Balkinization  

Thursday, August 04, 2016

Revisiting FDR's Constitution Day Address

Gerard N. Magliocca

Lately I've been thinking a lot about Franklin D. Roosevelt's speech marking the 150th anniversary of the end of the Constitutional Convention.  There aren't any books or articles that closely examine this Constitution Day Address, which is a great shame given that this was, in my opinion, FDR's deepest public statement.  So I want to talk about the themes of his address over the coming weeks.

Part of the backdrop for FDR's remarks--delivered at the Washington Monument on September 17, 1937, was the rise of totalitarianism in Europe. The President explained:
[O]f late we have heard a clear challenge to the democratic idea of representative government. We do not deny that the methods of the challengers—whether they be called "communistic" or "dictatorial" or "military"--have obtained for many who live under them material things they did not obtain under democracies which they had failed to make function . . . Order prevails, even though maintained by fear, at the expense of liberty and individual rights. So their leaders laugh at all constitutions, predict the copying of their own methods, and prophesy the early end of democracy throughout the world.
After rejecting that prophesy, Roosevelt warned that there was still a real danger:
Our constitutional democratic form of government must meet the insistence of the great mass of our people that economic and social security and the standard of American living be raised from what they are to levels which the people know our resources justify. Only by succeeding in that can we ensure against internal doubt as to the worthwhileness of our democracy and dissipate the illusion that the necessary price of efficiency is dictatorship with its attendant spirit of aggression.
With respect to the Bill of Rights, which is the subject of my forthcoming book, FDR added this:
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. 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. Desperate people in other lands surrendered their liberties when freedom came merely to mean humiliation and starvation. 
Here is why these passages are on my mind.  To what extent has increasing income inequality or our inability to raise the wages of the average worker undermined faith in the Constitution in the manner that FDR suggested?  Clearly many Americans are very unhappy with the trajectory of the country. Whether this is a constitutional problem, as Sandy insists, or a political problem is unclear.  What does seem clear, though, is that constitutional scholars need to focus more on these issues than on increasingly stale debates about what the Supreme Court is up to.  After all, Roosevelt's most famous statement in the Constitution Day Address was that "The Constitution of the United States was a laymen's document, not a lawyer's contract."

  


Comments:

FDR's 1937 speech should be considered as an introduction to his 1944 State of the Union address in 1944 on his proposed Second Bill of Rights. FDR did not have time to implement this. But some of his proposal has been enacted since.
 

To what extent has increasing income inequality or our inability to raise the wages of the average worker undermined faith in the Constitution in the manner that FDR suggested?

I think the historical record is pretty clear that hard economic times allow extremists to flourish.* Most often those extremists are on the political right, but in a few cases (notably Russian 1917) they were on the left.

The interesting thing about this, for me, is that right wing parties tend to execute conservative economic policies regardless of their political rhetoric. Those conservative policies are the very ones which fail the middle class and poor, but benefit the rich. The failing classes then tend to seek more extreme right wing solutions, often blaming the Other; from the perspective of the party leadership, this is a virtuous circle. Until it's not, as in .... Russia 1917.

The lesson here in the US is that the Rs have demanded and mostly gotten conservative economic policies enacted over the last 35 years. They reaped the benefits of that by gaining votes, and they sowed what they reaped by catering to the racism which is both fueled by the economic disappointments and a cause of them. We're very lucky (keeping my fingers crossed) that it seems to be the R establishment which is paying the cost and not the rest of us. I remain cautiously optimistic on the latter score.

*They can flourish in other situations too, but definitely in hard times.
 

"increasingly stale debates about what the Supreme Court is up to"

There has been some useful discussions of the application of basic constitutional principles by society at large & the political branches beyond the courts. A recent book (focusing on guns, the war on terror & same sex marriage) had a basic thesis that the Supreme Court was a follower, not a leader, in a major fashion there.

A book on the "First Congress" also discussed how constitutional problems at the beginning was something that were decided outside of the courts. These days, even when the courts are in the news, it isn't even the Supreme Court. The lower courts have been quite busy of late, and played/play a large role.
 

A link to the address: http://www.presidency.ucsb.edu/ws/?pid=15459


 

FDR: We do not deny that the methods of the challengers— whether they be called "communistic" or "dictatorial" or "military"have obtained for many who live under them material things they did not obtain under democracies which they had failed to make function. Unemployment has been lessened, even though the cause is a mad manufacturing of armaments. Order prevails, even though maintained by fear, at the expense of liberty and individual rights.

Not democracies plural. In 1937, the United States was the only developed nation still in economic depression and fast approaching a second deep recession because of the New Deal's misdirections of the economy, including ironically the National Recovery Act FDR borrowed from Mussolini and the CCC he borrowed from Hitler.

Our constitutional democratic form of government must meet the insistence of the great mass of our people that economic and social security and the standard of American living be raised from what they are to levels which the people know our resources justify. Only by succeeding in that can we ensure against internal doubt as to the worthwhileness of our democracy and dissipate the illusion that the necessary price of efficiency is dictatorship with its attendant spirit of aggression.

By this time, FDR had done more than than any prior president to undermine our constitutional checks and balances, and was turning the Supreme Court into a rubber stamp through the threat of his court packing scheme.

In this dishonest speech, Roosevelt celebrated the Constitution's birthday with a call to further undermine its provisions, and noted the need for democracy to prevail over dictatorship as a reason to further transfer powers from the elected branches to a new absolute bureaucracy modeled after those in fascist nations.

Desperate people in other lands surrendered their liberties when freedom came merely to mean humiliation and starvation.

One could make the same argument about the desperate Americans who twice elected Roosevelt.

To what extent has increasing income inequality or our inability to raise the wages of the average worker undermined faith in the Constitution in the manner that FDR suggested?

Quite the opposite. Wages and other labor costs were effectively rising during the Great Depression, which is why we suffered mass unemployment for over a decade until WWII.

After the progressive Hoover enacted fair trade tariff started a trade war and all but destroyed our export economy and the new progressive Fed raised interest rates to reverse an inflation it created in the late 1920s, the economy went into recession. In the face of a general deflation, wages needed to fall to maintain the same labor cost on employers and purchasing power for employees. Instead, Hoover jawboned industry into maintaining wages and effectively increasing labor costs under the progressive theory that this would boost demand and return economic growth. Instead, businesses fired millions of workers they could not longer afford.

FDR made things worse by further increasing labor costs and unemployment with his pro union and minimum wage legislation. The result was the 1937 recession within the Great Depression and mass unemployment until WWII.
 

Clearly many Americans are very unhappy with the trajectory of the country. Whether this is a constitutional problem, as Sandy insists, or a political problem is unclear.

During the term of our Constitution, we have only suffered two economic depressions or L-shaped recessions (recessions without recoveries) - the so called Great Depression and the Great Recession. Neither of these depressions were caused by the Constitution's checks on and balances of government power, but rather progressive governments ignoring those checks and balances to misdirect and distort our economy.

Yesterday, the Wall Street Journal published a very good comparison between these depressions and the remainder of our history here:

http://www.wsj.com/articles/why-this-recovery-is-so-lousy-1470266675
 

Once again (and again) SPAM i AM! channels the late Sam Cooke's "Don't Know Much about History ... " out-of-tune with his wet dreams of how wonderful the world of America was in The Gilded Age.
 

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With a little time on my hands this morning, I reviewed recent posts at this Blog and noted that Jack Balkin had an "Update" to his 8/1/18 post here titled "Donald Trump as a One Man Constitutional Crisis" with a quote from Eric Posner's post at his blog on the subject. (In an earlier thread at this Blog, I made reference to Posner's post.) Jack follows the quote with this:

"It's not clear whether Eric actually supports the idea of elite-led democracy, or whether he is just making fun of elites. Nevertheless, he has put his finger on an important point. People who assert that Trump is an existential threat should ask themselves if they want to destroy the village in order to save it. For the vast majority of Americans, the answer to that question will be no."

This brought to mind that back in the late 1700s the signers of the DOI and the Framers of the 1787 Constitution were the elites of those times. The We the People of the Constitution's Preamble in the ratification process were not necessarily all elites, but many of them were. The signers of the DOI and the Framers continue to be held in high regard by Americans, both elite and non-elite. But the Trump movement with its base of older undereducated white men seems to be challenging the elite of today, including within the establishment Republican Party which has failed to address income inequality that impacts Trump's base. Can Trump realistically be expected to address income inequality of his base? Probably not. So why might Trump's base vote against their economic interests by supporting Trump? Could it be the changing demographics? If so, how does that base think Trump will address the changing demographics? Does Trump's base prefer destroying the village?
 

As a follow up to my recent comment, take a peek at Jackie Calmes' NYTimes article "They Want Trump to Make the G.O.P. a Workers' Party." But do "They," the base of Trump, want this for all workers or just themselves? Or will "They" vote for Trump's pocketbook, e.g., Trump's plan to eliminate the federal estate tax as part of the TRUMP FAMILY VALUES CONvention?

Alas, if only Jim Crow had not blocked Reconstruction.
 

Shag:

Reagan managed to poach white working class voters from the old New Deal coalition and united them with the traditional GOP voters to win landslide victories.

Trump's base is the white working class, but he is having trouble attracting traditional GOP voters, the majority of whom voted for someone else in the primaries.

Trump is making a fascist pitch to his base voters by scapegoating foreigners and our "establishment" for the econoimic depression they are suffering. This pitch has very limited appeal to everyone else on the old Reagan coalition.

The question is not whether Trump can draw working class voters into the GOP. That long predated the Donald. But rather whether Trump is going to permanently fracture the Reagan coalition?
 

Alas, SPAM I AM! does not identify the methods and reasons Reagan employed to "poach" white working class voters, expanding on Nixon's Southern Strategy and law and order, garnering resentment of such white working class, primarily from the former slave states, attributable to the civil rights movement. This was extended by George H. W. Bush for his one term guided by Lee Atwater. But traditional, i.e. establishment, Republicans that pre-dated Reagan fear Trump for too many reasons to list here. The article I referenced points to a change in direction, somewhat, of Trump's base of older undereducated white men who fear the changing demographics. The establishment Republicans would find it difficult to buy into the base's proposed change for reasons conservatives always have. But what portion of the working class beyond the base would be attracted to support Trump? The establishment Republicans readily accepted under Nixon and Reagan, and then Bush I the white working class from the New Deal, with a sort of subdued racism for partisan political purposes. But the establishment Republicans, no longer the Republican Party of Lincoln, were infected with such racism. If Trump could so readily vanquish the GOP's "best and brightest" so readily, then perhaps the Reagan coalition has indeed been fractured.

My comments were aimed more at Trump's base and I expected rebuttal from Brett. But I'm pleased SPAM I AM! took the bait by opening up how Trump came about because of what Nixon, Reagan, Bush I, as well as Bush II, unmade of what was once the Republican Party of Lincoln.
 

Shag;

Sorry, the Democrats are still the sole party of government racial discrimination. Own it.

Reagan convinced social conservatives and working class folks of the truth that government was the cause of their problems and not their solution. This was a sea change for many of these former Democrats.

Trump is a progressive campaigning as a fascist who is offering a government run by him as the solution. The anti-Reagan.
 

Of course, SPAM I AMA! while a Republican, probably from birth, was never, ever of the Republican Party of Lincoln as it ceased to exist starting with Nixon in 1968. While SPAM I AM! says he accepts Brown v. Bd. of Educ., he does not accept implementation of Brown nor the civil rights movement that followed. As I noted earlier, Trump is the product of the Republican Party starting with Nixon in 1968. In fact, Trump has colored himself as the "law and order candidate," emulating Nixon, which even SPAM I AM! understands and leans towards. That's part of SPAM I AM!'s quality of life in CO after giving up a lucrative big law firm career in FL. Trump is no more a progressive than SPAM I AM! is a pure libertarian. Trump is campaigning as the 2016 Republican Party nominee for the presidency.
 

Blankshot, you can probably stop pissing yourself over the presidential race poll numbers.
 

Let's hear it fro the horses mouth, so the speak. From the two previous RNC Chairpersons:

Earlier this week, RNC Chairman Michael Steele told a group of 200 students at DePaul University that African-Americans “don’t have a reason” to vote for Republican candidates.

During his remarks he also acknowledged that for decades the GOP pursued “‘Southern Strategy’ that alienated many minority voters by focusing on the white male vote in the South.”

http://www.huffingtonpost.com/2010/04/22/michael-steele-for-decade_n_547702.html

Republican National Committee Chairman Ken Mehlman apologized to one of the nation's largest black civil rights groups Thursday, saying Republicans had not done enough to court blacks in the past and had exploited racial strife to court white voters, particularly in the South.

"By the '70s and into the '80s and '90s, the Democratic Party solidified its gains in the African American community, and we Republicans did not effectively reach out," Mehlman says in his prepared text. "Some Republicans gave up on winning the African American vote, looking the other way or trying to benefit politically from racial polarization. I am here today as the Republican chairman to tell you we were wrong."

http://www.washingtonpost.com/wp-dyn/content/article/2005/07/13/AR2005071302342.html


 

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Mr. W:

Michael Steele has been in DC too long and should know better. Southern white males make up less than a sixth of the electorate and do not remotely begin to account for the coalition hiring the GOP to run a super majority of state governments and Congress. You and Shag are free to show me a national GOP campaign message which is focused on Southern white males. It is a unicorn galloping around in your imagination.

As for which party better serves the interests of African Americans, the African American middle class expanded and poverty drropped during the Reagan Prosperity and all those gains were lost over the past eight years. When African Americans discover that freedom works for everyone and the Democrat plantation is a ticket to poverty, they are welcome to vote for libertarians and conservatives.
 

I was exposed to Dixieland jazz in the late 1930s. Jazz of all kinds has been important to me in my 85+ years. Now in retirement I listen to a bit of jazz every day. Over these years jazz has evolved. But jazz - and other music - continues with diversity staying in tune (despite what some may think) even with solos and improvising. Having a little extra time this morning, I noted at the NYTimes website Nate Chinen's "A Cri de Coeur From Jazz Musicians in a Black Lives Matters Age" that includes a history of how jazz has addressed racism over the years, bringing it up to date on Staten Island with a special concert. I wasn't in attendance, but the spirit can lead to progress as in the past, and we can hear our "colorblind" jazz once more with a spirited rendering of "The Saints."
 

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