The Forgotten New Deal — John Nance Garner
Consider the following accident of history, which comes from Bruce Ackerman, not from me. In 1933, an assassin fired on a car carrying Franklin D. Roosevelt and the Mayor of Chicago. The Mayor was killed. Suppose, instead, that FDR had been killed. The Presidency would have passed to his Vice-President, John Nance “Cactus Jack” Garner, who was a conservative Southern Democrat. President Garner would have been far more likely to veto liberal initiatives coming from an overwhelmingly Democratic Congress.
Does this sound familiar? It should. Something like this happened when Lincoln was replaced by Andrew Johnson. The congressional response at that time was to pass the Fourteenth Amendment to bypass the President. If Lincoln had not been shot, there would have been no need for the Fourteenth Amendment. Broad statutes, enforced vigorously by the Executive Branch and combined with the appointment of sympathetic Justices, would achieved much the same result.
I bring this up for two reasons. First, it suggests that the difference between the decision to use Article Five and a decision not to do so may turn on random events that have nothing to do with constitutional philosophy. Second, we could ask which was the better scenario — the textual version or the nontextual one? The New Deal would have been placed on a firmer footing if there were some New Deal Amendments, but then again the Reconstruction Amendments were thwarted for decades after their ratification and in that sense were less successful.