ROOSEVELT, FRANKLIN D. (1882–1945)

Franklin Delano Roosevelt, four-time President of the United States, received his formal instruction in the constitutional system at Harvard College (1900–1904) and Columbia Law School (1904–1907). The mood of the Progressive period, however, was more potent than academic doctrine in shaping his understanding of the constitutional process.

His kinsman theodore roosevelt, for whom he cast his first presidential vote in 1904, saw the Constitution "not as a straitjacket … but as an instrument designed for the life and healthy growth of the Nation." t. r. further saw the courts as "agents of reaction" and the president as the "steward of the people." if necessary, the president must be prepared to act as the savior of the constitution against the courts, a role in which t. r. cast himself when he proposed the recall of judicial decisions in 1912. service under woodrow wilson confirmed the young Franklin Roosevelt's belief in a spacious reading of executive authority, and experience as assistant secretary of the navy in wartime Washington showed him how emergency expanded presidential initiative.

After the Wilson administration, Roosevelt's return to legal practice was interrupted when he was crippled in 1921 by poliomyelitis. Elected governor of New York in 1928, he soon confronted the consequences of the Wall Street crash of 1929. He foresaw no constitutional objections to his state programs of unemployment relief, public power development, and land planning. "The United States Constitution," he said in a 1930 speech, "has proved itself the most marvelously elastic compilation of rules of government ever written." Though Roosevelt's purpose in that speech was to vindicate states ' rights, he proved marvelously elastic himself when elected President in 1932. Favoring the concentration of power at whatever level of government he happened to be serving, he became thereafter a resolute champion of federal authority.

"Our Constitution," he said in his first inaugural address, "is so simple and practical that it is possible always to meet extraordinary needs by changes in emphasis and arrangement without loss of essential form." He hoped, he continued, to preserve the normal balance between executive and legislative authority. However, if the national emergency remained critical, "I shall ask the Congress for the one remaining instrument to meet the crisis—broad Executive power to wage a war against the emergency." He thus combined optimism about the essential elasticity of the Constitution with an understanding that extraordinary executive initiative must rest, not on inherent presidential power, but on the delegation to the President of powers possessed by Congress. To this he added a certain pessimism about the federal courts, assuming, as he had said during the 1932 campaign, that the Republican party had been in "complete control of all branches of the Federal Government … the Supreme Court as well."

For this last reason he was in no hurry to send new deal legislation through the gantlet of the Supreme Court. The first major test came in February 1935 over the constitutionality of the congressional joint resolution of June 1933 abrogating the so-called gold clause in public and private contracts. If the Court invalidated the resolution, the result would increase the country's total debt by nearly $70 billion. Roosevelt prepared a radio speech attacking an adverse decision and planned to invoke emergency powers to mitigate the effects. But while the Court, in perry v. united states (1935), held the repudiation of the gold clause unconstitutional with regard to government bonds (though not to private obligations), it also held that, because the plaintiff had suffered no losses, he was not entitled to compensation. The administration's monetary policy remained precariously intact. (See gold clause cases.)

But three months later in a 5–4 decision the Court nullified the Railroad Retirement Act as an invalid use of the commerce power. Then on May 27, in schechter poultry corp. v. united states it struck down the national industrial recovery act on two grounds: that the act involved excessive delegation of power by Congress, and that it exceeded the reach of congressional power under the commerce clause. The vote against the National Recovery Administration was unanimous, as were two other decisions the same day—"Black Monday" in the eyes of New Dealers—one holding the frazier-lemke farm bank-ruptcy act unconstitutional, the other denying the President the power to remove a member of a regulatory commission without congressional consent. If the Court was warning Roosevelt not to go to extremes, Roosevelt responded by warning the Court not to go to extremes either. Calling the schechter decision "more important probably than any decision since [ dred scott v. sandford (1857)]," he said that it carried the Constitution back to "the horse-and-buggy definition of interstate commerce."

Undeterred, the Court majority prosecuted its attack. In January 1936 six Justices in united states v. butler pronounced agriculture a "local" subject, beyond Congress's power, and set aside the agricultural adjustment act. Justice harlan f. stone protested a "tortured construction of the Constitution" in an eloquent dissent. The Court majority, however, proceeded to strike down the Guffey Bituminous Coal Conservation Act, the Municipal Bankruptcy Act, and, finally, in morehead v. new york ex rel. tipaldo (1936), a New York minimum wage law. The Court, Roosevelt now said, had thereby created a "noman's-land' where no Government—State or Federal—can function." Between 1789 and 1865 the Court had declared only two acts of Congress unconstitutional; now, between 1934 and 1936, it invalidated thirteen. Doctrines propounded by the Court majority held out small hope for the social security act, the wagner national labor relations act, and other New Deal laws awaiting the judicial test. Roosevelt concluded that "[ john ] marshall's conception of our Constitution as a flexible instrument—adequate for all times, and, therefore, able to adjust itself as the new needs of new generations arose—had been repudiated."

By 1936 apprehension was spreading about the destruction of the New Deal by the unelected "Nine Old Men." Congress and the law schools were astir with proposals to rein in the Court. Roosevelt outlined three possibilities to his cabinet: limiting the power of the Court to invalidate congressional legislation; making an explicit grant to Congress of powers now in dispute; or ("a distasteful idea") packing the Court by appointing new judges. The first two courses required constitutional amendments. Roosevelt soon decided that an amendment would be difficult to frame, even more difficult to ratify, and in any event subject to judicial interpretation. The problem lay not in the Constitution but in the Court. In early 1936 he instructed Attorney General homer cummings to prepare in utmost secrecy a plan, short of amendment, that would overcome the Court's resistance.

Roosevelt did not make the Court an issue in the 1936 campaign. But his smashing victory in November convinced him that the moment had arrived. Cummings proposed legislation providing for the appointment of new Justices when sitting Justices failed to retire at the age of seventy. Roosevelt sprang the plan in a message to Congress on February 5, 1937. Claiming overcrowded dockets and overworked and overage judges, Roosevelt requested legislation that would enable him to appoint as many as six new Justices.

Postelection euphoria had evidently marred Roosevelt's usually astute political judgment. Wider consultation might at least have persuaded him to make his case as an honest confrontation of power. The pretense that he was seeking merely to ease the burdens of the Court relied on arguments that Chief Justice charles evans hughes soon demolished in a letter to the Senate Judiciary Committee. By the time Roosevelt began to present the true issue—"We must take action to save the Constitution from the Court and the Court from itself"—his initial trickiness had lost the court plan valuable momentum.

The Chief Justice had further resources. On March 29, in west coast hotel v. parrish, a 5–4 Court upheld a Washington minimum wage law, thereby in effect overruling the Tipaldo decision taken the preceding term. The "switch in time" that "saved nine" was provided by Justice owen j. roberts; because Parrish had been argued in December, Roberts's second thoughts, if affected by external circumstances, responded to the election, not to the Court plan. In March, the Court also upheld a slightly modified version of the Farm Bankruptcy Act rejected two years earlier. In April, in National Labor Relations Board v. Jones Laughlin Steel Corporation, the Court approved the National Labor Relations Act in a 5–4 decision in which, as Roberts later conceded, both he and Hughes reversed the position they had taken in condemning the Guffey Act the year before. In May the Court upheld the Social Security Act.

In two months, the Court, under the pressure of the election and the Roosevelt plan, wrought a constitutional revolution, recognizing in both federal and state governments powers it had solemnly denied them in the two previous years as contrary to the Constitution. It greatly enlarged the federal commerce power and the taxing and spending power, gave new force to the general welfare clause, altered the application of the due process clause to the states, and abandoned the doctrine of excessive delegation as a means of invalidating federal legislation.

The Court's revisionism, by lessening the felt need for reform, strengthened opposition, already vehement, to the President's plan for the Court. Democrats joined Republicans in denouncing "court-packing." In May the decision of Justice willis van devanter to resign, opening the way for Roosevelt's first Supreme Court appointment, further weakened pressure for the plan. In the interests of Senate passage, Roosevelt promised the vacancy to the majority leader Senator Joseph T. Robinson. As Robinson was both old and conservative, he was an anomalous reform choice. By summer Roosevelt was belatedly ready to entertain compromise. But Robinson's death in July brought the bitter struggle to an end.

The insouciance with which Roosevelt presented the Court plan exacted heavy costs in the future of his domestic program, the unity of his party, the confidence of the electorate, and his own self-confidence. Still, the plan attained its objective. As robert h. jackson summed it up, "The President's enemies defeated the court reform bill—the President achieved court reform." The plan forced the Court to abandon rigid and restrictive constitutional views; at the same time, the plan's rejection eliminated court packing as a precedent for the future. History may well conclude both that Roosevelt was right to propose the plan and that the opposition was right to beat it.

In the next half dozen years Roosevelt made the Court his own, appointing hugo l. black (1937), stanley f. reed (1938), felix frankfurter (1939), william o. douglas (1939), frank murphy (1940), james f. byrnes (1941), Robert H. Jackson (1941), and wiley b. rutledge (1943) as Associate Justices and Harlan F. Stone as Chief Justice (1941). In time the Roosevelt Court itself split between the apostles of judicial restraint, who had objected to the methods of the "Nine Old Men," and the activists, who had objected only to their results. But the new Court was united in affirming the reach of the national government's constitutional power to meet the social and economic problems created by the Great Depression.

With the status of New Deal legislation thus assured, Roosevelt's next tangle with constitutional issues took place in foreign affairs. The Court in united states v. curtiss-wright export corporation (1936) had unanimously endorsed the propositions that "the powers of external sovereignty did not depend upon the affirmative grants of the Constitution" and that the President had in foreign affairs "a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved." But Congress still had statutory control over vital areas of foreign policy. Neutrality, for example, had been a congressional prerogative since 1794. While Roosevelt requested discretionary neutrality legislation, he saw no practical choice but to accept mandatory laws passed by a stubbornly isolationist Congress. These laws placed the administration in a foreign policy straitjacket from which it sought to wriggle free to the very eve of Pearl Harbor.

Congress, too, retained the constitutional power to declare war. As Roosevelt reminded the French prime minister during the fall of France in 1940, assurance of aid did not imply military commitments; "only the Congress can make such commitments." And legislative power extended to a variety of defense questions. When Winston S. Churchill asked for the loan of old American destroyers, Roosevelt initially responded that "a step of that kind could not be taken except with the specific authorization of the Congress." Later Roosevelt was persuaded that he could make the transfer through executive action. Attorney General Robert H. Jackson's official opinion to this effect rested not on claims of inherent power as President or commander-in-chief but on the construction of laws passed by Congress. Critics found the argument strained, but public opinion supported the action.

The decisive step marking the end of American neutrality was the Lend-Lease Act, passed after full and vigorous debate in March 1941. Once Congress had authorized the lending and leasing of goods to keep Britain in the war, did this authority not imply an effort to make sure that the goods arrived? So Roosevelt evidently assumed, trusting that a murky proclamation of "unlimited national emergency" in May 1941 and the impact of Nazi aggression on public opinion would justify his policy. When Grenville Clark urged a joint resolution by which Congress would explicitly approve measures necessary to assure the delivery of supplies, Roosevelt replied in July that the time was not "quite right." The renewal of the draft the next month by a single-vote majority in the House of Representatives showed the fragility of congressional support. By autumn the navy, on presidential orders and without congressional authorization (until Neutrality Act revision in November), was fighting an undeclared war against Germany to protect convoys in the North Atlantic.

Roosevelt's actions in the latter part of 1941, like abraham lincoln's after the fall of Fort Sumter, were arguably unconstitutional, though not without historical precedent. He did not seek to justify the commitment of American forces to combat by pleas of inherent power as President or as Commander in Chief, and thereby proposed no constitutional novelties. If pressed, he perhaps would have associated himself with john locke, thomas jefferson, and Abraham Lincoln in asserting not continuing presidential power but emergency prerogative to be exercised only when the life of the nation was at stake.

Entry into war, as always, increased unilateral presidential authority. When under the New Deal Roosevelt had acted most of the time on the basis of specific statutes, as a war President he acted very often on the basis of general powers claimed as "Commander in Chief in wartime" and on emergency powers activated by proclamation and conferred on an all-purpose agency, the Office of Emergency Management. Of the agencies established in 1940–1943 to control the war economy, only one, the Office of Price Administration, rested on a specific statute.

This statute ironically provoked Roosevelt's most notorious assertion of unilateral authority. The Price Control Act contained a farm parity provision deemed threatening to the anti-inflation program. Roosevelt told Congress in September 1942 that, if it did not repeal the provision within three weeks, he would refuse to execute it. "The President has the powers, under the Constitution and under Congressional Acts," he declared, "to take measures necessary to avert a disaster which would interfere with the winning of the war." He added, "When the war is won, the powers under which I act automatically revert to the people—to whom they belong."

The international threat, as always, increased pressure on civil liberties. In 1940, while protesting his sympathy with oliver wendell holmes's condemnation of wiretapping in olmstead v. united states (1928), Roosevelt granted his attorney general qualified permission to wiretap "persons suspected of subversive activities against the United States." Given the conviction Roosevelt shared with most Americans that a Nazi victory in Europe would have endangered the United States, he would have been delinquent in his duty had he not taken precautionary measures. Though we know now that the internal menace was exaggerated, no one could be sure of that at the time.

Roosevelt, however, extended his concern to include Americans honestly opposed to intervention, directing the Federal Bureau of Investigation to investigate isolationists and their organizations. There was so little government follow-up of Roosevelt's prodding, however, that the prods were evidently taken by his subordinates as expressions of passing irritation rather than constant purpose. In 1941 Roosevelt appointed francis biddle, a distinguished civil libertarian, as attorney general and kept him on the job throughout the war despite Biddle's repeated resistance to presidential requests that threatened the bill of rights.

Roosevelt's preoccupation with pro-Nazi agitation increased after Pearl Harbor. "He was not much interested in the theory of sedition, " Biddle later recalled, "or in the constitutional right to criticize the government in wartime. He wanted this anti-war talk stopped." In time, his prods forced a reluctant Biddle to approve the indictment of twenty-six pro-Fascist Americans under a dubious application of the law of criminal conspiracy. a chaotic trial ended with the death of the judge, and the case was dropped.

Biddle also resisted the most shameful abuse of power within the United States during the war—the relocation of Americans of Japanese descent. Here Roosevelt responded both to local pressure, including that of Attorney General earl warren of California, and to the War Department, where such respected lawyers as Henry L. Stimson and John J. McCloy demanded action. Congress ratified Roosevelt's executive order before it was put into effect, so the relocation did not represent a unilateral exercise of presidential power. The Supreme Court upheld the program in the japanese american cases (1943–1944).

Still, despite Roosevelt's moments of impatience and exasperation, his administration's civil liberties record during world war ii was conspicuously better than that of the Lincoln administration during the civil war or of the Wilson administration during world war i. In 1944 the american civil liberties union saluted "the extraordinary and unexpected record … in freedom of debate and dissent on all public issues and in the comparatively slight resort to war-time measures of control or repression of opinion."

Roosevelt's presidency vindicated his conviction that social reform and military victory could be achieved without breaching the Constitution. A believer in a strong presidency, he was himself a strong President within, on the whole, constitutional bounds. His deviations from strict constitutional propriety were mostly under impressions, sometimes mistaken, of clear and present international danger. Those of his successors who claimed inherent presidential war powers went further than he ever did.

Roosevelt was a political leader, not a constitutional lawyer, and he correctly saw that in its major phase constitutional law is often a question of political and economic philosophy. No doubt his understanding of the practical necessity of consent was more important than technical appreciation of constitutional limitations in keeping his actions within the frame of the basic charter. But his presidency justified his inaugural assertion that the Constitution could meet extraordinary needs by changes in emphasis and arrangement without loss of essential form. His legacy was a revivified faith in the adequacy of the Constitution as a progressive document, equal to domestic and foreign emergency and "capable of meeting evolution and change."

Arthur M. Schlesinger, Jr.
(1986)