Court-packing and the Child Labor Amendment.

• Author: Magliocca, Gerard N.

No amendment which any powerful economic interests or the leaders of any powerful political party have had reason to oppose has ever been ratified within anything like a reasonable time. And thirteen states which contain only five percent of the voting population can block ratification even though the thirty-five States with ninety-five percent of the population are in favor of it. (1)

Franklin D. Roosevelt

We cannot take a stand consistently against the pending proposal to pack the United States Supreme Court and at the same time against the orderly amendment to the Federal Constitution that is proposed by this amendment. (2)

Abbot Moffett, New York Assemblyman

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? In that speech, FDR argued that the repeated invalidation of New

Deal statutes by the Justices meant that "we must take action to save the Constitution from the Court and the Court from itself." (4) According to the President, this crisis could not be resolved by a new 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 was to "infuse new blood" into the Court by adding many new Justices right away. (6)

Just a few hours before FDR went on the airwaves, the New York State Assembly rejected the Federal Child Labor Amendment (CLA), which was passed by Congress in 1924 but languished in the States during the 1920s and 1930s. (7) By 1937, however, half the States had ratified the CLA and its supporters were optimistic about getting more to do so because they had the backing of a powerful patron--the President. (8) Two months prior to the New York vote, FDR wrote a letter to the governors of the states that had not ratified the CLA and urged them to make that one of their top priorities. (9) He also waded into the New York debate by sending public telegrams on behalf of the Amendment, though his lobbying was obviously unsuccessful. (10) Thus, on March 10, readers of The New York Times were greeted by a front-page with two banner headlines-one about FDR's appeal for Court-packing and the other on the failure of the CLA in New York. (11)

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This Article explores the connection 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 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) This raises an obvious question--why did FDR put his authority behind the CLA?

While there is no smoking gun that describes 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-packing plan. FDR's foes in Congress saw through this double-game and tried to expose his real motives by backing 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 and inconclusive 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 series of events.

The most important takeaway from my story is that the view that state ratification is a high hurdle for constitutional amendments is an interpretation of Article Five that only emerged in 1937. 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 hard. His argument on this point became an axiom in constitutional practice even though his attempt to pack the Court failed.

Accordingly, we need to reconsider what the constitutional crisis of 1937 was all about. When lawyers and historians reflect on the Court-packing plan, they usually reach two conclusions. First, the failure of FDR's proposal fixed the number of justices at nine for all time. (18) Second, the Court learned that it could not stand in the way of determined public opinion and must not stray too far from the majority's constitutional views. (19) The CLA debate adds a third leg to this stool. In the first three months of 1937, political elites and ordinary citizens were persuaded that state legislatures could not be relied upon to ratify major constitutional amendments. This presumption, which was reinforced by the defeat of the Equal Rights Amendment (ERA) during the 1970s, is now so strong that the difficulty of moving an Article Five amendment through the States is treated as a fact. (20)

Part One explores how the Article Five process was viewed when the CLA was proposed and shows that most people thought that ratification by state legislatures was easy. Part Two examines why the CLA ran into a wall of opposition that undermined this assumption about the role of state legislatures. Part Three looks at how the close attention given to the CLA in the first three months of 1937 influenced the debate on Court-packing and transformed the meaning of Article Five.

1. THE GOLDEN AGE OF TEXTUAL AMENDMENTS

   This Part traces how the States treated proposed constitutional amendments until the passage of the CLA in 1924. The evidence is clear that state legislatures almost always ratified an amendment sent by Congress and did so quickly. After all, four were approved in the decade prior to the proposal on child labor. (21) Indeed, the notion that state legislatures were an insignificant barrier within Article Five was so widely accepted that congressional enemies of the CLA made their stand by proposing that state conventions rather than legislatures be required to ratify the Amendment. (22)

   1. FROM THE BILL OF RIGHTS TO WOMEN'S SUFFRAGE A review of the historical record reveals that getting state legislatures to endorse a textual amendment was not a problem prior to 1924. In the midst of the Court-packing fight, a young Republican congressman with a bright future, Everett Dirksen, assembled data on this question to refute the President's claim that the states could not ratify amendments within a reasonable time. (23) Dirksen's research showed that only one of the first twenty-one amendments, the Sixteenth, took longer than three years to ratify. (24) The Supreme Court made a similar point in Coleman v. Miller, (25) which addressed the question of whether the ratification process for the CLA was justiciable, when it said that "one year, six months and thirteen days was the average time used in passing upon amendments which have been ratified since the first ten amendments ... three years, six months and twenty-five days has been the longest time used in ratifying." (26)

      Not only were constitutional amendments prior to the 1920s adopted rapidly, but there were only four passed by Congress that were not ratified. Two were in the original proposal for the Bill of Rights. One involved limits on congressional pay raises and was eventually ratified-two hundred years later--as the Twenty-Seventh Amendment. (27) The other sought to regulate the size of the House of Representatives and the number of constituents that a member could represent. (28) This proposal came up one state shy of the total needed for ratification. (29) Next came the Anti-Title Amendment, which was passed by Congress in 1810 and would have revoked the citizenship of anyone who accepted a title from a foreign power or, without the consent of Congress, a foreign gift. (30) That also fell one state short. (31) Finally, there was the Corwin Amendment, which was passed by a lameduck Congress in 1861 as a last ditch effort to prevent secession by providing permanent protection to slavery. (32) With the onset of the Civil War, that proposal never got off the ground. (33) These scattered instances of state legislative resistance to textual amendments-all of which occurred long before the 1920s--do not weaken the claim that state ratification was considered easy before the passage of the CLA.

      In any event, this remote history was far less relevant for the Congress that proposed the CLA than the recent ratification of the Sixteenth, Seventeenth, Eighteenth, and Nineteenth Amendments in quick succession. Senator Henry Cabot Lodge, for example, told his colleagues that although he would vote for the CLA he was "not at all in favor of the practice we have fallen into of constantly amending the Constitution." (34) A House member echoed this sentiment and said that amendments were now "being proposed and falling as thick as 'the autumn leaves which strew the vales in Vallombrosa.'" (35) In this context, an argument that state legislatures constituted a bottleneck for Article Five would have been met with incredulity.

   2. CHILD LABOR AND THE CONVENTION POISON PILL

      The Child Labor Amendment was proposed because of the Supreme Court's...