1. My friends,
2. last Thursday I described in detail
3. certain economic problems which everyone admits now face the Nation.
4. For the many messages which have come to me after that speech,
5. and which it is physically impossible to answer individually,
6. I take this means of saying "thank you."
7. Tonight, sitting at my desk in the White House,
8. I make my first radio report to the people
9. in my second term of office.
10. I am- I am reminded of that evening in March, four years ago,
11. when I made my first radio report to you.
12. We were then in the midst of the great banking crisis.
13. Soon after, with the authority of the Congress,
14. we asked the Nation to turn over all of its privately held gold,
15. dollar for dollar, to the Government of the United States.
16. Today's recovery proves how right that policy was.
17. But when, almost two years later,
18. it came before the Supreme Court
19. its constitutionality was upheld
20. only
21. by a five-to-four vote.
22. The change of one vote
23. would have thrown all the affairs of this great Nation
24. back into hopeless chaos.
25. In effect,
26. four Justices
27. ruled that the right under a private contract
28. to exact a pound of flesh
29. was more sacred than the main objectives of the Constitution
30. to establish an enduring Nation.
31. In 1933
32. you and I knew that we must never let our economic system get completely out of joint again
33. that we could not afford to take the risk of another great depression.
34. We also became convinced
35. that the only way to avoid a repetition of those dark days
36. was to have a government with power to prevent and to cure
37. the abuses and the inequalities
38. which had thrown that system out of joint.
39. We then began a program
40. of remedying those abuses and inequalities
41. to give balance and stability to our economic system
42. to make it bomb-proof against the causes of 1929.
43. Today we are only part-way through that program
44. and recovery is speeding up to a point
45. where the dangers of 1929
46. are again becoming possible,
47. not this week or month perhaps,
48. but within a year or two.
49. National laws are needed to complete that program.
50. Individual or local or state effort alone
51. cannot protect us in 1937
52. any better than ten years ago.
53. It will take time - and plenty of time -
54. to work out our remedies administratively
55. even after legislation is passed.
56. To complete our program of protection in time, therefore,
57. we cannot delay one moment in making certain that our National Government has power to carry through.
58. Four years ago
59. action did not come until the eleventh hour.
60. It was almost too late.
61. If we learned anything from the depression
62. we will not allow ourselves to run agog- run around in new circles
63. of futile discussion and debate,
64. always postponing the day of decision.
65. The American people have learned from the depression.
66. For in the last three national elections
67. an overwhelming majority of them voted a mandate
68. that the Congress and the President begin the task of providing that protection
69. not after long years of debate, but now.
70. The Courts, however, have cast doubts on the ability of the elected Congress
71. to protect us against catastrophe by meeting squarely our modern social and economic conditions.
72. We are at a crisis
73. a crisis in our ability to proceed with that protection.
74. It is a quiet crisis.
75. There are no lines of depositors outside closed banks.
76. But to the far-sighted it is far-reaching in its possibilities of injury to America.
77. I want to talk with you very simply about the need for present action in this crisis
78. the need to meet the unanswered challenge
79. of one-third of a Nation
80. ill-nourished, ill-clad, ill-housed.
81. Last Thursday I described the American form of Government
82. as a three horse team
83. provided by the Constitution
84. to the American people
85. so that their field might be plowed.
86. The three horses are, of course, the three branches of government
87. the Congress, the Executive and the Courts.
88. Two of the horses, the congress and the executive
89. are pulling in unison today;
90. the third is not.
91. Those who have intimated
92. that the President of the United States is trying to drive that team,
93. overlook the simple fact
94. that the President, as Chief Executive, is himself
95. one of the three horses.
96. It is the American people themselves who are in the driver's seat.
97. It is the American people themselves who want the furrow plowed.
98. It is the American people themselves who expect
99. the third horse
100. to pull in unison with the other two.
101. I hope that you have re-read the Constitution of the United States in these past few weeks.
102. Like the Bible, it ought to be read again and again.
103. It is an easy document to understand
104. when you remember that it was called into being
105. because the Articles of Confederation
106. under which the original thirteen States tried to operate after the Revolution
107. showed the need of a National Government with power enough to handle national problems.
108. In its Preamble,
109. the Constitution states that it was intended to form a more perfect Union
110. and promote the general welfare;
111. and the powers given to the Congress to carry out those purposes
112. can be best described by saying that they were all the powers
113. needed to meet each and every problem which then had a national character
114. and which could not be met by merely local action.
115. But the framers of the Constitution went further.
116. Having in mind that in succeeding generations many other problems then undreamed of
117. would become national problems,
118. they gave to the Congress the ample broad powers
119. "to levy taxes ... and provide for the common defense
120. and general welfare of the United States."
121. That, my friends, is what I honestly believe
122. to have been the clear and underlying purpose of the patriots who wrote
123. a Federal Constitution to create a National Government with national power,
124. intended as they said,
125. "to form a more perfect union ... for ourselves and our posterity."
126. For nearly twenty years
127. there was no conflict between the Congress and the Court.
128. Then in eighteen hundred and three Congress passed a statute
129. which the Court said violated an express provision of the Constitution.
130. The Court claimed the power to declare it unconstitutional
131. and did so declare it.
132. But a little later the Court itself admitted
133. that it was an extraordinary power to exercise
134. and through Mr. Justice Washington
135. laid down this limitation upon it:
136. He said
137. "It is but a decent respect due to the wisdom, the integrity and the patriotism
138. of the legislative body,
139. by which any law is passed,
140. to presume in favor of its validity
141. until its violation of the Constitution is proved
142. beyond all reasonable doubt."
143. But since the rise of the modern movement for social and economic progress
144. through legislation,
145. the Court has more and more often and more and more boldly
146. asserted a power to veto laws passed by the Congress
147. and by State Legislatures
148. in complete disregard of this original limitation
149. which I have just read.
150. In the last four years the sound rule
151. of giving statutes the benefit of all reasonable doubt
152. has been cast aside.
153. The Court has been acting not as a judicial body, but as a policy-making body.
154. When the Congress has sought to stabilize national agriculture,
155. to improve the conditions of labor,
156. to safeguard business against unfair competition,
157. to protect our national resources,
158. and in many other ways, to serve our clearly national needs,
159. the majority of the Court has been assuming the power
160. to pass on the wisdom of these acts of the Congress
161. and to approve or disapprove the public policy written into these laws.
162. That is not only my accusation.
163. It is the accusation of most distinguished justices of the present Supreme Court.
164. I have not the time to quote to you all the language used by dissenting justices in many of these cases.
165. But in the case
166. holding the Railroad Retirement Act unconstitutional,
167. for instance,
168. Chief Justice Hughes said in a dissenting opinion
169. that the majority opinion was "a departure from sound principles,"
170. and placed "an unwarranted limitation upon the commerce clause."
171. And three other justices agreed with him.
172. In the case holding
173. the triple A unconstitutional,
174. Justice Stone said of the majority opinion
175. that it was a "tortured construction of the Constitution."
176. And two other justices agreed with him.
177. In the case holding the New York minimum wage law unconstitutional,
178. Justice Stone said that the majority were actually reading into the Constitution
179. their own " personal economic predilections,"
180. and that if the legislative power is not left free
181. to choose the methods of solving the problems of poverty, subsistence, and health
182. of large numbers in the community,
183. then "government is to be rendered impotent."
184. And two other justices agreed with him.
185. In the face of these dissenting opinions,
186. there is no basis for the claim made by some members of the Court
187. that something in the Constitution has compelled them regretfully to thwart the will of the people.
188. In the face of such dissenting opinions,
189. it is perfectly clear that, as Chief Justice Hughes has said,
190. "We are under a Constitution, but the Constitution is what the judges say it is."
191. The Court in addition to the proper use of its judicial functions
192. has improperly set itself up as a third house of the Congress
193. a super-legislature,
194. as one of the justices has called it
195. reading into the Constitution words and implications which are not there,
196. and which were never intended to be there.
197. We have, therefore, reached the point as a nation
198. where we must take action to save the Constitution from the Court
199. and the Court from itself.
200. We must find a way to take an appeal from the Supreme Court
201. to the Constitution itself.
202. We want a Supreme Court
203. which will do justice under the Constitution and not over it.
204. In our courts
205. we want a government of laws and not of men.
206. I want - as all Americans want -
207. an independent judiciary as proposed by the framers of the Constitution.
208. That means a Supreme Court
209. that will enforce the constitution as written
210. that will refuse to amend the constitution
211. by the arbitrary exercise of judicial power.
212. ?????
213. ...judicial say-so.
214. It does not mean a judiciary so independent
215. that it can deny the existence of facts
216. which are universally recognized.
217. How then could we proceed to perform the mandate given us?
218. It was said in last year's Democratic platform,
219. and here are the words,
220. "If these problems cannot be effectively solved within the Constitution,
221. we shall seek such clarifying amendment
222. as will assure the power to enact those laws, adequately to regulate commerce,
223. protect public health and safety,
224. and safeguard economic security."
225. In other words,
226. we said we would seek an amendment only
227. if every other possible means by legislation were to fail.
228. When I commenced to review the situation with the problem squarely before me,
229. I came by a process of elimination
230. to the conclusion that, short of amendments,
231. the only method which was clearly constitutional,
232. and would at the same time carry out other much needed reforms,
233. was to infuse new blood into all our Courts.
234. We must have men worthy and equipped to carry out impartial justice.
235. But, at the same time,
236. we must have Judges who will bring to the Courts
237. a present-day sense of the Constitution
238. Judges who will retain in the Courts
239. the judicial functions of a court,
240. and reject
241. the legislative powers which the courts have today assumed.
242. It is well for us to remember that in forty-five out of the forty-eight States of the Union,
243. Judges are chosen not for life but for a period of years.
244. In many States Judges must retire at the age of seventy.
245. Congress has provided financial security
246. by offering life pensions at full pay
247. for Federal Judges on all Courts who are willing to retire at seventy.
248. In the case of Supreme Court Justices,
249. that pension is $20,000 a year.
250. But all Federal Judges,
251. once appointed, can, if they choose,
252. hold office for life, no matter how old they may get to be.
253. What is my proposal?
254. It is simply this:
255. whenever a Judge or Justice of any Federal Court has reached the age of seventy
256. and does not avail himself of the opportunity to retire on a pension,
257. a new member shall be appointed by the President then in office,
258. with the approval, as required by the Constitution, of the Senate of the United States.
259. That plan has two chief purposes.
260. By bringing into the judicial system a steady and continuing stream
261. of new and younger blood,
262. I hope, first,
263. to make the administration of all Federal justice
264. from the bottom to the top
265. speedier and, therefore, less costly;
266. secondly, to bring to the decision of social and economic problems
267. younger men who have had personal experience and contact with modern facts and circumstances
268. under which average men have to live and work.
269. This plan will save our national Constitution from hardening of the judicial arteries.
270. The number of Judges to be appointed
271. would depend wholly on the decision of present Judges now over seventy,
272. or those who would subsequently reach the age of seventy.
273. If, for instance,
274. any one of the six Justices of the Supreme Court
275. now over the age of seventy
276. should retire as provided under the plan,
277. no additional place would be created.
278. Consequently, although there never can be more than fifteen,
279. there may be only fourteen, or thirteen, or twelve.
280. And there may be only nine.
281. There is nothing novel or radical about this idea.
282. It seeks to maintain the Federal bench in full vigor.
283. It has been discussed and approved by many persons of high authority
284. ever since a similar proposal passed the House of Representatives in eighteen hundred and sixty nine.
285. Why was the age fixed at seventy?
286. Because the laws of many States,
287. and the practice of the Civil Service,
288. the regulations of the Army and Navy,
289. and the rules of many of our Universities and of almost every great private business enterprise,
290. commonly fix the retirement age at seventy years or less.
291. The statute would apply to all the courts in the Federal system.
292. There is general approval so far as the lower Federal courts are concerned.
293. The plan has met opposition only so far as the Supreme Court of the United States itself is concerned.
294. But my friends if such a plan
295. is good for the lower courts
296. it certainly ought to be equally good for the highest Court from which there is no appeal.
297. Those opposing this plan
298. have sought to arouse prejudice and fear
299. by crying that I am seeking to "pack" the Supreme Court
300. and that a baneful precedent will be established.
301. What do they mean by the words
302. "packing the Supreme Court"?
303. Let me answer this question
304. with a bluntness
305. that will end all honest misunderstanding of my purposes.
306. If by that phrase "packing the Court"
307. it is charged that I wish to place on the bench spineless puppets
308. who would disregard the law
309. and would decide specific cases as I wished them to be decided,
310. I make this answer:
311. that no President fit for his office would appoint,
312. and no Senate of honorable men fit for their office would confirm,
313. that kind of appointees to the Supreme Court.
314. But if by that phrase
315. the charge is made that I would appoint and the Senate would confirm
316. Justices worthy to sit beside present members of the Court who understand modern conditions,
317. that I will appoint Justices who will not undertake to override the judgment of the Congress on legislative policy,
318. that I will appoint Justices who will act as Justices and not as legislators
319. - if the appointment of such Justices can be called "packing the Court,"
320. then I say that I and with me the vast majority of the American people
321. favor doing just that thing- now.
322. Is it a dangerous precedent for the Congress to change the number of the Justices?
323. The Congress has always had,
324. and will have, that power.
325. The number of justices has been changed several times before,
326. in the Administration of John Adams and Thomas Jefferson,
327. both of them signers of the Declaration of Independence,
328. In the administrations of Andrew jackson, Abraham Lincoln and Ulysses S. Grant.
329. I suggest only the addition of Justices to the bench
330. in accordance with a clearly defined principle
331. relating to a clearly defined age limit.
332. Fundamentally,
333. if in the future, America cannot trust the Congress it elects
334. to refrain from abuse of our Constitutional usages,
335. democracy will have failed
336. far beyond the importance to democracy
337. of any kind of precedent concerning the Judiciary.
338. We think it so much in the public interest to maintain a vigorous judiciary
339. that we encourage the retirement of elderly Judges
340. by offering them a life pension at full salary.
341. Why then should we leave the fulfillment of this public policy to chance
342. or make it dependent upon the desire or prejudice of any individual Justice?
343. It is the clear intention of our public policy to provide for a constant flow of new and younger blood into the Judiciary.
344. Normally every President appoints a large number of District and Circuit Judges
345. and a few members of the Supreme Court.
346. Until my first term practically every President of the United States in our history
347. had appointed at least one member of the Supreme Court.
348. President Taft appointed five members
349. and named a Chief Justice;
350. President Wilson, three;
351. President Harding, four,
352. including a Chief Justice;
353. President Coolidge, one;
354. President Hoover, three,
355. including a Chief Justice.
356. Such a succession of appointments
357. should have provided a Court well-balanced as to age.
358. But chance
359. and the disinclination of individuals to leave the Supreme bench
360. have now given us a Court
361. in which five Justices will be over seventy-five years of age before next June
362. and one over seventy.
363. Thus a sound public policy has been defeated.
364. So I now propose that we establish by law
365. an assurance against any such ill-balanced Court in the future.
366. I propose that hereafter,
367. when a Judge reaches the age of seventy,
368. a new and younger Judge shall be added to the Court automatically.
369. In this way I propose to enforce a sound public policy by law
370. instead of leaving the composition of our Federal Courts, including the highest,
371. to be determined by chance or the personal decision of individuals.
372. If such a law as I propose is regarded as establishing a new precedent,
373. is it not a most desirable precedent?
374. Like all lawyers, like all Americans,
375. I regret the necessity of this controversy.
376. But the welfare of the United States, and indeed of the Constitution itself,
377. is what we all must think about first.
378. Our difficulty with the Court today
379. rises not from the Court as an institution
380. but from human beings within it.
381. But we cannot yield our constitutional destiny
382. to the personal judgement of a few men
383. who, being fearful of the future,
384. would deny us the necessary means of dealing with the present.
385. This plan of mine is no attack on the Court;
386. it seeks to restore the Court to its rightful and historic place
387. in our system of Constitutional Government
388. and to have it resume its high task of building anew
389. on the Constitution "a system of living law."
390. The Court itself can best undo what the Court has done.
391. I have thus explained to you the reasons that lie behind our efforts to secure results by legislation
392. within the Constitution.
393. I hope that thereby the difficult process of constitutional amendment
394. may be rendered unnecessary.
395. But let us examine that process.
396. There are many types of amendment proposed.
397. Each one is radically different from the other.
398. But there is no substantial group within the Congress or outside the Congress
399. who are agreed on any single amendment.
400. I believe that it would take months or years
401. to get substantial agreement upon the type and language of an amendment.
402. It would take months and years thereafter
403. to get a two-thirds majority in favor of that amendment in both Houses of the Congress.
404. Then would come the long course of ratification
405. by three quarters of all the States.
406. No amendment which any powerful economic interests
407. or the leaders of any powerful political party
408. have had reason to oppose
409. has ever been ratified within anything like a reasonable time.
410. And remember that thirteen states which contain only five percent of the voting population
411. can block ratification
412. even though the thirty-five States with ninety-five percent of the population are in favor of it.
413. A very large percentage
414. of newspaper publishers,
415. Chambers of Commerce,
416. and Bar Associations, and Manufacturers' Associations,
417. who are trying to give the impression today that they really do want a constitutional amendment
418. would be the very first
419. to exclaim as soon as an amendment was proposed,
420. "Oh! I was for an amendment all right,
421. but this amendment that you've proposed is not the kind of an amendment that I was thinking about.
422. and so I am going to spend my time, my efforts and my money
423. to block this amendment,
424. although I would be awfully glad to help get some other kind of an amendment ratified."
425. Two groups oppose my plan on the ground that they favor a constitutional amendment.
426. The first includes those who fundamentally object to social and economic legislation along modern lines.
427. This is the same group who during the recent campaign tried to block the mandate of the people.
428. {Now they are making a last stand.}
429. And the strategy of that last stand is to suggest that the time-consuming process of amendment
430. in order to kill off by delay the legislation demanded by the mandate.
431. To those people I say: I do not think
432. you will be able long to fool the American people as to your purposes.
433. The other group is composed of those who honestly believe the amendment process is the best
434. and who would be willing to support a reasonable amendment
435. if they could agree on one.
436. To them I say:
437. we cannot rely on an amendment as the immediate or only answer to our present difficulties.
438. When the time comes for action,
439. you will find that many of those who pretend to support you
440. will sabotage any constructive amendment which is proposed.
441. Look at these strange bed-fellows of yours.
442. When before have you found them really at your side in your fights for progress?
443. And remember one thing more.
444. Even if an amendment were passed, and even if in the years to come it were to be ratified,
445. its meaning
446. would depend upon the kind of Justices who would be sitting on the Supreme Court Bench.
447. For an amendment, like the rest of the Constitution,
448. is what the Justices say it is rather than what its framers or you might hope it is.
449. This proposal of mine will not infringe in the slightest
450. upon the civil or religious liberties so dear to every American.
451. My record as Governor and President
452. proves my devotion to those liberties.
453. You who know me can have no fear that I would tolerate the destruction by any branch of government
454. of any part of our heritage of freedom.
455. The presid- the present attempt
456. by those opposed to progress to play upon the fears
457. of danger to personal liberty
458. brings again to mind that crude and cruel strategy
459. tried by the same opposition to frighten the workers of America
460. in a pay-envelope propaganda
461. against the Social Security Law.
462. The workers were not fooled by that propaganda then.
463. And the people of America will not be fooled by such propaganda now.
464. I am in favor of action through legislation:
465. First, because I believe that it can be passed at this session of the Congress.
466. Second, because it will provide
467. a reinvigorated, liberal-minded Judiciary
468. necessary to furnish quicker and cheaper justice from bottom to top.
469. Third, because it will provide a series of Federal Courts
470. willing to enforce the Constitution as written,
471. and unwilling to assert legislative powers by writing into it
472. their own political and economic policies.
473. During the last half century the balance of power between the three great branches of the Federal Government,
474. has been tipped out of balance by the Courts
475. in direct contradiction of the high purposes of the framers of the Constitution.
476. It is my purpose to restore that balance.
477. You who know me
478. will accept my solemn assurance
479. that in a world in which democracy is under attack,
480. I seek to make American democracy succeed.
481. You and I will do our part.