FDR struggled to make a reactionary Court recognize that the government served a greater purpose than defending property. Today President Obama faces a similar battle over health care reform.
FDR struggled to make a reactionary Court recognize that the government served a greater purpose than defending property. Today President Obama faces a similar battle over health care reform.
In our generation, a new idea has come to dominate thought about government, the idea that the resources of the nation can be made to produce a far higher standard of living for the masses of the people if only government is intelligent and energetic in giving the right direction to economic life. - Franklin D. Roosevelt
The hearings of the Supreme Court this week over the Patient Protection and Affordable Health Care Act have led some commentators to compare President Obama's potential difficulties with the Supreme Court to the troubles FDR had with the Court in the mid 1930s, when some of the key provisions of the New Deal were struck down as unconstitutional. In response to the Court challenge, Roosevelt ultimately decided to pursue a court reform effort -- his famous "court-packing" scheme -- that aroused widespread opposition from both the public and those holding public office, even among members of his own party.
Most historians agree that Roosevelt's attempt to alter the Court in 1937 was both ill-conceived and badly handled. But the debate over the legal dimensions of FDR's attempt to alter the make-up of the Court -- like today's debate over the legality of Obama administration's Affordable Health Care Act -- has to a certain extent obscured the real issue that stood at the heart of the New Deal reforms: how the nation might, as FDR said, "use the agencies of government to assist in the establishment of means to provide sound and adequate protection against the vicissitudes of modern life."
Using government to pursue this goal was somewhat of a novel idea in early 20th century America. But it was not something that FDR came up with on his own. As the nation made the 19th-to-20th century transition from an agrarian to a modern industrial economy, questions about the health, safety, and living conditions of the working class -- more appropriately called the working poor -- gave rise to ever-increasing calls for social legislation to protect working Americans, including women and children, from dangerous employment practices like starvation wages and other forms of economic exploitation. The same sentiments also gave rise to a series of laws, such as the 1906 Pure Food and Drug Act, to protect American consumers from tainted foods and poisonous and/or useless "medicines," as well as anti-trust legislation to prevent the establishment of anti-free market monopolies that would lead to exploitative prices of key commodities and other goods and services.
Not surprisingly, all of these efforts aroused considerable opposition from conservative business interests, who frequently argued that such legislation was an infringement on their liberties. This was especially true in FDR's day, when, in the wake of the 1929-1932 financial crisis and the failure of the free market to provide adequate levels of employment to roughly 25 percent of the American workforce, the Roosevelt administration launched a series of efforts to reform the financial sector, offer employment to the jobless, and provide a basic measure of economic security to the average American through Social Security, unemployment insurance, and the right to collective bargaining.
Even before many of these measures were fully put in place, FDR anticipated what the wealthy conservative opposition would say about them. In a June, 1934 Fireside Chat on the subject, for example, FDR noted that a "few timid people, who fear progress," would try to give "strange names" to these efforts.
Sometimes they will call it 'Fascism,' sometimes 'Communism,' sometimes 'Regimentation,' sometimes 'Socialism.'
But, in so doing, they are trying to make very complex and theoretical something that is really very simple and very practical.
I believe in practical explanations and in practical policies. I believe that what we are doing today is a necessary fulfillment of what Americans have always been doing -- a fulfillment of old and tested American ideals...
All that we do seeks to fulfill the historic traditions of the American people...We are restoring confidence and well-being under the rule of the people themselves. We remain, as John Marshall said a century ago, 'emphatically and truly, a government of the people.' Our Government 'in form and in substance . . . emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefits.'
What emerged from the New Deal, then, was an attempt to use government as an instrument to provide basic economic safeguards within the free enterprise system, to mitigate the worst excesses of capitalism, so that all Americans could enjoy its benefits.
As was the case in previous governmental efforts to provide a measure of social and economic protection for the average American citizen, these measures were challenged in the Supreme Court as an infringement of contract and property rights, and up until 1937 -- the year that FDR's struggle with the Court came to its head -- the Court tended to rule in favor of property. For progressives like Theodore Roosevelt, this tendency on the part of the Court was unacceptable. Indeed, roughly two decades before his cousin Franklin was sworn in as President, TR articulated his firm belief that government had a responsibility to serve as "the steward of the public welfare." As such, he insisted that the judiciary should "be interested primarily in human welfare rather than in property... just as... the representative body shall represent all the people rather than any one class or section of the people."
It was this basic idea that government had a responsibility to serve the "public welfare" that animated both the social justice legislation of the progressive era and the social and economic reform legislation of the New Deal. Hence, FDR's frustration with the inability of the Court to embrace this fundamental -- or what he would term modern --concept was not unique and in fact had led many other public figures before him to call for some type of judicial reform.
This is not to say that FDR was correct in pursuing his so-called Court packing scheme; he was most surely wrong to do so. But we should not allow this misguided attempt to bring the Supreme Court into the modern world to mask the reasons why he -- and others -- felt such drastic measures might be necessary. In the end, of course, the Court would reverse itself and from 1937 forward would uphold every New Deal provision that came before it, including two prior pieces of legislation -- the Agricultural Adjustment Act and a minimum wage law -- that the Court had previously struck down.
In the decades that followed the New Deal, Americans came to accept and understand the idea of government as the keeper of the public welfare. But in the past two decades, this basic concept of governance has come under a sustained assault from the same special interests that fought this idea in FDR's day. As a result, President Obama's attempt to provide equal access to health care for the nearly 50 million Americans who remain uninsured through the so-called individual mandate has been attacked as an infringement on our liberties. But in embracing this point of view, the Court (should it decide to strike down the law) will have failed to take in the larger argument that the purpose of the law is to provide a means to secure a greater good for all. Viewed from this perspective, requiring all Americans to purchase health care is perhaps the most important step we can take "to provide sound and adequate protection against the vicissitudes of modern life."
David Woolner is a Senior Fellow and Hyde Park Resident Historian for the Roosevelt Institute. He is currently writing a book entitled Cordell Hull, Anthony Eden and the Search for Anglo-American Cooperation, 1933-1938.

