No, Ive not read the book, nor did I claim to. But now you have my curiosity raised and Ill hunt down a copy.
As to the Clinton deaths..there are quite a number of cites about that..yall really want to wade through them?
Gunner
"The British attitude is to treat society like a game preserve where a certain percentage of the 'antelope' are expected to be eaten by the "lions". Christopher Morton
Damn, yes, I read it in the NY Times yesterday. I don't often think about him but I was at Cooperstown last summer and his name came up. Left-handed pitchers who can really pitch tend to stick in my mind. I was a Whitey Ford fan at the time.
I might change that to Yankees, but I generally agree.
Ed Huntress
Aack! I thought it was obvious. Here's what I want to see documented:
=========================== [Gunner said]
FDR gutted, hammered, burned, ravaged and trampled on not only the Constitution, but the principles behind it. Yet he is considered a great man by some.
===========================
Just one legitimate example of hammering, burning, ravaging, and trampling will do.
I must have misinterpreted your "yup" when I asked you if you had read it. Anyway, yes, read it. You don't know Liddy if you haven't read _Will_. People who know him say he whitewashed the break-in stuff, but the important point is the "will" part, why it was a big deal to him, how he dealt with it, what kinds of ideas it left him with, and how it led him to disregard the law for the sake of his Prince. For that, we'll have to take his word.
It was years ago that I read it but I think that he assumed the reader knows Machiavelli's _The Prince_. It's a short book but a tedious read for the modern reader. There is a summary here:
In contrast, to the degree that FDR had Machiavellian tendences, as claimed in the quotes you posted, he would have seen himself as a Prince and not a henchman.
Only the honest ones that you've double-checked. That should cut it down to size in a hurry.
Ed Huntress
Damn, I forgot the most important thing. It's a good book. I couldn't put it down. It's worth reading just because it's interesting.
Also, it's easy to find in libraries. He sold a lot of them.
Ed Huntress
Hmm. I thought the court said FDRs attempt at installing more justices was unconstitional. But then I do take all my history lessons from only one place, and I'm a terrible student.
Yesterday we were talking about the 20s in the US. I never knew that we never did ratify the treaty of Versais.
Jim
================================================== please reply to: JRR(zero) at yktvmv (dot) vnet (dot) ibm (dot) com ==================================================
No, that's what the FDR haters sometimes say, and it's why I asked Gunner about it. I wanted to see if he knew the facts.
The Constitution says nothing about how many justices there should be, or very little else, for that matter, about the courts. The S.C. originally had
6 justices, by an act of Congress. It rose to ten. Then it dropped to 7, became 8 de facto, and, finally, Congress made it 9 in the mid- or late 1800s.
Treaties, schmeaties. We don' need no steenking treaties. This is the Yoo Ess of A, pard'!
Ed Huntress
(conference with a real history buff....)
OK Ed, you probably know the phrase "The Switch in Time that Saved Nine."
FDR *threatened* to pack the court, because they had been tossing his New Deal agencies out as being unconstitutional. Basically they were saying he (FDR) was setting up executive agencies that had law-making powers. And this as we all know is one of those things that should be done by congress.
So FDR was getting his stuff tossed out right and left by the court, but invariably by a 4 to 5 vote each time. That's when he threatened to add some justices, and then amazingly enough the next time one of those cases came up, it was decided in his favor, 5 to 4! One justice 'switched' and saved the '9' member supreme court.
But the historian's take on this was that "FDR had about as much respect for the constitution as G Gordon Liddy had!"
I tried to get her to write a guest editorial here but she said that she'd have to get out the cases and look them up and all. Her comment "THIS is metalworking??!"
Jim
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Yeah, he was the young one, whose name I forget. That was the turning point for the Court.
Hmm. Well, the first big SC case (Railroad Retirment Board v. Alton R. Co.) that caused a crises regarded an act of Congress, not FDR's executive order. It was over a railroad retirement plan that had retroactive elements, which the Court said were violations of due process. Congress said it was within their authority under the interstate commerce clause (and thus under the Interstate Commerce Act); the Court said it was a violation of the 5th Amendment, and that became the big battleground for several decades thereafter.
The battles over the New Deal were mostly about Congress's authority to delegate power to the President; Congress's power under the Interstate Commerce Act to put financial demands on business; and about interpreting the due-process clause of the 5th Amendment (not the clause by the same name in the 14th) to prevent Congress from enacting almost any part of the New Deal that imposed a financial requirement upon employers for their employees. It's interesting to read FDR's fireside chat speech about enlarging the Court. He called the Court "activist," and the same words could have come from Gunner, in the other direction.
As for which side was at fault, your wife apparently has an opinion, and mine is that it was a fairly equal division. But there were a lot of cases involved and I haven't looked closely at them since college. FDR's attempt to grab power for the sake of implementing the New Deal quickly was very similar to what's happened in years since to grant the President power to declare war, to gain "fast track" authority to make trade deals that amount to treaties, and a couple of other extensions of Executive authority. Those have come from the conservative side, mostly, but it really isn't a liberal/conservative issue. The authority Congress assumed to impose financial demands upon businesses is not much different, in terms of pushing the Constitution, from what they've done to limit the legal rights of "terrorists," US citizens or otherwise, since 9-11. Likewise, the power that's been granted to the Attorney General's office is similar in it's loose application of the Constitution to what FDR sought for the New Deal.
I'd say that both periods have witnessed Constititional crises. The difference is that the Court in 1935 also stretched the Constitution, by a very broad interpretation of the 5th, while this time the Court is acquiescing.
FDR certainly was right that the Court was "activist" (conservatively so) in its novel use of the 5th's due process clause. The conservative Justices didn't like anyone messing around with corporations' property rights. But those rights don't exist in the Constitution or anywhere else. Like the right to privacy found by the Court in Griswold v. Connecticut, it was a bunch of "penumbras and emanations," that the Justices felt were implicit in the Constitution, to borrow a phrase from Justice Wm. O. Douglass.
Tell her we're all training to be legal paraprofessionals, since metalworking is going into the tank.
Ed Huntress
On Tue, 25 Nov 2003 15:55:55 GMT, "Ed Huntress" brought forth from the murky depths:
Uh, whaddya mean "Rape, pillage, plunder, THEN burn"?
------------------------------------------------------------------------- Poverty is easy. *
-------------------------------------------------------------------------
Oh..before I forget..does Manzanar ring any bells?
Gunner
Antiquis temporibus, nati tibi similes in rupibus ventosissimis exponebantur ad necem.
You would definitely *not* be preaching to the choir with those comments to her! She found that profession to be 'in the tank' for her, personally, a long time ago.
But I'm going to drag her in and get her to explain the cases you mentioned, because (like any historian will tell me) seems like they have a certain application to events right now.
Thanks - Jim
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The court-packing case. Nothing unconstitutional there, is there? Congress changed the number of Justices on the S.C. from 6 to 10, and also to 7 and 9 at different times. FDR proposed raising it again to 14. Congress didn't go along. End of story.
As for court-packing in general, it's now common practice, since Reagan. Every President tries to pack the courts, which creates no end of messes, one of which is going on right now. Once one does it for ideological reasons (Reagan started the modern practice), the next party in power tries to reverse it (Clinton). And now Bush II is trying to do it again.
Having seen what a firestorm FDR caused by trying to do it by increasing the number of S.C. Justices, they know better than to try it that way again. So they've found other ways to accomplish the same result: primarily by packing the lower federal courts with judges of their own political persuasion, so as to limit the pool from which the next S.C. Justices will be chosen. Indirect, but effective.
Whenever you see something like this: "1935 -- Supreme Court unanimously ruled FDR's National Recovery Administration (NRA -a.k.a. Nuts Running America), the centerpiece of the New Deal, unconstitutional (Schechter v US)"...especially the "nuts" part, assume the writer is an ideologue, and therefore either a liar or a moron. You'll be right more than half the time, which will save you the trouble of looking up everything in what is obviously a piece of propaganda.
In fact, you don't have to look far to prove it in this case. The S.C. case cited is well known ("the unfit chicken case," we called it in college) because it's a landmark S.C. decision. It's misused regularly by right-wingers to paint FDR with the brush of opprobrium. But the writer you quote is full of shit, as one would expect.
The decision did NOT rule the NRA unconstitutional. What it did, in language that was very deferential both to Congress and to the President, is to determine that Congress, in delegating specific authority to the President, failed to meet the Court's test of congressional obligation by defining the terms and the limits of the authority. It was based on the fact that they didn't define "unfair trade," or something like that.
There was nothing new about delegating such authority. It had been done many times in many contexts before 1935. When Congress grants such authority today, however, because of the Schechter decision, they know in advance that the S.C. will require a specification of limits and a definition of terms. In trade-authority delegation, and in the War Powers Act, and other acts delegating authority to the Executive branch, Congress now knows enough to cover their butts. But there's really no difference in what they do.
There's another issue involved that I'd like to get into, and I'll spend some space here on it because it's come up before and we didn't then have a chance to explore it. The Court gave another reason for its decision, unnecessarily, and provocatively. It said that the regulatory provisions in question, which had to do with the chicken trade, were unconstitutional because they violated the Due Process clause of the 5th Amendment. In other words, the Court said that the law itself wasn't fair, in addition to being based on unconstitutional authority.
This was activism on the Court's part. It didn't like the way Congress and FDR had expanded the popular idea of what the commerce clause was all about, but it didn't have a constitutional basis for limiting it. So they borrowed an excuse from the 5th -- one that didn't really exist in the Constitution, but that had grown over time to cover the unhappy fact that the Constitution doesn't say anything about fairness.
This is the root of all judicial activism -- a seeking after excuses to apply our traditions, social values, and a sense of consistency to a rather terse document (the Constitution) that doesn't given them a literal excuse for doing so. In the Schechter case, in 1935, the modern application of activism was let out of the bag. The practice that you and other conservatives blame the liberal courts for really got its start with a conservative court, and then, it was Katy bar the doors.
Sorry for this lengthy quote, but this is the expression of the Court doctrine that started the ball rolling. From a case decided in 1921, in a description from FindLaw:
"''Unlike the Fourteenth Amendment, the Fifth contains no equal protection clause and it provides no guaranty against discriminatory legislation by Congress.'' At other times, however, the Court assumed that ''discrimination, if gross enough, is equivalent to confiscation and subject under the Fifth Amendment to challenge and annulment.'' The theory that was to prevail seems first to have been enunciated by Chief Justice Taft, who observed that the due process and equal protection clauses are ''associated'' and that ''[i]t may be that they overlap, that a violation of one may involve at times the violation of the other, but the spheres of the protection they offer are not coterminous. . . . [Due process] tends to secure equality of law in the sense that it makes a required minimum of protection for every one's right of life, liberty and property, which the Congress or the legislature may not withhold. Our whole system of law is predicated on the general, fundamental principle of equality of application of the law.''
Great sentiment, probably good policy, but not written anywhere in the Constitution. It opened the floodgates. Note that the vague language isn't much different from that which Douglass used in the decision finding a "right" to privacy, forty years later, which led directly to Roe v. Wade.
The point is that S.C. activism has been with us for a long time, long before the Court could be called "liberal." It's just that a conservative activist Court doesn't seem to get conservatives upset. It also seems to have escaped their memory.
Nope, but, based on what you've posted so far, I'm not inclined to go looking for it, either.
Let's save some time about FDR by summarizing the way I would argue with you, if you were continue to argue. FDR and Congress pushed the limits of authority as they saw it at the time to meet a national emergency. The Court agreed there was an emergency and that it required some deference to Congress, to let it try to meet it. But the Court was a stickler for some fine Constitutional points, like that one about requiring definitions of terms before delegating power (not that they were wrong, only that they were threading an awfully fine needle in relation to the nature and size of the real issues, and the point itself was one they had created, because it isn't written into the Constitution). That was Ok, but they took it a step further, standing up (in their minds) not only for the words of the Constitution, but also for its unwritten implications, and for what it perceived as American traditions of fairness, accepted principle, and so on.
FDR was out on the edge but so was the Court. In that sense, what FDR did was a lot like what Bush II is doing today, pushing the envelope of Executive authority. Since then, the Court has continued to see itself as the defender of Fairness and the American Way, and it hasn't been shy about interpreting the meaning of the Constitution in order to give themselves an excuse to defend those principles.
Personally, I don't object. I think the Court has done mostly a good job of it, and that it is implicit in their role of defending the rights of individuals. Sometimes they go overboard but even the counterproductive, prickly decisions of the Court in 1935 were basically good for the country, IMO.
Now, if you want to argue with something, argue with that.
Good. Have her look at what I just wrote to Gunner. And tell her that if she's going to defend the Court against FDR, she's going to have to deal with the justification for Taft's doctrine of Fifth Amendment due process, and the way it was used by the Court in the 1930s.
Ed Huntress
So what you basicly said..that while a huge number of FDRs efforts to trample on the Constitution, were indeed found to be just that, you decided to drift off into a discussion on judicial activism as some way to ignore the fact I presented cites to back up my claim, that were valid.
Manzanar, was one of the concentration camps that Japanese Americans were held in during WW2, in violation of their civil and constitutional rights. All put there by the stroke of FDRs pen.
Thanks for playing.
Gunner
Antiquis temporibus, nati tibi similes in rupibus ventosissimis exponebantur ad necem.
Gunner, did you lose your head somewhere, and turn a substitute on your lathe out of an old maple stump?
Here's a hint. Go to a dictionary or encyclopedia and look up "substantive due process" and "procedural due process," and come on back. And then we can talk about who "trampled" on the Constitution: FDR, or the Court that found much of the New Deal, at least the early version of it, unconstitutional.
Since you fancy yourself an "originalist," the one you should be complaining about is the Court. There is no such thing as "procedural due process," which is the basis on which the Court found those provisions unconstitutional, in the Constitution. It's all between the ears of the Justices. They made it up, in other words, and then they used their made-up doctrine to decide the constitutionality of acts passed by Congress. That's what you used to call "activism," after which you'd spit on the floor, remember? Now that you're getting a glimmer that it actually was a conservative Court that started all of this "activism," we don't hear much from you about it, hmmm?
Not exactly the way that my authority explained it to me. Basically the court knuckled under to FDR's power and began to see that it was vulnerable to his attempts to shift power away from the conservatives. So rather than win the battle but lose the war, they began to give FDR some of his programs intact. A quote from the above link:
================================================= For some reason, Justice Owen Roberts decided to switch sides in these cases, thus providing the three liberals along with Chief Justice Hughes a bare one-vote majority. These decisions weakened the argument that younger, more liberal justices were needed on the Supreme Court. The press quickly called the sudden shift by Justice Roberts "the switch in time that saved nine." In the meantime, one of the conservative justices announced his intention to retire, thus giving FDR his first opportunity to make a Supreme Court appointment. ===================================================
"For some reason." Hah! That reason was the political power that FDR was bringing to bear on the situation.
The fact that we have such things as Social Security today no doubt has a great deal to do with the threat that FDR made to the court, and the way in which they responded. Seems to me like, he won.
Jim
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Rats. I got "procedural" and "substantive" backwards. It's substantive due process that the Justices cooked up in their little heads.
I found a sharp, short definition for you. Go to Merriam-Webster's site:
...and look up "due process." Both types are explained neatly.
I think you're buying a conspiracy theory, Jim. FDR had no political power over the S.C. Justices. In fact, he had no power of any kind over them. That was what made him apoplectic.
Not. He lost, and it cost him hugely in terms of his power in Congress.
It was Congress that let him know they wouldn't pass it. When his own party turned against him over the issue, he backed off.
Where do you get the conspiracy story stuff? I don't remember reading that anywhere.
Ed Huntress
"substantive
The internment of the Japanese. You probably don't notice, but I never say anything about that. I'll tell you why.
Around 15 years ago I had a Japanese corporation for a client and I got very close to some of the execs there. They'd take me out for big dinners in Tokyo, with lots of drinking, and so on. You really can learn a lot about the Japanese when they drink. They say things they'd never say otherwise.
Anyway, we got talking about WWII (yes, over drinks, they love to talk about it -- they particularly like to re-fight the Battle of Midway, without dive bombers, preferably) and the subject of the camps came up. I was in one of those moods where I shake my head over the actions of our government. "Don't blame your government," said one of the older guys. "They were worried about Japanese spies. They knew Japan had spies all over the US but they were buried deep, even including US citizens."
"But they could spot a Japanese. So they rounded up a lot of them. My uncle and his family were among those rounded up. My aunt and two cousins and he spent most of the war in a camp. He was a middle-aged man who worked in a real estate office; never arrested, never political. There was no good reason to round him up.
"But the US government was right. There were spies. My uncle was one of them."
During wartime, all bets are off. So is much of the Constitution.
Ed Huntress
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