Happy Constitution Day!

OK, this was on Saturday, but I’ve been busy.  The best Constitution Day speech ever given was by Franklin D. Roosevelt. Speaking in 1937 after the Court-packing fight, he offered this reading of our constitutional history.

“The Constitution of the United States was a layman’s document, not a lawyer’s contract. That cannot be stressed too often. Madison, most responsible for it, was not a lawyer; nor was Washington or Franklin, whose sense of the give-and-take of life had kept the Convention together. This great layman’s document was a charter of general principles, completely different from the “whereases” and the “parties of the first part” and the fine print which lawyers put into leases and insurance policies and installment agreements.

When the Framers were dealing with what they rightly considered eternal verities, unchangeable by time and circumstance, they used specific language. In no uncertain terms, for instance, they forbade titles of nobility, the suspension of habeas corpus and the withdrawal of money from the Treasury except after appropriation by law. With almost equal definiteness they detailed the Bill of Rights.

But when they considered the fundamental powers of the new national government they used generality, implication and statement of mere objectives, as intentional phrases which flexible statesmanship of the future, within the Constitution, could adapt to time and circumstance. For instance, the framers used broad and general language capable of meeting evolution and change when they referred to commerce between the States, the taxing power and the general welfare.

Even the Supreme Court was treated with that purposeful lack of specification. Contrary to the belief of many Americans, the Constitution says nothing about any power of the Court to declare legislation unconstitutional; nor does it mention the number of judges for the Court. Again and again the Convention voted down proposals to give Justices of the Court a veto over legislation. Clearly a majority of the delegates believed that the relation of the Court to the Congress and the Executive, like the other subjects treated in general terms, would work itself out by evolution and change over the years.

But for one hundred and fifty years we have had an unending struggle between those who would preserve this original broad concept of the Constitution as a layman’s instrument of government and those who would shrivel the Constitution into a lawyer’s contract. Those of us who really believe in the enduring wisdom of the Constitution hold no rancor against those who professionally or politically talk and think in purely legalistic phrases. We cannot seriously be alarmed when they cry “unconstitutional” at every effort to better the condition of our people.

Such cries have always been with us; and, ultimately, they have always been overruled.

Lawyers distinguished in 1787 insisted that the Constitution itself was unconstitutional under the Articles of Confederation. But the ratifying conventions overruled them.

Lawyers distinguished in their day warned Washington and Hamilton that the protective tariff was unconstitutional, warned Jefferson that the Louisiana Purchase was unconstitutional, warned Monroe that to open up roads across the Alleghenies was unconstitutional. But the Executive. and the Congress overruled them.

Lawyers distinguished in their day persuaded a divided Supreme Court that the Congress had no power to govern slavery in the territories, that the long-standing Missouri Compromise was unconstitutional. But a War Between the States overruled them. —

Lawyers distinguished in their day persuaded the Odd Man on the Supreme Court that the methods of financing the Civil War were unconstitutional. But a new Odd Man overruled them.

That great Senatorial constitutional authority of his day, Senator Evarts, issued a solemn warning that the proposed Interstate Commerce Act and the Federal regulation of railway rates which the farmers demanded would be unconstitutional. But both the Senate and the Supreme Court overruled him.

Less than two years ago fifty-eight of the highest priced lawyers in the land gave the Nation (without cost to the Nation) a solemn and formal opinion that the Wagner Labor Relations Act was unconstitutional. And in a few months, first a national election and later the Supreme Court overruled them.

For twenty years the Odd Man on the Supreme Court refused to admit that State minimum wage laws for women were constitutional. A few months ago, after my message to the Congress on the rejuvenation of the Judiciary, the Odd Man admitted that the Court had been wrong—for all those twenty years—and overruled himself.

In this constant struggle the lawyers of no political party, mine or any other, have had a consistent or unblemished record. But the lay rank and file of political parties has had a consistent record. Unlike some lawyers, they have respected as sacred all branches of their government. They have seen nothing more sacred about one branch than about either of the others. They have considered as most sacred the concrete welfare of the generation of the day. And with laymen’s common sense of what government is for, they have demanded that all three branches be efficient, that all three be interdependent as well as independent, and that all three work together to meet the living generation’s expectations of government.

That lay rank and file can take cheer from the historic fact that every effort to construe the Constitution as a lawyer’s contract rather than a layman’s charter has ultimately failed. Whenever legalistic interpretation has clashed with contemporary sense on great questions of broad national policy, ultimately the people and the Congress have had their way. But that word “ultimately” covers a terrible cost.

It cost a Civil War to gain recognition of the constitutional power of the Congress to legislate for the territories. It cost twenty years of taxation on those least able to pay to recognize the constitutional power of the Congress to levy taxes on those most able to pay. It cost twenty years of exploitation of women’s labor to recognize the constitutional power of the States to pass minimum wage laws for their protection. It has cost twenty years already—and no one knows how many more are to come- to obtain a constitutional interpretation that will let the Nation regulate the shipment in national commerce of goods sweated from the labor of little children.

We know it takes time to adjust government to the needs of society. But modern history proves that reforms too long delayed or denied have jeopardized peace, undermined democracy and swept away civil and religious liberties. —-”

Yes, time more than ever before is vital in statesmanship and in government, in all three branches of it. We will no longer be permitted to sacrifice each generation in turn while the law catches up with life. We can no longer afford the luxury of twenty-year lags. You will find no justification in any of the language of the Constitution for delay in the reforms which the mass of the American people now demand.

Yet nearly every attempt to meet those demands for social and economic betterment has been jeopardized or actually forbidden by those who have sought to read into the Constitution language which the framers refused to write into the Constitution. No one cherishes more deeply than I the civil and religious liberties achieved by so much blood and anguish through the many centuries of Anglo-American history. But the Constitution guarantees liberty, not license masquerading as liberty.

Let me put the real situation in the simplest terms. The present government of the United States has never taken away and never will take away any liberty from any minority, unless it be a minority which so abuses its liberty as to do positive and definite harm to its neighbors constituting the majority. But the government of the United States refuses to forget that the Bill of Rights was put into the Constitution not only to protect minorities against intolerance of majorities, but to protect majorities against the enthronement of minorities.

Nothing would so surely destroy the substance of what the Bill of Rights protects than its perversion to prevent social progress. The surest protection of the individual and of minorities is that fundamental tolerance and feeling for fair play which the Bill of Rights assumes. But tolerance and fair play would disappear here as it has in some other lands if the great mass of people were denied confidence in their justice, their security and their self-respect. Desperate people in other lands surrendered their liberties when freedom came merely to mean humiliation and starvation. The crisis of 1933 should make us understand that.

On this solemn anniversary I ask that the American people rejoice in the wisdom of their Constitution. I ask that they guarantee the effectiveness of each of its parts by living by the Constitution as a whole. I ask that they have faith in its ultimate capacity to work out the problems of democracy, but that they justify that faith by making it work now rather than twenty years from now. I ask that they give their fealty to the Constitution itself and not to its misinterpreters. I ask that they exalt the glorious simplicity of its purposes, rather than a century of complicated legalism. I ask that majorities and minorities subordinate intolerance and power alike to the common good of all.

For us the Constitution is a common bond, without bitterness, for those who see America as Lincoln saw it, “the last, best hope of earth.” So we revere it, not because it is old but because it is ever new, not in the worship of its past alone but in the faith of the living who keep it young, now and in the years to come.

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5 Responses

  1. Joe says:

    “With almost equal definiteness they detailed the Bill of Rights.”

    Oh come on.

  2. Jim Maloney says:

    Sure, look at the Ninth Amendment. What could be more “definite[ly] detailed” than that?

    …(he asked sarcastically)

  3. Shag from Brookline says:

    The several references in this post to lawyers back then might cause some youthful readers to wonder what law schools they attended.

  4. Anon. says:


    I think this address, followed by “Discuss,” would make a wonderful 3 hour con law final exam. What one could do with it! (Nevermind, at this point, the disappointment that would invariably follow, over vacation, at what was in fact done with it.)

  5. This has given me food for thought regarding the inviolability of the Constitution, or rather the distinctions between a static, always literal document, and principles. It appears then the real disagreements are if the principles so wisely laid out are followed or not. Times change, and so the APPLICATION of principles must, but values such as human rights and the protection of the individual from the group are timeless. That last one, in fact, is why we are a republic and not a democracy, and thankfully so.

    Which is why I find this statement most disturbing … “The present government of the United States has never taken away and never will take away any liberty from any minority, unless it be a minority which so abuses its liberty as to do positive and definite harm to its neighbors constituting the majority.”

    Consider the Jews as a perceived threat to early 20th Century European banking, government, and all of society. It doesn’t matter how ridiculous it it — it happened because a “majority” will always decide what constitutes a “threat.” At the very heart of prejudice and bigotry is the application of judgment (and even legal restriction) to a “group” instead of an individual according to their own actions. It is why the KKK is not illegal, only the unlawful actions that may be done by its members.

    But could abusing what you say should be able to be done happen in our somehow more enlightened or civilized time? I already hear calls among the masses to restrict, disenfranchise or even deport people according to their ideology, be it Socialist or Islamic, as being a “threat” to what some have decided is “America”. Conversely I see extremist Liberals targeting The Tea Party or even just plain gun owners as classes of people we should be keeping an eye on as a potential “threat”. Liberals and Conservatives are trying to classify the believing of the other’s politics as mental illness, not pejoratively or metaphorically, but by so-called academic research studies of people with letters after their name.

    I can only guess that you did not realize these implications when you wrote, and was really not at all your point. But it quietly underlays the whole discussion. It is the mistake of many a fan of “democracy”, a system our Founding Fathers rejected for that potential vice becoming a practice in any scale. De Tocqueville made such criticisms, as he should have, but the republic of laws has curbed our inclinations to give such powers to the government as a tool of the people. For the most part, anyway, and we seem to be willing to overturn this most basic principle as if a majority vote can dictate political and economic justice.

    This whole issue is another way in which the Constitution is not a typical legal document, namely that the Bill of Rights in particular is not made up of laws limiting the people and protecting them from each other, but limiting the government — susceptible by this or that majority — to protect the individual from any ‘collective’ rights or actions.

    So IMO, rejecting these basic premises is hardly a matter of “progress” by which one can claim the original document is in any way anachronistic.