When the people spoke, what did they say?: The election of 1936 and the Ackerman thesis

Yale Law Journal

Volumn 108, Issue 8, 1999, Pages 2077-2113

  Leuchtenburg, William E ^a  

^a University of North Carolina at Chapel Hill   (United States)

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[No Author keywords available]

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EID: 0042377713     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: 10.2307/797383     Document Type: Article

References (229)

1. Ackerman has elaborated his grand design in 1 BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (1991), and in 2 BRUCE ACKERMAN, WE THE PEOPLE: TRANSFORMATIONS (1998). These volumes expand upon ideas Ackerman explored in earlier works: BRUCE A. ACKERMAN, RECONSTRUCTING AMERICAN LAW (1984) [hereinafter ACKERMAN, RECONSTRUCTING]; BRUCE A. ACKERMAN, SOCIAL JUSTICE IN THE LIBERAL STATE (1980); Bruce Ackerman, Constitutional Politics/Constitutional Law, 99 YALE L.J. 453 (1989); Bruce Ackerman, Higher Lawmaking, in RESPONDING TO IMPERFECTION: THEORY AND PRACTICE OF CONSTITUTIONAL AMENDMENT (S. Levinson ed., 1995); Bruce A. Ackerman, The Storrs Lectures: Discovering the Constitution, 93 YALE L.J. 1013 (1984); and Bruce A. Ackerman, Transformative Appointments, 101 HARV. L. REV. 1164 (1988).
2. Ackerman has elaborated his grand design in 1 BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (1991), and in 2 BRUCE ACKERMAN, WE THE PEOPLE: TRANSFORMATIONS (1998). These volumes expand upon ideas Ackerman explored in earlier works: BRUCE A. ACKERMAN, RECONSTRUCTING AMERICAN LAW (1984) [hereinafter ACKERMAN, RECONSTRUCTING]; BRUCE A. ACKERMAN, SOCIAL JUSTICE IN THE LIBERAL STATE (1980); Bruce Ackerman, Constitutional Politics/Constitutional Law, 99 YALE L.J. 453 (1989); Bruce Ackerman, Higher Lawmaking, in RESPONDING TO IMPERFECTION: THEORY AND PRACTICE OF CONSTITUTIONAL AMENDMENT (S. Levinson ed., 1995); Bruce A. Ackerman, The Storrs Lectures: Discovering the Constitution, 93 YALE L.J. 1013 (1984); and Bruce A. Ackerman, Transformative Appointments, 101 HARV. L. REV. 1164 (1988).
3. Ackerman has elaborated his grand design in 1 BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (1991), and in 2 BRUCE ACKERMAN, WE THE PEOPLE: TRANSFORMATIONS (1998). These volumes expand upon ideas Ackerman explored in earlier works: BRUCE A. ACKERMAN, RECONSTRUCTING AMERICAN LAW (1984) [hereinafter ACKERMAN, RECONSTRUCTING]; BRUCE A. ACKERMAN, SOCIAL JUSTICE IN THE LIBERAL STATE (1980); Bruce Ackerman, Constitutional Politics/Constitutional Law, 99 YALE L.J. 453 (1989); Bruce Ackerman, Higher Lawmaking, in RESPONDING TO IMPERFECTION: THEORY AND PRACTICE OF CONSTITUTIONAL AMENDMENT (S. Levinson ed., 1995); Bruce A. Ackerman, The Storrs Lectures: Discovering the Constitution, 93 YALE L.J. 1013 (1984); and Bruce A. Ackerman, Transformative Appointments, 101 HARV. L. REV. 1164 (1988).
4. Ackerman has elaborated his grand design in 1 BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (1991), and in 2 BRUCE ACKERMAN, WE THE PEOPLE: TRANSFORMATIONS (1998). These volumes expand upon ideas Ackerman explored in earlier works: BRUCE A. ACKERMAN, RECONSTRUCTING AMERICAN LAW (1984) [hereinafter ACKERMAN, RECONSTRUCTING]; BRUCE A. ACKERMAN, SOCIAL JUSTICE IN THE LIBERAL STATE (1980); Bruce Ackerman, Constitutional Politics/Constitutional Law, 99 YALE L.J. 453 (1989); Bruce Ackerman, Higher Lawmaking, in RESPONDING TO IMPERFECTION: THEORY AND PRACTICE OF CONSTITUTIONAL AMENDMENT (S. Levinson ed., 1995); Bruce A. Ackerman, The Storrs Lectures: Discovering the Constitution, 93 YALE L.J. 1013 (1984); and Bruce A. Ackerman, Transformative Appointments, 101 HARV. L. REV. 1164 (1988).
5. Ackerman has elaborated his grand design in 1 BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (1991), and in 2 BRUCE ACKERMAN, WE THE PEOPLE: TRANSFORMATIONS (1998). These volumes expand upon ideas Ackerman explored in earlier works: BRUCE A. ACKERMAN, RECONSTRUCTING AMERICAN LAW (1984) [hereinafter ACKERMAN, RECONSTRUCTING]; BRUCE A. ACKERMAN, SOCIAL JUSTICE IN THE LIBERAL STATE (1980); Bruce Ackerman, Constitutional Politics/Constitutional Law, 99 YALE L.J. 453 (1989); Bruce Ackerman, Higher Lawmaking, in RESPONDING TO IMPERFECTION: THEORY AND PRACTICE OF CONSTITUTIONAL AMENDMENT (S. Levinson ed., 1995); Bruce A. Ackerman, The Storrs Lectures: Discovering the Constitution, 93 YALE L.J. 1013 (1984); and Bruce A. Ackerman, Transformative Appointments, 101 HARV. L. REV. 1164 (1988).
6. Ackerman has elaborated his grand design in 1 BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (1991), and in 2 BRUCE ACKERMAN, WE THE PEOPLE: TRANSFORMATIONS (1998). These volumes expand upon ideas Ackerman explored in earlier works: BRUCE A. ACKERMAN, RECONSTRUCTING AMERICAN LAW (1984) [hereinafter ACKERMAN, RECONSTRUCTING]; BRUCE A. ACKERMAN, SOCIAL JUSTICE IN THE LIBERAL STATE (1980); Bruce Ackerman, Constitutional Politics/Constitutional Law, 99 YALE L.J. 453 (1989); Bruce Ackerman, Higher Lawmaking, in RESPONDING TO IMPERFECTION: THEORY AND PRACTICE OF CONSTITUTIONAL AMENDMENT (S. Levinson ed., 1995); Bruce A. Ackerman, The Storrs Lectures: Discovering the Constitution, 93 YALE L.J. 1013 (1984); and Bruce A. Ackerman, Transformative Appointments, 101 HARV. L. REV. 1164 (1988).
7. Ackerman has elaborated his grand design in 1 BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (1991), and in 2 BRUCE ACKERMAN, WE THE PEOPLE: TRANSFORMATIONS (1998). These volumes expand upon ideas Ackerman explored in earlier works: BRUCE A. ACKERMAN, RECONSTRUCTING AMERICAN LAW (1984) [hereinafter ACKERMAN, RECONSTRUCTING]; BRUCE A. ACKERMAN, SOCIAL JUSTICE IN THE LIBERAL STATE (1980); Bruce Ackerman, Constitutional Politics/Constitutional Law, 99 YALE L.J. 453 (1989); Bruce Ackerman, Higher Lawmaking, in RESPONDING TO IMPERFECTION: THEORY AND PRACTICE OF CONSTITUTIONAL AMENDMENT (S. Levinson ed., 1995); Bruce A. Ackerman, The Storrs Lectures: Discovering the Constitution, 93 YALE L.J. 1013 (1984); and Bruce A. Ackerman, Transformative Appointments, 101 HARV. L. REV. 1164 (1988).
8. Ackerman has elaborated his grand design in 1 BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (1991), and in 2 BRUCE ACKERMAN, WE THE PEOPLE: TRANSFORMATIONS (1998). These volumes expand upon ideas Ackerman explored in earlier works: BRUCE A. ACKERMAN, RECONSTRUCTING AMERICAN LAW (1984) [hereinafter ACKERMAN, RECONSTRUCTING]; BRUCE A. ACKERMAN, SOCIAL JUSTICE IN THE LIBERAL STATE (1980); Bruce Ackerman, Constitutional Politics/Constitutional Law, 99 YALE L.J. 453 (1989); Bruce Ackerman, Higher Lawmaking, in RESPONDING TO IMPERFECTION: THEORY AND PRACTICE OF CONSTITUTIONAL AMENDMENT (S. Levinson ed., 1995); Bruce A. Ackerman, The Storrs Lectures: Discovering the Constitution, 93 YALE L.J. 1013 (1984); and Bruce A. Ackerman, Transformative Appointments, 101 HARV. L. REV. 1164 (1988).
9. Suzanna Sherry, The Ghost of Liberalism Past, 105 HARV. L. REV. 918, 918, 924 (1992).
10. G. Edward White, Book Review, 34 J. LEGAL EDUC. 731, 731, 736 (1984) (reviewing ACKERMAN, RECONSTRUCTING).
11. Don Herzog, Democratic Credentials, 104 ETHICS 467, 477, 479 (1994).
12. Richard A. Posner, This Magic Moment, NEW REPUBLIC, Apr. 6, 1998, at 36. Eben Moglen, however, has called Ackerman "the most original and important writer on constitutional theory in the contemporary English-speaking world. " Eben Moglen, The Incompleat Burkean: Bruce Ackerman's Foundation for Constitutional History, 5 YALE J.L. & HUMAN, 531, 531 (1993). For another more positive view of Ackerman's theory, see Mark Tushnet, Living in a Constitutional Moment?: Lopez and Constitutional Theory, 46 CASE W. RES. L. REV. 845 (1996). Martin Flaherty, while observing that Ackerman's approach "has left him open to a degree of unpublished skepticism among legal and constitutional historians," pointed out "that historians who have looked into the substance of Ackerman's project have been favorable to his approach." Martin Flaherty, History "Lite" in Modern American Constitutionalism, 95 COLUM. L. REV. 523, 583-84 & n.292 (1995).
13. Richard A. Posner, This Magic Moment, NEW REPUBLIC, Apr. 6, 1998, at 36. Eben Moglen, however, has called Ackerman "the most original and important writer on constitutional theory in the contemporary English-speaking world. " Eben Moglen, The Incompleat Burkean: Bruce Ackerman's Foundation for Constitutional History, 5 YALE J.L. & HUMAN, 531, 531 (1993). For another more positive view of Ackerman's theory, see Mark Tushnet, Living in a Constitutional Moment?: Lopez and Constitutional Theory, 46 CASE W. RES. L. REV. 845 (1996). Martin Flaherty, while observing that Ackerman's approach "has left him open to a degree of unpublished skepticism among legal and constitutional historians," pointed out "that historians who have looked into the substance of Ackerman's project have been favorable to his approach." Martin Flaherty, History "Lite" in Modern American Constitutionalism, 95 COLUM. L. REV. 523, 583-84 & n.292 (1995).
14. Richard A. Posner, This Magic Moment, NEW REPUBLIC, Apr. 6, 1998, at 36. Eben Moglen, however, has called Ackerman "the most original and important writer on constitutional theory in the contemporary English-speaking world. " Eben Moglen, The Incompleat Burkean: Bruce Ackerman's Foundation for Constitutional History, 5 YALE J.L. & HUMAN, 531, 531 (1993). For another more positive view of Ackerman's theory, see Mark Tushnet, Living in a Constitutional Moment?: Lopez and Constitutional Theory, 46 CASE W. RES. L. REV. 845 (1996). Martin Flaherty, while observing that Ackerman's approach "has left him open to a degree of unpublished skepticism among legal and constitutional historians," pointed out "that historians who have looked into the substance of Ackerman's project have been favorable to his approach." Martin Flaherty, History "Lite" in Modern American Constitutionalism, 95 COLUM. L. REV. 523, 583-84 & n.292 (1995).
15. Richard A. Posner, This Magic Moment, NEW REPUBLIC, Apr. 6, 1998, at 36. Eben Moglen, however, has called Ackerman "the most original and important writer on constitutional theory in the contemporary English-speaking world. " Eben Moglen, The Incompleat Burkean: Bruce Ackerman's Foundation for Constitutional History, 5 YALE J.L. & HUMAN, 531, 531 (1993). For another more positive view of Ackerman's theory, see Mark Tushnet, Living in a Constitutional Moment?: Lopez and Constitutional Theory, 46 CASE W. RES. L. REV. 845 (1996). Martin Flaherty, while observing that Ackerman's approach "has left him open to a degree of unpublished skepticism among legal and constitutional historians," pointed out "that historians who have looked into the substance of Ackerman's project have been favorable to his approach." Martin Flaherty, History "Lite" in Modern American Constitutionalism, 95 COLUM. L. REV. 523, 583-84 & n.292 (1995).
16. Richard A. Posner, This Magic Moment, NEW REPUBLIC, Apr. 6, 1998, at 36. Eben Moglen, however, has called Ackerman "the most original and important writer on constitutional theory in the contemporary English-speaking world. " Eben Moglen, The Incompleat Burkean: Bruce Ackerman's Foundation for Constitutional History, 5 YALE J.L. & HUMAN, 531, 531 (1993). For another more positive view of Ackerman's theory, see Mark Tushnet, Living in a Constitutional Moment?: Lopez and Constitutional Theory, 46 CASE W. RES. L. REV. 845 (1996). Martin Flaherty, while observing that Ackerman's approach "has left him open to a degree of unpublished skepticism among legal and constitutional historians," pointed out "that historians who have looked into the substance of Ackerman's project have been favorable to his approach." Martin Flaherty, History "Lite" in Modern American Constitutionalism, 95 COLUM. L. REV. 523, 583-84 & n.292 (1995).
17. 1 ACKERMAN, supra note 1, at 53.
18. LAURA KALMAN, THE STRANGE CAREER OF LEGAL LIBERALISM 348 n.70 (1996).
19. Kent Greenawalt, Dualism and Its Status, 104 ETHICS 480, 487 (1994).
20. Terrance Sandalow, Abstract Democracy: A Review of Ackerman's We the People, 9 CONST. COMMENTARY 309, 329 (1992).
21. Larry Kramer, What's a Constitution for Anyway? Of History and Theory, Bruce Ackerman and the New Deal, 46 CASE W. RES. L. REV. 885, 893 (1996).
22. Jennifer Nedelsky, The Puzzle and Demands of Modern Constitutionalism, 104 ETHICS 500, 503 (1994).
23. See Lawrence Lessig, Understanding Changed Readings: Fidelity and Theory, 47 STAN. L. REV. 395, 449 (1995).
24. Ch. 90, 48 Stat 195 (1933).
25. 295 U.S. 495 (1935). Three years earlier, in a 1932 Presidential campaign speech, Roosevelt had attacked the Court.
26. 4 THE PUBLIC PAPERS AND ADDRESSES OF FRANKLIN D. ROOSEVELT 218, 221 (Samuel I. Rosenman comp., 1938) [hereinafter PUBLIC PAPERS].
27. Id. at 218.
28. Id. at 222.
29. See Capitol Split on Roosevelt's NRA Comment, WASH. POST June 1, 1935, at 1.
30. BALT. SUN, June 1, 1935.
31. Letter from James T. Willams to his father (May 31, 1935) (on file with the Univ. of S.C. South Caroliniana Collection, in the James T. Williams Papers).
32. Letter from Henry Stimson to Franklin D. Roosevelt (June 4, 1935) (on file in the Franklin D. Roosevelt Papers, Hyde Park, N. Y., PPF 20). A few public figures did approve of the President's performance. See, e.g., Edward Keating Manuscript Diary (May 31, 1935) (on file with the Univ. of Colo., in the Western Historical Collections); Letter from Hiram Johnson to Hiram Johnson, Jr. (June 2, 1935) (on file with the Bancroft Library, Univ. of Cal., Berkeley, in the Hiram Johnson Papers, Box 4).
33. DONALD R. MCCOY, LANDON OF KANSAS 216 (1966) (citations omitted).
34. Letter from Frank Knox to Frank O. Lowden (Aug. 1, 1935) (on file with the Univ. of Chicago, in the Frank O. Lowden Papers, Series I, Box 25, Folder 8).
35. Letter from John Pell to Frank R. Kent (Oct. 3, 1935) (on file with the Md. Historical Soc'y, in the Frank R. Kent Papers).
36. Charles R. Michael, Platform Drafted by 'Grass Rooters' Opposes New Deal, N.Y. TIMES, June 9, 1935, at 1.
37. Charles R. Michael, 'Grassroots' G.O.P. Pledge Defense of States' Rights, N.Y. TIMES, June 11, 1935, at 1.
38. Id.
39. Id.
40. Id.; see also 2 WILLIAM T. HUTCHINSON, LOWDEN OF ILLINOIS 680-81 (1957).
41. Id.; see also 2 WILLIAM T. HUTCHINSON, LOWDEN OF ILLINOIS 680-81 (1957).
42. Letter from James T. Willams to his father (June 1, 1935) (on file with the Univ. of S.C. South Caroliniana Collection, in the James T. Williams Papers).
43. Letter from R. C. Lindsay to Sir Samuel Hoare (June 11, 1935) (on file with the London Pub. Records Office, F.O. 371, 18752 (A5501/293/45)). Two weeks after the horse-and-buggy interview, a prominent Republican Senator told a former U.S. Attorney General that "most of the New Dealers are substantially mellowed and restrained by their recent experiences with the Supreme Court. I think this is particularly true with our distinguished President after he sensed the wholly unfortunate reactions to his first press conference after the Schechter case had been decided." Letter from Senator Arthur Vandenberg to William D. Mitchell (June 13, 1935) (on file with the Minn. Historical Soc'y, in the William D. Mitchell Papers, Box 1). Arthur Krock later wrote: "The way in which his comments were received convinced the President that the occasion and tone of his remarks constituted a blunder." Arthur Krock, Roosevelt Charged with Court Design in 1932, N.Y. TIMES, Feb. 11, 1937, at 22.
44. Delbert Clark, Washington Now Pauses To Take Stock, N.Y. TIMES, June 23, 1935, § 7 (Magazine), at 3.
45. Id.
46. Id.
47. Id.
48. Id.
49. For the origins of the plan, see WILLIAM E. LEUCHTENBURG, THE SUPREME COURT REBORN: THE CONSTITUTIONAL REVOLUTION IN THE AGE OF ROOSEVELT 82-131 (1995).
50. Ch. 25, 48 Stat 31 (1933).
51. 297 U.S. 1 (1936).
52. Letter from John Dickinson to George Fort Milton (Jan. 13, 1936) (on file with the Library of Congress, in the George Fort Milton Papers, Box 19).
53. 298 U.S. 1 (1936).
54. 298 U.S. 238 (1936).
55. Bituminous Coal Conservation Act of 1935, ch. 824, 49 Stat. 991 (1935).
56. 298 U.S. 513 (1936).
57. Ch. 345, §§ 78-80, 48 Stat. 798 (1934).
58. Press Conference of May 19, 1936, in 7 COMPLETE PRESIDENTIAL PRESS CONFERENCES OF FRANKLIN D. ROOSEVELT 261 (1972).
59. Franklyn Waltman, President Uses 'Strong-Arm' Method on Question Concerning Guffey Ruling Reactions, WASH. POST, May 20, 1936, at 2.
60. 298 U.S. 587 (1936).
61. 5 PUBLIC PAPERS, supra note 15, at 191-92.
62. Letter from George Fort Milton to George Foster Peabody (Feb. 10, 1936) (on file with the Library of Congress, in the George Fort Milton Papers, Box 19).
63. See Letter from Louis Boehm to Robert Wagner (June 6, 1936) (on file in the Franklin D. Roosevelt Papers, OF 1871-A); Letter from Clarence V. Tiers to Presidential Press Secretary Stephen Early (June 24, 1936) (on file in the Franklin D. Roosevelt Papers, OF 1871-A).
64. Letter from Homer S. Cummings to Franklin D. Roosevelt (June 20, 1936) (on file in the Franklin D. Roosevelt Papers, PSF Justice).
65. RAYMOND MOLEY, AFTER SEVEN YEARS 346-47 (1939).
66. 3 HISTORY OF AMERICAN PRESIDENTIAL ELECTIONS 1789-1968, at 2855 (Arthur M. Schlesinger, Jr. & Fred L. Israel, eds. 1971). For the drafting of the plank, see DONALD R. RICHBERG, MY HERO: THE INDISCREET MEMOIRS OF AN EVENTFUL BUT UNHEROIC LIFE 204-05 (1954); and SAMUEL I. ROSENMAN, WORKING WITH ROOSEVELT 100-03 (1953).
67. 3 HISTORY OF AMERICAN PRESIDENTIAL ELECTIONS 1789-1968, at 2855 (Arthur M. Schlesinger, Jr. & Fred L. Israel, eds. 1971). For the drafting of the plank, see DONALD R. RICHBERG, MY HERO: THE INDISCREET MEMOIRS OF AN EVENTFUL BUT UNHEROIC LIFE 204-05 (1954); and SAMUEL I. ROSENMAN, WORKING WITH ROOSEVELT 100-03 (1953).
68. 3 HISTORY OF AMERICAN PRESIDENTIAL ELECTIONS 1789-1968, at 2855 (Arthur M. Schlesinger, Jr. & Fred L. Israel, eds. 1971). For the drafting of the plank, see DONALD R. RICHBERG, MY HERO: THE INDISCREET MEMOIRS OF AN EVENTFUL BUT UNHEROIC LIFE 204-05 (1954); and SAMUEL I. ROSENMAN, WORKING WITH ROOSEVELT 100-03 (1953).
69. See STEPHEN M. GRIFFIN. AMERICAN CONSTITUTIONALISM: FROM THEORY TO POLITICS 39 (1996); Michael Nelson, The President and the Court: Reinterpreting the Court-packing Episode of 1937, 103 POL. SCI. Q. 267, 275 (1988) ; Stephen Early, Memorandum for the President (May 22, 1936) (on file with Princeton Univ., in the Bernard Baruch Papers, XXXIX); Stanley High Manuscript Diary (Apr. 13, 1936) (on file with the Franklin D. Roosevelt Library, in the Stanley High Papers). Henry Wallace later claimed that "at the very close of the campaign, I submitted to Roosevelt the suggestion that he should bring out definitely the Supreme Court issue so that he would have a mandate from the people when he was elected." Henry Wallace, in Columbia Oral History Collection 427 (unpublished transcript, on file with Columbia Univ. Library). That recollection, though, came a generation later.
70. See STEPHEN M. GRIFFIN. AMERICAN CONSTITUTIONALISM: FROM THEORY TO POLITICS 39 (1996); Michael Nelson, The President and the Court: Reinterpreting the Court-packing Episode of 1937, 103 POL. SCI. Q. 267, 275 (1988) ; Stephen Early, Memorandum for the President (May 22, 1936) (on file with Princeton Univ., in the Bernard Baruch Papers, XXXIX); Stanley High Manuscript Diary (Apr. 13, 1936) (on file with the Franklin D. Roosevelt Library, in the Stanley High Papers). Henry Wallace later claimed that "at the very close of the campaign, I submitted to Roosevelt the suggestion that he should bring out definitely the Supreme Court issue so that he would have a mandate from the people when he was elected." Henry Wallace, in Columbia Oral History Collection 427 (unpublished transcript, on file with Columbia Univ. Library). That recollection, though, came a generation later.
71. See STEPHEN M. GRIFFIN. AMERICAN CONSTITUTIONALISM: FROM THEORY TO POLITICS 39 (1996); Michael Nelson, The President and the Court: Reinterpreting the Court-packing Episode of 1937, 103 POL. SCI. Q. 267, 275 (1988) ; Stephen Early, Memorandum for the President (May 22, 1936) (on file with Princeton Univ., in the Bernard Baruch Papers, XXXIX); Stanley High Manuscript Diary (Apr. 13, 1936) (on file with the Franklin D. Roosevelt Library, in the Stanley High Papers). Henry Wallace later claimed that "at the very close of the campaign, I submitted to Roosevelt the suggestion that he should bring out definitely the Supreme Court issue so that he would have a mandate from the people when he was elected." Henry Wallace, in Columbia Oral History Collection 427 (unpublished transcript, on file with Columbia Univ. Library). That recollection, though, came a generation later.
72. See STEPHEN M. GRIFFIN. AMERICAN CONSTITUTIONALISM: FROM THEORY TO POLITICS 39 (1996); Michael Nelson, The President and the Court: Reinterpreting the Court-packing Episode of 1937, 103 POL. SCI. Q. 267, 275 (1988) ; Stephen Early, Memorandum for the President (May 22, 1936) (on file with Princeton Univ., in the Bernard Baruch Papers, XXXIX); Stanley High Manuscript Diary (Apr. 13, 1936) (on file with the Franklin D. Roosevelt Library, in the Stanley High Papers). Henry Wallace later claimed that "at the very close of the campaign, I submitted to Roosevelt the suggestion that he should bring out definitely the Supreme Court issue so that he would have a mandate from the people when he was elected." Henry Wallace, in Columbia Oral History Collection 427 (unpublished transcript, on file with Columbia Univ. Library). That recollection, though, came a generation later.
73. Elmo Roper, YOU AND YOUR LEADERS: THEIR ACTIONS AND YOUR REACTIONS 1936-1956, at 31 (1957).
74. Id.
75. See id.
76. Among those with a sanguine view of Landon's chances were two Supreme Court Justices. During the summer, Justice James McReynolds wrote his brother, "There seems a growing feeling that Roosevelt may be defeated," Letter from Justice James C. McReynolds to Dr. Robert P. McReynolds (July 4, 1936) (on file with the Univ. of Va., in the James McReynolds Papers), while as late as early November, only a day before the election, Justice Willis Van Devanter thought the outcome would be close. Letter from Justice Willis Van Devanter to Mrs. John W. Lacey (Nov. 2, 1936) (on file with the Library of Congress, in the Willis Van Devanter Papers, Vol. 52).
77. See 1 THE GALLUP POLL: PUBLIC OPINION 1935-1971, at 28 (1972) [hereinafter THE GALLUP POLL]; see also Letter from Alf M. Landon to Bertrand H. Snell (May 25, 1936) (on file with the State Univ. of N.Y. College at Potsdam, in the Bertrand H. Snell Papers).
78. See 1 THE GALLUP POLL, supra note 60, at 28.
79. Topics of the Day, LITERARY DIGEST, Oct. 31, 1936, at 5, 5-6.
80. RAYMOND CLAPPER, WATCHING THE WORLD 116-17 (1944).
81. Stephen Duggan, Letter to the Editor, N.Y. TIMES, Oct. 26, 1936, at 16.
82. See JOHN ROBERT MOORE, SENATOR JOSIAH BAILEY OF NORTH CAROLINA 126 (1968).
83. Frederick Lewis Allen, Behind the Campaign, 173 HARPER'S MONTHLY MAG. 470, 476 (1936).
84. Letter from Gordon Barnett to Joseph Hendricks (Feb. 9, 1937) (on file with the P.K. Yonge Library of Fla. History, Univ. of Fla., in the Joseph Hendricks Papers, Box 2). A number of people denied that Roosevelt had a mandate in 1936 on different grounds - that "apart from the subsidised, to use a polite word, the actual majority was against him!!!" and that it was only "indigents who gave the President the land slide." Letter from D. Walter Bell to William Allen White (Feb. 12, 1937) (on file with the Library of Congress, in the William Allen White Papers, Box 185); Letter from W. Lee Smith to Senator William Borah (June 6, 1937) (on file with the Library of Congress, in the William Borah Papers, Box 414). A Republican politician claimed that Roosevelt's appeals to class hatred and the improper favors he bestowed on "the grand army of federal employees," "the colored," and others "had the effect of nullifying the natural order, of defeating the candidate who would otherwise have been the choice of the American people." Letter from Henry Ware Allen to John Hamilton (Dec. 10, 1936) (on file with the Library of Congress in the William Allen White Papers, Box 185).
85. BARRY CUSHMAN, RETHINKING THE NEW DEAL COURT: THE STRUCTURE OF A CONSTITUTIONAL REVOLUTION 27 (1998).
86. Michael J. Klarman, Constitutional Fact/Constitutional Fiction: A Critique of Bruce Ackerman's Theory of Constitutional Moments, 44 STAN. L. REV. 759, 771 (1992). On this same page, Klarman repeats a common error: "[T]he popular mandate may have been to reverse only those Supreme Court decisions that narrowly invalidated New Deal legislation, rather than those unanimous rulings that invalidated laws regarded even by many contemporary liberals as ill-advised and poorly drafted." Id. In fact, only one piece of "New Deal legislation" of any significance, the National Industrial Recovery Act, was struck down unanimously. See Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935). True, there were two other 9-0 rulings that day. One of them, however, involved not legislation but an executive act. See Humphrey's Ex'r v. United States, 295 U.S. 602 (1935). The other, to which Ackerman gives inordinate prominence, see 2 ACKERMAN, supra note 1, at 303-04, resulted in the invalidation of a the Frazier-Lemke Act, ch. 869, 48 Stat. 1289 (1934), a federal farm bankruptcy law. See Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555 (1935). The Frazier-Lemke Act, however, was not even remotely "New Deal legislation" but, as its name indicates, the brainchild of two North Dakota Republicans. "I have never endorsed the Frazier-Lemke bill," Roosevelt told his press secretary. "If this type of wild legislation passes, the responsibility for wrecking recovery will be squarely on Congress." DAVID H. BENNETT, DEMAGOGUES IN THE DEPRESSION: AMERICAN RADICALS AND THE UNION PARTY, 1932-1936, at 96 (1969). Roosevelt signed the measure only reluctantly and with the warning that it would "require amendment at the next session of Congress." 3 PUBLIC PAPERS, supra note 15, at 332. Save for the ruling against the NIRA, the only unanimous decision against the New Deal came in a little noticed case invalidating one feature of the Home Owners' Loan Act, 48 Stat. 128, 132 (1933). See Hopkins Fed. Sav. & Loan Ass'n v. Cleary, 296 U.S. 315 (1935). Rickert Rice Mills v. Fontenot, 297 U.S. 110 (1936), merely recognized the consequence of the ending of Roosevelt's farm program in Butler.
87. Michael J. Klarman, Constitutional Fact/Constitutional Fiction: A Critique of Bruce Ackerman's Theory of Constitutional Moments, 44 STAN. L. REV. 759, 771 (1992). On this same page, Klarman repeats a common error: "[T]he popular mandate may have been to reverse only those Supreme Court decisions that narrowly invalidated New Deal legislation, rather than those unanimous rulings that invalidated laws regarded even by many contemporary liberals as ill- advised and poorly drafted." Id. In fact, only one piece of "New Deal legislation" of any significance, the National Industrial Recovery Act, was struck down unanimously. See Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935). True, there were two other 9-0 rulings that day. One of them, however, involved not legislation but an executive act. See Humphrey's Ex'r v. United States, 295 U.S. 602 (1935). The other, to which Ackerman gives inordinate prominence, see 2 ACKERMAN, supra note 1, at 303-04, resulted in the invalidation of a the Frazier-Lemke Act, ch. 869, 48 Stat. 1289 (1934), a federal farm bankruptcy law. See Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555 (1935). The Frazier-Lemke Act, however, was not even remotely "New Deal legislation" but, as its name indicates, the brainchild of two North Dakota Republicans. "I have never endorsed the Frazier-Lemke bill," Roosevelt told his press secretary. "If this type of wild legislation passes, the responsibility for wrecking recovery will be squarely on Congress." DAVID H. BENNETT, DEMAGOGUES IN THE DEPRESSION: AMERICAN RADICALS AND THE UNION PARTY, 1932-1936, at 96 (1969). Roosevelt signed the measure only reluctantly and with the warning that it would "require amendment at the next session of Congress." 3 PUBLIC PAPERS, supra note 15, at 332. Save for the ruling against the NIRA, the only unanimous decision against the New Deal came in a little noticed case invalidating one feature of the Home Owners' Loan Act, 48 Stat. 128, 132 (1933). See Hopkins Fed. Sav. & Loan Ass'n v. Cleary, 296 U.S. 315 (1935). Rickert Rice Mills v. Fontenot, 297 U.S. 110 (1936), merely recognized the consequence of the ending of Roosevelt's farm program in Butler.
88. Michael J. Klarman, Constitutional Fact/Constitutional Fiction: A Critique of Bruce Ackerman's Theory of Constitutional Moments, 44 STAN. L. REV. 759, 771 (1992). On this same page, Klarman repeats a common error: "[T]he popular mandate may have been to reverse only those Supreme Court decisions that narrowly invalidated New Deal legislation, rather than those unanimous rulings that invalidated laws regarded even by many contemporary liberals as ill- advised and poorly drafted." Id. In fact, only one piece of "New Deal legislation" of any significance, the National Industrial Recovery Act, was struck down unanimously. See Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935). True, there were two other 9-0 rulings that day. One of them, however, involved not legislation but an executive act. See Humphrey's Ex'r v. United States, 295 U.S. 602 (1935). The other, to which Ackerman gives inordinate prominence, see 2 ACKERMAN, supra note 1, at 303-04, resulted in the invalidation of a the Frazier-Lemke Act, ch. 869, 48 Stat. 1289 (1934), a federal farm bankruptcy law. See Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555 (1935). The Frazier-Lemke Act, however, was not even remotely "New Deal legislation" but, as its name indicates, the brainchild of two North Dakota Republicans. "I have never endorsed the Frazier-Lemke bill," Roosevelt told his press secretary. "If this type of wild legislation passes, the responsibility for wrecking recovery will be squarely on Congress." DAVID H. BENNETT, DEMAGOGUES IN THE DEPRESSION: AMERICAN RADICALS AND THE UNION PARTY, 1932-1936, at 96 (1969). Roosevelt signed the measure only reluctantly and with the warning that it would "require amendment at the next session of Congress." 3 PUBLIC PAPERS, supra note 15, at 332. Save for the ruling against the NIRA, the only unanimous decision against the New Deal came in a little noticed case invalidating one feature of the Home Owners' Loan Act, 48 Stat. 128, 132 (1933). See Hopkins Fed. Sav. & Loan Ass'n v. Cleary, 296 U.S. 315 (1935). Rickert Rice Mills v. Fontenot, 297 U.S. 110 (1936), merely recognized the consequence of the ending of Roosevelt's farm program in Butler.
89. Michael J. Klarman, Constitutional Fact/Constitutional Fiction: A Critique of Bruce Ackerman's Theory of Constitutional Moments, 44 STAN. L. REV. 759, 771 (1992). On this same page, Klarman repeats a common error: "[T]he popular mandate may have been to reverse only those Supreme Court decisions that narrowly invalidated New Deal legislation, rather than those unanimous rulings that invalidated laws regarded even by many contemporary liberals as ill- advised and poorly drafted." Id. In fact, only one piece of "New Deal legislation" of any significance, the National Industrial Recovery Act, was struck down unanimously. See Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935). True, there were two other 9-0 rulings that day. One of them, however, involved not legislation but an executive act. See Humphrey's Ex'r v. United States, 295 U.S. 602 (1935). The other, to which Ackerman gives inordinate prominence, see 2 ACKERMAN, supra note 1, at 303-04, resulted in the invalidation of a the Frazier-Lemke Act, ch. 869, 48 Stat. 1289 (1934), a federal farm bankruptcy law. See Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555 (1935). The Frazier-Lemke Act, however, was not even remotely "New Deal legislation" but, as its name indicates, the brainchild of two North Dakota Republicans. "I have never endorsed the Frazier-Lemke bill," Roosevelt told his press secretary. "If this type of wild legislation passes, the responsibility for wrecking recovery will be squarely on Congress." DAVID H. BENNETT, DEMAGOGUES IN THE DEPRESSION: AMERICAN RADICALS AND THE UNION PARTY, 1932-1936, at 96 (1969). Roosevelt signed the measure only reluctantly and with the warning that it would "require amendment at the next session of Congress." 3 PUBLIC PAPERS, supra note 15, at 332. Save for the ruling against the NIRA, the only unanimous decision against the New Deal came in a little noticed case invalidating one feature of the Home Owners' Loan Act, 48 Stat. 128, 132 (1933). See Hopkins Fed. Sav. & Loan Ass'n v. Cleary, 296 U.S. 315 (1935). Rickert Rice Mills v. Fontenot, 297 U.S. 110 (1936), merely recognized the consequence of the ending of Roosevelt's farm program in Butler.
90. Michael J. Klarman, Constitutional Fact/Constitutional Fiction: A Critique of Bruce Ackerman's Theory of Constitutional Moments, 44 STAN. L. REV. 759, 771 (1992). On this same page, Klarman repeats a common error: "[T]he popular mandate may have been to reverse only those Supreme Court decisions that narrowly invalidated New Deal legislation, rather than those unanimous rulings that invalidated laws regarded even by many contemporary liberals as ill- advised and poorly drafted." Id. In fact, only one piece of "New Deal legislation" of any significance, the National Industrial Recovery Act, was struck down unanimously. See Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935). True, there were two other 9-0 rulings that day. One of them, however, involved not legislation but an executive act. See Humphrey's Ex'r v. United States, 295 U.S. 602 (1935). The other, to which Ackerman gives inordinate prominence, see 2 ACKERMAN, supra note 1, at 303-04, resulted in the invalidation of a the Frazier-Lemke Act, ch. 869, 48 Stat. 1289 (1934), a federal farm bankruptcy law. See Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555 (1935). The Frazier-Lemke Act, however, was not even remotely "New Deal legislation" but, as its name indicates, the brainchild of two North Dakota Republicans. "I have never endorsed the Frazier-Lemke bill," Roosevelt told his press secretary. "If this type of wild legislation passes, the responsibility for wrecking recovery will be squarely on Congress." DAVID H. BENNETT, DEMAGOGUES IN THE DEPRESSION: AMERICAN RADICALS AND THE UNION PARTY, 1932-1936, at 96 (1969). Roosevelt signed the measure only reluctantly and with the warning that it would "require amendment at the next session of Congress." 3 PUBLIC PAPERS, supra note 15, at 332. Save for the ruling against the NIRA, the only unanimous decision against the New Deal came in a little noticed case invalidating one feature of the Home Owners' Loan Act, 48 Stat. 128, 132 (1933). See Hopkins Fed. Sav. & Loan Ass'n v. Cleary, 296 U.S. 315 (1935). Rickert Rice Mills v. Fontenot, 297 U.S. 110 (1936), merely recognized the consequence of the ending of Roosevelt's farm program in Butler.
91. Michael J. Klarman, Constitutional Fact/Constitutional Fiction: A Critique of Bruce Ackerman's Theory of Constitutional Moments, 44 STAN. L. REV. 759, 771 (1992). On this same page, Klarman repeats a common error: "[T]he popular mandate may have been to reverse only those Supreme Court decisions that narrowly invalidated New Deal legislation, rather than those unanimous rulings that invalidated laws regarded even by many contemporary liberals as ill- advised and poorly drafted." Id. In fact, only one piece of "New Deal legislation" of any significance, the National Industrial Recovery Act, was struck down unanimously. See Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935). True, there were two other 9-0 rulings that day. One of them, however, involved not legislation but an executive act. See Humphrey's Ex'r v. United States, 295 U.S. 602 (1935). The other, to which Ackerman gives inordinate prominence, see 2 ACKERMAN, supra note 1, at 303-04, resulted in the invalidation of a the Frazier-Lemke Act, ch. 869, 48 Stat. 1289 (1934), a federal farm bankruptcy law. See Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555 (1935). The Frazier-Lemke Act, however, was not even remotely "New Deal legislation" but, as its name indicates, the brainchild of two North Dakota Republicans. "I have never endorsed the Frazier-Lemke bill," Roosevelt told his press secretary. "If this type of wild legislation passes, the responsibility for wrecking recovery will be squarely on Congress." DAVID H. BENNETT, DEMAGOGUES IN THE DEPRESSION: AMERICAN RADICALS AND THE UNION PARTY, 1932-1936, at 96 (1969). Roosevelt signed the measure only reluctantly and with the warning that it would "require amendment at the next session of Congress." 3 PUBLIC PAPERS, supra note 15, at 332. Save for the ruling against the NIRA, the only unanimous decision against the New Deal came in a little noticed case invalidating one feature of the Home Owners' Loan Act, 48 Stat. 128, 132 (1933). See Hopkins Fed. Sav. & Loan Ass'n v. Cleary, 296 U.S. 315 (1935). Rickert Rice Mills v. Fontenot, 297 U.S. 110 (1936), merely recognized the consequence of the ending of Roosevelt's farm program in Butler.
92. Michael J. Klarman, Constitutional Fact/Constitutional Fiction: A Critique of Bruce Ackerman's Theory of Constitutional Moments, 44 STAN. L. REV. 759, 771 (1992). On this same page, Klarman repeats a common error: "[T]he popular mandate may have been to reverse only those Supreme Court decisions that narrowly invalidated New Deal legislation, rather than those unanimous rulings that invalidated laws regarded even by many contemporary liberals as ill- advised and poorly drafted." Id. In fact, only one piece of "New Deal legislation" of any significance, the National Industrial Recovery Act, was struck down unanimously. See Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935). True, there were two other 9-0 rulings that day. One of them, however, involved not legislation but an executive act. See Humphrey's Ex'r v. United States, 295 U.S. 602 (1935). The other, to which Ackerman gives inordinate prominence, see 2 ACKERMAN, supra note 1, at 303-04, resulted in the invalidation of a the Frazier-Lemke Act, ch. 869, 48 Stat. 1289 (1934), a federal farm bankruptcy law. See Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555 (1935). The Frazier-Lemke Act, however, was not even remotely "New Deal legislation" but, as its name indicates, the brainchild of two North Dakota Republicans. "I have never endorsed the Frazier-Lemke bill," Roosevelt told his press secretary. "If this type of wild legislation passes, the responsibility for wrecking recovery will be squarely on Congress." DAVID H. BENNETT, DEMAGOGUES IN THE DEPRESSION: AMERICAN RADICALS AND THE UNION PARTY, 1932-1936, at 96 (1969). Roosevelt signed the measure only reluctantly and with the warning that it would "require amendment at the next session of Congress." 3 PUBLIC PAPERS, supra note 15, at 332. Save for the ruling against the NIRA, the only unanimous decision against the New Deal came in a little noticed case invalidating one feature of the Home Owners' Loan Act, 48 Stat. 128, 132 (1933). See Hopkins Fed. Sav. & Loan Ass'n v. Cleary, 296 U.S. 315 (1935). Rickert Rice Mills v. Fontenot, 297 U.S. 110 (1936), merely recognized the consequence of the ending of Roosevelt's farm program in Butler.
93. Michael J. Klarman, Constitutional Fact/Constitutional Fiction: A Critique of Bruce Ackerman's Theory of Constitutional Moments, 44 STAN. L. REV. 759, 771 (1992). On this same page, Klarman repeats a common error: "[T]he popular mandate may have been to reverse only those Supreme Court decisions that narrowly invalidated New Deal legislation, rather than those unanimous rulings that invalidated laws regarded even by many contemporary liberals as ill- advised and poorly drafted." Id. In fact, only one piece of "New Deal legislation" of any significance, the National Industrial Recovery Act, was struck down unanimously. See Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935). True, there were two other 9-0 rulings that day. One of them, however, involved not legislation but an executive act. See Humphrey's Ex'r v. United States, 295 U.S. 602 (1935). The other, to which Ackerman gives inordinate prominence, see 2 ACKERMAN, supra note 1, at 303-04, resulted in the invalidation of a the Frazier-Lemke Act, ch. 869, 48 Stat. 1289 (1934), a federal farm bankruptcy law. See Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555 (1935). The Frazier-Lemke Act, however, was not even remotely "New Deal legislation" but, as its name indicates, the brainchild of two North Dakota Republicans. "I have never endorsed the Frazier-Lemke bill," Roosevelt told his press secretary. "If this type of wild legislation passes, the responsibility for wrecking recovery will be squarely on Congress." DAVID H. BENNETT, DEMAGOGUES IN THE DEPRESSION: AMERICAN RADICALS AND THE UNION PARTY, 1932-1936, at 96 (1969). Roosevelt signed the measure only reluctantly and with the warning that it would "require amendment at the next session of Congress." 3 PUBLIC PAPERS, supra note 15, at 332. Save for the ruling against the NIRA, the only unanimous decision against the New Deal came in a little noticed case invalidating one feature of the Home Owners' Loan Act, 48 Stat. 128, 132 (1933). See Hopkins Fed. Sav. & Loan Ass'n v. Cleary, 296 U.S. 315 (1935). Rickert Rice Mills v. Fontenot, 297 U.S. 110 (1936), merely recognized the consequence of the ending of Roosevelt's farm program in Butler.
94. Michael J. Klarman, Constitutional Fact/Constitutional Fiction: A Critique of Bruce Ackerman's Theory of Constitutional Moments, 44 STAN. L. REV. 759, 771 (1992). On this same page, Klarman repeats a common error: "[T]he popular mandate may have been to reverse only those Supreme Court decisions that narrowly invalidated New Deal legislation, rather than those unanimous rulings that invalidated laws regarded even by many contemporary liberals as ill- advised and poorly drafted." Id. In fact, only one piece of "New Deal legislation" of any significance, the National Industrial Recovery Act, was struck down unanimously. See Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935). True, there were two other 9-0 rulings that day. One of them, however, involved not legislation but an executive act. See Humphrey's Ex'r v. United States, 295 U.S. 602 (1935). The other, to which Ackerman gives inordinate prominence, see 2 ACKERMAN, supra note 1, at 303-04, resulted in the invalidation of a the Frazier-Lemke Act, ch. 869, 48 Stat. 1289 (1934), a federal farm bankruptcy law. See Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555 (1935). The Frazier-Lemke Act, however, was not even remotely "New Deal legislation" but, as its name indicates, the brainchild of two North Dakota Republicans. "I have never endorsed the Frazier-Lemke bill," Roosevelt told his press secretary. "If this type of wild legislation passes, the responsibility for wrecking recovery will be squarely on Congress." DAVID H. BENNETT, DEMAGOGUES IN THE DEPRESSION: AMERICAN RADICALS AND THE UNION PARTY, 1932-1936, at 96 (1969). Roosevelt signed the measure only reluctantly and with the warning that it would "require amendment at the next session of Congress." 3 PUBLIC PAPERS, supra note 15, at 332. Save for the ruling against the NIRA, the only unanimous decision against the New Deal came in a little noticed case invalidating one feature of the Home Owners' Loan Act, 48 Stat. 128, 132 (1933). See Hopkins Fed. Sav. & Loan Ass'n v. Cleary, 296 U.S. 315 (1935). Rickert Rice Mills v. Fontenot, 297 U.S. 110 (1936), merely recognized the consequence of the ending of Roosevelt's farm program in Butler.
95. Michael J. Klarman, Constitutional Fact/Constitutional Fiction: A Critique of Bruce Ackerman's Theory of Constitutional Moments, 44 STAN. L. REV. 759, 771 (1992). On this same page, Klarman repeats a common error: "[T]he popular mandate may have been to reverse only those Supreme Court decisions that narrowly invalidated New Deal legislation, rather than those unanimous rulings that invalidated laws regarded even by many contemporary liberals as ill- advised and poorly drafted." Id. In fact, only one piece of "New Deal legislation" of any significance, the National Industrial Recovery Act, was struck down unanimously. See Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935). True, there were two other 9-0 rulings that day. One of them, however, involved not legislation but an executive act. See Humphrey's Ex'r v. United States, 295 U.S. 602 (1935). The other, to which Ackerman gives inordinate prominence, see 2 ACKERMAN, supra note 1, at 303-04, resulted in the invalidation of a the Frazier-Lemke Act, ch. 869, 48 Stat. 1289 (1934), a federal farm bankruptcy law. See Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555 (1935). The Frazier-Lemke Act, however, was not even remotely "New Deal legislation" but, as its name indicates, the brainchild of two North Dakota Republicans. "I have never endorsed the Frazier-Lemke bill," Roosevelt told his press secretary. "If this type of wild legislation passes, the responsibility for wrecking recovery will be squarely on Congress." DAVID H. BENNETT, DEMAGOGUES IN THE DEPRESSION: AMERICAN RADICALS AND THE UNION PARTY, 1932-1936, at 96 (1969). Roosevelt signed the measure only reluctantly and with the warning that it would "require amendment at the next session of Congress." 3 PUBLIC PAPERS, supra note 15, at 332. Save for the ruling against the NIRA, the only unanimous decision against the New Deal came in a little noticed case invalidating one feature of the Home Owners' Loan Act, 48 Stat. 128, 132 (1933). See Hopkins Fed. Sav. & Loan Ass'n v. Cleary, 296 U.S. 315 (1935). Rickert Rice Mills v. Fontenot, 297 U.S. 110 (1936), merely recognized the consequence of the ending of Roosevelt's farm program in Butler.
96. Michael J. Klarman, Constitutional Fact/Constitutional Fiction: A Critique of Bruce Ackerman's Theory of Constitutional Moments, 44 STAN. L. REV. 759, 771 (1992). On this same page, Klarman repeats a common error: "[T]he popular mandate may have been to reverse only those Supreme Court decisions that narrowly invalidated New Deal legislation, rather than those unanimous rulings that invalidated laws regarded even by many contemporary liberals as ill- advised and poorly drafted." Id. In fact, only one piece of "New Deal legislation" of any significance, the National Industrial Recovery Act, was struck down unanimously. See Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935). True, there were two other 9-0 rulings that day. One of them, however, involved not legislation but an executive act. See Humphrey's Ex'r v. United States, 295 U.S. 602 (1935). The other, to which Ackerman gives inordinate prominence, see 2 ACKERMAN, supra note 1, at 303-04, resulted in the invalidation of a the Frazier-Lemke Act, ch. 869, 48 Stat. 1289 (1934), a federal farm bankruptcy law. See Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555 (1935). The Frazier-Lemke Act, however, was not even remotely "New Deal legislation" but, as its name indicates, the brainchild of two North Dakota Republicans. "I have never endorsed the Frazier-Lemke bill," Roosevelt told his press secretary. "If this type of wild legislation passes, the responsibility for wrecking recovery will be squarely on Congress." DAVID H. BENNETT, DEMAGOGUES IN THE DEPRESSION: AMERICAN RADICALS AND THE UNION PARTY, 1932-1936, at 96 (1969). Roosevelt signed the measure only reluctantly and with the warning that it would "require amendment at the next session of Congress." 3 PUBLIC PAPERS, supra note 15, at 332. Save for the ruling against the NIRA, the only unanimous decision against the New Deal came in a little noticed case invalidating one feature of the Home Owners' Loan Act, 48 Stat. 128, 132 (1933). See Hopkins Fed. Sav. & Loan Ass'n v. Cleary, 296 U.S. 315 (1935). Rickert Rice Mills v. Fontenot, 297 U.S. 110 (1936), merely recognized the consequence of the ending of Roosevelt's farm program in Butler.
97. R.E. Fossett, The Impact of the New Deal on Georgia Politics, 1933-1941, at 150 (1960) (unpublished Ph.D. dissertation, University of Florida) (on file with the Univ. of Florida) (quoting Gov. Talmadge).
98. Gannett Calls Borah the Best Candidate, N.Y. TIMES, Feb. 23, 1936, at 31.
99. RICHARD POLENBERG, REORGANIZING ROOSEVELT'S GOVERNMENT 60 (1966) (quoting Frank Gannett).
100. Chan Gurney, Address at Yankton, S.D. (Spring 1936) (on file with the Yankton County Museum, in the Chan Gurney Papers).
101. Bar Head Warns of a 'Dictatorship,' N.Y. TIMES, May 1, 1936, at 15 (quoting William L. Ransom). After denouncing the NRA and the AAA as "aimed at a complete regimentation of the nation, in complete disregard of the Constitution," the columnist Frank Kent warned a correspondent, "The Supreme Court has saved us from that for the time being, but it is generally recognized that reelection of Mr. Roosevelt will give him control of the Court. The Brain Trust waits only for that to revive its unconstitutional and unamerican schemes." Letter from Frank R. Kent to Mrs. John S. Biggs (Apr. 10, 1936) (on file with the Md. Historical Soc'y, in the Frank R. Kent Papers).
102. Colby Declares Liberty Not Won, N.Y. TIMES, May 17, 1936 at 31.
103. Id.
104. Arthur Krock, Wage Law Ruling May Plague Cleveland Convention, N.Y. TIMES, June 5, 1936, at 20.
105. Id.
106. Supreme Court: Wage Ruling Causes a Political Dilemma, NEWS-WEEK, June 13, 1936, at 12.
107. Hoover Advocates Women's Wage Law, N.Y. TIMES, June 7, 1936, at 1.
108. RICHARD NORTON SMITH, AN UNCOMMON MAN: THE TRIUMPH OF HERBERT HOOVER 226 (1984).
109. Id.
110. Herbert Hoover, Address Delivered to the Republican National Convention, Cleveland, Ohio (June 10, 1936) (on file in the Republican Nat'l Comm. Papers, Washington, D. C., Box 40).
111. Bertrand H. Snell. Address at Cleveland. Ohio (June 10, 1936), in REPUBLICAN NAT'L COMM., TEXT BOOK OF THE REPUBLICAN PARTY 1936, at 73, 73 (1936).
112. Id. at 81.
113. Republican Platform for 1936, in NATIONAL PARTY PLATFORMS 1840-1956, at 365, 365-66 (Kirk H. Porter & Donald Bruce Johnson eds., 1956).
114. Id. at 367.
115. See Letter from Gov. Alf M. Landon to Arthur A. Ballantine (Feb. 8, 1937) (on file with the Kan. State Hist. Soc'y, in the Alf Landon Papers, Box 83)
116. Id.
117. See Stanley High Manuscript Diary (Feb. 14, 1937) (on file with the Franklin D. Roosevelt Library, in the Stanley High Papers).
118. Text of Governor Landon's Maine Campaign Speech Attacking the President, N.Y. TIMES, Sept. 13, 1936, at 36 (transcribing the speech by Gov. Alf Landon in Portland, Maine, on Sept. 12, 1936).
119. The Texts of Governor Landon's Addresses Yesterday, N.Y. TIMES, Oct. 14, 1936, at 21 (transcribing the speech by Gov. Alf Landon in Detroit on Oct. 13, 1936).
120. MCCOY, supra note 22, at 323-24 (quoting Gov. Alf Landon).
121. Id. at 334.
122. Id. at 335.
123. Id. 97. Id.
124. Congress Scored as 'Money-Dumb,' N.Y. TIMES, Sept. 20, 1936, at 25.
125. Knox Says High Court Ended Course to Ruin, N.Y. TIMES, Sept. 18, 1936, at 11.
126. BENNETT, supra note 69, at 229 (quoting Coughlin) (citation omitted).
127. Coughlin 'Chagrined' by Roosevelt Action, N.Y. TIMES, Sept. 17, 1936, at 8 (quoting Rev. Charles E. Coughlin).
128. CHICAGO TRIB., July 24, 1936 (clipping on file with the Univ.77 of Michigan, in the Frank Murphy Collection).
129. Louis Taber Memoir, in Columbia Oral History Collection, supra note 55, at 315-17; Supplementary Notes, id. at 31.
130. Louis Taber Memoir, in Columbia Oral History Collection, supra note 55, at 315-17; Supplementary Notes, id. at 31.
131. Letter from A.F. Whitney to Frank O. Lowden (Apr. 17, 1937) (on file in the Frank O. Lowden Papers, Series 5, Box 25, Folder 5) (quoting the advertisement).
132. Reed Cites Threat To Pack High Court, N.Y. TIMES, Oct. 8, 1936, at 18 (quoting former Sen. James A. Reed).
133. See Advertisement by Paul Block, President Roosevelt Dodges Governor Landon's Challenge, in N.Y. TIMES, Oct. 29, 1936, at 15.
134. N.Y. EVENING POST, Jan. 8, 1936 (clipping on file in the Herben Hoover Papers, West Branch, Iowa, PPS Box 70).
135. R. Dutcher, Behind the Scenes in Washington, BROWNSVILLE HERALD (Texas), May 27, 1936.
136. J.M. Gillis, President Roosevelt's Communistic Sympathies?, CATH. WORLD, Nov. 1936, at 132.
137. Letter from James H. Winston to Sterling E. Edmunds (July 30, 1936), copied in Letter from James H. Winston to Franklin D. Roosevelt (Aug. 1, 1936) (on file in the Franklin D. Roosevelt Papers, PPF 1786); see also Letter from James H. Winston to James Hamilton Lewis (June 24, 1937) (on file with the Univ. of N.C. S. Historical Collection, in the James H. Winston Papers, Folder 51).
138. The Text of Hoover's Denver Address Warning of New Deal 'Shackles on Liberty,' N.Y. TIMES, Oct. 31, 1936, at 4; see also Letter from James R. Sheffield to Elihu Root, Jr. (Feb. 17, 1937) (on file with Yale Univ., in the James R. Sheffield Papers, Box 11).
139. Telegram from E.D. Coblentz to Editors, All Hearst Morning Papers and Afternoons Where No Mornings (Oct. 21, 1936) (on file with the Bancroft Library, Univ. of Cal., Berkeley, in the E.D. Coblentz Papers, Part 1, Box 4). Donald Richberg, one of Roosevelt's advisers, had been chief counsel of the National Recovery Administration. Rexford Tugwell, a member of the original Brain Trust, headed the Resettlement Administration. Felix Frankfurter, a professor at Harvard Law School, associated himself closely with the President and New Deal officials. The charges disturbed some Democrats. A Chicagoan wired Secretary of Commerce Daniel Roper: "Personally know some employers intend discharging employees account fear Administration's future policies. Since reemployment by a confident industry imperative consider extremely important you urge the President in tonight's radio address to state definitely Supreme Court will not be packed." Telegram from S.H. Boddinghouse to Daniel Roper (Nov. 6, 1936) (on file in the Franklin D. Roosevelt Papers, OF 41-A, Box 116). On the other hand, Dean Acheson wrote in the final week of the campaign, "The rumors about packing the Court really don't disturb me, because it is very difficult to be sure what sort of packing you are getting and if you are sure, to have an appointment confirmed which upsets any large section of the country." Letter from Dean Acheson to Grenville Clark (Oct. 31, 1936) (on file with the Harry S. Truman Library, in the Dean Acheson Papers, Box 95).
140. JANE DEHART MATHEWS, THE FEDERAL THEATRE, 1935-1939, at 70-73, 310 (1967).
141. ANTHONY J. BADGER, PROSPERITY ROAD 123 (1980).
142. Letter from John Harrison to M.H. McIntyre (Jan. 8, 1936) (on file with the Nat'l Archives, 5-36-346).
143. Letter from Carroll E. Kramer to Lindsay C. Warren (Jan. 8, 1936) (on file with the Univ. of N.C. S. Historical Collection, in the Lindsay C. Warren Papers, Box 15).
144. Letter from W.B. Anderson et al. to Park Trammell (Jan. 13, 1936) (on file with the Park Trammell Public Library, Lakeland, Fla., in the Park Trammell Papers).
145. Farmers Are Split on End of the AAA, N. Y. TIMES, Jan. 7, 1936, at 1 (quoting Edward A. O'Neal); see also Morton Taylor, The Middle West Answers the Court, 86 NEW REPUBLIC 71 (1936) (describing the unpopularity of Court decisions in the Midwest).
146. Farmers Are Split on End of the AAA, N. Y. TIMES, Jan. 7, 1936, at 1 (quoting Edward A. O'Neal); see also Morton Taylor, The Middle West Answers the Court, 86 NEW REPUBLIC 71 (1936) (describing the unpopularity of Court decisions in the Midwest).
147. DEAN ALBERTSON, ROOSEVELT'S FARMER 100-02 (1961).
148. See Six Supreme Justices Hanged in Effigy in Iowa, N.Y. TIMES, Jan. 8, 1936, at 15.
149. See MITCHELL DAILY REPUBLICAN (S. D.), Jan. 15, 1936 (clipping on file in the Peter Norbeck Papers, Box 105).
150. E.F. Duke, The Political Career of Morris Sheppard, 1875-1941, at 436-37 (1958) (unpublished Ph.D. dissertation, Univ. of Texas) (on file with the Univ. of Texas).
151. See BADGER, supra note 114, at 122.
152. Nelson, supra note 55, at 273 (citing Stuart S. Nagel, Court-Curbing Periods in American History, 18 VAND. L. REV. 925 (1965)).
153. Nelson, supra note 55, at 273 (citing Stuart S. Nagel, Court-Curbing Periods in American History, 18 VAND. L. REV. 925 (1965)).
154. See Capital Again Set for TVA Decision, N.Y. TIMES, Feb. 10, 1936, at 4.
155. George Norris, Legislation by the Judiciary (on file with the Library of Congress, in the George W. Norris Papers).
156. See id.
157. Letter from Fred A. Smith to President Franklin D. Roosevelt (Jan. 9, 1936) (on file with the Nat'l Archives, Dep't of Justice 235773).
158. Letter from Robert S. Allen to George W. Norris (Feb. 12, 1936) (on file with the George W. Norris Papers). For more reaction to Norris's speech, see Letter from Thomas R. Amlie to W. Jett Lauck (March 6, 1937) (on file with the State Historical Soc'y of Wis., in the Amlie Papers, Box 6); Letter from O.H. Cross to Stanley Reed (Jan. 17, 1936) (on file with the Nat'l Archives, Dep't of Justice 235868); and Letter from George W. Norris to Francis Heney (Apr. 25, 1936) (on file with the Bancroft Library, Univ. of Cal., Berkeley, in the Francis Heney Papers).
159. Four High Court Justices Called 'Fossils' in House, N.Y. TIMES, Feb. 11, 1936, at 15.
160. JAMES P. JOHNSON, THE POLITICS OF SOFT COAL 228 (1979).
161. James C. Duram, The Labor Union Journals and the Constitutional Issues of the New Deal: The Case for Court Restriction, 15 LABOR HISTORY 216, 227 (1974) (quoting UNITED MINEWORKERS J., June 1, 1936, at 3-4).
162. 298 U.S. 1 (1936).
163. ST. LOUIS STAR-TIMES (n.d.) (clipping on file with the Library of Congress, in the Harlan Fiske Stone Papers, Box 7).
164. See ALPHEUS THOMAS MASON, HARLAN FISKE STONE: PILLAR OF THE LAW 421 (1956) (quoting Irving Brant).
165. PHILADELPHIA REC., May 30, 1936 (clipping on file with the Library of Congress, in the Raymond Clapper Papers, Box 230).
166. Id.
167. See MASON, supra note 135, at 438.
168. Franklyn Waltman, Politics and People, WASHINGTON POST, June 2, 1936, at 2.
169. KNICKERBOCKER PRESS, June 4, 1936 (clipping on file with Cornell Univ. Sch. of Indus. & Labor Relations, in the Max Meyer Papers, Box 5).
170. Letter from Raymond Clapper to James M. Landis (June 4, 1936) (on file with the Library of Congress, in the James M. Landis Papers, Box 9).
171. See, MASON, supra note 135, at 424.
172. Letter from Felix Frankfurter to Franklin D. Roosevelt (June 6, 1936) (on file with the Library of Congress, in the Felix Frankfurter Papers, Box 98).
173. N.Y. TIMES, June 7, 1936, § 4, at 8 (reprinting an editorial from the Boston Transcript).
174. N.Y. TIMES, June 7, 1936, § 4, at 8 (reprinting an editorial from the Boston Transcript).
175. Dorothy Thompson, N.Y. HERALD TRIB., June 4, 1936, at 23.
176. A Deplorable Decision, 24 THE COMMONWEAL 199, 199 (1936).
177. Id.
178. OFFICIAL REPORT OF THE PROCEEDINGS OF THE DEMOCRATIC NATIONAL CONVENTION HELD AT PHILADELPHIA, PENNSYLVANIA, JUNE 23RD TO JUNE 27TH, INCLUSIVE, 1936 at 46 (1936).
179. Id. at 45.
180. Letter from Justice Harlan Fiske Stone to C.C. Burlingham (Jan. 9, 1936) (on file with the Library of Congress, in the Harlan Fiske Stone Papers, Box 7).
181. MASON, supra note 135, at 408 n.†; see also Harlan Fiske Stone Memorandum (Feb. 4, 1936) (on file with the Library of Congress, in the Harlan Fiske Stone Papers, Box 62).
182. MASON, supra note 135, at 408 n.†; see also Harlan Fiske Stone Memorandum (Feb. 4, 1936) (on file with the Library of Congress, in the Harlan Fiske Stone Papers, Box 62).
183. United States v. Butler, 297 U.S. 1, 87 (1936) (Stone, J., dissenting).
184. Id. (Stone, J., dissenting) (quoting Missouri K & T.R. Co. v. May, 194 U.S. 267, 270 (1904)).
185. Letter from Felix Frankfurter to James M. Landis (Jan. 9, 1936) (on file with the Library of Congress, in the James M. Landis Papers, Box 10).
186. Letter from Fleming James to Harlan Fiske Stone (Jan. 23, 1936) (on file with the Library of Congress, in the Harlan Fiske Stone Papers, Box 82). The "certain colorful member" was almost certainly Fred Rodell. See, too, letters in that same box of the Stone Papers from Howard Lee McBain, Fred Rodell, and others, and Letter from John H. Clarke to Newton D. Baker (Feb. 11, 1936) (on file with the Western Reserve Historical Society, in the John H. Clarke Papers, File 3, Folder 24).
187. Arthur Krock, Farm Act Is Swept Away, N. Y. TIMES, Jan. 7, 1936, at 1.
188. Howard Lee McBain, The Issue: Court or Congress, N.Y. TIMES. Jan. 19, 1936, § 7 (Magazine), at 1. "Mr. Justice Stone's minority report does more than any outsider could do to destroy the illusion that the Supreme Court is actuated only by scientific reasoning," observed another newspaper. N.Y. EVENING POST, Jan. 8, 1936 (clipping on file in the Herbert Hoover Papers, PPS Box 70).
189. Howard Lee McBain, The Issue: Court or Congress, N.Y. TIMES. Jan. 19, 1936, § 7 (Magazine), at 1. "Mr. Justice Stone's minority report does more than any outsider could do to destroy the illusion that the Supreme Court is actuated only by scientific reasoning," observed another newspaper. N.Y. EVENING POST, Jan. 8, 1936 (clipping on file in the Herbert Hoover Papers, PPS Box 70).
190. Arthur Krock, Supreme Court Moves to the Fore as an Issue, N.Y. TIMES, Jan. 8, 1936, at 18.
191. See Dutcher, supra note 108.
192. Chester Lane, in Columbia Oral History Collection, supra note 55, at 277.
193. Jones v. SEC, 298 U.S. 1, 32 (1936) (Cardozo, J., dissenting).
194. ST. Louis STAR-TIMES (n.d.) (clipping on file with the Library of Congress, in the Harlan Fiske Stone Papers, Box 7).
195. Letter from Harlan Fiske Stone to Felix Frankfurter (Apr. 7, 1936) (on file with the Library of Congress, in the Felix Frankfurter Papers, Box 105).
196. Ashton v. Cameron County Water Improvement Dist. No. 1, 298 U.S. 513 (1936).
197. Id. at 541 (Cardozo, J., dissenting) (1936).
198. Letter from Felix Frankfurter to Harlan Fiske Stone (May 28, 1936) (on file with the Library of Congress, in the Felix Frankfurter Papers, Box 105).
199. Morehead v. New York ex rel. Tipaldo, 298 U.S. 587, 633 (1936) (Stone, J., dissenting).
200. Id. at 636.
201. Id.
202. 198 U.S. 45, 74 (1905) (Holmes, J., dissenting).
203. Tipaldo, 298 U.S. at 636 (Stone, J., dissenting).
204. Stanley High, Memorandum for the President (June 2, 1936) (on file with the Franklin D. Roosevelt Library, in the Stanley High Papers).
205. Arthur Krock, Supreme Court Knows It Is on Trial in Election, N.Y. TIMES, May 27, 1936, at 22.
206. 2 ACKERMAN, supra note 1, at 310.
207. Letter from Harold L. Ickes to J.F. Quinn (Dec. 3, 1936) (on file with the Library of Congress, in the Harold L. Ickes Papers, Box 231)
208. SPRINGFIELD DAILY NEWS (Missouri) (Jan. 8, 1937) (clipping on file with the Univ. of Ky., in the Alben Barkley Papers, Alben Barkley Scrapbooks).
209. See IRVING BERNSTEIN, A CARING SOCIETY: THE NEW DEAL, THE WORKER, AND THE GREAT DEPRESSION 297 (1985).
210. Mary Heaton Vorse, A Year of the C.I.O., 89 NEW REPUBLIC 106, 107 (1936).
211. Stanley High Manuscript Diary (Oct. 1, 1936) (on file with the Franklin D. Roosevelt Library, in the Stanley High Papers).
212. For analysis of the voting, see WILLIAM E. LEUCHTENBURG, THE FDR YEARS: ON ROOSEVELT AND HIS LEGACY 145-58 (1995).
213. See THE GALLUP POLL, supra note 60, at 29, 43.
214. Letter from Harold Ickes to William Allen White (Feb. 20, 1937) (on file with the Library of Congress, in the William Allen White Papers, Box 186). The same point was made by the President of the Brotherhood of Railroad Trainmen. See Letter from A.F. Whitney to Frank O. Lowden (Apr. 17, 1937) (on file in the Frank O. Lowden Papers, Series 5, Box 25, Folder 5).
215. Letter from Jacob Hayman to Franklin D. Roosevelt (Feb. 24, 1936) (on file with the Franklin D. Roosevelt Library, OF 41-A, Box 116).
216. HAROLD BRAYMAN, THE PRESIDENT SPEAKS OFF-THE-RECORD 284 (1976).
217. James Truslow Adams, The Court Issue: Is Democracy Menaced?, N.Y. TIMES, Feb. 21, 1937, § 8 (Magazine), at 1 (quoting Johnson without providing a more detailed citation).
218. See THE GALLUP POLL, supra note 60, at 43.
219. Id. at 47.
220. 5 PUBLIC PAPERS, supra note 15, at 16.
221. Id. at 234-35.
222. Id. at 567-69.
223. Robert L. Pritchard, Orange County During the Depressed Thirties: A Study in Twentieth-Century California Local History, in HITTING HOME: THE GREAT DEPRESSION IN TOWN AND COUNTRY 247, 260 (Bernard Sternsher ed., rev. ed., 1989).
224. See LEUCHTENBURG, supra note 180, at 113, 116.
225. See THE GALLUP POLL, supra note 60, at 40. The survey was conducted from November 6-11, 1936.
226. Id. The question stated: "Do you favor the compulsory old age insurance plan, starting in January, which requires employers and workers to make equal contributions to workers' pensions?" Id.
227. Id. The question stated: "Do you favor the compulsory old age insurance plan, starting in January, which requires employers and workers to make equal contributions to workers' pensions?" Id.
228. For the impact of the 1936 election and related events on the Court, see David A. Pepper's exceptionally perceptive article. Against Legalism: Rebutting an Anachronistic Account of 1937, 82 MARQ. L. REV. 63, 146-50 (1998). Another scholar, William Lasser, has written that after the 1936 outcome "the Court succumbed to the verdict of the people within six months of the election." William Lasser, The Supreme Court in Periods of Critical Realignment, 47 J. OF POL. 1174, 1182 (1985).
229. For the impact of the 1936 election and related events on the Court, see David A. Pepper's exceptionally perceptive article. Against Legalism: Rebutting an Anachronistic Account of 1937, 82 MARQ. L. REV. 63, 146-50 (1998). Another scholar, William Lasser, has written that after the 1936 outcome "the Court succumbed to the verdict of the people within six months of the election." William Lasser, The Supreme Court in Periods of Critical Realignment, 47 J. OF POL. 1174, 1182 (1985).