Thursday, January 12, 2017

The ABA, the Court-Packing Plan, and the Anti-Parliamentarian Tradition

In revising the materials for my legal history course, I reminded myself of an interesting example of what might be called the tactical comparative constitutionalism of the organized bar.  It was March 5, 1937, exactly one month after President Franklin D. Roosevelt announced his plan to “pack” the U.S. Supreme Court.  The chieftains of the American Bar Association, in a process studied by Stephen Botein, Rayman Solomon, and others, had already begun organizing the opposition.  To give a lofty tone to his appeal to the public to rally to the Court, President Frederick Stinchfield liked to invoke an eminent foreign observer of the American scene.  “‘To the people we come sooner or later,’ says James Bryce in The American Commonwealth," Stinchfield editorialized in the ABA Journal:   ‘It is upon their wisdom and self restraint that the stability of the most cunningly devised scheme of government will in the last resort depend.’”

Stinchfield’s predecessor, William L. Ransom, evidently had less faith in the "broad good sense and attachment to the great principles of the Constitution" of the American people than Bryce did.  After FDR’s legislative triumphs in 1935, he certainly doubted Congress’s will to resist the president.  The ABA should “stop quoting from James Bryce or any other Englishman, in favor of the American tradition of the powers and functions of the Courts,” he counseled Stinchfield in a letter surviving in Newton Baker's papers at the Library of Congress.  “This counsel is not due to prejudice against things British, but to a realization that the President’s fight is veering toward an advocacy of the parliamentary system (executive and legislative powers merged and made supreme, with no judicial curb), and that the President will claim that liberty and individualism have not been destroyed in England.” 

The Court-packing plan died that summer, but the denunciation of “parliamentarism” survived, especially among senators of the president’s party seeking to justify their opposition to FDR's agenda.  For example, the majority report on a proposal to reform agencies' procedures explained, “The basic purpose of this administrative law bill is to stem and, if possible, to reverse the drift into parliamentarism which, if it should succeed in any substantial degree in this country, could but result in totalitarianism with complete destruction of the division of governmental power between the Federal and the State Governments and with the entire subordination of both the legislative and judicial branches of the Federal Government to the executive branch wherein are included the administrative agencies and tribunals of that Government.”

Although Congressional Republicans are big believers in American exceptionalism, I don’t expect them to invoke the anti-parliamentarian tradition until a constitutional crisis forces them to do so.  When the time comes, I hope it works.

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