: "The Douglas human rights posture would not be checked by the verbiage of the Constitution: if that document and its Bill of Rights did not provide the kind of protection for the individual Douglas deemed necessary to bring about equal justice under law as he perceived it, well, he would find it" (Justices, Presidents, and Senators: A History of the U.S. Supreme Court Appointments from Washington to Clinton (Lanham, Maryland: Rowman and Littlefield, 1999). Douglas himself admitted that "at the constitutional level where we work, 90% of any decision is emotional. The rational part of us supplies the reasons for supporting our predilections" (quoted by Robert Dowlet, "The Right to Arms: Does the Constitution or the Predilection of Judges Reign?" Oklahoma Law Review [1983], Vol. 36, No. 1). Not retiring until 1975, he was one of the justices responsible for the 1973 decision in Roe v. Wade, which struck down an anti-abortion statute of Texas, and consequently similar laws in nearly all of the States, as an unconstitutional deprivation of a woman's "right of privacy."
36. A.B. Kirschbaum v. Walling (1942), 316 U.S. 517.
37. Wickard v. Filburn (1942), 317 U.S. 131.
38. James M. Beck, Congressional Record — House, Volume LXXVI, Part One, pages 754-755.
39. Rossiter, Constitutional Dictatorship, page 13.
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