Primary when iowa caucus winner Pete Buttigieg endorsed Court Packing. Now it is back in the news again in the general elections following the passing of justice ginsburg. I am not writing this book because Court Packing is back in the news. I have always been interested in the new deal. It is a constitutionally significant error in our industry. It never received quite as much attention as it deserved on that front. Scholarshipeal there has not nearly been enough attention paid to the role the public paid played in shaping some of those constitutional developments. That is why im writing the book. I want to tell you a little bit more about it. We may as well get started with the powerpoint. Lets talk a little bit more about the new deal and the constitution and the role Public Opinion played. Couple of things today. First, i want to recap the standard history of the new deal. Discussion of the constitution that took place. The next thing i want to do is bring Public Opinion back to this narrative. Then we have to understand the complexity of the changes that are happening during the new deal from a constitutional perspective. It is not just about the federal government growing and doing things they need to be able to do. It also involved challenges, the traditional ways of separating powers across the three branches of government. I think there are some important lessons from the 1930s that we should be aware of today. Up with aap discussion of that. Lets begin with the standard whatnt of the new deal and if anything the constitution played during that time. A major turning point was the 1932 election. In thisrepresented here is aical cartoon where it revolving door. President hoover is on his way out. President roosevelt with his trademark smile is coming in. We dont really know what the new deal is. We dont know what he has tucked away in his briefcase. A very crowded desk with a number of problems. We like the fact that in the midst of the different problems that need to be solved is to make sure that whatever solutions are determined are ones that still uphold the constitution of the United States. Next, something we are probably all familiar with is the new deal resulted in the creation of many reforms and government programs. Some of them would rightly be agencies based on alphabet soup agencies based on acronyms. This is the poster when he was running for a third term. You could see some of those alphabet soup agencies listed there. The civilian conservation corps. The wpa was the Works Progress administration. Worksa was the public administration. It was a dramatic amount of legislation that was passed. The scope of the problem was very dire. Posterthe fact that this reestablishes the foundation of american democracy by rebuilding all of these steps up to the capital. It is a fairly herculean task. It is performed by someone with a disability. I think that is kind of interesting. This wasnt just about solving problems created by the great depression. This was as the poster indicates off to the left, this was about preserving american democracy itself. The standardof history that we might be familiar with is Court Packing. Tried to getsevelt new seeds created on the Supreme Court. Why would he do this . He did not have very good luck pleading the case before the Supreme Court in his first term between 1933 and 1936. The Supreme Court during that time struck down 13 new deal phases. It only fully upheld one new deal policy. The conservatives on the Supreme Court had firmly firmly asserted themselves and believed it was unconstitutional. Roosevelt had not had an opportunity to affect the balance on the court because there had been no appointments. President inrst American History to serve a full four years and not have an opportunity to appoint a justice. We have the very famous political cartoon here of roosevelt as this deranged ship captain pointing at the compass. There are a number of things we think are interesting. Theis that if we believe constitution is our true north star, the guiding principle in american politics, the compass which tells us which direction , only the Supreme Court could garda guide us in the direction. Roosevelt comes along and says i want to change this. Instead of being a loyal lieutenant. Congress had been voting for every new deal policy request that roosevelt had made. Heres the time when they stand up for themselves because they think roosevelt has crossed the line. At the start of roosevelts second term in 1937, roosevelt surprises everyone. He had not consulted the congress before making this announcement. He wanted six new seats added to the Supreme Court. How is this possible . The constitution allowed a number of seats on the court has been as small as five at the end of the john adams administration. Afterge as 10 immediately the civil war. Nine is the norm. It was nine for a while before the civil war. Nine mostly after the civil war, too. Congress could change it at any point. One other thing before we move on. Notice the way the controversy is being portrayed in the cartoon. You have representatives of each of the three branches of government. This authorple thinks matters in terms of this controversy with Court Packing our elected officials. Nowhere in this cartoon is Public Opinion on display. Say no for the very first time. They shoot down a request of president roosevelt. That helpshing congress find the courage to stand up to roosevelt and if the Court Packing was the Supreme Court changed its mind. It largely struck down new deal policies of unconstitutional and largely upholding them. Inhappened in two cases 1937. One involving a minimum wage law of women for in march 1937. The other was the radnor act. That was down in early april. The waggoner act was the National Labor relations act. The first time the federal government had provided protection for workers who wanted to organize labor unions and collectively bargain with management. What happened in those two cases was two of the swing justices, noe oren roberts relation to current chief justice john roberts. The other was chief Justice Charles evans hughes. They went from voting with the conservative bloc to wording with the liberal bloc. They were trying to send a signal to roosevelt that there was no need for Court Packing because there wasnt going to be any lingering controversy over the constitutionality over the Supreme Court. Madeswing that the court was called at the time the switch in time that saved nine. It played on a bit of homespun wisdom that you may have heard of. Clothing that started to get worn down, it is better to have one stitch to keep it from falling apart then waiting for it to fall apart and having to stitch it back together again. Again, even that last cartoon where the nine justices are swinging from one way to the other, there is nothing in there is nothing in there about Public Opinion. That is largely emblematic of how historians, legal peers, and political scientists have dealt with this. I want to argue that Public Opinion is the missing ingredient. That really explains why roosevelt succeeded some of the time in changing the constitutional norms. He did not succeed at other points during his presidency. Of my favorite political cartoons. I love the idea that there could be a super Supreme Court. The way that the three people are portrayed here i think is quite remarkable. Most of the time we might think atour leaders staring down the people. A lot of political scientists a good way ofs understanding Public Opinion. Most people dont have the time or the capacity to figure out where they stand on a lot of policy issues. What they do instead is they think oh wait a second. I am a democrat. Joe biden leads the democratic party. He is looking down on me and telling me this is the kind of things that he is in favor of. He is in favor of those things, so i might. Chief Justice Hughes and president roosevelt staring up at the public. The public is in control. , one of the public says those two people will have to walk away disappointed but respect the will of the public. The other thing i like about is noartoon is there emotional hysteria either by the politicians trying to manipulate voters or voters not being able to understand. Judge john q public is trying to do his best to figure out what the implications of Court Packing our. Not just for the constitutionality of the new deal before larger constitutional principles like the independence of the judiciary. Think this is just a cute one off cartoon. I think this is an actually accurate contemporary reflection of public debate during this time. In this book i am collecting evidence of ordinary people who are writing letters to the white house, making constitutional arguments in favor of and opposed to Court Packing. Telling ordinary people pollsters that they think between roosevelt and the court should be resolved by enacting a constitutional amendment, rather than Court Packing. Even democrats thought a constitutional amendment was a more legitimate way to resolve this controversy compared to Court Packing. Despite the pack that the constitution permits congress to change the number of seats on the court if it wants. Book i make three Central Claims about the role Public Opinion played during this time. Number one, i think ordinary people understood the new deal didnt just represent a change in what kind of policy the federal government enacted. It wasnt just that we went from not having a welfare state to having a welfare state. I think people understood that these changes represented a change to the constitutional status quo. Second, i think Public Opinion complex set of changes that were occurring during the constitutional revolution. Hand, the federal government was trying to do more things that it had been before. More things than it had been constitutionally given to the federal government before. It is more than just that. President roosevelt not only one of the federal government to do more. He wanted the presidency to have more power compared to the other two branches. Roosevelt challenge the norms of the separation of powers. Forid not have a lot of use checks and balances. Ordinary americans understood these conflict were occurring, too. A lot of people were in favor of the federal government regulating the economy providing for social security. They were opposed to roosevelt taking more power against the presidency. They want to preserve that traditional set of checks and balances. Finally, most political scientists dont think Public Opinion could control what the government does. I think i found evidence of the public not only following these debates passively but they were actively helping decide what kinds of things roosevelt could do and what kinds of things he couldnt do. By the new deal representing a change to the constitutional status quo . One of the famous images roosevelt made in some of his early speeches was the federal government had a responsibility to the forgotten man. There is the cartoon with the forgotten man. Shaking roosevelt hand saying you remembered me. To understandngs economic policies of the new deal was it was a way to get out of crisis from the great depression. I think it was more than that. I think what roosevelt was doing, was to expand the definition of we the people. The first three words to the preamble of the constitution. I think roosevelt was trying to be sure that workingclass in the doings of their government of anyone else. New dealent any constitutional amendments. If i move there we go. Asterix. In an we will return to that notion in a little bit. The new dealink of as representing constitutional change without these amendments. I think it involves reinterpreting the preamble of the constitution in a way that fundamentally changes the role of federal government. For example, as we read through the goals articulated in the preamble, one of them is to ensure domestic tranquility. One of roosevelts main arguments was we need the new deal to solve the problems of the depression. End,e depression doesnt dictatorship will follow. Has preserve democracy by ensuring domestic tranquility. Another argument that roosevelt made was one of the goals and the preamble is to promote the general welfare and roosevelt said the best way to do that would be to set up basic support so that when people fall on hard times either through illness, old age, unemployment they are able to provide for themselves and for their families. Welfareg the general becomes associated with the obligation to establish a welfare state. His, roosevelt and many of speeches tried to redefine liberty. Liberty is sprinkled throughout the constitution. The first place is in the preamble. We the people of the United States in order to secure the blessings of liberty. Roosevelt redefined that liberty is it is not just freedom from government action. Ordinary people have the means by which they could make decisions. Roosevelt stole this line. I think it was from an english doug judge. It doesnt matter if the government leaves you alone so that you have freedom of speech. It doesnt matter if the government leaves you in your guns alone. If the point of freedom is to lead a good life and you cant provide for your family because of an economic hardship, what good is that freedom . This is not a freemen. This was court to roosevelt constitutional vision. You dont just see this in terms of roosevelt saying in his speeches that we need to reinterpret the preamble in ways that do a better job of including the working class. We see it being reflected from the public back to roosevelt. Here is this wonderful quote farmer namedloyed george dobbins. He says roosevelt was the only president we ever had that thought the constitution belong to the poor man, too. The way they have been reading it seems like they thought it shoehe who has the money ill have the rights to life, freedom, and happiness. It took roosevelt to read in the constitution that way back yonder that made it was talking about the poor man right along with the rich man. I love this quote for a number of reasons. That you just have to once you get past the issues with grammar in his speech. The point he is making is quite sophisticated. He doesnt exactly quote from the declaration of independence where they talk about life, liberty, and the pursuit of happiness he gets it right when he says there are rights to life, freedom, and happiness. Roosevelt incorporated the declaration of independence all of the time into his understanding of what the constitution should be doing to help ordinary people. Dobbins says wait a second, this isnt some new socialist change to the way the American Government is being run. To dobbins, it was that what roosevelt did was to discover this text that had been around for 150 years at the time didnt protect them. The founders wanted to protect them the working class people. It was roosevelt who made that vision come to life. Ancould also see understanding of the new deal being constitutionally significant if we look at the results of Public Opinion polls. Is prettyve here strong evidence of bipartisan support for federal regulation of the economy. Have two axes here. Seehave the x axis where we who people voted for in 1936, whether was president roosevelt or the republican candidate. On the yaxis we have what is labeled the predicted probability of support. As you think about the percentage of roosevelt voters, the percentage of voters who favored these different things. One would mean 100 of people agreed with this policy issue. Zero would be zero. 0. 5 would be 50 . What do we see here . Majority ofis a votes, republican and democrat reported supported all of these different policies. Whether it was in support of labor unions, agriculture support, farm subsidies, social security. Stockgulations of the market to the securities and exchange commission. The providing of minimum wages in the federal labor standards act. By the way, this is important. Not just because these policies were popular. Not because they were popular on a bipartisan basis but all of these policies either were struck down by the u. S. Supreme court or would have been struck down by the u. S. Supreme court if it hadnt have been for the switch in tied that save time that saved nine. It is not enough for me to say that the new deal is a significant the growth of federal power. To really understand the constitutional debates of this era, we need to be talking about the separation of powers. Here we see another political cartoon where roosevelt is playing the role of the Old Testament character sampson. The separation of powers is being represented as three columns outside the temple. Roosevelt already destroyed the legislative balance. He made congress subservient to his will to the Court Packing plan. He is trying to do the same thing to the federal judiciary. To understand why roosevelt would want to do this we have to understand the difference between how the founders use the separation of powers and how more modern thinkers, including roosevelt saw the separation of powers. The founders lived in the newtonian universe. Every action has an equal and opposite reaction. Newton was the one that was talking about gravity. And so, the founders thought that a welldesigned constitution split the power between the three branches of government. They thought it would prevent dictatorship. It wouldnt just prevent dictatorship. It would ensure a well running machine. Where good legislation would be passed. Bad legislation would be not. By the time roosevelt comes around, he has grown grown up in the evolutionary age of charles darwin. Survival of the fittest. ,rom roosevelts perspective checks and balances were actually a danger. Checks and balances could increase the probability of dictatorship. An impediment to getting change in place. If the depression lingered on and on because i could be an interbranch agreement over the constitutionality of the new deal the American People would grow so angry that they would give roosevelt permission to be a true dictator. Just wanted to find he wanted the federal government to be doing new things. He wanted them to be doing them in a new way. The public was aware of this aspect of the debate. There is this lovely letter oftten by mary ashford philadelphia to the president. She writes this immediately after president roosevelt says in one of his legendary fireside chats. In that fireside chat roosevelt tried to persuade the public to endorse Court Packing. Mary ashbrook says we need to maintain traditional norms of the separation of powers. She wrote mr. President , i urge you to let the Supreme Court alone. Consider judgment of people through the orderly process of amendments. Even at the expense of time. Nothing valuable could be lost by saving time. Also see this reflected in Public Opinion polls. On the yaxis going from the top to the bottom of the screen you can see how republicans, democrats, socialists, and independence, they also have socioeconomic standings from above average to poor people. Those who are receiving government benefits. Arelly at the very bottom who we think the constitution people who think the constitution needs to be easier to amend. Right we oncet to again have this predicted probability where zero point five means 50 of people were for the policy. Within each row you will see two dots. The hollow one whohe percentage of people support the constitutional amendment to overturn conservative Supreme Court cases. Almost every instance what you will find is the constitutional amendment is more popular of the two options. It is more popular amongst republicans and democrats. It is more popular among socialist and independence across the so cute socioeconomic statuses. Even the people who think the constitution is too hard to amend are more likely to favor in amendment compared to the level of support for Court Packing. Court packing isnt all that popular. About 60 likely, they favor Court Packing. Republicans are dead set against it. Socialists arent all that enthusiastic. Independence are fairly strongly against it. Even people who are poor or are receiving government benefits arent particularly in favor of Court Packing. People who want the constitution to be made easier to amend are in favor of Court Packing. They are more excited about the possibility of a constitutional amendment. They want to preserve the traditional separation of powers. To not make the judiciaries supersede the executive branch. Court packing wasnt the only time where roosevelt tried to challenge traditional constitutional norms separating powers across branches. Another important controversy that gets largely overlooked is over roosevelt plan to gain more control over the federal bureaucracy. It was called the executive reorganization bill that he pushed. He wanted the president himself to be at the center of the making of bureaucratic decisions. Even amongst independent agencies. Agencies that are supposed to be removed with little oversight. Unchecked concert concerned about unchecked president ial power in the same way that Court Packing might lead to unchecked president ial power. The public was against him with Court Packing. The public was against him on executive reorganization. Just like with Court Packing, Congress Said no. So, finally for some evidence that the public really was following these debates. I want you to take a look at this graph. Votes. Three different the Court Packing vote in the senate. The vote on the reorganization plan in the senate and in the house. For each of these three events that are displayed in bold, you have two lines underneath it. The first one is the same in all three. It is this capital letter acronym. A way political scientists calculate how liberal or conservative a member of congress is. Each of these for events has to do with some Public Opinion question that gallup asked at the time. What i did was i looked at the percentage of people in each state who supported Court Packing or supported an aspect of executive reorganization debate. Reexpanding the Civil Service. On another gallup poll they asked about whether people favored the overall reorganization bill. Then i wanted to look to see if home state Public Opinion affected the way the senators or house members from that state actually voted on these issues. Heres what i found. For all three of these controversies conservative congressman were more likely to oppose. The more liberal congressmen would vote in favor. You seee on this xaxis negative numbers and positive numbers. It is not important to know what these numbers represent. What is important is whether these dots were to the left or right of this zero line. If we go to the Court Packing vote in the senate, what we see nominates scores get larger, we are going further to the right. They get less and less likely to vote in favor of Court Packing. If you go to home state Court Packing Public Opinion. As Court Packing opinion gets more and more favorable they are more likely to vote yes on this bill. Same thing with reorganization in the senate. Toy are strongly opposed this proposal. If you look at the home state Public Opinion in states where support for Civil Service is higher, you find senators more likely to vote in favor of the reorganization bill. It is the same thing with the reorganization vote. The house has this leftright divide between members of congress and the ideology. Thiscertain extent ideological divide mitigated based on what the voters at home want from their representatives. Othery there is one controversy that we need to consider here. That is roosevelts decision to ignore the president that was set by president George Washington and run for a third and eventually fourth term. Showedt the time roosevelt the idea of someone like roosevelt getting a third term was not very popular. Way that a lot of americans were telling pollsters that they would be willing to vote for roosevelt was if it looked like the United States was going to get involved in world war ii. Germany invades poland in september, 1939. The war has started. Enough americans were concerned about americas participation in the war that it helped roosevelt get reelected in 1940. Would argue if the republicans had been more strategic in who they nominated for president in 1940, roosevelt wouldve lost. They didnt nominate an established leader with strong Foreign Policy credentials. Instead they nominated a businessman with no political experience, who had been a registered democrat up until relatively recently, Wendell Wilkie was his name. Arguments main against him was i could manage the war, he cant. Broken. S norm was once roosevelt was successfully elected, a third and fourth time what he did not do was shatter that precedent by George Washington. He didnt make it fine for future president s to make break this norm, too. Heres were i would argue that the only new deal constitutional amendment. It was proposed during trumans presidency and ratified shortly after the 22nd amendment and imposed a twoterm limit on running for president. We dont get a constitutional amendment sanctioning the growth in federal power that occurred during the new deal. We do get a constitutional amendment trying to reaffirm a commitment to the way things have always been done in terms of balancing president ial power against credential congressional power in judicial power. Aboutthink a little bit why this matters beyond having a better understanding of an important and interesting time in our past. I think there are three main takeaways that are relevant for today. Thats i think the fact there werent that many new deal constitutional amendments. The only one is the term limit. It is a problem. We have an ongoing ambivalence over how much power the federal government legitimately has or should have. I think the lack of a new deal forcet party is a major in modern american politics. If there had been a new deal constitutional amendment saying the federal government had an obligation to regulate the economy. Had the power to establish a welfare state, it wouldve taken that issue out of the possibility of modern political debate. It would no longer be open for discussion. Just like getting rid of free speech is not open for discussion. It is written into the text of the constitution. This is actually a fairly common thing. If you look at constitutions over parts of the world you will including in the powers they are given to the national government, the power to create a welfare state. If you look at american state constitution, you see provisions where the government makes promises to do certain things for its citizens. Constitutions there is a right to education. The government has an obligation to take it from here in kindergarten through 12th grade. That education to be adequate and equitable. The second take away is i think we need to really go back and reflect on these two different perspectives about the separation of powers. Newtonianrs and there universe where they thought every action would have an equal and positive reaction it would keep the system flowing nicely. They would never allow a dictator. Roosevelt understanding separation of powers creating conflict. Conflict that couldnt be resolved quickly would potentially lead to the downfall of democracy. Need to seriously ask ourselves about who was right in their understanding of how the government was operating . What kind of government would be enabled by the separation of powers. It is on track to being perhaps the least productive in our history. That is not a oneoff occurrence. It is the result of decadelong trend. And more gridlock. If congress isnt getting the job done it creates this power vacuum. This is filled using executive they are happy to let them use executive orders more and more. The Supreme Court was not nearly as aggressive in striking down laws in the economy. They have continued to play a role in taking certain issues off the table. By saying they are unconstitutional. To i want to clarify something. I dont think peoples rights should be up for debate. , when certain issues are ruled on by the court , that ends the public discussion of them. What we have is the democracy reallyublic debate isnt thing translated into the policies in the way they are intended. There is a lot of legislation. They show the ones that are issuing all of these executive orders. We have this set of separation of powers creating conflict and not allowing the publics will to be translated into policy. Why is this the case . Why has a gridlock increased so much . My hypothesis is the growth of growth ofwer and the federal spending that comes with the growth of federal power to engage inive gridlock and abuse the power. Ahave a quote here from political scientist who does a play on words with his famous quote from niccolo maca valley. It corrupts absolute power corrupts absolutely. He said no. Power corrupts and the prospect of losing power corrupts absolutely. Because the government is doing more things, people really want to be in control of doing these things. It is the only way they could control the process. Modernplains some of the gridlock. I think this is a sort of ironic consequence of Public Opinion that on one hand the public was theortable with expanding kinds of things the federal government did. To handle that transition safely would be to maintain traditional separation of powers. They thought they were doing the best combination of things to prevent dictatorship. Think it is possible that instead what they did was lay the seeds for the modern gridlock. I dont want to end on a sort of down note. Aree first main takeaways kind of depressing. I want us to keep in mind that reasons debates over big issues, have those debates in constitutional terms and have that kind of public discussion where the family gathers around the radio and the president listens to other Public Officials who may nationally broadcast radio speeches. If we can have those kinds of constitutional conversations we could absolutely have it now. Americans in the 1930s were living through very desperate economic times. They didnt panic. They were living in a time where Higher Education was very hard to come by. A lot more americans today have access to more education. We have access to more information. Despite all of those barriers in the 1930s, you have this robust public debate. That is all i have for you guys. I hope you enjoyed it. I hope this helps clarify some of the concepts in the reading. I am happy to take your questions at this point. It looks like we have something from carmen. I have a question about why the publics anger during Court Packing seemed so directed at roosevelt when the Supreme Court also seemed to be overstepping its power. That is a great question. Plenty of polling that was done in the 1930s. What it found was it was quite clear that the public was not happy about how the Supreme Court was handling the new deal. A Strong Majority of americans said the new deal should not be socioconservative. A majority of americans thought something had to be done about the Supreme Court. Where they disagreed was they didnt think that something should be Court Packing. Instead, when gallup would ask about constitutional amendments that was overturning the Supreme Courts precedent, people were just a lot more enthusiastic about that as a way forward. I think there was public anger. That anger wasnt sufficient a pretty throw out important constitutional principle along the way. Have another question from jessica. You talked about trump changing his behavior due to the upcoming election. You find any evidence that shows that roosevelt did the same thing before 1936 or 1940 . Seen a large growth in the last orders under few president s. We have certainly seen all sorts played by both political parties. Taking advantage of elections is tryingsident trump to time the release of the Covid Vaccine to be just before the election to benefit from that. Even fdr would engage in some of those kinds of shenanigans. The fairled a vote on labor standards act which for the first time set a federal minimum wage. He said that vote for the spring of 1938 knowing that just a few months after that congress would have to go back home and campaign to get reelected. Idea of providing minimum wage for workers was very popular. Conservatives in congress didnt like the idea. Nevertheless they felt pressured because it was so popular back home. You ask do you think that if a gallup poll was conducted today would more people via favor of Court Packing . There actually has been some polling done. Im sure there is more being done right now as we speak been in thehat has news recently involving the death of justice ginsburg. Because this was an issue in the primaries there was polling done last september. What it showed was most americans are once again opposed to Court Packing. More ins are slightly favor of it than republicans, which was also true in 1930. To norms about politics, if you fail to change enormous once, what you might end up doing is making sure that in the future it is even harder to challenge it again. I think that is one of the lasting legacies of roosevelt and Court Packing. Couldnt sell it to the American People i dont think there is a politician alive today from either party who could sell it to the people. The Supreme Court occupies a place in the american consciousness. They are the most popular of the three branches. , even the on that justification seems pretty strong. The American People are thinking of a longterm perspective of a longterm legitimacy that the court could endure might not justify a temporary victory by readjusting the court to be more liberal or conservative. A very commonas argument that we saw when people wrote president roosevelt in the 1930s. I voted for you, im a fan of the new deal, i dont like what the court is doing. I dont think Court Packing would be a bad idea for you. I trust you to be wise in terms of who you appoint point to the court. Once you are allowed to do Court Packing, what happens when the next guy gets elected president . Nine to 15, 25, 73 . Were concerned about this norm eroding and Court Packing becomes commonplace. Becauseside of that was roosevelt tried and failed with Court Packing it means it is considered even less legitimate of a tactic today. Additional polling starts to come in on this issue. I think we will find to a greater extent that roosevelts of set the tone for the modern debate over Court Packing. Anybody else . I dont know if your silence wass that the material intuitive or you are just i hope you enjoyed reading the chapter. Lecture. U enjoyed the i certainly enjoyed answering your questions. Thank you very much. Look forward to seeing you next time. 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