I understand it, flexible enough to meet any new problem of democracy -- not the kind of Constitution your court has raised up as a barrier to progress and democracy.'"
FDR's court-packing scheme, ostensibly to assist elderly justices with their workload, angered liberals, moderates and conservatives alike. Many members of Roosevelt's own party, while supporting the New Deal, hated his naked attempt to alter the court's historic structure. "One of the unhappier aspects of the proposal was its deviousness," said Freidel. "No sophisticated person took Roosevelt seriously when he insisted afterward that what he wanted was to speed the business of the court through providing additional aid to superannuated justices. That smacked of the trickery of demagogues."
But the court-packing scheme worked. Shortly after Congressional hearings on the court-packing bill began, the court blinked. Justice Owen J. Roberts, who previously ruled against New Deal legislation, switched sides. Chief Justice Charles Evan Hughes reportedly congratulated him on "saving the court." Eventually, through replacement appointments, Roosevelt built a New Deal-friendly "Roosevelt Court." And the country began accepting a staggering invasion of federal authority that would have stunned the Founding Fathers. "From this standpoint," wrote Freidel, "the court fight had brought the great end Roosevelt sought. The end was far more acceptable because he had not attained even a compromise; the legitimation of the New Deal reforms came from a court with the traditional nine justices, and it came fundamentally before even the first Roosevelt appointee took his seat. A momentous turning point had come in constitutional law ." (emphasis added)
So never mind that state-sponsored welfare violates Econ 101, while diminishing the initiative of both the giver and the given. No, the crime of the modern welfare state is more basic. As James Madison put it, "I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents."
If the it-takes-a-village crowd wants the welfare state, they should do so the way the Founding Fathers intended -- through integrity and principle.
Amend the Constitution.
The modern welfare state: Social Security, Medicare, Medicaid, farm subsidies, and other so-called assistance programs for the needy, the downtrodden, and the sick -- funded through taxation.
But did the Founding Fathers intend for a government-provided social safety net? The evidence clearly says no. The often-misunderstood general welfare clause simply outlines specific responsibilities and powers of the federal government, leaving all others to the states and to the people. James Madison, the principle author of the Constitution, said, "With respect to the words general welfare, I have always regarded them as qualified by the details of powers (enumerated in the Constitution) connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proof was not contemplated by its creators."
For the first 150 years of our nation's history, the Supreme Court saw the Constitution the way Madison wrote, explained, and intended it.
What happened? Franklin Delano Roosevelt. While certainly America's greatest twentieth-century president, FDR nevertheless deserves the title of principle architect of the modern welfare state.
Angered by Supreme Court decisions striking down major parts of his New Deal legislation, FDR fought back, proposing a law to add more justices to the Supreme Court. He threatened to pack the court with justices who deemed the Constitution a "living, breathing document," versus the "strict constructionist" outlook by the anti-New Deal justices, who determined an activist, benevolent government as unconstitutional.
Even FDR's legal advisor, Felix Frankfurter, whom FDR later appointed to the Supreme Court, advised FDR against his court-packing scheme. In the well-received biography "Franklin D. Roosevelt: A Rendezvous with Destiny," author Frank Freidel discusses the profound shift in constitutional interpretation that occurred during the dramatic years of the Roosevelt administration. "Frankfurter," wrote Freidel, "had hastened to Washington and had advised (FDR) to bide his time before clashing with the Supreme Court: Let more adverse decisions accumulate and then propose a constitutional amendment. Roosevelt ignored the advice and set forth upon his own course of action."
In short, despite a depression and 25 percent unemployment, the Constitution, under the vision of limited government established by the Framers, did not permit this kind of income redistribution, no matter how popular or desirable. If you want to pull this off, advised Frankfurter, change the Constitution. "From Roosevelt's standpoint," wrote Freidel, "the emotion was not pique but outrage. His target was not the Constitution but rather the outmoded Supreme Court interpretation of it."
Following his second inauguration, Roosevelt remarked to one of his speechwriters, "When the Chief Justice read me the oath and came to the words 'support the Constitution of the United States,' I felt like saying: 'Yes, but it's the Constitution as