Some of fdrs initiatives, such as increasing the number of Supreme Court justices. This class took place online and the university of maryland Baltimore County provided the video. Prof. Blake we are going to be talking about the first two chapters of my book manuscript today. Which looks at the role Public Opinion played during the new deal and specifically the constitutional controversy of the new deal. It is worth telling you one thing about why i am not writing this book. Court packing has gotten back in the news, both during the democratic primary season 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. In the new deal scholarship there has not nearly been enough attention paid to the role the public 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. I want to do a couple of things today. First, i want to recap the standard history of the new deal. Discussion of the constitution that took place during it. 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. We will wrap up with a discussion of that. Lets begin with the standard account of the new deal and what if anything the constitution played during that time. A major turning point was the 1932 election. You see represented here in this political cartoon where it is a 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. He walks into a very crowded desk with a number of problems. I really 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 referred to as 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. The pwa was the public works administration. It was a dramatic amount of legislation that was passed. The scope of the problem was very dire. I like the fact that this poster 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. Another part of the standard history that we might be familiar with is Court Packing. President roosevelt tried to get 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 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. He was the first president in 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. One is that if we believe the constitution is our true north star, the guiding principle in american politics, the compass which tells us which direction that is, only the Supreme Court can guide us in the direction. Roosevelt comes along and says i want to change this. Congress 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 congress to set the size of the courts. A number of seats on the court has been as small as five at the end of the john adams administration. As large as 10 immediately after 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. The only people this author thinks matters in terms of this controversy with Court Packing our elected officials. Nowhere in this cartoon is Public Opinion on display. Congress does say no for the very first time. They shoot down a request of president roosevelt. The other thing that helps 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. It happened in two cases in 1937. One involving a minimum wage law for women in march of 1937. The other was the radnor act. That case was handed 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, justice oren roberts no relation to current chief justice john roberts. The other swing justice was chief Justice Charles evans hughes. They went from voting with the conservative bloc to wording to voting 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. This swing that the court made 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. Youve got 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 era in our history. 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. This is one 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 of our leaders staring down at the people. A lot of political scientists believe this is a good way of 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. So am i. Here you have chief Justice Hughes and president roosevelt staring up at the public. The public is in control. Whatever the public says, one of those two people will have to walk away disappointed but respect the will of the public. The other thing i like about this cartoon is there is no 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. I 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. You have ordinary people telling 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. In my 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 understood a complex set of changes that were occurring during the constitutional revolution. On one 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. He did not have a lot of use for 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. What do i mean 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. A minor who is shaking roosevelt hand saying you remembered me. One of the things to understand 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 americans in the doings of their government of anyone else. There werent any new deal constitutional amendments. If i move there we go. You notice i put in an asterix. We will return to that notion in a little bit. How can we think of the new deal 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. If the depression doesnt end, dictatorship will follow. The new deal 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. Promoting the general welfare becomes associated with the federal governments obligation to establish a welfare state. Then, roosevelt and many of his 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. But so that ordinary people have the means by which they could make decisions. Roosevelt stole this line. I think it was from an english judge. A necessitous man cannot be a free man. In other words, 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 . So a necessitous man is not a free man. That was core to roosevelts 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 from an unemployed farmer named 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 said, men that have the money shall have the right 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. One is that you just have to sort of ignore 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. George 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. We could also see an understanding of the new deal being constitutionally significant if we look at the results of Public Opinion polls. What we have here is pretty strong evidence of bipartisan support for federal regulation of the economy. We have two axes here. You have the x axis where we see 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 . What we see is a majority of 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. The regulations of the stock 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 str