>> with most college campuses claesed due to the coronavirus pandemic, watch professors transfer to virtual teaching. >> reagan met him after way, encouraged him, and supported him. >> freedom of the press, it is, indood, the freedom to print things and publish things. it is not freedom for what we refer to institutionally as the press. >> lectures in history. every saturday at 8:00 p.m. eastern. lectures in history is also available as a podcast. find it where you listen to podcasts. this is the story of a struggle between a president, franklin d. roosevelt who went

to the white house on the pledge of a new deal. ♪ and a group of men once referred to as the nine-holed men, presided over by chief justice charles evans hughes. the issues were large. they included the problems of a nation's industry, its people, its agriculture, its resources. but the immediate battlefield of the struggle was the constitution, with its checks and balances. its division of power between executive, legislative and judicial branches of government. this is the struggle none as the court packing fight.

♪ on august 14th, 1945, president franklin d. roosevelt signed the social security act. its provisions included old-age benefits. the president made a brief

statement. >> millions of our citizens who will reap direct benefits through unemployment compensation, through old age pensions and through increased services for the protection start in 1937. but months before that in boston, mass miss in federal district court an action was begun by attorneys for george p. davis. a shareholder in the edison company of boston. he was suing for an injunction. to restrain his company from paying the social security taxes. he argued they were unconstitutional. his claim cited a 1935 supreme court decision. this had to do with the railroad retirement act of 1934. it established a plan very similar to social security. dollar to social security, payroll deductions, matching contributions by employers, all of this going into a trust fund

held by the government. but they contested the law and they issued the united states supreme court. the decision, a 5-4 decision, was read by justice roberts. he said the railroads, though dedicated to public use, remain private property and their assets may not be taken without just compensation. there is no warrant for taking the property or money of one and giving it to another. petitioners constantly recur to such phrases as "employee morale." "fear of old age dependency." these matters obviously lie outside the orbit of congressional power. thus the railroad retirement act of 1934 was declared void. the court seemed to say no such

act can be found valid. yet just a few months later president roosevelt was signing a law vast in scope and startlingly similar in design. social security. could it possibly survive a constitutional challenge? if the president had doubts about it, he did not show them. yet he had reason to doubt. not only as to social security but as to other new deal laws as well. in district courts throughout the land not only in boston but also in san francisco, new orleans, houston, savannah and elsewhere injunctions were being asked and granted against various new deal laws. slowly cases were making their way toward the united states supreme court. here is a partial record of such actions during 1935 and 1936.

in the spring of 1935 soon after its ruling on railroad retirement, the supreme court took up the nra, the national recovery act. this within of the earliest new deal acts was designed to help industry out of its disastrous deflation and unfair competition and raise wages. but the supreme court ruled it void as involving for one thing an unconstitutional delegation of legislative power. the vote was unanimous. a few months later the court took up the agricultural adjustment act, also passed in 1933. through this law the administration tried to

foreign production and bolster the soil while bolster farm prices. in january 1936 the court declared the act void as an improper use of the taxing power. three justices dissented. presently the court considered the so-called guffy cole act. an attempt to stabilize a basic industry torn with strikes and dissension. in may 1936 the court found it void as beyond the power of congress under the commerce cause. three justices dissented. in the same month the court considered the municipal bankruptcy act, an attempt by the federal government to assist communities facing insolvency because of falling revenues and mounting relief costs. in may 1936 the court found the act void as an encroachment on state sovereignty. four justices dissented. thus in a few short months key portions of the new deal program

had been torn to shreds through court action. on the basis of past decisions a number of other measures seemed goomd. among them certainly the wagner labor act and social security. it was an election year. early in june the republicans met in cleveland and nominated alfred landen of kansas and colonel frank knox. later in the same month the democrats in philadelphia renominated roosevelt and garner. during the following campaign the republicans often spoke of the court as the bulwark of our liberty. roosevelt for the moment said little about the court. he spoke mainly of the aims of his program. in november landen and knox carried two states. roosevelt and garner carried the rest.

once more roosevelt rode to office on his pledge of a new deal. but could he carry out that new deal program? >> and will to the best of your ability preservative protect and defend the constitution of the united states, so help you god. >> i tank lynn delano roosevelt do solemnly swear that i will faithfully execute the office of president of the united states and will to the best of my ability preserve, protect and defend the constitution of the united states so help me god. >> it was rumored that roosevelt, battling for his program, had a plan. a plan to reform the courts, including the supreme court.

two weeks later he sent his proposals to congress and later explained them to the people. >> we have 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 and not over it. in our courts we want a government of laws and not of men. 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 should be appointed by the president then in office

with the approval as required by the constitution of the senate of the united states. >> when a justice reaches 70 if he does not retire an additional justice is added. when and if he does retire, the number returns to nine. in 1937 there were six justices over 70. thus under the proposed law the president would be able to appoint six extra. if the older justices decided to retire, the total number would return to nine. throughout the land debate began. the news reels covered the story. ♪ >> roosevelt's plan to change the supreme court has become the greatest public issue since slavery. the news brings you this exclusive statement on the supreme court itself by chief justice hugds. >> the justices of the federal

supreme court are not merely titular successors in important official duties but inheritors and developers in a continuous process of exposition, and thus they enter with a lively consciousness of fellowship. into the problems, the anxieties, and the achievements of those who have preceded them in their necessary and difficult tax as weavers of the fabric of constitutional law. >> roosevelt considers the overwhelming vote which returned him to office as a mandate to carry out his policies even to changing the supreme court. but many of those who voted for him are against him on this issue. throughout the country those for and those against the plan are lining up for the finish fight in the united states senate.

leaders of the opposition, democrats and republicans alike, reply to roosevelt's challenge. >> there can never be i a dictator in america while we have a constitution and an independent court. our fathers feared the tyranny of an unchecked sovereign. if the constitution needs changing, let it be changed by the people. it belongs to them alone. >> every man, woman and child of this country will be affected as a result of the fight now raging in the senate. the constitution is not what the judges say it is. the constitution is not what a president says it is. >> while the dispute raged, the country began to examine more closely this unique institution, the supreme court of the united states.

a tribunal whose membership is selected and confirmed by the other branches of government and yet has a power that is in a sense the ultimate power. to void as unconstitutional laws enacted by congress and signed by the president. how did the court achieve this position? the constitution does not in so many words assign it this power. but it does say this constitution and the laws of the united states which shall be made in pursuance thereof shall be the spreechl law of the land. what this would mean was clear to many of our founding fathers and became clearer through events. in 1800 president john adams was defeated for re-election by thomas jefferson. john marshall as secretary of state would be replaced by james madison. the federalists were in eclipse. the democratic republicans were on the rise. but the federalists were not giving up. marshall, as one of adams's final acts, was made chief

justice. and in the closing hours of the outgoing administration he was very busy signing appointments, filling newly created judgeships with faithful federalists. the commissions were sealed with the seal of the united states. but something went wrong. on the following morning when james madison came to take over the office as secretary of state, he found the commissions still on the desk. through some error they had not been delivered. he presently discussed the matter with jefferson and a decision was made. some of the commissions would not be delivered. later one of the appointees, william marbury, became impatient. where was his commission as justice of the peace in the district of columbia?

marbury brought suit against madison. his attorneys asked the supreme court for a writ of mandamus to compel madison to deliver the commission. but if marshall issued the order would it be enforced? if madison refused to obey it, would this not undermine the prestige of the court? in this dilemma marshall made his decision. backed by a unanimous court he said marbury was entitled to his commission but that the court had no right to issue the requested mandamus. the constitution, said marshall, defined the procedures of the court in procedures of this sort and the acting congress authorizing wrists mandamus, was at variance with it. therefore void. president jefferson and congress accepted this without protest. it gave them the victory.

thus they helped to establish by precedent the doctrine of judicial review. the doctrine that the supreme court in settling a case must necessarily ignore a law it finds in conflict with the constitution must in effect void the law. in the opinion of justices of yesterday and today the court should be cautious in such actions. it must void a law only if a decision requires it. most observers feel the court has sometimes forgotten this rule of caution. often mentioned as example is the decision of justice tawny in scott versus sanford, the dred scott decision. dred scott was a slave but his master, an army surgeon, took him to the northwest territory, where slavery was banned by an act of congress under the missouri compromise. presumably dred scott was now free. but later he was taken back to the south and sold.

dred scott then sued for his freedom in federal court. the case went to the united states supreme court. chief justice tawny read the decision. he said that a negro, even if free, could not be a citizen in the meaning of the constitution. therefore, dred scott could not sue in federal court. this seemed to settle it. but tawny went further. he said the constitution makes no distinction between slave property and other property. no word in the constitution gives congress a greater power over slave property. its only power is the power coupled with the duty of protecting the owner in his rights. it is the opinion of the court that the active congress which prohibits citizens from owning property of this kind in the territory north of the line therein mentioned is not warranted by the constitution and is void.

many feel this zieths made the civil war inevitable. by making legislative compromise impossible the court took the matter outs of the hands of congress and virtually thrust it onto the field of battle. this was judicial reviewed in its darkest hour. what can and should a chief executive do about a court precedent he feels wrong and dangerous? lincoln was one of the presidents who had to face that question. and in 1861 he faced it this way. he said he considered the court's ruling final only as to the case itself. he would not feel bound by it in coring further legislation on slavery. in that respect he would work to reverse the decision. and it was reversed. the 13th amendment outlawing slavery was passed by congress in 1865 and ratified the same year. congress and the people had the

last word. but there are other checks likewide provided by the constitution against the judicial power. one of these checks, seldom used, came into dramatic use in the reconstruction period. in the case of ex parte mccartel. a story of mississippi. in 1867 the south was still under military rule. union military commanders were in charge in the southern states. military courts tried cases involving civilians. in congress the majority was determined that this military rule of the south must still continue. congress was determined to uphold the rights of the freed slaves. it was determined that the old southern aristocracy should not regain control. therefore, it was felt, a firm hand was needed. that meant military rule.

but a preektd decisisupreme coud held that this might be unconstitutional since active military operations were long over. the issue would soon come to a test. in mississippi william h. mccartel, a southern newspaper editor, was in prison, arrested for criticizing the military ru rule. he was being held for a military trial. meanwhile, mccartel petitioned a federal court for a writ of habius corpus. when it was denied he appealed to the united states supreme court. the court agreed to hear the case. congress was alarmed. a ruling from for mccartel could void the entire reconstruction program. at this point congress had resorted to the seldom used constitutional clause. the supreme court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the congress shall make.

it was decided that in habeas corpus cases like mccartel's there should be no right of appeal to the supreme court. the following year the supreme court upheld this act as within the power of congress. thus on the reconstruction issue judicial review was averted by an act of congress. now in 1937 another congress was discussion a power of the court, a court which seemed to many a threat to the recovery program. now a different method was under discussion for dealing with this problem. the reason for this was clear. observers noted that when the court was divided the divisions often followed a pattern. justices vander vander, sutherland, and butt thler incl to vote together. they usually interpreted very

strictly the clauses in the constitution which define the powers of congress such as the taxing power and the power to regulate commerce. on the other hand, justices brandeis, cardozo and stone also tended to vote together, interpreting more broadly those same clauses. the first group was often called conservative. the other liberal. in between them were chief justice hughes and justice roberts. sometimes they voted with one group, sometimes another. early in the new deal both voted to uphold the government's money policies when govt gold payments had been suspended. but in the railroad retirement decision justice roberts voted with the conservatives. in the decision on the agricultural adjustment act of 1933 chief justice hughes did too. in the municipal bankruptcy decision chief justice hughes was back on the liberal side. and so it went. chief justice hughes and justice

roberts. they seemed to hold the key. momentous national issues sometimes hung on two men or even on one. throughout our history this has often been the case. it is not astonishing perhaps that administrations have sometimes yielded to a temptation to change the number of judges. the constitution does not forbid such changes. it only says the judicial power of the united states shall be vested in one supreme court and in such inferior courts as congress may from time to time ordain and establish. the details are left to congress. at first congress established a supreme court of six justices. in 1801 congress passed a law that the number should after the next vacancy be kept at five. the adams administration apparently hoped that jefferson as a result would not have a

chance to appoint a justice. but under jefferson the law was repealed and six years later the law was changed to seven. in 1837 because of the growth of the country the number was increased to nine. and in 1863 under lincoln to ten. then an act of 1866 provided for clearly political reasons that the next three vacancies should not be filled. but the number had only dropped to eight when a new law in 1869 changed it to nine. thus it stood until roosevelt in 1937 proposed a new change. in congress? people while critical of the court were just as critical of the plan. meanwhile, in the lower courts legal battles against new deal measures continued. several suits attacked social security. to the new deal these were of special concern. already at offices set up to administer the new law 26

million social security numbers had been established. on january 1st, 1937 26 million employees had begun to build up credits toward old age benefits. the first applications for benefits were being received and processed. with all this machinery this huge new organization plently have to be dismantled? eventually the supreme court would hold the answer. here the new deal was at the crossroads. >> my friends, neither individually nor as a party can we postpone and run from that fate on the advice of defeatist liars. here is 1/3 of a nation, ill

nourished, ill clad, ill housed. now here are thousands upon thousands of farmers wondering whether next year's prices will meet their mortgage interest. now here are thousands upon thousands of men and women laboring for long hours in factories. >> the president fought hard. many observers doubted he could win the battle. then there came from the united states supreme court a puzzling development. a washington state minimum wage law was up for decision. it had been assumed on the basis of previous decisions that justice roberts would vote with the so-called conservatives. he didn't. neither did chief justice hughes.

later the same vote upheld the wagner labor act. what did this mean? would the pattern continue? on may 24th came the answer. the decision on social security. one part was upheld by the same vote. 5-4. another by 7-2. at the capitol one senator said this puts the last nail in the coffin of the court bill. the court bill was defeated. at least the roosevelt plan, the so-called court packing plan, went down to defeat. some observers put it this way. the president had lost the battle but won the war. a month after the social security decision one of the older justices, justice vander vanity vanter, retired, to be followed soon by others. the complexion of the court began to change. and so the curtain came down on this group. perhaps also on an era.

the new deal had turned the corner. the men who would this document lived in an agricultural society. it is a measure of their wisdom that their plan of government still provides us with a workable framework for decision. yet the transition from an agricultural to an industrial nation has subjected the constitution to countless stresses and problems of interpretation. this film dealt with one of those many problems.

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