President Franklin D. Roosevelt’s “Fireside Chat”
March 9, 1937
… Tonight, sitting at my desk in the White House, I make my first radio report to the people in my second term of office.
I am reminded of that evening in March 4 years ago, when I made my first radio report to you. We were then in the midst of the great banking crisis. ...
In 1933 you and I knew that we must never let our economic system get completely out of joint again---that we could not afford to take the risk of another great depression.
We also became convinced that the only way to avoid a repetition of those dark days was to have a government with power to prevent and to cure the abuses and the inequalities which had thrown that system out of joint.
We then began a program of remedying those abuses and inequalities. ...
Today we are only part way through that program---and recovery is speeding up to a point where the dangers of 1929 are again becoming possible, not this week or month perhaps, but within a year or two.
National laws are needed to complete that program. Individual or local or State effort alone cannot protect us in 1937 any better than 10 years ago. ...
The courts have cast doubts on the ability of the elected Congress to protect us against catastrophe by meeting squarely our modern social and economic conditions.
We are at a crisis in our ability to proceed with that protection. It is a quiet crisis. There are no lines of depositors outside closed banks. But to the far-sighted it is far-reaching in its possibilities of injury to America.
I want to talk with you very simply about the need for present action in this crisis---the need to meet the unanswered challenge of one-third of a nation ill-nourished, ill-clad, ill-housed.
Last Thursday I described the American form of government as a three-horse team provided by the Constitution to the American people so that their field 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. Those who have intimated that the President of the United States is trying to drive that team overlook the simple fact that the President, as Chief Executive, is himself one of the three horses.
It is the American people themselves who are in the driver’s seat.
It is the American people themselves who want the furrow plowed.
It is the American people themselves who expect the third horse to pull in unison with the other two.
I hope that you have reread the Constitution of the United States. Like the Bible, it ought to be read again and again.
... In its preamble the Constitution states that it was intended to form a more perfect Union and promote the general welfare; and the powers given to the Congress to carry out those purposes can be best described by saying that they were all the powers needed to meet each and every problem which then had a national character and which could not be met by merely local action.
But the framers went further. Having in mind that in succeeding generations many other problems then undreamed of would become national problems, they gave to the Congress the ample broad powers “to levy taxes and provide for the common defense and general welfare of the United States.”
That, my friends, is what I honestly believe to have been the clear and underlying purpose of the patriots who wrote a Federal Constitution to create a National Government with national power, intended as they said, “to form a more perfect union ... for ourselves and our posterity.” ...
... [S]ince the rise of the modern movement for social and economic progress through legislation, the Court has more and more often and more and more boldly asserted a power to veto laws passed by the Congress and State legislatures. ...
In the last 4 years the sound rule of giving statutes the benefit of all reasonable doubt has been cast aside. The Court has been acting not as a judicial body, but as a policy-making body.
When the Congress has sought to stabilize national agriculture, to improve the conditions of labor, to safeguard business against unfair competition, to protect our national resources, and in many other ways to serve our clearly national needs, the majority of the Court has been assuming the power to pass on the wisdom of these acts of the Congress---and to approve or disapprove the public policy written into these laws.
That is not only my accusation. It is the accusation of most distinguished Justices of the present Supreme Court. I have not the time to quote to you all the language used by dissenting Justices in many of these cases. But in the case holding the Railroad Retirement Act unconstitutional, for instance, Chief Justice Hughes said in a dissenting opinion that the majority opinion was “a departure from sound principles,” and placed “an unwarranted limitation upon the commerce clause.” And three other justices agreed with him.
In the face of these dissenting opinions, there is no basis for the claim made by some members of the Court that something in the Constitution has compelled them regretfully to thwart the will of the people.
The Court in addition to the proper use of its judicial functions has improperly set itself up as a third House of the Congress---a superlegislature, as one of the Justices has called it, “reading into the Constitution words and implications which are not there, and which were never intended to be there.”
We have, therefore, reached the point as a Nation where we must take action to save the Constitution from the Court and the Court from itself. We must find a way to take an appeal from the Supreme Court to the Constitution itself. We want a Supreme Court which will do justice under the Constitution---not over it. In our courts we want a government of laws and not of men.
I want---as all Americans want---an independent judiciary as proposed by the framers of the Constitution. That means a Supreme Court that will enforce the Constitution as written---that will refuse to amend the Constitution by the arbitrary exercise of judicial power---amendment by judicial say-so. It does not mean a judiciary so independent that it can deny the existence of facts universally recognized.
How, then, could we proceed to perform the mandate given us? ...
... I came by a process of elimination to the conclusion that short of amendments the only method which was clearly constitutional, and would at the same time carry out other much needed reforms, was to infuse new blood into all our courts. ... [W]e must have judges who will bring to the courts a present-day sense of the Constitution---judges who will retain in the courts the judicial functions of a court and reject the legislative powers which the courts have today assumed. ...
What is my proposal? It is simply this: Whenever a judge or justice of any Federal court has reached the age of 70 and does not avail himself of the opportunity to retire on a pension, a new member shall be appointed by the President then in office, with the approval, as required by the Constitution of the Senate of the United States.
That plan has two chief purposes: By bringing into the judicial system a steady and continuing stream of new and younger blood, I hope, first, to make the administration of all Federal justice speedier and therefore less costly; secondly, to bring to the decision of social and economic problems younger men who have had personal experience and contact with modern facts and circumstances under which average men have to live and work. This plan will save our National Constitution from hardening of the judicial arteries.
The number of judges to be appointed would depend wholly on the decision of present judges now over 70 or those who would subsequently reach the age of 70. If, for instance, any one of the six Justices of the Supreme Court now over the age of 70 should retire as provided under the plan, no additional place would be created. Consequently, although there never can be more than 15, there may be only 14, or 13, or 12, and there may be only 9. There is nothing novel or radical about this idea. It seeks to maintain the Federal bench in full vigor. ...
The statute would apply to all the courts in the Federal system. There is general approval so far as the lower Federal courts are concerned. The plan has met opposition only so far as the Supreme Court of the United States itself is concerned. If such a plan is good for the lower courts, it certainly ought to be equally good for the highest court, from which there is no appeal.
Those opposing this plan have sought to arouse prejudice and fear by crying that I am seeking to “pack” the Supreme Court and that a baneful precedent will be established.
What do they mean by the words “packing the Court?”
Let me answer this question with a bluntness that will end all honest misunderstanding of my purposes.
If by that phrase “packing the Court” it is charged that I wish to place on the bench spineless puppets who would disregard the law and would decide specific cases as I wished them to be decided, I make this answer: That no President fit for his office would appoint, and no Senate of honorable men fit for their office would confirm, that kind of appointees to the Supreme Court.
But if by that phrase the charge is made that I would appoint and the Senate would confirm Justices worthy to sit beside present members of the Court who understand those modern conditions; that I will appoint Justices who will not undertake to override the judgment of the Congress on legislative policy; that I will appoint Justices who will act as Justices and not as legislators---if the appointment of such Justices can be called “packing the Courts”---then I say that I, and with me the vast majority of the American people, favor doing just that thing---now. ...
I now propose that we establish by law an assurance against any such ill-balanced Court in the future. I propose that hereafter, when a judge reaches the age of 70, a new and younger judge shall be added to the Court automatically. In this way I propose to enforce a sound public policy by law instead of leaving the composition of our Federal courts, including the highest, to be determined by change or the personal decision of individuals. ...
Like all lawyers, like all Americans, I regret the necessity of this controversy. But the welfare of the United States, and indeed of the Constitution itself, is what we all must think about first. Our difficulty with the Court today rises not from the Court as an institution but from human beings within it. But we cannot yield our constitutional destiny to the personal judgment of a few men who, being fearful of the future, would deny us the necessary means of dealing with the present.
This plan of mine is no attack on the Court; it seeks to restore the Court to its rightful and historic place in our system of constitutional government and to have it resume its high task of building anew on the Constitution “a system of living law.” ...
During the past half century the balance of power between the three great branches of the Federal Government has been tipped out of balance by the courts in direct contradiction of the high purpose of the framers of the Constitution.
It is my purpose to restore that balance. You who know me will accept my solemn assurance that in a world in which democracy is under attack I seek to make American democracy succeed.