MY FRIENDS, last Thursday I described in detail certain economic problems which
everyone admits now face the nation. For the many messages which have come to me
after that speech, and which it is physically impossible to answer individually,
I take this means of saying thank you. Tonight, sitting at my desk in the White
House, I make my first radio report to the people in my second term of office. I
am reminded of that evening in March, four years ago, when I made my first radio
report to you. We were then in the midst of the great banking crisis. Soon after,
with the authority of the Congress, we asked the nation to turn over all of its
privately held gold, dollar for dollar, to the government of the United States.
Today’s recovery proves how right that policy was. But when, almost two years later,
it came before the Supreme Court its constitutionality was upheld only by a five-to-four
vote. The change of one vote would have thrown all the affairs of this great nation
back into hopeless chaos. In effect, four justices ruled that the right under a
private contract to exact a pound of flesh was more sacred than the main objectives
of the Constitution to establish an enduring nation.
In 1933 you and I knew that we must never let our economic system get completely
out of joint again-that we could not afford to take the risk of another Great Depression.
We also became convinced that the only way to avoid a repetition of those dark days
was to have a government with power to prevent and to cure the abuses and the inequalities
which had thrown that system out of joint.
We then began a program of remedying those abuses and inequalities-to give balance
and stability to our economic system, to make it bomb-proof against the causes of
Today we are only part-way through that program- and recovery is speeding up to
a point where the dangers of 1929 are again becoming possible, not this week or
month perhaps, but within a year or two.
National laws are needed to complete that program. Individual or local or state
effort alone cannot protect us in 1937 any better than ten years ago.
It will take time – and plenty of time – to work out our remedies administratively
even after legislation is passed. To complete our program of protection in time,
therefore, we cannot delay one moment in making certain that our national government
has power to carry through.
Four years ago action did not come until the eleventh hour. It was almost too late.
If we learned anything from the depression, we will not allow our selves to run
around in new circles of futile discussion and debates, always postponing the day
The American people have learned from the depression. For in the last three national
elections an overwhelming majority of them voted a mandate that the Congress and
the president begin the task of providing that protection – not after long years
of debate, but now.
The courts, however, have cast doubts on the ability of the elected Congress to
protect us against catastrophe by meeting squarely our modern social and economic
We are at a crisis, a crisis in our ability to proceed with that protection. It
is a quiet crisis. There are no lines of depositors outside closed banks. But to
the farsighted it is far-reaching in its possibilities of injury to America.
I want to talk with you very simply tonight about the need for present action in
this crisis – the need to meet the unanswered challenge of one-third of a nation
ill-nourished, ill-clad, ill-housed.
Last Thursday I described the American form of government as a three-horse team
provided by the Constitution to the American people so that their field might be
plowed. The three horses are, of course, the three branches of government – the
Congress, the executive, and the courts. Two of the horses, the Congress and the
executive, are pulling in unison today; the third is not. Those who have intimated
that the president of the United States is trying to drive that team, overlook the
simple fact that the presidents, as chief executive, is himself one of the three
It is the American people themselves who are in the driver s seat. It is the American
people themselves who want the furrow plowed. It is the American people themselves
who expect the third horse to fall in unison with the other two.
I hope that you have re-read the Constitution of the United States in these past
few weeks. Like the Bible, it ought to be read again and again.
It is an easy document to understand when you remember that it was called into being
because the Articles of Confederation under which the original thirteen states tried
to operate after the Revolution showed the need of a national government with power
enough to handle national problems. In its Preamble, the Constitution states that
it was intended to form a more perfect union and promote the general welfare; and
the powers given to the Congress to carry out those purposes can best be described
by saying that they were all the powers needed to meet each and every problem which
then had a national character and which could not be met by merely local action.
But the framers of the Constitution went further. Having in mind that in succeeding
generations many other problems then undreamed of would become national problems,
they gave to the Congress the ample broad powers “to levy taxes . . . and provide
for the common defense and general welfare of the United States.”
That, my friends, is what I honestly believe to have been the clear and underlying
purpose of the patriots who wrote a federal Constitution to create a national government
with national power, intended as they said, “to form a more perfect union . . .
for ourselves and our posterity.”
For nearly twenty years there was no conflict between the Congress and the Court.
Then in 1803 Congress passed a statute which the Court said violated an express
provision of the Constitution. The Court claimed the power to declare it unconstitutional
and did so declare it. But a little later the Court itself admitted that it was
an extraordinary power to exercise and through Mr. Justice Washington laid down
this limitation upon it: he said, “It is but a decent respect due to the wisdom,
the integrity and the patriotism of the legislative body, by which any law is passed,
to presume in favor of its validity until its violation of the Constitution is proved
beyond all reasonable doubt.”
But since the rise of the modern movement for social and economic progress through
legislation, the Court has more and more often and more and more boldly asserted
a power to veto laws passed by the Congress and by state legislatures in complete
disregard of this original limitation which I have just read.
In the last four years the sound rule of giving statutes the benefit of all reasonable
doubt has been cast aside. The Court has been acting not as a judicial body, but
as a policymaking body.
When the Congress has sought to stabilize national agriculture, to improve the conditions
of labor, to safeguard business against unfair competition, to protect our national
resources, and in many other ways, to serve our clearly national needs, the majority
of the Court has been assuming the power to pass on the wisdom of these acts of
the Congress – and to approve or disapprove the public policy written into these
That is not only my accusation. It is the accusation of most distinguished justices
of the present Supreme Court. I have not the time to quote to you all the language
used by dissenting justices in many of these cases. But in the case holding the
Railroad Retirement Act unconstitutional, for instance, Chief Justice Hughes said
in a dissenting opinion that the majority opinion was “a departure from sound principles,”
and placed “an unwarranted limitation upon the commerce clause.” And three other
justices agreed with him.
In the case of holding the AAA unconstitutional, Justice Stone said of the majority
opinion that it was a “tortured construction of the Constitution.” And two other
justices agreed with him.
In the case holding the New York minimum wage law unconstitutional, Justice Stone
said that the majority were actually reading into the Constitution their own “personal
economic predilections,” and that if the legislative power is not left free to choose
the methods of solving the problems of poverty, subsistence, and health of large
numbers in the community, then “government is to be rendered impotent.” And two
other justices agreed with him.
In the face of these dissenting opinions, there is no basis for the claim made by
some members of the Court that something in the Constitution has compelled them
regretfully to thwart the will of the people.
In the face of such dissenting opinions, it is perfectly clear that, as Chief Justice
Hughes has said, “We are under a Constitution, but the Constitution is what the
judges say it is.”
The Court in addition to the proper use of its judicial functions has improperly
set itself up as a third house of the Congress – a super-legislature, as one of
the justices has called it – reading into the Constitution words and implications
which are not there, and which were never intended to be there.
We have, therefore, 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.
I want – as all Americans want – an independent judiciary as proposed by the framers
of the Constitution. That means a Supreme Court that will enforce the Constitution
as written, that will refuse to amend the Constitution by the arbitrary exercise
of judicial power – in other words by judicial say-so. It does not mean a judiciary
so independent that it can deny the existence of facts which are universally recognized.
How then could we proceed to perform the mandate given us? It was said in last year’s
Democratic platform, and here are the words, “if these problems cannot be effectively
solved within the Constitution, we shall seek such clarifying amendments as will
assure the power to enact those laws, adequately to regulate commerce, protect public
health and safety, and safeguard economic security.” In their words, we said we
would seek an amendment only if every other possible means by legislation were to
When I commenced to review the situation with the problem squarely before me, I
came by a process of elimination to the conclusion that, short of amendments, the
only method which was clearly constitutional, and would at the same time carry out
other much needed reforms, was to infuse new blood into all our courts. We must
have men worthy and equipped to carry out impartial justice. But, at the same time,
we must have judges who will bring to the courts a present-day sense of the Constitution
– judges who will retain in the courts the judicial functions of a court, and reject
the legislative powers which the courts have today assumed.
It is well for us to remember that in forty-five out of the forty-eight states of
the Union, judges are chosen not for life but for a period of years. In many states
judges must retire at the age of seventy. Congress has provided financial security
by offering life pensions at full pay for federal judges on all courts who are willing
to retire at seventy. In the case of Supreme Court justices, that pension is $20,000
a year. But all federal judges, once appointed, can, if they choose, hold office
for life, no matter how old they may get to be.
What is my proposal? It is simply this: whenever a judge or justice of any federal
court has reached the age of seventy and does not avail himself of the opportunity
to retire on a pension, a new member shall be appointed by the president then in
office, with the approval, as required by the Constitution, of the Senate of the
That plan has two chief purposes. By bringing into the judicial system a steady
and continuing stream of new and younger blood, I hope, first, to make the administration
of all federal justice, from the bottom to the top, speedier and, therefore, less
costly; secondly, to bring to the decision of social and economic problems younger
men who have had personal experience and contact with modern facts and circumstances
under which average men have to live and work. This plan will save our national
Constitution from hardening of the judicial arteries.
The number of judges to be appointed would depend wholly on the decision of present
judges now over seventy, or those who would subsequently reach the age of seventy.
If, for instance, any one of the six justices of the Supreme Court now over the
age of seventy should retire as provided under the plan, no additional place would
be created. Consequently, although there never can be more than fifteen, there may
be only fourteen, or thirteen, or twelve. And there may be only nine.
There is nothing novel or radical about this idea. It seeks to maintain the federal
bench in full vigor. It has been discussed and approved by many persons of high
authority ever since a similar proposal passed the House of Representatives in 1869.
Why was the age fixed at seventy? Because the laws of many states, and the practice
of the civil service, the regulations of the Army and Navy, and the rules of many
of our universities and of almost every great private business enterprise, commonly
fix the retirement age at seventy years or less.
The statute would apply to all the courts in the federal system. There is general
approval so far as the lower federal courts are concerned. The plan has met opposition
only so far as the Supreme Court of the United States itself is concerned. But,
my friends, if such a plan is good for the lower courts, it certainly ought to be
equally good for the highest Court, from which there is no appeal.
Those opposing this plan have sought to arouse prejudice and fear by crying that
I am seeking to “pack” the Supreme Court and that a baneful precedent will be established.
What do they mean by the words “packing the Supreme Court?” Let me answer this question
with a bluntness that will end all honest misunderstanding of my purposes.
If by that phrase “packing the Court” it is charged that I wish to place on the
bench spineless puppets who would disregard the law and would decide specific cases
as I wished them to be decided, I make this answer: that no president fit for his
office would appoint, and no Senate of honorable men fit for their office would
confirm, that kind of appointees to the Supreme Court.
But if by that phrase the charge is made that I would appoint and the Senate would
confirm justices worthy to sit beside present members of the Court, who understand
modern conditions, that I will appoint justices who will not undertake to override
the judgment of the Congress on legislative policy, that I will appoint justices
who will act as justices and not as legislators – if the appointment of such justices
can be called “packing the Courts,” then I say that I and with me the vast majority
of the American people favor doing just that thing – now.
Is it a dangerous precedent for the Congress to change the number of the justices?
The Congress has always had, and will have, that power. The number of justices has
been changed several times before, in the administrations of John Adams and Thomas
Jefferson – both of them signers of the Declaration of Independence – in the administrations
of Andrew Jackson, Abraham Lincoln, and Ulysses S. Grant.
I suggest only the addition of justices to the bench in accordance with a clearly
defined principle relating to a clearly defined age limit. Fundamentally, if in
the future, America cannot trust the Congress it elects to refrain from abuse of
our constitutional usages, democracy will have failed far beyond the importance
to democracy ofany kind of precedent concerning the judiciary.
We think it so much in the public interest to maintain a vigorous judiciary that
we encourage the retirement of elderly judges by offering them a life pension at
full salary. Why then should we leave the fulfillment of this public policy to chance
or make it dependent upon the desire or prejudice of any individual justice?
It is the clear intention of our public policy to provide for a constant flow of
new and younger blood into the judiciary. Normally every president appoints a large
number of district and circuit judges and a few members of the Supreme Court. Until
my first term practically every president of the United States in our history had
appointed at least one member of the Supreme Court. President Taft appointed five
members and named a chief justice; President Wilson, three; President Harding, four,
including a chief justice; President Coolidge, one; President Hoover, three including
a chief justice.
Such a succession of appointments should have provided a Court well balanced as
to age. But chance and the disinclination of individuals to leave the Supreme bench
have now given us a Court in which five justices will be over seventy-five years
of age before next June and one over seventy. Thus a sound public policy has been
So I now propose that we establish by law an assurance against any such ill-balanced
Court in the future. I propose that hereafter, when a judge reaches the age of seventy,
a new and younger judge shall be added to the Court automatically. In this way I
propose to enforce a sound public policy by law instead of leaving the composition
of our federal courts, including the highest, to be determined by chance or the
personal decision of individuals.
If such a law as I propose is regarded as establishing a new precedent, is it not
a most desirable precedent?
Like all lawyers, like all Americans, I regret the necessity of this controversy.
But the welfare of the United States, and indeed of the Constitution itself, is
what we all must think about first. Our difficulty with the Court today rises not
from the Court as an institution but from human beings within it. But we cannot
yield our constitutional destiny to the personal judgment of a few men who, being
fearful of the future, would deny us the necessary means of dealing with the present.
This plan of mine is no attack on the Court; it seeks to restore the Court to its
rightful and historic place in our system of constitutional government and to have
it resume its high task of building anew on the Constitution “a system of living
law.” The Court itself can best undo what the Court has done.
I have thus explained to you the reasons that lie behind our efforts to secure results
by legislation within the Constitution. I hope that thereby the difficult process
of constitutional amendment may be rendered unnecessary. But let us examine that
There are many types of amendment proposed. Each one is radically different from
the other. But there is no substantial group within the Congress or outside the
Congress who are agreed on any single amendment.
I believe that it would take months or years to get substantial agreement upon the
type and language of an amendment. It would take months and years thereafter to
get a two-thirds majority in favor of that amendment in both houses of the Congress.
Then would come the long course of ratification by three-quarters of all the states.
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 remember that thirteen states which contain only 5 percent
of the voting population can block ratification even though the thirty-five states
with 95 percent of the population are in favor of it.
A very large percentage of newspaper publishers and chambers of commerce and bar
associations and manufacturers’ associations, who are trying to give the impression
today that they really do want a constitutional amendment, would be the very first
to exclaim as soon as an amendment was proposed, “Oh! I was for an amendment all
right, but this amendment that you’ve proposed is not the kind of an amendment that
I was thinking about. And so, I am going to spend my time, my efforts, and my money
to block this amendment, although I would be awfully glad to help to get some other
kind of an amendment ratified.”
Two groups oppose my plan on the ground that they favor a constitutional amendment.
The first includes those who fundamentally object to social and economic legislation
along modern lines. This is the same group who during the recent campaign tried
to block the mandate of the people. And the strategy of that last stand is to suggest
the time-consuming process of amendment in order to kill off by delay the legislation
demanded by the mandated. To those people I say, I do not think you will be able
long to fool the American people as to your purposes.
The other group is composed of those who honestly believe the amendment process
is the best and who would be willing to support a reasonable amendment if they could
agree on one.
To them I say, we cannot rely on an amendment as the immediate or only answer to
our present difficulties. When the time comes for action, you will find that many
of those who pretend to support you will sabotage any constructive amendment which
is proposed. Look at these strange bedfellows of yours. When before have you found
them really at your side in your fights for progress?
And remember one thing more. Even if an amendment were passed, and even if in the
years to come it were to be ratified, its meaning would depend upon the kind of
justices who would be sitting on the Supreme Court bench. For an amendment, like
the rest of the Constitution, is what the justices say it is rather than what its
framers or you might hope it is.
This proposal of mine will not infringe in the slightest upon the civil or religious
liberties so dear to every American.
My record as governor and as president proves my devotion to those liberties. You
who know me can have no fear that I would tolerate the destruction by any branch
of government of any part of our heritage of freedom.
The present attempt by those opposed to progress to play upon the fears of danger
to personal liberty brings again to mind that crude and cruel strategy tried by
the same opposition to frighten the workers of America in a pay-envelope propaganda
against the Social Security law. The workers were not fooled by that propaganda
then. And the people of America will not be fooled by such propaganda now.
I am in favor of action through legislation:
First, because I believe it can be passed at this session of the Congress.
Second, because it will provide a reinvigorated, liberal-minded judiciary necessary
to furnish quicker and cheaper justice from bottom to top.
Third, because it will provide a series of federal courts willing to enforce the
Constitution as written, and unwilling to assert legislative powers by writing into
it their own political and economic policies.
During the past half-century the balance of power between the three great branches
of the federal government has been tipped out of balance by the courts in direct
contradiction of the high purposes of the framers of the Constitution. It is my
purpose to restore that balance. You who know me will accept my solemn assurance
that in a world in which democracy is under attack, I seek to make American democracy
succeed. You and I will do our part.