Thursday, January 6, 2011

The "Unconstitutional" Canard

"We believe that the Constitution of the United States is the greatest charter of human liberty ever conceived by the mind of man."
[Article One, Platform of the States' Rights Democratic Party, 1948]

Prior to the election of Franklin D. Roosevelt, the Supreme Court had repeatedly torpedoed all attempts to pass federal legislation outlawing child labor, regulating working hours, establishing a minimum wage, protecting the right of workers to form labor unions, and so forth. These were all deemed to be "unconstitutional"!

Even after FDR's election, the Supreme Court continued to strike down many provisions of the New Deal on the same grounds. Finally, Roosevelt reminded the Court that the Constitution allowed him, in theory, to appoint as many Supreme Court Justices as he pleased. At first the Justices thought he was bluffing. But as the Judiciary Reorganization Act of 1937 (sometimes called Roosevelt's "court packing plan") began to work its way through Congress, suddenly the nation's highest court began to change its tune. Eventually that bill failed, but so did the attempted judicial activism of right-wing Justices opposed to the New Deal.

In 1948, President Harry Truman ordered the desegregation of the US military and established the President's Committee on Civil Rights. Worse still, in the eyes of some die-hard bigots, the 1948 Democratic Convention adopted a Civil Rights plank, at which point a number of southern Democrats walked out of the Convention. These southern Democrats soon announced the formation of a new party, the first plank of whose unanimously adopted platform states proudly: "We believe that the Constitution of the United States is the greatest charter of human liberty ever conceived by the mind of man."

But the Civil Rights movement continued to make progress, all the while being opposed by those who proclaimed their undying love for the Constitution. When the University of Alabama was ordered, by a federal judge, to allow black students to enroll, then Governor George Wallace delivered his famous "school house door" speech in support of segregation, in which he used the word "Constitution" 18 times.

After delivering that speech, George Wallace stood aside to allow Vivian Malone Jones and James Hood, accompanied by federal marshalls and Alabama National Guard troops, to enter Foster Auditorium and register as students.


Kullervo said...

I'm honestly not sure how its a "canard." Developing the Constitutional basis for the kinds of laws you are talking about was honestly problematic. At the end of the day, the 13th and 14th amendments proved to be fairly serviceable, but since the question of "constitutionality" is developed within an ongoing interpretive framework, the issue is a legitimate one and one on which reasonable minds can surely differ, especially when dealing with issues on the cutting edge of developing law.

What many people do not fully realize is that the New Deal ushered in/accompanied what was possibly the most radical philosophical upheaval in our legal system since the Constitution was ratified. The New Deal was unconstitutional, and so our legal conception of the Constitution changed to accomodate it.

A law isn't consitutional just because we think its a good law. That's purposely not how the constitution works.

Apuleius Platonicus said...

Legal arguments one way or another are not canards.

It's when people argue, for example, that proponents of child labor laws are part of an evil conspiracy to destroy the Constitution, then it is a canard.