Constitution 201: FDR’s New Bill of Rights

By Stephen Zierak

This lesson is taught by Dr. Will Morrisey, the William and Patricia LaMothe Chair in the U.S. Constitution and Professor of Politics at Hillsdale College.  Dr. Morrisey teaches courses in American politics, political philosophy, and comparative politics.  He has authored eight books on statesmanship and political philosophy, and has written numerous articles for professional journals, magazines, and major newspapers.  Dr. Morrisey received his BA from Kenyon College and his PhD from the New School University.  Those interested in seeing and hearing this lecture, or any of the others in the series, may register at constitution.hillsdale.edu.  There is no fee.

At our Founding, some people worried that too much power was being given central government under the provisions of the Constitution.  After the ratification process had been completed, James Madison presented our Bill of Rights as proposed amendments to the Constitution.  Madison had believed the structure of the Constitution guaranteed our unalienable rights, but came to accept the wisdom of an explicit statement of them.  The first eight of these amendments describe the civil rights of all citizens that limit the actions of government in its relations with the people.  They serve as a guarantee that the federal government will respect and defend the unalienable rights of the Declaration.  The ninth amendment provides some legal protection to the states.  And the tenth amendment reserves all powers not enumerated by the Constitution to the states or to the people themselves.  The Constitution and the Bill of Rights are meant to limit the power of government in the lives of citizens; and the very structure of the government, with its separation of powers, is meant to slow government action and ensure consideration of the rights of individuals and minorities.

As we have previously discussed, the Progressive vision is quite different.  They have sought a powerful, centralized administrative state to define and solve problems for the people.  They have been impatient with Constitutional structures like separation and division of powers that retard what they consider progress in the light of historical contingency.  They have not accepted the idea of universal unalienable rights, instead asserting that rights are defined by government on behalf of society.

So we should not be surprised that in the crisis times of the Great Depression, Progressives as personified by President Franklin Delano Roosevelt had the plan and the will to transform the nature of our Constitutional republic.  In his First Inaugural Address, FDR set the tone for what was to come by demanding broad executive powers to wage war against the economic emergency, powers similar to those granted in time of real war against foreign enemies.  At first, he was checked by a Supreme Court that could find no specified powers justifying much of the original New Deal legislation such as the NRA and the first Agricultural Adjustment Act. Roosevelt compared this legitimate judicial review with the 1834 Nullification Act of South Carolina.  He described the three branches of government as a three horse team that must pull together.  If the justices thought differently, then they were rejecting the principle of the greater good for the greater number, which he termed a cornerstone of democracy.

If that principle is the cornerstone of democracy, it is not the cornerstone of a Constitutional government in a republic of separated and divided powers. Roosevelt advised the justices that if they felt moved by the tide of public opinion, it would not be necessary to alter the Constitution, but instead merely take an enlightened view of its provisions.  The Constitution should be an instrument of progress.  After all, this must have been the intent of the Founders who produced such a broadly worded document.  (The sound you would have heard was Madison turning over in his grave.)

Within a few years, the Court had yielded to the New Deal, throwing out long-standing precedents and finding new powers hiding in the Constitution that had never before been known.  Freedom of contract was reinterpreted as a liberty in a social organization context that required protection of the law against evils menacing people’s health, safety, and morals.  The New Dealers were quite active in redefining what liberty actually meant in modern times.  A few months before his death in 1944, President Roosevelt said how he had always supported the document called the U.S. Constitution.  Of course, by then Constitutional protections had been radically redefined.

Franklin Roosevelt had a long pedigree as a Progressive.  He had been taught as a schoolboy by Endicott Peabody that history had peaks and valleys, but the long term trend over the centuries was always onward and upward.  As the Vice President candidate on the Democrats’ 1920 ticket,Roosevelt told the voters that the country was confronted by two great problems:  our relations in the world and the pressing need for organized progress at home.  The archaic shortcomings of our government machinery impeded that progress.  Some years later, he told a friend that while communism was a danger, so too was the political/economic oligarchy of the nation, and that a middle course slightly left of center, a good dose of social justice, was what we needed.

In a 1932 campaign speech to the Commonwealth Club of California, Roosevelt was very clear about his intentions:

“The Declaration of Independence discusses the problems of Government in terms of a contract….Under such a contract rulers were accorded power, and the people consented to that power on consideration that they be accorded certain rights.  The task of statesmanship has always been the redefinition of these rights in terms of a changing and growing social order.  New conditions impose new requirements upon Government and those who conduct government….Our task now is not discovery or exploitation of resources, or necessarily producing more goods.  It is the soberer, less dramatic business of administering resources and plants already in hand, of seeking to reestablish foreign markets for our surplus production, of meeting the problem of underconsumption, of adjusting production to consumption, of distributing the wealth and products more equitably, of adapting existing economic organizations to the service of the people.  The day of enlightened administration has come….As I see it, the task of Government in its relation to business is to assist the development of an economic declaration of rights, an economic constitutional order.”

Where would one find all this in the enumerated powers?

In 1923, Herbert Hoover wrote American Individualism.  Years later Roosevelt scorned his representation of Hoover’s thesis.  Roosevelt claimed that Hoover described the crowd, or average people, as credulous, hateful, destructive, incapable of building and only feeling. Hoover supposedly wrote that only 5% of the people were true leaders, responsible for all the progress in government and civilization.  In contrast, Roosevelt declared the common man neither stupid nor impassioned, but instead distracted and preoccupied by competitive business life and an ever more feverish pursuit of pleasure.  While the mass of humanity does think and can make up its mind on issues of public policy, incessant activity leaves no inclination to assist in the conduct of the community in which we live.  The exercise of political and economic liberty had been swallowed up by the mammoth modern corporation in which the individual is a cog in a machine he could not control.  The answer to this dilemma is to be found in social planning for social justice, under the benevolent watch of central government experts, beholden to no business or industry.

Roosevelt totally misrepresented Hoover’s ideas. Hoover argues that it is only individual minds that can think, only individual souls that can be saved.  In crowds, individuals are captured by the emotionalism of the moment, rooting for the home team as it were.  The one source of human progress is a political society in which the individual is given an equal chance and a stimulation of the best with which he has been endowed in mind and heart.  Only through free competition will the best emerge, a selection process superior to selection by any religious, corporate, or government elite. Hoover also worries about the possible autocracy of economic power.  His remedy is not nationalization of production and distribution, but legislation against restraint of trade so the free market will do its job. Hoover understands that individualism arises from the nature of man.  Not so Roosevelt, who accepts the Progressive view that, like a person, a nation has a body, mind, and spirit—this spirit derived as the historical product of centuries.  For Hoover, nature suggests limits.  For Roosevelt, the only limits history imposes on the aspirations of tomorrow are the doubts of today.

Out of this world view comes Roosevelt’s redefinition of individual liberty.  In his Annual Message to Congress in 1944, Roosevelt said, “This Republic had its beginning, and grew to its present strength, under the protection of certain inalienable political rights—among them the right of free speech, free press, free worship, trial by jury, freedom from unreasonable searches and seizures.  They were our rights to life and liberty.  As our Nation has grown in size and stature, however—as our industrial economy expanded—these political rights proved inadequate to assure us equality in the pursuit of happiness.  We have come to a clear realization of the fact that true individual freedom cannot exist without economic security and independence.  Necessitous men are not free men.  People who are hungry and out of a job are the stuff of which dictatorships are made.  In our day these economic truths have become accepted as self-evident.  We have accepted, so to speak, a second Bill of Rights under which a new basis of security and prosperity can be established for all….”

Roosevelt then went on to list these new rights:  right to a useful and remunerative job; right to earn enough to provide adequate food and clothing and recreation; right of every farmer to raise and sell his products at a return which will give him and his family a decent living; right of every businessman to trade in an atmosphere of freedom from unfair competition and domination by monopoly; right of every family to a decent home; right to adequate medical care; right to adequate protection from economic fears of old age, sickness, accident, and unemployment; and right to a good education.

Now these are all certainly good things.  The Constitution protects the rights of the citizens to acquire and keep them.  But what Roosevelt meant was that citizens had a right to obtain them with funds extracted from fellow citizens.  Property rights were now to be rights to the property of others as transferred by Federal government legislation requiring substantial increase of Federal power and duties.  This is way beyond the understanding of the Founders’ Constitution, and some might consider it legalized theft.  Needless to say,Roosevelt didn’t bother going through the niceties of Constitutional amendments to secure these new “rights.”  He merely proclaimed them, and promised implementing legislation.  To Roosevelt, property rights were contingent, subject to the superior rights of social justice.

FDR had a rather grandiose idea of what he was accomplishing. Roosevelt told a group of religious leaders that his collective social planning was an application of Christianity, which advocated the rule of the wealthy by the majority for the common good (thus also reinterpreting the Bible).  His venue was not merely the United States, but the whole world.  He expected his concept of the Four Freedoms—speech, worship, from want, from fear—to be a template for a world where all would live in freedom, and in equity, and without fear of war.

What Roosevelt’s ideas actually brought the United States was nearly a decade of continued economic misery, broken only by WW2, and precedents that have caused successors to further “redefine” the rights recognized by our Constitution.  What new “rights” will statesmen of the future define for us—and what new powers will they seize to bring them to us?  As a modern Ben Franklin might say to us, “You traded your liberty for security—and ended up with neither liberty nor security.”

Stephen Zierak, CPCU/ARM, graduated from Boston University with a BA in Political Science in 1969.  After a forty year career in property casualty insurance underwriting, Mr. Zierak retired as a Vice President of Swiss Re America in 2010.  At that time, he relocated to Hawaii, a move he had always wanted to make, but had delayed due to lack of appropriate professional opportunities here.  Mr. Zierak plans to continue his studies in Political Science, never really abandoned even during his professional career, and to write on matters of public policy.  Recently, he produced for Grassroot Institute summaries of Hillsdale’s ten part internet course on our Constitution.  Stephen Zierak is married to the love his life, Teodora, and they reside in Honolulu.

Comments

comments