These Truths

by Jill Lepore

  Radio also nourished populism. Charles Coughlin, a Catholic priest, began broadcasting Sunday Mass from a Michigan radio station in 1926 and in 1930 CBS decided to deliver his program, The Golden Hour of the Little Flower, over its national network. Turning from religion to politics and embracing a tacit anti-Semitism, Coughlin denounced “Wall Street financiers,” and although at first an avid supporter of FDR, he by 1934 began considering his own bid for the White House. In May 1935 he addressed an audience of thirty thousand passionate supporters in Madison Square Garden, some carrying placards reading “Our Next President.”112

  Wild-eyed, fist-stamping Louisiana senator Huey Long rallied his followers by radio, too. Long, born in 1893, had passed the bar while working as a traveling salesman and been elected governor of Louisiana in 1928, the year FDR was elected governor of New York. A fiery populist, he’d ruthlessly accumulated political power in Louisiana before building a national political movement, the Share Our Wealth Society. Late in 1933, Long broke with FDR, calling him a dictator, and was soon attacking him on the radio. He bought coast-to-coast national airtime. “While I’m talking,” he’d say at the beginning of a broadcast, “I want you to go to the telephone and call up five of your friends and tell them that Huey is on the air.” Then he’d fill time for a few minutes, waiting for his audience to grow. Derided as a dangerous demagogue, he’d reached the peak of his power in September 1935, when he was gunned down in Baton Rouge by the son-in-law of one of his staunchest political enemies. “Every Man a King” had been Huey Long’s motto. He died the death of Polonius, ridiculous. Coughlin, hoping to enlist Long’s followers, merged his own organization with Long’s Share Our Wealth Society and formed the Union Party, running as its presidential candidate against the man he’d taken to calling Franklin Double-Crossing Roosevelt.113 He earned fewer than a million votes.

  In November 1936, Roosevelt won reelection in another unprecedented electoral landslide, 523 to 8, and with more than 60 percent of the popular vote. Misjudging his power, he decided to forge ahead with continued reforms, a plan that required battling the Supreme Court.

  EVEN BEFORE HE took office in 1933, FDR had begun lining up judicial support for his legislative agenda, meeting with Oliver Wendell Holmes, who told him, “You are in a war, Mr. President, and in a war there is only one rule, ‘Form your battalion and fight!” At the end of his first hundred days in office, FDR had secured the passage of fifteen legislative elements of his New Deal. All had to do with the federal government’s role in the regulation of the economy—and therefore, with the commerce clause in Article One, Section 8, of the Constitution, which granted to Congress the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” It would fall to the Supreme Court to decide whether or not the New Deal fell within this power.

  The New Deal broadened and intensified the longstanding debate over the nature of the Constitution. “I don’t believe in one generation deciding what the others shall do,” wrote one philosophy professor in 1931. “Our forefathers didn’t know anything about a country of 120,000,000 people, with automobiles, trains, and radios.” How could a people committed to the idea of progress shackle themselves to the past? “Hopeful people today wave the flag,” Thurman Arnold, FDR’s assistant attorney general, said; “timid people wave the Constitution.”114

  Meanwhile, the court took on new trappings of power. In early 1933, just before leaving office, Hoover had laid the cornerstone for a new building for the court. Materials were shipped from all over the world: marble from Spain, Italy, and Africa; mahogany from Honduras. At a budget of $10 million, the plan was to build the largest marble building in the world. At the ceremony, after Hoover turned over a trowel’s worth of dirt, Chief Justice Charles Evans Hughes delivered remarks recalling the court’s long years of wandering, bumped from rooms in one federal building to another for a century and a half. “The court began its work a homeless department of the government,” Hughes said, but “above the cornerstone we lay today will rise a memorial more sublime than monuments of war.”115

  Hughes, a reformer, had been appointed to the court twice; in between, he’d run for president. In 1906, running for governor of New York against William Randolph Hearst, Hughes had spent $619 against Hearst’s $500,000—and won.116 Once in office, Hughes pushed through the state legislature a clean elections law, limiting how much candidates were allowed to spend during a campaign. In 1910, Taft appointed Hughes to the Supreme Court, where, as a champion of civil liberties, he often joined with Holmes in dissent. Hughes resigned from the bench in 1916 to run for president; he lost, narrowly, to Wilson. He served as secretary of state under Harding and Coolidge before returning to the court under Hoover.

  In Hughes’s court, four conservative justices, known as the Four Horsemen, had consistently voted in favor of a liberty of contract, while the three liberals, Louis Brandeis, Benjamin Cardozo, and Harlan Stone, generally supported government regulation and found legislative efforts like minimum-wage laws to be consistent with the Constitution. That left Hughes and Owen Roberts as the deciding votes. In early rulings on New Deal legislation, the court, voting 5–4, Hughes and Roberts joining the liberals, let Roosevelt’s agenda stand. “While an emergency does not create power,” Hughes said, “an emergency may furnish the occasion for the exercise of the power.”117

  In the January 1935 session, the court heard arguments in another series of challenges to the New Deal. Anticipating that the court would rule against him, FDR drafted a speech. (“For use if needed,” he wrote at the top.) But in February, the court again upheld his agenda, 5–4, leading one of the horsemen to cry, “The Constitution is gone!”118 Roosevelt would need that speech by spring. On May 27, 1935, the court met in the Old Senate Chamber for the final time. On that day, in three unanimous decisions, the justices kicked the teeth out of the New Deal. Most importantly, it found that the National Recovery Administration, which Roosevelt had called the “most important and far-reaching legislation in the history of the American Congress,” was unconstitutional, because Congress had exceeded the powers granted to it under the commerce clause. “The implications of this decision,” FDR said, “are much more important than any decision probably since the Dred Scott case.” Then he raged about the scant powers available to Congress to relieve a failing economy: “We have been relegated to the horse-and-buggy definition of interstate commerce.”119 But in the horse-and-buggy days, the court didn’t have half as much power as it had claimed by 1935.

  Six months later, when the court resumed, it met in its opulent new building, described by one reporter as an icebox decorated by a mad upholsterer. And then the Hughes Court went on a spree, striking down more than a dozen federal laws in less than eighteen months. Congress kept passing them; the court kept striking them down. At one point, FDR’s solicitor general fainted in the courtroom. “Never before in the history of our country has the Supreme Court been called upon to adjudicate the constitutionality of so many acts of Congress which so vitally affected the life of every American as in the period 1933 to 1936,” wrote a onetime constitutional law professor, in one of dozens of tracts published that attempted to explain this set of cases to voters. “Eight acts or portions of acts were declared unconstitutional, two were declared constitutional, and in four instances actions of executive officers or commissions were held to be outside the pale of the Constitution.”120

  The president began entertaining proposals about fighting back. One senator had an idea. “It takes twelve men to find a man guilty of murder,” he said. “I don’t see why it should not take a unanimous court to find a law unconstitutional.” That would have required a constitutional amendment, a process that is notoriously corruptible. “Get me ten million dollars,” Roosevelt said, “and I can prevent any amendment to the Constitution from being ratified by the necessary number of states.”121 He bided his time.

  In November 1936, one week before Election Day, The Nine Old Men,
an attack on the Hughes Court as feeble and daft, had begun appearing in the nation’s newspapers and in bookstores; it became a best seller.122 Inaugurated for a second term on January 20, 1937—Inauguration Day having been moved from March 4—Roosevelt immediately set about challenging the judicial branch. On February 5, he announced his plan to restructure the Supreme Court. Flushed with victory, and confident that Hughes’s power was on the wane, Roosevelt floated his plan. Claiming that the justices were doddering and unable to keep up with the business at hand, he said that he would name an additional justice for every sitting justice over the age of seventy, which described six of them. The chief justice was seventy-four.

  Roosevelt’s overreach in 1937 resulted, in part, from his overestimation of the economic recovery. Believing the crisis to be nearly over, he cut federal expenditures, especially to the Works Progress Administration. A recession set in. “The Recession is more remarkable than the Depression,” Time reported, citing a 35 percent decline in industrial production from the previous summer as “the swiftest decline in the history of U.S. business and finance.” The brain trust was out of ideas. “We have pulled all the rabbits out of the hat and there are no more rabbits,” one House Democrat said.123 And still Roosevelt forged ahead.

  In a fireside chat on March 9, 1937, Roosevelt compared the court crisis to the banking crisis, the subject of his first fireside chat. He argued that the time had come “to save the Constitution from the Court, and the Court from itself.” This time, the radio magic didn’t work. The president’s approval rating had fallen from 65 percent to 51 percent. And, deftly, Hughes soon all but put the matter to rest. “The Supreme Court is fully abreast of its work,” he reported on March 22, in a persuasive letter to the Senate Judiciary Committee. If efficiency were actually a concern, he wrote, there was a great deal of evidence to suggest that more justices would only slow things down.124

  Then came the reversal. Beginning with West Coast Hotel Co. v. Parrish, a ruling issued on March 29, 1937, in a 5–4 opinion written by Hughes, sustaining a minimum-wage requirement for women, the Supreme Court began upholding the New Deal. Owen Roberts switched sides, a switch so sudden, and so crucial to the preservation of the court, that it was dubbed “the switch in time that saved nine.” It looked purely political. “Even a blind man ought to see that the Court is in politics,” Felix Frankfurter wrote to Roosevelt, “and understand how the Constitution is ‘judicially construed.’ It is a deep object lesson—a lurid demonstration—of the relation of men to the ‘meaning’ of the Constitution.”125

  On May 18, 1937, the Senate Judiciary Committee voted against moving the president’s proposal out of committee. The court-packing plan was dead. Six days later, the Supreme Court upheld the old-age insurance provisions of the Social Security Act. The president, and his deal, had won. If the shift had more to do with law than with influence, it certainly didn’t give that appearance, and it came at a cost of public confidence. In June 1937, H. L. Mencken published a satirical “Constitution for the New Deal” that began: “All governmental power of whatever sort shall be vested in a President of the United States.”126

  In 1938, FDR proposed a $5 billion spending plan, following the Keynesian argument that public spending was the best way to fight economic decline and stagnation. But Keynes himself was worried. In February, he wrote the president, “I am terrified lest progressive causes in all the democratic countries should suffer injury, because you have taken too lightly the risk to their prestige which would result from a failure measured in terms of immediate prosperity.” In April, by a margin of 204 votes, a number that included 108 Democrats, Congress voted down FDR’s plan to reorganize the executive branch, hire more White House staff, and move the Budget office from the Treasury Department to the White House. The bill would eventually pass, in a latter session, but leeway granted to Roosevelt in 1933 had been lost. As one critic of FDR wrote, “We have just witnessed, in Europe, what happens when one man is permitted too much power.”127 No one wanted to watch that closer to home.

  ON MARCH 15, 1938, before a swastika-waving crowd of two hundred thousand German Austrians at Vienna’s Heldenplatz, Plaza of Heroes, Adolf Hitler announced the Anschluss, the unification of Germany and Austria. Goebbels arranged for his Ministry of Propaganda to absorb the Austrian broadcasting system.128 Having seized all branches of government and eliminated his political opposition in 1933, Hitler had stripped German Jews of citizenship beginning in 1935, with the Nuremberg Laws. He’d built an air force and raised an army. In 1936, he had sent a thirty-five-thousand-man army into the Rhineland and met no armed resistance. Later that year, he entered into an alliance called the Axis, with Japan and Italy. Pressing for a “Greater Germany,” he’d at first forced Austria’s chancellor to call for a referendum on unification, scheduled for March 13, 1938, but then, announcing that Germany would not accept the result of the referendum, he’d invaded what had been his homeland. Austrian forces had not resisted. Nor, despite Germany’s having violated the Treaty of Versailles, did much of Europe.

  Live, on-the-scene reporting began with that crisis, as did the breaking news bulletin, an interruption of regularly scheduled programming. During the whole of the crisis in Austria, American radio networks interrupted their regular programming to air news and opinion from Rome, Paris, London, and Berlin, often relayed by shortwave radio. Reporters interviewed witnesses on the spot, their microphones capturing the sounds of the streets, the clatter of horse hooves, the drone of sirens. In September, as Hitler tried to seize for Germany a portion of Czechoslovakia known as the Sudetenland and Europe teetered on the brink of war, radio announcers around the world provided, hour by hour, emergency updates. During the eighteen-day Munich crisis, NBC interrupted its programing 440 times. So pressing and urgent was the news that CBS stopped broadcasting ads. During those eighteen days, CBS reporter H. V. Kaltenborn, who never read from a script, made 102 broadcasts from New York, piecing together the on-the-scene reports, and slept, if he slept at all, on an army cot at CBS’s Studio 9, with a microphone at his bedside.129

  “The prime minister has sent the German Führer and Chancellor . . . the following message,” the BBC reported on September 14, reading out loud a message sent to Hitler by Neville Chamberlain: “‘In view of increasingly critical situation, I propose to come over at once to see you, with a view of trying to find a peaceful solution.’” Even as Chamberlain prepared to fly to Munich, Czech radio broadcasters struggled to counter Nazi propaganda. “Once again tonight we must perform the distasteful task of refuting further invented reports broadcast by the German wireless station,” a Czech news anchor reported on September 18. “The Hungarian wireless station is apparently trying to compete with the Germans in the invention of false news.”

  “Hello America,” said NBC correspondent Fred Bates on September 27. “This is London.” Bates, his voice strained with anxiety, read aloud the leading editorials in the London newspapers, which made clear that, to Europe, the future of civilization itself had been cast into doubt. “I’m speaking to you this morning from the airport of the city of Munich,” NBC’s Max Jordan reported two days later, having been sent to the capital of Bavaria to report on the meeting of Hitler, Mussolini, Chamberlain, and the prime minister of France.130 In what came to be called the Four-Power Pact, Italy, England, and France agreed to allow Germany to seize parts of Czechoslovakia. “What happened on Friday is called ‘Peace,’” Dorothy Thompson said on her own radio broadcast the next day. “Actually, it is an international Fascist coup d’etat.” The pact, she said, had been decided by four men in four hours, not one of whom had ever so much as set foot in Czechoslovakia, a country that Hitler would destroy and whose political minorities he would either murder or exile. The pact, Thompson said, means “the open establishment of terror.”

  Newspapers around the country reported a panic during the 1938 broadcast of Orson Welles’s The War of the Worlds. Chamberlain, returning to London, announced that “all Europe m
ay find peace” and, on a live radio broadcast, read aloud the agreement made with Hitler, even as his chief critic, Winston Churchill, damned him for appeasing Hitler in the altogether vain hope of avoiding war. “You were given the choice between war and dishonor,” Churchill told Chamberlain. “You chose dishonor and you shall have war.”131

  The war Europe would have, the war the world would have, would be the first war waged in the age of radio, a war of the air. The fighting would unleash forces of savagery and barbarism. And the broadcasting of the war would suggest how, terrifyingly, “fake news” had become a weapon of tyrants. Nothing illustrated this better than a broadcast made, four weeks after the Munich crisis, by Orson Welles.

  A little after eight in the evening of October 30, 1938, CBS Radio began its regular broadcast of Welles’s Mercury Theatre on the Air, an hour-long radio drama that the network had signed on as part of its public-service programming mandate. That summer, Welles, twenty-three, had produced adaptations of Dracula, The Count of Monte Cristo, and the adventures of Sherlock Holmes. A theatrical prodigy, he had a genius for direction, a fascination with sound effects, and a particular talent for the art of spooking.

  “The Columbia Broadcasting System and affiliated stations present Orson Welles and the Mercury Theatre on the Air!” the program always began, after which Welles would introduce that week’s story. But on that evening, those in the audience who happened to miss the host’s brief introduction found themselves listening to what seemed to be the nightly weather report, followed by a music program, into which a newsman broke in with an urgent announcement:

  Ladies and gentlemen, we interrupt our program of dance music to bring you a special bulletin from the Intercontinental Radio News. At twenty minutes before eight, central time, Professor Farrell of the Mount Jennings Observatory, Chicago, Illinois, reports observing several explosions of incandescent gas, occurring at regular intervals on the planet Mars.