On 5 Feb 1937, President Franklin Roosevelt proposed an increase in the size of the US Supreme Court—his ‘court packing’ proposal. It failed. However, this act ultimately succeeded in convincing the Justices to ignore the actual words in our Constitution—thus the US Constitution—that document that we military folks swear to support and defend–died.
Article I, Section 8 of the Constitution gives power to the US Congress—thus to the national government. Article I, Section 10 prohibits the states from certain actions. And the 10th Amendment to our Constitution provides that, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Should the people of the nation decide to change the constitution, there was an amendment process, but it truly required the will of the majority of the citizens of the nation. No elite group or coalition of interests could do so. And our Constitution properly and well guided our nation for well over a century, until Franklin Roosevelt came along.
The great depression struck our nation with the Wall Street crash of Oct 1929. The more rural states were able to handle the unemployment, but the industrial states were having trouble. Democrat Roosevelt ran for president on a platform promising a New Deal—which meant a significant increase in power for the federal government, and specifically included it in welfare. He was elected and found himself with a Congress overwhelmingly of his party, too.
There were two schools of thought about the power of the federal government. The school of thought that had prevailed since the beginning of the nation was the “original intent” or the “formalist” camp. The competition called itself the realists. Realists argued that the constitution should be interpreted flexibly and judges should not use the Constitution to impede legislative experimentation. One of the most famous proponents of this concept, known as the Living Constitution, was Justice Oliver Wendell Holmes, Jr., who said in Missouri v. Holland the “case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago.” This is now known as “judicial interpretation.”
Well, the court struck down a good number of Roosevelt’s bills because they violated the words that are written in the Constitution. Roosevelt was so unhappy with this that he noted that the Constitution provides that there will be a Supreme Court, but not how many justices there would be on it. So he proposed to add 8 more justices—all of whom would agree with him. The law, Court Packing, was introduced, but never made it through the senate. It appears that even if they were all Democrats, no one wanted to give the president that much power.
But the Court got the message. Just because the packing bill didn’t pass Congress this time, didn’t mean it wouldn’t later. So, guess what happened? The court suddenly found the New Deal bills to be constitutional. Effectively they just took the 10th Amendment to the Constitution and cut it out and threw it away.
We were once a Constitutional Republic; we are no longer as the words in the Constitution no longer have meaning. The Constitution is still the law of the land, but it means whatever the Supreme Court says it means. That’s how the Warren Court was able to find abortion in the Constitution; that’s how Obama’s folks found Obamacare there. And someday they may find that women have to wear burkas there. All this without having to go through the nasty process of amending the document. We need to return to the words of our Constitution.