Gerard Magliocca links to FDR’s Constitution Day speech from 1937, shortly after the Court-packing and the switch in time. It is effectively a tour-de-force for judicial abdication, calling the Constitution “a layman’s document, not a lawyer’s contract.” Roosevelt even doubts the role of the Court to engage in judicial review–oddly enough citing that layman’s document, “the Constitution says nothing about any power of the Court to declare legislation unconstitutional.” One passage in particular, though, seems to undercut the entire speech:
Let me put the real situation in the simplest terms. The present government of the United States has never taken away and never will take away any liberty from any minority, unless it be a minority which so abuses its liberty as to do positive and definite harm to its neighbors constituting the majority. But the government of the United States refuses to forget that the Bill of Rights was put into the Constitution not only to protect minorities against intolerance of majorities, but to protect majorities against the enthronement of minorities.
Nothing would so surely destroy the substance of what the Bill of Rights protects than its perversion to prevent social progress. The surest protection of the individual and of minorities is that fundamental tolerance and feeling for fair play which the Bill of Rights assumes. But tolerance and fair play would disappear here as it has in some other lands if the great mass of people were denied confidence in their justice, their security and their self-respect.
A few things.
First. To say the present government of the United States has never taken away liberty from minorities is so wrong I can’t even begin. The same administration that a few years later rounded up Japanese Americans in internment camps? The same government that sanctioned brutal oppression and discrimination against racial minorities in the South, notwithstanding power under the 14th and 15th Amendment. The same government that took the United States off the gold standard, effecting the largest taking of the 20th century by devaluing all gold. Bullshit. Sorry.
Second. The Bill of Rights does not protect majorities against minorities. Which provision in the Bill of Rights, that layman’s contract, is FDR referring to? The Bill of Rights, adamantly demanded by the Anti-Federalists as a quasi-condition of ratification, is inherently counter-majoritarian!
Third. “Social progress” is not the sole purpose of society. Arguably, protection of people’s security is, though this does not come at any cost (cost, you see!).
Fourth. This sentence–“The surest protection of the individual and of minorities is that fundamental tolerance and feeling for fair play which the Bill of Rights assumes”–must ring hollow for minorities oppressed by the government. Segregated schools? Phsawh. Fair play is where it’s at!
Fifth. This sentence–“But tolerance and fair play would disappear here as it has in some other lands if the great mass of people were denied confidence in their justice, their security and their self-respect”–sounds like something Orval Faubus, the governor of Arkansas, may have said after President Eisenhower sent in federal troops to desegregate Little Rock High School.
In closing, FDR wrote:
I ask that majorities and minorities subordinate intolerance and power alike to the common good of all.
Hollow words to an African American living in the Jim Crow South.
The same people who laud FDR’s words and praise with respect to telling the Court to butt out with social progress are apt to be the same people who praise the Warren Court for doing what they did to reinforce the representation and liberties of minorities. This revists the entire Lochner/Brown tension. The reasoning for both are not very different. Before you praise FDR, think how the same words, spoken twenty years later, after Brown v. Board would sound.