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c h a p t e r f o u r Discontinuities in the “Constitutional Revolution of 1937” The people by their Constitution created three separate, distinct, independent, and coequal departments of government. The government structure rests, and was intended to rest, not upon any one or upon any two, but upon all three of these fundamental pillars. It seems unnecessary to repeat, what so often has been said, that the powers of these departments are diVerent and are to be exercised independently. The diVerences clearly and deWnitely appear in the Constitution. Each of the departments is an agent of its creator; and one department is not and cannot be the agent of another. Each is answerable to its creator for what it does, and not to another agent. Justice George Sutherland I described the American form of government as a three-horse team provided by the Constitution to the American people so that their Weld might be plowed. The three horses are, of course, the three branches of government—the Congress, the executive, and the courts. Two of the horses are pulling in unison today; the third is not. Franklin Delano Roosevelt After the Supreme Court struck down the National Recovery Administration (NRA)inSchechterPoultryCorporationv.theUnitedStates,FranklinDelanoRoose­ velt delivered an extraordinary radio address in which he called Schechter the most important decision“of my lifetime . . . more important than any decision probably since the Dred Scott case.”1 The Court would soon hand FDR a series of defeats, Wnding much of the legislation at the heart of the New Deal unconstitutional. “Constitutional Revolution of 1937”      Roosevelt, however, generally opposed amending the Constitution to clearly grant the national government power he thought it already had. To amend the Constitution , for Roosevelt, would concede that the Court’s interpretation was right. The problem for FDR was not the Constitution, but the Court’s interpretation of it, a point he emphasized in his battle with the Court:“And remember one more thing. Even if an amendment were passed, and even if in the years to come it were to be ratiWed, its meaning would depend upon the kind of Justices who would be sitting on the Supreme Court bench. An amendment, like the rest of the Constitution, is what the Justices say it is rather than what its framers or you might hope it is.”2 Roosevelt was only partly being sly: he refused to believe that the Constitution was really what the justices say it is, but he put his Wnger squarely on the problem. For FDR, what was needed was a fundamental shift in our constitutional understandings , not a formal amendment to the Constitution. As Roosevelt’s attorney general, Robert Jackson, later elevated to the Court, explained,“it may be possible by more words to clarify more words, but it is not possible by words to change a state of mind.”3 FDR’s reconstruction of constitutional meaning and authority sought to change this state of mind, drawing heavily on progressive understandings , to insist that the Constitution must adapt to the times:“They [the opponents of the New Deal] do not know or realize that the Constitution has changed with the times. . . . We revere it and have an aVection for it because of the principles which it reflects, but in its material applications it of necessity has changed in keeping with the changing times and conditions.”4 FDR insisted, as Wilson and TR before him had, that the national government’s power must be broadly adapted to regulate a modern economy. But unlike dominant strands of progressive thought, FDR attempted to situate his view within the original Constitution.In attempting to reconstruct our constitutional understandings , FDR linked the progressive notion of an evolutionary Constitution to the Founders’ original constitutional understandings. If he was expanding government beyond traditional understandings, this expansion was necessary to preserve the constitutional order itself, and thus was consistent with it. As Robert Jackson argued, it was necessary to retreat “to the Constitution,” away from the Court’s illegitimate interpretations,“back to the original sweep and vigor of those clauses which confer power on the Federal Government,” and to see that “those which limit it are reduced, if not to their original meaning, at least to tolerable ap­­ proximations.”5 Yet, even while invoking the Founder’s intentions and the traditional understandings of sweeping national power that he traced back to Chief Justice John Marshall and Alexander Hamilton, Jackson also pushed for expansive governmental power to deal with emergency...

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