Brad DeLong's Semi-Daily Journal (2004)

It means we should pass the New Deal Economic Regulation amendment immediately (whether this is what Levy himself has in mind or not). FDR's attempt to pack the Court rather than proposing such an amendment was the most appalling thing he ever did -- worse than his neglect of the evidence for a coming Japanese attack, or his naivete about Stalin.

FDR didn't "attempt" to pack the Court in the sense of sending nominations to Congress. He threatened to do so, and the threat was serious enough that they caved. But viewing it as a conflict involving only FDR and the Court is questionable. An important part of the context is that public opinion was strongly behind FDR's efforts to deal with the Depression. And the theory behind the Court's prior decisions was dubious law. It rested on a concept of "economic due process", i.e. the Fourteenth Amendment. It's a truly perverse reading of that Amendment to read it as protecting the rights of corporations.

It's a quibble, but the language of the posting suggests that Congress could expand the Court if one of their laws was declared unconstitutional. I think all nominations have to originate in the President and the Senate only confirms a nomination.

Roger, the Congress decides how many justices there are. There have been as few as five and, I believe, as many as eleven justices (um, I'm not sure about the eleven bit--nine may be the maximum number; google has been unhelpful). FDR's plan, which was actually submitted to Congress IIRC, was to grant the president the authority to nominate one justice for each justice then serving aged over 70.

Here's FDR's own speech on the issue:

http://www.hpol.org/fdr/chat/

Here's more, from Linda C. Gugin and James E. St. Clair, Sherman Minton: New Deal Senator, Cold War Justice, a biography of an Indiana senator and later SCOTUS justice who was involved in the fight over the court-packing scheme: (p. 106)

The centerpiece of [the] proposal was laden with sweet irony. In searching for an inclusive principle that would shroud Roosevelt's scheme to subjugate the Court, Cummings hit upon the notion of a judge's age. In 1913 Attorney General McReynolds, now the leaderr of the Court's conservatives who had a perfect score of ruling against every New Deal measure, proposed that when any federal judge, except Supreme Court justices, stayed on the bench past retirement age, the president could appoint another judge. Cummings, extending this plan this plan to the Supreme Court, calculated that by putting the retirement age at seventy, Roosevelt could appoint six additional justices. Thus was born the Court-packing plan, which Roosevelt tried to conceal by making it part of an omnibus measure to reform the federal judiciary.

Paul,
Thanks for the correction. I'd forgotten that Congress would set the number of Justices under their power to regulate the courts.

FDR's attempt to pack the Court rather than proposing such an amendment was the most appalling thing he ever did -- worse than his neglect of the evidence for a coming Japanese attack, or his naivete about Stalin.

I'd have to say that the Japanese-American internment trumps all.

When exactly did the House of Lords vote to curb their power and who was the Prime Minister then? I've always wondered about this.

And the theory behind the Court's prior decisions was dubious law. It rested on a concept of "economic due process", i.e. the Fourteenth Amendment. It's a truly perverse reading of that Amendment to read it as protecting the rights of corporations.

That definitely describes decisions like Lochner, a couple of decades earlier, which were striking down STATE legislation. The anti-New Deal rested on the Tenth Amendment and the Commerce Clause, and were legally correct unless you believe that "everything Congress might ever think of doing affects interstate commerce, and since Congress has the power to regulate interstate commerce, Congress can do anything."

What interests me is this question: did the Lochner decisions, which intervened with state law in favor of big business and free enterprise, cause a "pendulum" effect that turned America against the Tenth Amendment and the idea of federalism when times got hard?

"Under what theory of politics, legislation, and the judicial power does a strict reading today of the Commerce Clause make sense?"

Broadly it goes by the term Libertarian. But then you knew that, so why the indirect question?

Reinterpreting the commerce clause would move us closer to being 50 small sovereign states. Is that more libertarian? I think it depends on how those small states decide to rule themselves. But it might very well turn out like Europe.

By the way, it's "a stitch in time saves nine." Think of a run in your stockings.

There were threats to pack the Lords in 1832 to pass the Reform Bill, and threats to pack it in the 1909/11 period to pass a bill making it impossible for the Lords to veto the Commons.

Of course Blair changed the Lords entirely.

The threat of court-packing is still there, of course. It requires some popular policy, proposed by the president and backed by both houses (filibuster-proof backing required in the Senate), which the Court is blocking. Such a situation arises infrequently. But when next it does, the Court will fold in the face of a court-packing threat.

The Convention left up to Congress decision on the size and composition of the Supreme Court, the time and place for sitting, its internal organization, save for the reference to the Chief Justice in the impeachment provision, 11 and other matters. These details Congress filled up in the Judiciary Act of 1789, one of the seminal statutes of the United States. 12 By the Act, the Court was made to consist of a Chief Justice and five Associate Justices. 13 The number was gradually increased until it reached a total of ten under the act of March 3, 1863. 14 As one of the Reconstruction Congress' restrictions on President Andrew Johnson, the number was reduced to seven as vacancies should occur. 15 The number actually never fell below eight before the end of Johnson's term, and Congress thereupon made the number nine. 16
For footnote references, see original text at:
http://caselaw.lp.findlaw.com/data/constitution/article03/01.html#3

When this note says size of court was "left to Congress", of course this means normal legislative process (an act of Congress) which includes the president's power to veto, etc.

"Under what theory of politics, legislation, and the judicial power does a strict reading today of the Commerce Clause make sense?"

Broadly it goes by the term Libertarian. But then you knew that, so why the indirect question?
~~~~~~~~

In _Wickard vs. Filburn_ the Court ruled that Commerce Clause empowers government to enact regulations that prohibit you from growing food on your own land exclusively for your own personal consumption even though it would never enter local commerce, much less interstate commerce -- because not participating in interstate commerce affects interstate commerce.

There'd seem to be some sort of excluded middle between that and libertarianism.

Barry Cushman, a law professor at UVA, has proposed a broadly revisionist interpretation of the switch in time. He claims in his book, Rethinking the New Deal Court, that the internal logic of court decisions prior to the FDR proposal were leading toward an abandonment of Lochnerism.

Cushman bases much of his book on an examination of the papers of the Justices then sitting on the bench. Several of them include explicit explanations of their decisions to modify their commerce clause interpretations, and none refer to Roosevelt's implied threat. I have a copy of the book, and would gladly post some excerpts on my site, if there is interest.

It's worth emphasizing that a Levy-appointed court would not only invalidate most federal economic regulation, but also little items like the Civil Rights and Voting Rights Acts. Obviously, his proposals are harmless because there's no chance of anything remotely like this happening, but it's certainly crackpotery. Trying to read the commerce clause is if the United States was still a primarily agrarian and local economy is a silly constitutional argument, in addition to being completely unworkable.

While talking of packing the Court for economic reasons we might remember how fiat paper money became constitutional due to Grant's "packing" the Court.

Up until the Civil War there was a pretty uniform view that constitutionally money had to be gold or silver or be backed by same. The Founders had had a bad experience with paper money during the revolution and the immediate time thereafter, and drafted the Constitution to state "No State shall ... make any Thing but gold and silver Coin a Tender in Payment of Debts", words pretty clearly implying what was generally taken to be the case (and which are still there).

During the Civil War when Lincoln gave the word to start issuing "greenbacks" Secretary of the Treasury Salmon Chase objected that it would be unconstitutional to do so. Lincoln famously replied telling him, "not to bother himself about the Constitution . . . I have that sacred instrument here at the White House, and I am guarding it with great care.".

Subsequently greenbacks of course depreciated in value relative to gold, and after the war lenders who had loaned money to the government before any greenbacks had been issued and had been promised repayment in gold but now were to get only greenbacks, sued.

As it happened Chase was now Chief Justice, and in Hepburn v. Griswold the Court ruled 5-3 that the Legal Tender laws authorizing payment in paper money was unconstitutional. This inconvenienced the government to the tune of $350,000,000 in greenbacks, and greatly irritated President Grant, who promptly "packed the
court" with two new appointments, one filling a vacancy and the other replacing a Justice who stepped down.

With the two new appointees the Court immediately decided to re-open the issue and promptly reversed itself in the Legal Tender Cases. And today we all have paper money in our wallets that is nice and constitutional -- with no state having tendered gold or silver in payment of its debts for a good long time.

I was going to cite the Wickard v. Filburn case as a good example of the commerce clause gone wild, but Jim Glass took care of that. However on the bright side, we have a relatively recent case, United States v. Lopez (1995), which set some limit on how far Congress can go using the commerce clause as a justification. The Supreme Court overturned the Gun-Free School Zone Act of 1990. The government argued that possession of a gun in a school zone does indeed affect interstate commerce because something that could be detrimental to education would ultimately affect commerce. I remember that during oral argument Scalia asked the government attorney whether he thought the commerce clause covered all activity, and he said “no.” Scalia then asked for an example of something that would not be covered under the commerce clause. The attorney couldn’t give an example. In the actual decision overturning the Gun-Free School Zone Act, Rehnquist commented that under the government’s theory, we could federalize family law. Just how far the feds can reach under the commerce clause does seem to be a real boundary line between liberals and conservatives.

"Reinterpreting the commerce clause would move us closer to being 50 small sovereign states. Is that more libertarian? I think it depends on how those small states decide to rule themselves. But it might very well turn out like Europe."

In most cases states can already increase the restrictions on commerce beyond the federal legislation (i.e. states can increase the minimum wage beyond the federal level ). So I do think a strict commerce clause would move toward a more libertarian set of laws. If we ended up more like Europe it would probably be in a swiss direction, and that might not be a bad thing.

Perhaps we should also revive the anti-delegation doctrine. With most administrative agencies captured by the industries they're supposed to regulate, administrative law these days is pretty bad. If we're going back to the Gilded Age, let's go all the way.

A restrictive reading of the Commerce Clause would have some interesting side effects that I'm not sure conservatives would like. The Supreme Court has interpreted the Commerce Clause to mean that states can't pass laws that frustrate interstate commerce. The best example is the mud flap case. I believe it was Illinois that had a law mandating that trucks have mud flaps of a different shape than that required in the other states. Trucks would literally have to stop at the Illinois line and change mud flaps. This was ruled unconstitutional based on the structural implications of the Commerce Clause. Let's have states tightly regulating business, a national crazy quilt of economic regulation. May fifty economic regulatory flowers bloom; may fifty economic schools of thought contend.

The Congress shall have Power . . .;

. . .

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

. . .; And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

What does Levy mean by this? Seems pretty open-ended. And the good Prof. is correct that it has been defined as just a wedge shot short of Congress can to anything it wants to do.

Re: Wickard and Lopez (as brought up by Glass and Zarkov comments).

The decision to uphold the government's enforcement of the 1938 AAA (under which Filburn's wheat was regulated) was based on the following chain of logic:

1. Congress has the authority to regulate matters which have a substantive or material impact on interstate commerce (this stems from decisions in the E.C. Knight case).

2. Following from this, the government has authority to regulate the price of goods as part of its interstate commerce power. As the price of wheat is determined by the supply of wheat, Congress therefore is empowered to take measures regulating the supply of wheat ("necessary and proper").

3. There is no effective distinction between "on-market" wheat and "off-market wheat", since the concept of "the market" is pretty abstract and arbitrary. In essence, *wheat is wheat is wheat*, regardless of its intended disposition. Thus a policy structured aroung controlling the supply of wheat (stemming from the policy of regulating the price of wheat, stemming from the Commerce Clause) ultimately boils down to a policy regarding the production of the wheat.

4. Since Congress has the power to make laws necessary and proper to fulfilling its power to regulate commerce, it therefore has the power to regulate anything that would materially affect the total supply of wheat, including the production of Filburn's home-grown wheat.

Lopez doesn't really challenge this logic. What it does is hold Congress up to its end of the bargain. Congress can still legislate away on matters that have a substantive impact on interstate commerce. They just actually have to illustrate (and be prepared to back up the claim) that there IS a substantive impact. The government was woefully incapable of explaining how the Gun Free Schools law had *anything* to do with the Commerce Clause.

So it turns out that allowing changes to the size of the supreme court to be made by ordinary Congressional legislation and not by constitutional amendment, the founding fathers did not foresee and forestall a mechanism by which the constitutional jurisprudence of Supreme Court could be subverted.

It's not at all clear, by the way, either that FDR could have carried his court packing plan in Congress, or that the reversal of this decision was vital or even important for managing the end to the depression.

For your interest, Roy Jenkins's book on the 1911 showdown between Lloyd George and the House of Lords notes that Asquith's papers contain a list of about 250 individuals who would have been raised to the peerage, with the King's agreement, in order to ensure the passage of the 1911 Parliament Act reducing the powers of the House of Lords. Does anyone know who FDR had in mind to appoint to the Supreme Court if his court-enlarging proposals had succeeded? Was there a list?

One further point:

"Come 1937, therefore, Roosevelt proposes to pack the Supreme Court: to have Congress pass a law enlarging it, and to appoint judges who will see the law as Roosevelt does. Success of such a court-packing plan would have turned the Supreme Court into something more like the British House of Lords, where the Prime Minister's threat to have the King appoint new peers if the Lords did not acquiesce was an extremely powerful factor in curbing its power."

Rather, the success of the threat to pack the Court shows that the Surpeme Court *is* like the House of Lords, and that threats to pack it can change its policy on fundamental matters.

'We might now have a Supreme Court of 41, as new judges are added by Congress every time the Court rules that something a solid Congressional majority seeks to do is unconstitutions.'

No you might not: FDR proposed to appoint one new judge for every Supreme Court justice *aged 70 or over* who did not retire, so you wouldn't have seen a bench of 41 unless there was an impossibly huge number- at least 16, I reckon- of non-retiring septuagenarians.

Dan

Presumably, Delong's point is that the political branches might continue to come up with new schemes to appoint more judges, if FDR's original scheme had been enacted...

When exactly did the House of Lords vote to curb their power and who was the Prime Minister then?

In 1911. Asquith was Prime Minister and the pressure was put on to force through Lloyd George's "People's Budget". The powers were further curbed in the late 40s by a second Parliament Act, itself passed under the 1911 Act and one of the very few (possibly only two, with the War Crimes Act) occasions when the 1911 Act has actually been used rather than threatened. The legality of the 40s Act actually remains doubtful and may soon be called into question in the courts.

This is the House of Lords as the second Chamber of Parliament, not the House of Lords as the highest appeal court of course: the two have been practically if not theoretically distinct since the late 19th century.

The medical marijuana case going before the court on this very issue is a good example of an argument for a more restrictive reading. The current federal position for a broad intrusive right to regulate essentially rests on the proposition "Because we can".

There is no scientific evidence for Ashcroft's assertions that medical marijuana is without merit, or even for the current "classification" of marijuana as a Schedule 1 Narcotic. In fact, the federal government has consistently acted in the most lawless manner regarding this entire issue.

Nor is there any doubt that the feds are attempting to regulate activities, expressly authorized by state statute, that do not cross state lines (unless you consider the spread of knowledge to be a sort of "product" that must be regulated).

You can, in fact, hedge medical marijuana activity with every safeguard of privacy and strike every element of commerce from the activity, as in the case of a patient growing their own in accord with their doctor's suggestion, and the intent of the feds to reach into the local community and home remains the same.

This is the flip side of Roosevelt's coin. Many, possibly most, people in the 30s believed that the Court was acting, not in accord with law, but in accord with the reactionary beliefs of the Justices. Any close student of American politics might be inclined to agree.

And this, some would say, is the very fabric of our form of government, pluralism, or, politics makes strange bedfellows.

However that may be, the facts surrounding the medical marijuana case are a strong argument for curbing the intrusive power of the federal government.

I've always wondered why the "promote the general welfare" clause doesn't give open-ended powers. Why is a forced interpretation of Commerce Clause used?

Zizka: Read that clause in its grammatical context. We ordain and establish the constitution IN ORDER TO promote the general welfare. The preamble doesn't grant any powers, it's just what modern organizations would call a "mission statement".

Congress's actual powers are, IIRC, in Article 1 Section 8, and Amendments 13-16, 19, 23, 24, and 26.

Otto says:'Presumably, Delong's point is that the political branches might continue to come up with new schemes to appoint more judges, if FDR's original scheme had been enacted...'

I don't see that Prof De Long is arguing that. But if anybody is, to argue that specific constitutional amendment a would necessarily have led to constitutional amendments b, c, d et seq. seems very weak reasoning to me.

Dan says: "...to argue that specific constitutional amendment a would necessarily have led to constitutional amendments b, c, d et seq. seems very weak reasoning to me."

Maybe so, especially if the emphasis is on necessarily. But the 1832 threat to create peers did create a precedent for the 1911 threat to create peers which reduced the powers of the House of Lords, and both 1832 and 1911 threats provided precedent for the 1949 reduction in the power of the House of Lords, and further reforms, including creation of the life peerage in the 1960s and Blair's removal of most of the hereditary peers in the late 1990s. So one constitutional change can certainly lead to other, different, constitutional changes which push the original idea much further along.

Which I believe was the point of DeLong's comparison...

"Under what theory of politics, legislation, and the judicial power does a strict reading today of the Commerce Clause make sense?"

<snarky>Libertarian theology?</snarky>

Dan, Otto's explanation is perfectly clear and wholly in line with Brad's meaning. This is one of those slippery slopes that really could have happened.

Apologies for misremembering the number of associate justices up-thread.

The Lopez case is one of the few where I side with the conservative majority. Reading Souter's dissenting opinion is cringe-worthy.

Congress should, as a rule, butt out of state affairs, except where 14th amendment protections enter.

That and portable health insurance and retirement pensions. If one state provides a bennie, it should be mandated to be portable to all other states -- sucks to be locked into one state due to one's retirement plan fer instance.

I think a strict reading of the commerce clause makes sense because government theoretically works best on a local level. I don't want senators from Alabama telling me how to live my life, and I expect the feeling is mutual.

I'm basically a Federalist, except I reject the way this line of thought is used to mask stripping people constitutional minumums.

The Feds should be in the business of guaranteeing minimum rights, not mandating maximum rights (eg medical pot, right-to-die, abortion controls, etc).

Otto- fair enough. I can't prove that passage of FDR's amendment wouldn't have led to such a process.

By the way, it's "a stitch in time saves nine." Think of a run in your stockings.

I was under the impression that it was a witty re-interpretation of a tired old cliche that should have been shot in the head with a .45 and buried in the desert a long time ago.

Brad DeLong writes, "In the absence of the switch in time that saved nine, it is not clear what would have happened. We might now have a Supreme Court of 41, as new judges are added by Congress every time the Court rules that something a solid Congressional majority seeks to do is unconstitutions. We might have a New Deal Economic Regulation amendment in the Constitution: "The Congress shall have the power to regulate commerce and employment among and within the several states."

This paragraph presents only two possibilities. It ignores a third possibility: FDR would have been repudiated, and the Constititution would have held.

*Every* account I've ever read or heard--probably at least a half dozen--of the history of the Supreme Court packing incident was that the packing attempt was universally viewed by the public as outrageous. I've never understood why the Court caved.

They coulda been contendas, instead of bums, like FDR.

Mark

Maybe so. But, IIRC, the Caro biography of LBJ describes Lyndon campaigning successfully in Texas backing the Court reorganisation on a platform of Roosevelt, Roosevelt, Roosevelt!

If there's any historical analysis of this question, I'd appreciate the reference.

To Otto, who asked if the framers failed to recognize the possibility of Congress undoing the constitutional rulings of the Supreme Court, you have to remember that there was no consensus at that time that the Courts had any right to declare acts of Congress to be unconstitutional. Think Marbury, nullification and Jackson versus Marshall.

The framers did, in fact, give Congress a much more effective lever for managing the courts: the power to limit the jurisdiction of the federal courts. While Dixiecrats tried to pass provisions depriving the federal courts of the power to order busing to desegregate schools in the 1960s, nothing ever came of those proposals.

The only case where Congress used this power effectively was the Norris-LaGuardia Act, passed at a time when the prevailing jurisprudence regarding property rights and freedom of contract would have made it impossible for Congress to pass these restrictions as substantive law (although that is what they ultimately metamorphsed into, when combined with anti-trust law). The fact that Congress hasn't seized the opportunity in other cases shows, I suppose, how much we look to the courts to legitimize our political decisions.

Otto writes, "If there's any historical analysis of this question (how people viewed FDR's Supreme Court packing scheme), I'd appreciate the reference."

Here is one analysis from the Internet. (I found more that corroborated the contention that people didn't like the scheme, but I've since lost the bookmarks, and I'm too lazy to find them again.) I was thinking primarily of the history class I took in college on the Depression, when I wrote about the public viewing the scheme as outrageous.

http://www.findarticles.com/p/articles/mi_m1111/is_1830_305/ai_94044080/pg_3

"If Roosevelt won a victory with the change in the thinking and makeup of the Court, it came at an enormous price. For the first time since his election, his Republican and conservative Democratic opponents found common cause. Worse, even some of Roosevelt's staunchest allies--New York Governor Herbert Lehman, Nebraska Senator George Norris--broke with him on the issue. Montana Senator Burton Wheeler, moreover, destroyed FDR's contention that old judges were slowing down the wheels of justice by dramatically producing a letter from the chief justice demonstrating that the Court had actually maintained its pace in recent years. Eventually the court-packing proposal was shipped back to committee, never to be heard from again. And out of this struggle was born the Republican-Southern Democrat coalition that ran the Congress for the next thirty years, postponing the civil-rights victory by a generation. Roosevelt never again regained his mastery over the Congress. Then Agriculture Secretary and future Vice President Henry Wallace was not exaggerating when he said, 'The whole New Deal really went up in smoke as a result of the Supreme Court fight.'"

Saepe creat molles aspera spina rosas - Often the prickly thorn produces tender roses. (Ovid)

Semper fidelis - Always faithful (US Marines Motto)

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