Belting Hutcheson had been a bit crude, perhaps, but it made Lewis more of a hero than ever to the millions of unskilled and semiskilled workers awaiting deliverance from economic servitude. There was a kind of fire in the strapping tragedian’s eye now, and it lit up a whole movement. CIO meetings became singing meetings. The men joined in the ballad of Joe Hill, who died at the hands of the goons. To the tune of “The Battle Hymn of the Republic” they sang:
It is we who plowed the prairies, built the cities where they trade,
Dug the mines and built the workshops, endless miles of railroad laid;
Now we stand outcast and starving mid the wonders we have made
But the union makes us strong!
Solidarity forever!
Solidarity forever!
Solidarity forever!
For the union makes us strong!
If the CIO represented the non-Communist left in 1936, a great many New Dealers were coming to believe that the non-Fascist right was located not far from the new temple of the United States Supreme Court, which opened for the fall session of 1935. Facing the Capitol across Second Street N.E., it bore the inscription, sculptured in its marble facade, “Equal Justice Under Law.” From the White House—and from much of the rest of America, including the dust bowl and John L. Lewis’s bastion in the coal-laced hills—it appeared that the “nine old men,” as Drew Pearson and Robert S. Allen called them, were committed to strange notions of justice. To be sure, interpretation was the very purpose of the Court. “We are under a Constitution,” Chief Justice Charles Evans Hughes had said nearly thirty years earlier, “but the Constitution is what the judges say it is.” The difficulty, according to Time, was that “the pure white flame of Liberalism has burned out, in Hughes, to a sultry ash of conservatism.” In this the Chief Justice typified both the bench and the bar of his time. Franklin Roosevelt’s legislative program was the closest thing to a revolution the country had seen since the War of Independence. The lower courts, which had been sitting in judgment upon it, represented the old order. Most of the federal district judges had made their reputations under Republican leadership or in corporate law. They were stockholders, trustees, members of exclusive clubs; men of industrial power were their friends, and like them they looked upon the New Deal upheaval as an atrocity. By the end of FDR’s first thousand days in the Presidency, over a hundred of them had issued some 1,600 injunctions against federal laws. In addition, blue-chip attorneys were writing what amounted to private rulings discrediting unwelcome laws. The Liberty League’s refutation of the Wagner Act was typical of the technique. The National Association of Manufacturers distributed it among its members, encouraging defiance of legislation passed by Congress and signed by the President on the ground that it was illegal.
The eminence of Supreme Court justices should have freed them from any sense of alliance with the past, and in fact the Court was more divided than many had realized. Seated at the Court bench in their black robes they looked monolithic, but in chambers they split three ways. Willis Van Devanter, James C. McReynolds, George Sutherland, and Pierce Butler were more zealous in their homage to Adam Smith than Herbert Hoover had ever been; they believed it was downright criminal to interfere with the fundamental “laws” of laissez-faire economics. Hughes and Owen J. Roberts were right of center and usually voted that way, but because they held their convictions less deeply they were regarded as swing men. Only Benjamin N. Cardozo, Harlan Fiske Stone, and Louis D. Brandeis belonged wholly to the twentieth century.
The conflict between Roosevelt and the Court had begun in the early spring of 1935, when the President, learning that 389 fresh challenges of new legislation were on federal dockets and realizing that he could not postpone the issue of constitutionality much longer, approved an immediate appeal to the Supreme Court of a district judge’s ruling that the NRA was unconstitutional. Choosing the NRA was unfortunate; all nine justices agreed that it was invalid (though their reasons varied), and May 27, thereafter known to New Dealers as Black Monday, Hughes read the majority decision. What made it so black was not the rejection of the NRA, which had become excess baggage, but the extraordinary vehemence of Hughes’s opinion. He all but branded Roosevelt an outlaw, and he took the unprecedented step of warning the President and Congress not to base broad federal statutes on their constitutional right to regulate interstate commerce.
FDR was the last man in the country to be intimidated by a conservative fiat de haut en has. He was pretty good at taking stands himself, and on Wednesday he called a press conference to do just that. While Eleanor sat beside him, knitting as furiously as she had during the First Hundred Days, he called Monday’s ruling “more important than any decision probably since the Dred Scott case.” He reviewed Hughes’s opinion that business is essentially local and thus lying within the jurisdiction of the states—that even though it might have an impact on the country as a whole, intervention by the federal government was illegal. By rejecting the concept that the forty-eight states were members of one interdependent community, the Chief Justice seemed to be suggesting that no matter how great a national economic crisis might be, Washington could do nothing about it. This, said the President, was a “horse and buggy definition of interstate commerce.” He, too, was issuing a warning.
Attorney General Cummings believed that prospects of a reconciliation were gloomy. “I tell you, Mr. President, they mean to destroy us,” he said vehemently, adding, “We will have to find a way to get rid of the present membership of the Supreme Court.” For a while Roosevelt was more optimistic. As late as December 1935 he wrote the chief U.S. delegate at a London naval conference, “Things are going well in spite of Supreme Court majority opinion and Hearst and an 85 percent newspaper opposition.” The new year changed his mind. On January 6, 1936, by a 6 to 3 vote, the Court declared the AAA unconstitutional. Agriculture, Roberts argued for the majority, was not a national activity. The attempt to picture it as one was an invasion of states’ rights, raising the specter of “a central government exercising uncontrolled police power in every state of the union.” Near Ames, Iowa, farmers hanged in effigy the six justices who had joined in this staggering interpretation. The tories, undaunted, proceeded to strike down the Securities and Exchange Act (6 to 3); Sutherland compared the investigation of Wall Street to the “intolerable abuses of the Star Chamber.” Next to fall was the Guffey-Snyder Coal Act (5 to 4), on the ground that mining was purely local, even though the coal might be shipped all over the country. Then the Municipal Bankruptcy Act was thrown out (5 to 4), on arguments so tenuous that the entire New Deal, including social security and the Wagner Act, seemed doomed. All the voided law had done was to permit state-federal cooperation in the readjustment of public debts, the initiative lying with the states. To the conservative justices, apparently, any federal participation in local problems was forbidden.
In the first 140 years of its history, the Court had invalidated only sixty laws. Now, in little more than one year, the Hughes Court had nullified eleven Roosevelt measures. Its last victory of the session came on the eve of the national conventions, and it was the most shocking. Having already dismissed federal wages and hours legislation, it proceeded, in Morehead v. Tipaldo, to consider a New York state law on minimum wages for women. The vote was against it, 5 to 4. Butler, for the majority, wrote that “The right to make contracts about one’s affairs is a part of the liberty protected by the due process clause,” and “In making contracts of employment, generally speaking, the parties have equal rights to obtain from each other the best terms they can by private bargaining.” In other words, he held sacred the right of a fifteen-year-old girl in one of Manhattan’s sweatshops to reach an agreement with a textile millionaire under which she would be allowed to earn $2.39 a week. Neither Washington nor the states could interfere. Nobody had the right to put a floor under wages or a ceiling over hours.
There was merrymaking that night in the stately mansions overlooking the mill towns of New Englan
d and North Carolina, but conservatives in public life were dismayed. Here, clearly, was too much of a good thing. Herbert Hoover said, “Something should be done to give back to the states the powers they thought they already had.” Sixty newspapers called for a congressional amendment; Governor Landon agreed with them. The Republican platform that year offered a nebulous promise to do something to protect women and children, without saying how, and the Democrats called for a “clarifying amendment.” Only the President was silent. He was weighing courses of action, but first he must be reelected, and as he told Ray Moley, “There’s one issue in this campaign. It’s myself, and people must be either for me or against me.” He expected them to be for him. He also anticipated more 5 to 4 or 6 to 3 decisions, and in a sense he would welcome them. As Ickes noted, he could use them “as a background for an appeal to the people over the heads of the Court.”
***
In 1936 the United States lacked the political sophistication which would later transform national elections. There were no computer consoles then, no studies of key precincts, and only the barest beginnings of scientific polling. Returns were a mystery until election day evening; meantime partisans could speculate and assemble supporting data. Afterward, of course, everything was clear (political scientists have always had superb hindsight) but few had predicted a Roosevelt landslide that year, and a great many had written him off as a one-term President.
Their arguments were not all tortured. Here was a President who had promised to balance the budget four years earlier, and was instead running an annual deficit of six or seven billions. Seven million Americans were still looking for work; the programs designed to rescue them were turning out to be unconstitutional and hence useless. For most of the past eighty years the party now in power had been a minority party. The election of one of its members to the Presidency was interpreted by many as a freak of circumstance, and support for this one was being diminished by the defection of such distinguished Democrats as Newton D. Baker, Dean Acheson, and John J. Raskob; former Democratic presidential candidates Al Smith and John W. Davis; and Democratic governors Joseph B. Ely of Massachusetts, Albert Ritchie of Maryland, and Eugene D. Talmadge of Georgia. The vast majority of the big newspapers were anti-Roosevelt. Hearst wrote front-page editorials denouncing the “Raw Deal.” Switchboard operators at the Chicago Tribune answered calls by saying, “Good morning. Do you know you have only [number] days left to save your country?” Tribune headlines (ROOSEVELT AREA IN WISCONSIN IS HOTBED OF VICE) and stories (“Governor Alfred M. Landon tonight brought his great crusade for the preservation of the American form of government into Los Angeles”) strongly implied that its subscribers might be turned away from the President.
Walter Lippmann was against Roosevelt; so was Dorothy Thompson. Mark Sullivan, another distinguished political writer, had forecast an FDR defeat as early as 1935, and that same year Charles A. Beard had written that “Roosevelt’s spell of leadership is definitely broken.” Bankers and brokers, whose contributions had accounted for 25 percent of FDR’s war chest in 1932, were giving only 4 percent of this one. Indeed, the Democrats’ perennial shortage of money, which was to continue into the 1970s, began in 1936. The Republicans were to spend $9,000,000 on Landon; Roosevelt’s candidacy attracted little more than half that.
There was irony here. Republicans could afford to splurge because the economy had turned round since the last campaign. In 1933 Roosevelt’s role had been that of a receiver in bankruptcy, and the intervening years had been far more prosperous than anyone had then thought possible. Unemployment was less than half of that in 1932. The Federal Reserve Board’s Adjusted Index of Industrial Production had climbed from 58 to 101 in 1935 and would reach 121 in 1936. (It had been 125 in 1929.) Insurance assets had increased by three billion since inauguration day. The banks had been rescued. The national income and company profits had risen by over 50 percent; the Dow Jones industrial average by 80 percent. For the first time since the Crash, Wall Street was nervous about inflation—the sure sign of a bull market—and investors who had papered the walls of one room in the Union League Club with worthless securities four years ago were steaming them off and cashing them in. Nevertheless, a huge electric sign attached to the front of the club read, LANDON AND KNOX 1936. LOVE OF COUNTRY LEADS.
Earlier in the year the Republican nomination had been worth more. FDR’s popularity, according to the few yardsticks then available, had touched bottom; a Gallup report had given the opposition an even chance to unseat him. As late as July the Democratic National Committee was writing off New York and Illinois and clinging to only the faintest hope in Minnesota, Indiana, and Ohio. By then, however, the President had assumed personal command of the campaign. In February he told Secretary Wallace, “Henry, through July, August, September, October and up to the fifth of November, I want cotton to sell at twelve cents. I do not care how you do it. That is your problem. It can’t go below twelve cents. Is that clear?” Like paving roads during a campaign, that was traditional politics. What was new was his coalition theory. He believed that the Democratic coalition would smash Republican strongholds and establish his party as the majority party—provided the Democrats were blessed with that greatest of political assets, luck.
They were so blessed. The first piece of luck came on January 25, 1936, when two thousand men in full dress and women wearing ermine assembled in Washington’s Mayflower Hotel for a Liberty League banquet to launch its campaign against Roosevelt’s reelection. It was perhaps the most ostentatious meeting in the history of American politics; the New York Times said that it represented, “either through principals or attorneys, a large portion of the capitalistic wealth of the country.” The chief speaker was Al Smith, now busy fighting legislation which would prohibit child labor. He arrived wearing a high silk hat and delivered a hysteroid, anti-New Deal polemic (“The New Deal smells of the stench of Communistic Russia”) which thrilled everyone with an annual income of $100,000. Pierre S. Du Pont called it “perfect.” John Nance Garner agreed. The Democrats didn’t have to spend a cent or deliver a speech, the Vice President said; their return to power had been assured by tycoons who had completely misjudged the American temper.
On June 11 the Republicans nominated Alfred M. Landon, thereafter to be known as Alf, in Cleveland. He was a good governor, and his platform was to the left of the one Roosevelt had run on in 1932. Unfortunately for Landon’s chances, his essential liberalism was obscured by the men around him. Republican chairman Henry P. Fletcher defined the campaign issue as “constitutional government.” Henry Ford said he hadn’t voted in twenty years, but he would this time because “Landon is like Coolidge.” Landon was christened “the Kansas Coolidge”; his symbol was to be the Kansas sunflower, of which FDR dryly noted that it was yellow, had a black heart, was useful only as parrot food, and always died before November.
For Landon there was the further embarrassment of Herbert Hoover. The thirty-first President arrived in Cleveland with an uninstructed California delegation—chaired by Earl Warren—and quietly let it be known that he could be prevailed upon once more to honor the ticket with his name. Republicans weren’t that unbalanced, at least not in June, but they did greet him with a fifteen-minute ovation. Roosevelt’s acronyms had almost exhausted the alphabet, he said slyly, “but of course the new Russian alphabet has thirty-four letters.” For the next four months he bombarded Landon with advice. The Kansas Coolidge escaped his blandishments, if not the stigma of his endorsement, and Hoover was reduced to listening to Roosevelt’s speeches over the radio and booing the loudspeaker whenever the President paused for breath.
On adjournment the GOP delegates had sung, to the tune of “Oh, Susanna”:
The alphabet we’ll always have but one thing sure is true,
With Landon in, the New Deal’s out and that means PDQ.
Alf Landon’s learned a thing or two, he knows the right solution,
And in the White House he will stay within the Constitution.
>
Oh, Alf Landon!
He’s the man for me!
’Cause he comes from prairie Kansas
His country for to free!
Somehow one feels that Pierre Du Pont could have afforded something better. Certainly the gentle governor had deserved a more dignified scenario. For a few days political reporters thought they had witnessed the year’s record in convention slapstick, and then Father Coughlin and his colleagues preempted the lunatic fringe, presenting for the voters’ consideration their new Union Party. The Union candidate for President was Congressman William Lemke of North Dakota, a strange individual with a pocked face, a glass eye, and a shrill voice; to the radio priest’s dismay he insisted upon wearing a gray cloth cap and an outsize suit. Coughlin baptized him “Liberty Bill,” and Gerald L. K. Smith drew up plans to guard the November polls with a hundred thousand Townsendite youths. The radio priest promised to quit the air forever if he didn’t deliver nine million votes for the Union ticket. That seemed extravagant, but in June both major parties were taking Lemke seriously. Unlike the song “Oh, Alf Landon!” the sobriquet “Liberty Bill” was catching on. Father Coughlin rather liked the alliterative resemblance to “Liberty Bell.” Then, too late, he remembered something: the Liberty Bell was cracked.
The Glory and the Dream: A Narrative History of America, 1932-1972 Page 21