Court-Packing and the Child Labor Amendment

Article excerpt

No amendment which any powerful economic interests or the leaders of any powerful political party have had reason to oppose has ever been ratified within anything like a reasonable time. And thirteen states which contain only five percent of the voting population can block ratification even though the thirty-five States with ninety-five percent of the population are in favor of it. (1)

Franklin D. Roosevelt

We cannot take a stand consistently against the pending proposal to pack the United States Supreme Court and at the same time against the orderly amendment to the Federal Constitution that is proposed by this amendment. (2)

Abbot Moffett, New York Assemblyman

On March 9, 1937, President Franklin D. Roosevelt delivered a much-anticipated radio address to the nation defending his proposal to "reorganize" the Supreme Court? In that speech, FDR argued that the repeated invalidation of New

Deal statutes by the Justices meant that "we must take action to save the Constitution from the Court and the Court from itself." (4) According to the President, this crisis could not be resolved by a new constitutional amendment, in part because of the "long course of ratification by three-fourths of all the States" required by Article Five. (5) The only solution was to "infuse new blood" into the Court by adding many new Justices right away. (6)

Just a few hours before FDR went on the airwaves, the New York State Assembly rejected the Federal Child Labor Amendment (CLA), which was passed by Congress in 1924 but languished in the States during the 1920s and 1930s. (7) By 1937, however, half the States had ratified the CLA and its supporters were optimistic about getting more to do so because they had the backing of a powerful patron--the President. (8) Two months prior to the New York vote, FDR wrote a letter to the governors of the states that had not ratified the CLA and urged them to make that one of their top priorities. (9) He also waded into the New York debate by sending public telegrams on behalf of the Amendment, though his lobbying was obviously unsuccessful. (10) Thus, on March 10, readers of The New York Times were greeted by a front-page with two banner headlines-one about FDR's appeal for Court-packing and the other on the failure of the CLA in New York. (11)


This Article explores the connection between the Child Labor Amendment and FDR's Court-packing plan. Conventional wisdom says that the long fight to ratify the CLA soured the President on the Article Five process and persuaded him that challenging the Justices was the better option. (12) The truth is more complex. At the same time that the Administration was arguing that the deadlock over the CLA demonstrated that textual amendments were not a realistic way to achieve legal change, FDR was putting on a full-court press for the ratification of that amendment. (13) More perplexing still, the President made it clear in his private letters during these weeks that he had no faith in the ratification process. (14) This raises an obvious question--why did FDR put his authority behind the CLA?

While there is no smoking gun that describes the President's motives, the best explanation is that he supported the CLA because he thought that it would fail and that highlighting that failure would help the Court-packing plan. FDR's foes in Congress saw through this double-game and tried to expose his real motives by backing a revised version of the CLA that would have required state ratification conventions to vote on the proposal within ninety days: an idea that would have undercut the rationale for Court-packing. (15) All of these maneuvers came to an abrupt and inconclusive end, however, when the Justices executed their "switch-in-time" a month after the President's address. (16) Thus, the Child Labor Amendment ratification debate, which reached its climax at about the same time that the Court-packing plan was proposed and the Justices flipped, sheds new light on that crucial series of events. …