Constitutional History, 1933–1945

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With the exception of the civil war –reconstruction era and the turbulent decade of the 1960s, no period in our history generated more profound changes in the constitutional system than the years of the Great Depression and world war ii. Although the tenure of a Chief Justice of the United States often marks the boundary of a particular constitutional epoch, in this period it was a single President, franklin d. roosevelt, whose personality and policies dominated the nation's political landscape, first as the leader of a domestic "war" against economic chaos, and, finally, as the architect of victory over the Axis powers. "Most of us in the Army have a hard time remembering any President but Franklin D. Roosevelt," remarked one soldier at the time of Roosevelt's death in April 1945. "He was the commander-in-chief, not only of the armed forces, but of our generation."

Roosevelt, described by Justice oliver wendell holmes as having a "second-rate intellect, but a first-rate temperament," was a charming, politically astute country squire from Hyde Park, New York. Crippled by polio at thirty-nine, elected President a decade later, he presided over five momentous revolutions in American life. The first, arising from his confrontation with the Supreme Court, has been aptly termed the "constitutional revolution" of 1937. The Court abandoned its long campaign, dating from the 1880s, to shape the content of the nation's economic policy by means of the judicial veto. The second revolution elevated the presidency, already revitalized by theodore roosevelt and woodrow wilson in the Progressive era, to the pinnacle of leadership within the American political system. FDR did not invent the "imperial presidency," but his mastery of the radio, his legislative skills, and his twelve-year tenure went far toward institutionalizing it, despite several notable setbacks at the hands of Congress and the Court.

The third revolution, symbolized by the expansion of federal grant-in-aid programs, the social security act of 1935, and the efforts by the Department of Justice to protect civil rights under the old Reconstruction-erastatutes, significantly transformed American federalism by making the national government the chief custodian of economic security and social justice for all citizens. The fourth, marked by the revitalization of old independent regulatory commissions such as the Interstate Commerce Commission, saw the final denouement of laissezfaire capitalism and the birth of state capitalism, managed by a bureaucratic elite drawn from the legal profession, the academic world, and private business. And the fifth revolution, characterized by the unionization of mass-production industries, the growing influence of urban-labor representatives in the Congress, and Roosevelt's successful effort to attract support from ethnic minorities, brought a major realignment in voting blocs and party strength that lasted three decades.

The triumph of Roosevelt and the Democratic party in the 1932 elections represented both the outcome of short-term political forces and the culmination of voting realignments that began much earlier. The inability of the herbert hoover administration to stop the slide into economic depression after the stock market crash of 1929 represented the most obvious and immediate source of Roosevelt's appeal. More significantly, his victory ended an era of Republican domination in national politics that began with william mckinley in 1896, and it ushered in a Democratic reign that lasted well into the 1980s. From McKinley to Hoover, the Republicans controlled the White House, except for Wilson's two terms (1913–1921), a Democratic interlude that rested mostly upon divisions in Republican ranks.

The Republicans also controlled both houses of Congress for twenty-eight of the thirty-six years between McKinley and Franklin Roosevelt, elected a majority of the nation's governors and state legislators outside the South, and even enjoyed great popularity in big cities among trade unionists, middle class professionals, and many ethnic-religious minorities. On a platform of high tariffs, sound money, low taxes, and rising prosperity, the GOP built a formidable national coalition.

The Republican coalition developed signs of collapse during the Warren G. Harding-Calvin Coolidge-Herbert Hoover years as economic distress increased among farmers and industrial workers despite the vaunted prosperity of the Republican New Era. In 1924, running as an independent on the Progressive party ticket, the aging Senator Robert LaFollette garnered a healthy share of votes from both urban workers and staple-crop farmers, who protested with their ballots against the economic conservatism of Coolidge and his Democratic rival, John W. Davis, a prosperous Wall Street lawyer. Hoover easily defeated New York governor Alfred E. Smith in 1928, but Smith—Irish, Roman Catholic, opposed to prohibition, and urban to the core—detached millions of ethnic, working class voters from the Republican party. Three years of economic distress which also alienated farmers, businessmen, and the once-affluent middle classes, completed the realignment process and assured Roosevelt victory in 1932.

From 1932 until his death, Roosevelt forged his own national coalition. Anchored in the lily-white South and the big cities where the Democratic party had been powerful since the days of andrew jackson and martin van buren, Roosevelt welded together a collection of social, ethnic, regional, and religious minorities into a new political majority. In peace and war, the new deal gave power, status, and recognition to those who had been outsiders in American society before the Great Depression—Irishmen, Jews, Slavs, white Southerners, and blacks.

Within this broad, diverse "Roosevelt coalition," the power and influence of organized labor and the urban wing of the Democratic party grew impressively, especially after the elections of 1934 and 1936 and the passage of the wagner (national labor relations) act in 1935. Roosevelt's nomination in 1932 had been made possible by the support of key southern leaders. The success of the New Deal after 1934 and Roosevelt's electoral victories in 1940 and 1944, however, rested upon the political acumen and money provided by big labor through the political action committees of the Congress of Industrial Organizations. Roosevelt built well. His coalition ran both houses of Congress in every year but eight during the next half century. It elected harry s. truman in 1948, john f. kennedy in 1960, lyndon b. johnson in 1964, and jimmy carter in 1976.

Neither of the two amendments to the Constitution ratified during this period owed their inspiration directly to Roosevelt or the New Deal, although the twentieth amendment, eliminating the lame-duck session of Congress, had been pushed by leading progressives for over a decade, and the twenty-first amendment, repealing national prohibition of liquor, had been endorsed by the Democratic party in its 1932 platform. Both amendments were proposed in 1932, the first time since 1789 that a single Congress had sent to the states for ratification more than one amendment. Congress also specified an unusual ratification procedure for the Twenty-First Amendment, requiring the states to convene special ratifying conventions instead of submitting the measure to their legislatures. Proponents of prohibition repeal feared that the legislatures, most of them malapportioned in favor of rural constituencies, would not be sympathetic to ratification.

Supporters of the Twentieth Amendment, led by the venerable progressive senator from Nebraska, george norris, argued that the existing short session of Congress which met from December until March was a barrier to effective majoritarian democracy. By an accident of history, Congresses elected in November of even-numbered years did not meet in regular session until December of the odd-numbered year. Norris's amendment, first passed by the Senate in 1923, proposed to correct this situation by moving forward to January 3 from December the date on which sessions of Congress began and shifting back to January 3 and 20 from March 4 the date on which the terms of office began for members of Congress, and the President and Vice-President, respectively. A newly elected Congress, reflecting the fresh mandate of the people, would meet two months after an election rather than thirteen months later.

The Senate passed the Norris plan five times after 1923, but it failed to advance in the Republican-dominated House of Representatives, where the Speaker, Nicholas Longworth, opposed it. Longworth wished to keep the lame-duck session as a check upon the turbulent masses and he also objected to a provision in the Norris amendment that allowed Congress to determine the date of its own adjournment each year. Such flexibility, he believed, would only encourage more lawmaking by Congress, a prospect that he and other conservatives viewed with great distaste. The 1930 elections returned Democratic majorities to both houses of Congress, who quickly passed the Twentieth Amendment and sent it on to the states where it was ratified three years later.

American temperance organizations struggled for more than a century to achieve their goal with the adoption of the eighteenth amendment in 1919. It took the "wet" forces little more than a decade to bring the brewery, the distillery, and the saloon back to American life through ratification of the Twenty-First Amendment nine months after Roosevelt took office. Like the resurgence of the Democratic party, the repeal of national prohibition reflected a fundamental shift in political forces. The Congress that passed the Eighteenth Amendment during world war i was overwhelmingly rural, with House seats apportioned on the basis of the 1910 census, the last to record a majority for the countryside rather than the cities. The 72nd Congress, on the other hand, reflected the reapportionment of the House in 1929, where twenty-one states (mostly from the rural South and West) lost representation and eleven states (mostly in Eastern metropolitan areas) increased their share of seats.

In addition to providing urban-ethnic voters with a measure of symbolic revenge for the inconvenience of a "dry" decade, the repeal of prohibition had wide appeal in a nation reeling from economic depression and plagued by criminal violence. Sponsors argued that repeal would boost employment, raise tax revenues, and permit law enforcement personnel to concentrate upon the apprehension of major criminals such as John Dillinger. With equal vehemence, defenders of the "dry" faith claimed that repeal had been hatched by millionaires and rich corporations, eager to shift their tax burdens onto poor consumers of alcohol, and that Satan would conquer America. Thirty-six states, more concerned for the nation's fiscal problems than for the wiles of Satan, ratified the repeal amendment by December 1933.

The legislative program of the New Deal had a more direct impact upon the fate of the old child labor amendment, which had passed Congress in 1924 but had failed to secure ratification by three-fourths of the states. As late as 1937, only twenty-eight state legislatures had ratified the proposal which would have authorized Congress to regulate or prohibit the labor of persons under eighteen years of age. Fifteen states, mostly in the South and border regions, had rejected it; five had failed to act. The amendment became moot, however, when Congress in 1938 passed the fair labor standards act, which contained a similar restriction, and when the Supreme Court upheld its constitutionality in united states v. darby lumber company (1941).

As usual, formal constitutional revision on the state level during these years was more extensive and diverse than for the federal government, although only three states (New York, Missouri, and Georgia) entirely rewrote their constitutions. At one extreme were states such as Tennessee and Illinois, where constitutional innovation remained minimal. The fundamental law of Tennessee had not been amended since 1870, while the Illinois Constitution of 1890 had been revised only twice since that date. On the other hand, voters in Louisiana were asked to adopt twenty-eight constitutional amendments in 1938, nineteen in 1940, ten in 1942, and nineteen in 1944, creating an organic law that filled nearly 300 pages with 200,000 words. California ran a distant second. By the end of World War II, its constitution of 1879 had been amended 250 times and totaled close to 50,000 words.

Unlike the United States Constitution with its broad, sweeping language, most state charters in this period included detailed declarations of public policies; the amendment process often served as a surrogate for statutory changes. In 1944, for instance, 100 proposed amendments were put before the voters in thirty different states. In California, Arizona, Oregon, and Washington the electorates defeated amendments to enact old-age pension schemes. Arkansas and Florida adopted right-to-work amendments that banned union shops, while California spurned a similar amendment. In the same year voters in other states were asked to pass upon amendments dealing with the location of airports, poll taxes, dog racing, and preferential civil service hiring for veterans.

Because of the era's economic crisis, which combined high unemployment, business failures, and falling tax revenues, all of the states confronted similar constitutional crises, because their organic laws usually limited state indebtedness. Escalating relief burdens placed a severe strain upon the states' fiscal resources, especially before the New Deal picked up a larger share of these costs after 1935. Legislatures and governors often found paths around these obstacles through constitutional experimentation: amendment, referendum, and judicial interpretation.

The age of Roosevelt, marked by class conflict and intense political controversy over both the economy and foreign affairs, spawned many durable myths about the presidency, the growth of federal authority, and the relationship between government and the private sector. Roosevelt's critics, who hated the New Deal and distrusted his diplomacy, accused him of erecting a Presidential dictatorship. The New Deal and the mobilization of the war economy, it has been argued, also transformed the federal union as well as business-government relationships by subjecting local government and business corporations to the despotism of Washington bureaucrats. There is some truth in these generalizations but also considerable exaggeration.

Few political leaders in our history could match Roosevelt's oratorical gifts, his skill at dispensing patronage, and his deft manipulation of subordinates, the press, Congress, and opponents. But Roosevelt also experienced a number of profound setbacks between 1933 and 1939 that limited presidential power even during the unparalleled economic crisis of the Great Depression. It was World War II that shifted the balance decisively in his favor, but even during those turbulent years he usually functioned within boundaries set by Congress and public opinion.

Under the New Deal, the years of presidential preeminence in the shaping of domestic policy were remarkably fertile but brief. During the so-called Hundred Days, from Roosevelt's inauguration to early June 1933, Congress rubber-stamped dozens of White House proposals, including new banking laws, the first federal securities statute, a complete overhaul of the nation's monetary system, legislation creating the Tennessee Valley Authority, as well as laws setting up the controversial National Recovery Administration and the New Deal's basic farm program. Acting under the dubious authority of the World War I Trading with the Enemy Act, Roosevelt banned gold exports and all foreign exchange transactions until Congress approved of the administration's monetary plans that nullified gold clauses in private and public contracts and devalued the dollar by almost twenty-five percent. Equating the Depression with war, Roosevelt asked for and received from Congress the resources appropriate for a military commander battling a foreign invader.

The 1934 elections gave the President even larger majorities in Congress. This mandate encouraged a second burst of New Deal reforms in 1935. Again responding to presidential initiatives, Congress adopted a series of path-breaking laws, including the Social Security Act, the Wagner National Labor Relations Act, a $4.8 billion relief and public works measure, and a significant revision of the federal tax code that closed many loopholes and levied new surcharges on the very rich. Despite the judicial mutilation of key administration measures in 1935–1936, executive power probably stood at its peacetime zenith after Roosevelt's crushing reelection victory in 1936.

Even during these years of strong presidential leadership, Roosevelt's claims to authority did not go unchallenged. The federal courts remained a bastion of conservative Republicanism. Federal judges had issued hundreds of injunctions against New Deal programs by early 1935, when the Supreme Court began to invalidate many of the laws of the Hundred Days, including the national industrial recovery act (NIRA) and the agricultural adjustment act. The most serious rebuff to the President came in the Schechter case, where the Justices invalidated the NIRA on the ground of improper delegation of power to the executive, and humphrey ' s executorv. united states (1935), where they curbed the President's power to remove members of independent regulatory commissions.

These judicial affronts to presidential authority became a war during FDR's second term, beginning with his ill-devised scheme to "pack" the Supreme Court with additional Justices. His proposed "Judicial Reform Act of 1937" inspired criticism both from conservatives and from many of the President's liberal friends in the Congress as well. This bitter legislative struggle divided the New Deal coalition, squandered much of the political capital that Roosevelt had accumulated during the previous four years, and gave rise to cries of "dictatorship," "tyranny," and "fascism." When the dust settled, the Court-packing plan had been defeated by Chief Justice charles evans hughes and opponents in the Congress, but the Supreme Court never again seriously challenged the New Deal.

The economic recession of 1937–1938 and Roosevelt's attempt to restructure the executive branch dealt new blows to presidential leadership and prestige. Having taken credit for the economic upturn in 1935–1936, the President had to absorb the blame for the "Roosevelt recession," which had been triggered in part by his own desire to cut federal expenditures and balance the budget. Congress also scuttled his plans to reorganize the executive branch which rested upon the recommendations of a blue-ribbon committee on administrative management. The original bill called for an enlargement of the White House staff, creation of the Executive Office of the President to include the Bureau of the Budget, and a consolidation of existing bureaus, agencies, and commissions into twelve superdepartments under the President's control. The independent regulatory commissions such as the Federal Trade Commission, the Interstate Commerce Commission, and the Securities Exchange Commission would have been regrouped under the authority of these executive departments.

Congressional opponents denounced the plan as another presidential power grab. Working in tandem with rebellious bureaucrats who hoped to protect their own fiefdoms from the White House, they easily defeated the most controversial features of the plan. Roosevelt got his Bureau of the Budget and a larger staff, but little more. His political fortunes hit rock bottom in the 1938 elections, when several conservative Democratic senators won reelection despite Roosevelt's effort to purge them during bitter primary campaigns. Confronted by an emerging conservative congressional coalition of southern Democrats and midwestern Republicans, Roosevelt had lost the initiative on domestic policy by the time German troops marched into Austria and Czechoslovakia.

The growth of presidential power, checked at the end of the 1930s, received new impetus after 1938 from the coming of World War II. Although the Supreme Court had reaffirmed in the broadest possible terms the President's constitutional authority over foreign policy in united states v. curtisswright export corporation (1936), the actual limits of that authority remained to be tested. Sometimes alone and sometimes with congressional support, between 1939 and 1945 Roosevelt enlarged presidential power to an extent unknown even during World War I and the early New Deal.

Facing substantial isolationist sentiment both in Congress and among the public, Roosevelt initially attempted to counter Germany and Japan by means of executive agreements and executive orders that rested exclusively upon his claims to inherent presidential authority to conduct foreign relations and command the armed forces. He applied economic sanctions against Japan, terminating a 1911 commercial treaty, banning sales of scrap iron and steel, and freezing all Japanese financial assets in the United States. He ordered naval patrols of the western Atlantic—virtually assuring hostilities with German U-boats—and he ordered the military occupation of Iceland, with attendant naval convoys to protect ships supplying the occupation troops. In brief, Roosevelt waged an economic war in Asia and shooting war in the Atlantic without the consent of Congress.

The most extraordinary assertion of presidential power before Pearl Harbor was the destroyer-bases executive agreement in September 1940, by which Roosevelt transferred fifty over-age American destroyers to the British government in return for leases on seven naval bases in the Caribbean. This transaction, through which the President gave away a substantial portion of the United States Navy, rested upon a generous interpretation of an old nineteenth-century statute which permitted the President to dispose of worn-out ships. Most observers have believed that this action subverted the intention of Congress and violated a 1917 law specifically prohibiting the President in any foreign war "to send out of the jurisdiction of the United States any vessel built, armed, or equipped as a vessel of war." Attorney General robert h. jackson, who advised Roosevelt on the legality of the transfer, dismissed this statute on the grounds that it applied only to ships built with the specific intention of giving them to a nation at war.

After the Japanese attack on Pearl Harbor Congress rapidly augmented presidential control over both military policy and the domestic economy. By means of the renewal of Lend-Lease, the Second war powers act, the emergency price control act, the War Labor Dispute Act, and other laws, Congress gave the President the discretion, among other things, to allocate $50 billion of war supplies to America's allies, to reorganize all executive departments and agencies at will, to fix rents and prices throughout the land, and to seize industrial plants closed by strikes. In 1935, invalidating the NIRA, the Supreme Court had scolded Congress for vesting unbridled authority in the President to regulate the economy. Ten years later, as World War II drew to a close, executive discretion over the nation's economic structure far transcended that of the NIRA years.

A substantial enlargement of presidential discretion was essential for effective prosecution of World War II, but the growth of executive power carried with it threats to civil liberties and unfathomable dangers to the survival of the human race. The Congress that permitted the President to restructure the executive branch also approved of the administration's plans to remove Japanese Americans from the West Coast. (See japanese american cases.) The Congress that permitted the President to ration sugar and gasoline also gave the Commander-in-Chief a blank check for research, development, and potential use of nuclear weapons. This was truly, in Justice benjamin n. cardozo's memorable phrase, "delegation run riot."

The expansion of federal responsibility for economic management and social services paralleled the growth of presidential power between 1933 and 1945. In a series of cases beginning with the wagner act cases (1937) and ending with wickard v. filburn (1942), the Supreme Court laid to rest the antiquated notions of dual federalism, which had postulated the existence of rigid constitutional boundaries separating appropriate federal activities from those reserved exclusively to the states. In the wake of these decisions and those upholding the Social Security Act, there seemed to be no constitutional limitation upon the authority of Congress to regulate interstate commerce and to tax and spend on behalf of the general welfare, even where these federal efforts intruded deeply into areas of social and economic life traditionally left to local government. Practice often preceded formal doctrinal legitimation. In 1934, for instance, the Bureau of Biological Survey in the Department of Commerce eradicated over seven million disease-carrying rodents in three states with a $8.7 million grant from the Civil Works Administration. Although this project produced no constitutional objection, a more sweeping federal intrusion into the domain of local health authorities is hard to imagine.

The most far-reaching instrument of expanding federal policymaking became the myriad programs of federal grants-in-aid which provided federal money for specific activities to be administered by state officials under federal guidelines. As early as 1862, the morrill act had conveyed federal lands to the states on condition that they be used for the construction and support of colleges and universities. In the Weeks Act of 1911, Congress had extended this principle to include cash grants to the states for fighting forest fires in the watersheds of navigable streams. Similar grant-in-aid programs flourished during the Wilson administration for vocational education, highways, and agricultural extension work, but budget-conscious Republican administrations had put a cap on new programs during the 1920s.

In their efforts to fight the depression, both the Hoover and Roosevelt administrations increasingly used the grant-in-aid technique. The Emergency Relief and Construction Act of 1932, approved reluctantly by Hoover, offered over $600 million in federal loans to the states for work-relief projects. The Roosevelt administration substituted grants for loans in the relief programs of the New Deal. By 1940, in addition to these vast relief activities and the continuation of old programs from the Progressive era, the New Deal had undertaken grant-in-aid programs for employment services and unemployment compensation, old age assistance, child welfare services, and maternity care. Social Security, the largest New Deal grant-in-aid program, assisted the blind, the disabled, and the unemployed through combined federal-state efforts.

The growth of federal grant-in-aid programs during the New Deal years rested upon the realization that many social and economic problems required national attention and that only the federal government commanded the fiscal resources to deal with them. Between 1932 and the end of World War II, the federal government's share of total taxes collected rose from twenty-four percent to nearly seventy-four percent. At the same time, grant-inaid programs avoided the growth of an even larger federal bureaucracy and left many important administrative decisions in the hands of state and local officials.

In addition to grant-in-aid programs, state and local elites played a major role in the implementation of other New Deal efforts as well, a pattern of political decision making that refuted simplistic ideas about rampant centralization of power in federal bureaucrats. The heart of the New Deal's farm program, the domestic allotment system, vested important decisions in county committees composed of farmers and extension-service personnel chosen by local authorities. Under the Taylor Grazing Act, local livestock ranchers determined the extent of grazing rights on the vast public lands in the western states. And the most coercive federal program in this period, the selective service act of 1940, left life-and-death decisions about the drafting of millions of American citizens in the hands of local draft boards appointed by state governors. Without the active participation of state and local officials, the wartime rationing programs for gasoline, sugar, coffee, and butter would have broken down for lack of enforcement.

When New Deal reformers ignored the interests and sensibilities of local elites, they provoked instant political protest and retaliation. Roosevelt quickly dismantled the innovative Civil Works Administration in 1934 because it drew intense criticism from governors, county supervisors, and mayors who objected to the complete nationalization of its extensive work-relief efforts. The subsequent Works Projects Administration program gave a larger share of decision making to local officials, who systematically used the machinery to punish political enemies and to discriminate against racial minorities, especially in the South. When idealistic young lawyers in the Agricultural Adjustment Administration attempted to protect sharecroppers and tenants from wholesale eviction under the farm program, they stirred up a revolt by commercial farmers, who forced their removal from the agency. Much of the opposition from southern Democrats to the New Deal after 1935 grew out of their anger at the Department of Justice for attempting to protect blacks from local violence under the old Reconstruction-era civil rights laws. The New Deal nourished a new brand of cooperative federalism in many areas of American life, but it was not a federalism without conflict and tensions, especially when national reformers challenged entrenched local customs and power relationships.

While encouraging the growth of big labor and ministering to the needs of the elderly and the poor, the New Deal also provided substantial benefits to American capitalists. Business opposition to Roosevelt was intense, but it was narrowly based in labor-intensive corporations in textiles, automobiles, and steel which had the most to lose from collective bargaining. The New Deal found many business allies among firms in the growing service industries of banking, insurance, and stock brokerage where government regulations promised to reduce cutthroat competition and to weed out marginal operators. Because of its aggressive policies to expand American exports and investment opportunities abroad, the New Deal also drew support from high-technology firms and from the large oil companies who were eager to penetrate the British monopoly in the Middle East.

Sophisticated businessmen discovered that they could live comfortably in a world of government regulation. The "socialistic" Tennessee Valley Authority lowered the profits of a few utility companies, but cheap electric power for the rural South translated into larger consumer markets for the manufacturers of generators, refrigerators, and other appliances. In addition to restoring public confidence in the stock exchanges and the securities industry, the Securities and Exchange Commission promoted self-regulation among over-the-counter dealers. Motor trucking firms received a helping hand from the Interstate Commerce Commission in reducing rate wars, and the major airlines looked to the Civil Aeronautics Board to protect them from the competitive rigors of the marketplace. When "Dr. Win-the-War" replaced "Dr. New Deal" after 1942, businessmen began to play key roles as well in the wartime agencies that regulated production, manpower, and the allocation of raw materials. The New Deal thus laid the foundations of both the welfare state and the permanent warfare state.

Michael E. Parrish


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Constitutional History, 1933–1945

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Constitutional History, 1933–1945