Gerard N. Magliocca has posted The Child Labor Amendment and the Court-Packing Plan on SSRN (H/T Legal Theory Blog).

This Article presents new material on Franklin D. Roosevelt’s Court-packing plan and its relationship to the Child Labor Amendment (CLA), which was passed by Congress in 1924 but never ratified by the States.While modern lawyers assume that state ratification of a constitutional amendment is incredibly difficult, my analysis shows that this interpretation only emerged in 1937 and was the deliberate product of FDR’s campaign to discredit Article Five in favor of judicial “reform.” When the CLA was passed, there was a consensus that state legislatures were little more than a rubber stamp for amendments. Indeed, foes of the CLA sought to block the proposal in Congress by seeking to require ratification by state conventions. Even after the CLA was blocked in the States during the 1920s and 1930s, that did not alter the basic premise that state legislative ratification was generally easy.

President Roosevelt changed all of this in 1937 by making the CLA into the paradigmatic case for Article Five instead of the exception that it actually was. He did this in two steps. First, he gave a high-profile endorsement to the proposal even though he knew that it was not going to be ratified anytime soon. Then he used that failure as a leading argument for Court-packing in his public statements about that proposal. This provoked a unorthodox response in Congress and a deep inquiry into Article Five that ended abruptly when the Supreme Court executed its switch-in-time on March 29, 1937.

By demonstrating that the view of state legislatures as a massive obstacle to constitutional change is largely a self-fulfilling construction, this Article hopes to provoke a new discussion about the merits of using the amendment process.

Today, it is almost accepted as conventional wisdom that the Article V Amendment process is antiquated and outdated. FDR acknowledged the weakness of this process as he unveiled his Court Packing plan to effect constitutional change through the Judiciary:

On March 9, 1937, President Franklin D. Roosevelt delivered a much-anticipated radio address to the nation defending his proposal to “reorganize” the Supreme Court.3 In that speech, FDR argued that the repeated invalidation of New Deal statutes by the Justices meant we had “reached the point as a nation where we must take action to save the Constitution from the Court and the Court from itself.”4 But this crisis could not be solved by a constitutional  amendment in part because of the “long course of ratification by three-fourths of all the States” required by Article Five.5 The only solution, according to the President, was to “infuse new blood” into the Court by adding many new Justices immediately.6

The article discusses the ratification of the Federal Child Labor Amendment, which was passed by hte Congress, and ratified by half the states, but never made it to full ratification. The article tracks the failure of the amendment process as a contemporary reaction to FDR’s court packing scheme:

This Article explores the relationship between the Child Labor Amendment and FDR’s Court-packing plan. Conventional wisdom says that the long fight to ratify the CLA soured the President on the Article Five process and persuaded him that challenging the Justices was the better option.12 The truth is far more complex. At the same time that the Administration was arguing that the deadlock over the CLA demonstrated that textual amendments were not a realistic way to achieve legal change, FDR was putting on a full-court press for the ratification of that amendment.13 More perplexing still, the President made it clear in his private letters during these weeks that he had no faith in the ratification process.14

But if FDR doubted the ratification process, why he did he put so much energy into ratifying the FCLA:

This raises an obvious question—why did FDR put his authority behind the CLA?

Though there is no smoking gun describing the President’s motives, the best explanation is that he supported the CLA because he thought that it would fail and that highlighting that failure would help the Court plan. FDR’s foes saw through this game and tried to call his bluff by supporting a revised version of the CLA that would have required state ratification conventions to vote on the proposal within ninety days; an idea that would have undercut the rationale for Court-packing.15 All of these maneuvers came to an abrupt end, however, when the Justices executed their “switch-in-time” a month after the President’s address.16 Thus, the Child Labor Amendment ratification debate, which reached its climax at about the same time that the Court-packing plan was proposed and the Justices flipped, sheds new light on that crucial constitutional moment.

This article has strong implications for the current constitutional debate, and how to effect constitutional change.

The most important takeaway from this story is that the view that state ratification is a high hurdle for constitutional amendments is an interpretation given to Article Five in 1937 and not a fact. When Congress passed the CLA in 1924, the prevailing consensus was that state legislatures were nothing but a rubber stamp for amendments.17 By 1937, however, state legislatures were viewed as a major obstacle. In part, this was because of the difficulties that the CLA encountered in the States. In part, though, this transformation was the product of FDR’s deliberate effort to convince people, contrary to the historical record, that state ratification of amendments was impossibly hard. His argument on this issue became a fixed point in constitutional practice even though his attempt to pack the Court failed.

Textual changes to the Constitution did not end with the defeat of the CLA, though fourteen years would pass before another Article Five amendment was ratified.148 What did end was the premise that getting these proposals through state legislatures would be easy. The President’s plan to make the CLA into the poster child for the process was successful even though its object—supporting the Court-packing plan—was not.149 The failure of the Equal Rights Amendment in the 1970s reinforced this interpretation and turned the futility of state ratification into a truism.150

By showing that the current construction of Article Five is just that—a construction rather than a fact—this Article seeks to provoke new thought about the merits of using the constitutional amendment
process. While there are certainly circumstances where agreeing on a textual formula for legal change or moving that language in Congress is not be the best course of action, the assumption that federalism is a prohibitive obstacle to political reform should be reexamined.151

Very good read. Highly recommended. I have blogged about Professor Magliocca’s work before.

I definitely intend to incorporate this article into my thinking and writings on constitutional law. The argument that Article V is a nullity is very prominent in constitutional scholarship, including in the Constitution in 2020 (see some of my coverage here and here). If Article V is revisited, perhaps the Constitution can be amended through Article V as it was intended. And, maybe there would be less of a need for Professor Ackerman’s theory of Landmark Legislation causing Constitutional Moments, and thus, Constructive Constitutional Amendments.