More on FDR and the Bill of Rights

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

You may also like...

18 Responses

  1. Shag from Brookline says:

    Beyond the Bill of Rights, the 13th Amendment imposes limitations on matters that previously may have been protected by “the liberty of contract.”

  2. Ken Rhodes says:

    >> So long as the Bill of Rights is not being violated, any action by Congress is OK.<<

    Gerard, I think you've jumped the shark.

    Roosevelt was not lecturing law students on Constitutional issues. It was a FIRESIDE CHAT…a radio address to millions of concerned Americans whose economy was in shambles and many of whose futures were dependent on the Federal Government providing some way for them to survive. And against that background, there was a political party which was furiously trying to kill every initiative to help the unemployed, and was telling any gullible listener that it was all a Roosevelt plot to turn the USA into a communist state, and was trying to return to the Roaring Twenties, where the government stayed out of the way and let every man fend for himself.

    So Roosevelt was telling those concerned listeners "don't be frightened out of your wits by those demagogues who keep telling you it's a plot to take away your freedom and your rights. Think about that freedom and those rights. We're NOT taking away your freedom and your rights, are we."

  3. Gerard says:

    Well sure. But that assumes that the Bill of Rights was well known as a concept in 1934. Except it wasn’t. FDR helped make that so.

  4. Brett Bellmore says:

    “So long as the Bill of Rights is not being violated, any action by Congress is OK.”

    Of course, there’s that pesky 10th amendment, which makes any claim to unenumerated powers on the part of the federal government just precisely a violation of the Bill of Rights…

  5. Joe says:

    “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

    Of course, FDR’s platform rested on powers delegated (not just “expressly enumerated”), which includes those necessary and proper to enumerated powers. Thus, taxation for the general welfare, not a problem.

  6. Brett Bellmore says:

    Yes, that’s the exact bit of sophistry that was relied on to abolish the enumerated powers doctrine.

  7. Shag from Brookline says:

    Brett has added “sophistry” (more recently at Balkinization) to his quiver but his use is pointless. Brett brought up the 10th Amendment and Joe had the “sophistry” to spell it out and then focus on the 10th’s “delegated.”

  8. Brett Bellmore says:

    I thought he was focusing on implied. It’s this use of the N&P clause to make the fact some powers weren’t delegate irrelevant, that’s sophistry.

    When what you grow in your backyard vegetable garden can be regulated as “interstate commerce”, there’s no better word than sophistry to describe what’s going on in the legal system.

  9. Joe says:

    The 10A does not say “expressly” enumerated & this was an intentional choice that has real bite as people at the time realized.

    This was a big debate at the Founding — see, e.g., the bank debate — and just what side dominates depends on who is presently governing the country. Thus, Hamiltonian fiscal policy led to one result, Jacksonian policy another. The OP’s book on Jackson and the Constitution is a worthy read here as is the sequel.

    I still don’t see the “abolishment” of the enumerated powers doctrine, putting aside that — like it or not — the necessary and proper clause allows some implied powers. Should we just ignore actual text? Or, what the Framers did with it? See, Marshall, Hamilton et. al.

    Implied powers aren’t even needed to defend a lot of what occurred. For instance, minimum wage laws or PPACA don’t involve “backyard vegetable gardens” but interstate commerce. Social Security involves taxation for the general welfare.

    Finally, I’m not sure what “backyard vegetable garden” matter Brett is talking about. The actual facts of Wickard isn’t so trivial, which even Randy Barnett noted when trying to differentiate it in Gonzalez v. Raich. I’m sure there are examples of things going too far, but then what else is new? See, e.g., treatment of blacks c. 1930.

    Brett notes “what’s going on” is sophistry. When was it not? Or, was it never? I might add “I ask again.”

  10. Brett Bellmore says:

    The 10th amendment also doesn’t say, “Simon says”.

  11. Shag from Brookline says:

    But the 10th Amendment does say ” … are reserved … to the people.” Is it clear that such reservation applies only if a state does not exercise a power reserved to it affecting the people in that state” Or do the people have that power on a par with the respective states? And the 10th does not specify how the people may exercise the powers reserved to them. Can we get guidance from SCOTUS on what the 10th Amendment really, really means without involving Simon? Perhaps the inclusion of the 10th Amendment provided a “minyan” for the Framers in submitting the Bill of Rights.

  12. Brett Bellmore says:

    ” Is it clear that such reservation applies only if a state does not exercise a power reserved to it affecting the people in that state””

    I’m somewhat unclear what you’re suggesting: The 10th amendment is a rule of interpretation for the Constitution, meant to underscore that the only powers the federal government has, are those which the Constitution affirmatively delegates it.

    It needn’t address the matter of what goes on with those powers the federal government is barred from exercising, as that’s a job for state constitutions to deal with.

  13. Joe says:

    I don’t know what #10 means.

    The 10A states a principle. The USSC has expanded it to have a penumbra of sorts that honors federalism. Thus, concern about commandeering of state legislatures, though in no way barred by the mere text or even arguably the principles of federalism (see Printz v. U.S., dissenting opinions) cites 10A concerns. This is deemed “improper.”

    I don’t see the “sophistry” using the 10A itself. It is like saying something is bad because Jesus says so. You need a bit more heavy lifting. The background garden example doesn’t help much either.

    But, this is an old debate we three are having, so I realize it gets redundant, thus the Simon says brush off.

  14. Eric Hodgdon says:

    As the country’s law students, etc. bantered back and forth over the topic at hand, the heart of the Constitution remains dying as I type.

    None but a few actively fight to end the utter castration of the Constitution. Most still look forward to opening a practice, getting married, and play golf at ‘the club’ of their gated community.

    “Ahhh…nice wine Fred, but what’s that in the distance?”

    “What? Oh, that. Oh, you know, it’s that….oh what was it called? Something about some old government documents being a burden to proper living and our proper way of life. The firemen keep finding these old books on the banned list and they do the right thing and burn them, that’s all, we’re safe here and now we’re safe from them.”

    “Oh good. I like the firemen. Always wanted to ride on one of those machines of theirs as a boy.”

  15. Shag from Brookline says:

    Eric makes an ash of himself, not the Constitution, which continues on fire in its application without being burnt or castrated, but being MRI-ed over generations by lawyers – scholarly and otherwise – and the public with subsequent events not anticipated by the Founders/Framers/ Ratifiers. There may be a few flaws here and there but the Constitution does not need a mouth-to-mouth from Eric and the fictional (I assume) Fred to maintain its viability.

    (Query: was this a real conversation between Eric and Fred?)

  16. Brett Bellmore says:

    “I don’t know what #10 means.”

    It means, the 10th amendment no more has to add a redundant “expressly”, than it needs to be prefaced with “Simon says”. At some point you just have to accept what the text says, without demanding redundant assurances that it really means it.

    Adding “expressly” would not alter the meaning of the tenth amendment.

  17. Eric Hodgdon says:

    @Shag from Brookline

    The damage to the Constitution is from excessive Federal Laws which bypass the Constitution and mock it. The Constitution is adequate and brief for the task at hand. The problems are the abuses by the people elected, appointed, and working for the federal government, which are insulated from realistic oversight by the People. And, this is the greatest flaw of the Constitution – the lack of real oversight.

    I’m not a lawyer, nor a student. I’m a citizen who knows that without strict adherence to what the Constitution is, then We the People receive what there is, a set of fluid and ever changing rules open to abuse, such as 67 years of continual warfare, national emergencies, the recent suspension of habeas corpus, etc. etc. etc.

    The acceptance by the law profession of these un-Constitutional occurrences goes on year after year. Sure papers are written, but to actually work to hold proper a solid foundation which respects the purpose of having a Constitution and Country is not among them. And, the reason is most likely there’s no money in it.