Thursday, July 9, 2009

Frankfurter, FDR, and "Inter leges arma silent"

Needing a break from another piece of my war project, I turned to archival research this week, and I stumbled upon an unlikely interchange. I was looking for records from Felix Frankfurter's service in the U.S. Army JAG Corps, as a window into his thinking on war and security. I found nothing on this in Frankfurter's World War I era War Department files. But then, in his correspondence with Franklin Delano Roosevelt, I came across Frankfurter's resignation from the Corps. Or, at least, his attempt. The letter was sent shortly after Frankfurter joined the Supreme Court.

The interchange begins:

March 6, 1939

Dear C-i-C:

Inter leges arma silent was not a maxim of the hard-headed Romans. Nevertheless, under the circumstances, it is, I suppose, sensible for me to lay down my paper arms by resigning my commission as a Major in the Reserve Corps.
There is probably some official in the War Department to whom I might appropriately make this martial communication, but I should like to salute once more my Commander-in-Chief before Senator Nye takes away his constitutional powers!
With great respect, I am, Sir,

Faithfully yours,

Major, J.A.G.-Res.

The president responded:

March 14, 1939

My dear Major Frankfurter --

Your effort to retire from the United States Army at this time of crisis has been rejected.

If instead of consulting the words of Cicero (a mere talker) to find the motto "inter leges arma silent", you had consulted the famous phrase of Major General Ceasar (a doer), "leges impellent arma", i.e., laws make for war -- you would see that it is more essential than ever that you remain in the Army....

I regret that it is impossible at this moment to consider you for promotion to the rank of Lieutenant Colonel. I am informed that this will depend somewhat on your conduct during the next few years....

With great respect, I am, Sir.
(signed) Franklin D. Roosevelt

More to come!
Photo credits:
Frankfurter, FDR.


Shag from Brookline said...

This may have been a "tongue in cheek" gesture by Frankfurter (who then had job security) but FDR topped him with his response. But I am curious about this in Frankfurter's letter:

" . . . but I should like to salute once more my Commander-in-Chief before Senator Nye takes away his constitutional powers!"

Was this concern with separation of powers on the part of Frankfurther as a Justice who happened to be in the military reserve and thus under the C-i-C FDR? Consider FDR's response (tongue in cheek?) that a promotion to Lt. Col. "will depend somewhat on your conduct during the next few years...."

In light of the current concerns with the power of the Executive, including as C-i-C, what did Sen Nye propose back then? And if Nye had his way, might Frankfurter have been required to recuse himself if Nye were challenged before SCOTUS?

Mary L. Dudziak said...

I have only time for a very quick note this morning. Yes, the correspondents are joking with each other. The playfulness of their correspondence increases over time.

It is often difficult when looking at primary records to figure out how central a figure was to a president, since some individuals try to leave a record of their own importance for historians to find. In this correspondence, however, FDR's admiration for FF is clear, as he says at one point that he wishes he could divide FF in two: one half for the Court, and the other for the executive branch.

More to come.

Charles Gittings said...

Well Justice Murphy actually took a leave of absence from the court to go on active duty, so this might not have been entirely fun and games.

Mary L. Dudziak said...

I am on the road and away from my books, but my recollection from Mel Urofsky's excellent essay in Ernst and Jew, Total War and the Law, is that Murphy joined the Army reserves, and served during Court recesses. So while he did participate in military service during the war (Oyez says at Fort Benning) he did not take a leave of absence from the Court.