|Your Humble Blogger with Marver Bernstein|
Leslie asked me for an excerpt for LAPA's newsletter from something I wrote this year. I've decided to circulate it to you as well, gentle LHB reader. It is adapted from the manuscript of my book-in-progress on New Deal lawyers.
[When constitutional historians debate why the Supreme Court voided statutes passed during the first hundred days of Franklin D. Roosevelt’s presidency but upheld those passed two years later, at some point they usually get around to the drafting of the legislation. “Internalists” argue that inexperienced New Dealers made fatal mistakes in the early bills but learned from them in writing later legislation. “Externalists” believe that FDR’s landslide re-election in 1936 or Court-packing plan of 1937 persuaded swing justices to vote for the New Deal. They point out that some very able lawyers helped draft the “Hundred Days” bills. For example, the drafters of the National Industrial Recovery Act (NIRA) included Jerome Frank, a masterful corporate lawyer, and John Dickinson, the author of a penetrating book on administrative law. Neither camp examines the drafting of particular bills in much detail.
[Earlier in the chapter from which this excerpt is drawn, I describe how Frank and Dickinson, working with Agriculture Undersecretary Rexford Tugwell, drafted a bill to control American industry, unaware that another drafter was at work elsewhere in the administration. Not only would their rival prevail in the drafting of NIRA, he would also direct the agency created to implement it, the National Recovery Administration, which the Supreme Court struck down in May 1935.]
|Hugh S. Johnson (Dixon MSS)|
Before long, the Dickinson-Frank-Tugwell group and Johnson started meeting together. The sessions did not go well. In part, the differences were substantive: Johnson insisted on the federal licensing of business; Dickinson thought licensing unworkable and unconstitutional. Personalities intruded as well. Johnson considered Tugwell “a damned Communist” because of his advocacy of planning in agriculture. Dickinson spoke in great rounded periods, taking “the most obvious platitudes as a starting point” in “a pompous, almost grotesque, manner.”
When Roosevelt could wait no more, he dispatched Perkins to investigate. She found a half dozen or so principals crowded around a table, assistants scattered behind them, in an overheated room beneath the mansard roof of the State, Navy and Army Building. She tried to follow the discussion, turning on a close reading of the Supreme Court’s antitrust opinions, without success. But Johnson was riveting. “He was just ready to scream, he was so impatient,” she recalled. “He squirmed around in his chair like a restless child.” Coatless, Johnson would stand up, walk about, run his hands though his hair, and return to his seat. Finally, he “pulled his legs up” into his chair and thrust his torso over the table, balancing on his elbows, fists clenched. He had “a curiously restless, uncontrolled, undisciplined” expression, as if he were “chewing his face to pieces.” At last, when he could stand it no longer, he accused the others of wasting time while “people in this country are starving” and “industry has gone to pot.” Their “law stuff” was irrelevant, he exclaimed, because whatever they proposed would cure unemployment long before a case could reach the Supreme Court. By that time, “nobody will care” what the justices thought.
After the two sides deadlocked, Roosevelt summoned them to the White House. Frank told Dickinson to gird his loins. Johnson was “very smart” and forceful, he warned. He “put all his muscles into his words, his whole body vibrating.” Dickinson opened with a ponderous lecture on the need to proceed cautiously. Johnson followed with a passionate call to arms. After they finished, FDR, as Tugwell blandly put it, “leaned toward shorter and quicker action.” Frank was more frank. Dickinson “was completely licked,” he recalled. “We were blotted out.”