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Vol 21 No 9 Sept/Oct 2016

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Goode on Commercial Law

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Franklin Roosevelt and the Great Constitutional War

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Marian C. McKennaProfessor Emeritus, University of Canada, Alberta, Canada

ISBN13: 9780823221547
ISBN: 0823221547
Published: September 2002
Publisher: Fordham University Press
Country of Publication: USA
Format: Hardback
Price: £45.95

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This new history of Franklin D. Roosevelt and the ""Great Constitutional War"" is a critical, revisionist portrayal of FDR's personal role in initiating, with the advice of his attorney general, Homer S. Cummings, a ""reorganization of the federal judiciary,"" or what in fact constituted a bald-faced attempt to ""pack"" the Supreme Court in 1937. Unlike other studies of this episode, this well-researched history, embracing the years 1933 to 1938, shows that FDR's court plan was unprecedented, and unduly provocative, and was contrived throughout its gestation period in darkest secrecy until its announcement on February 5, 1937 to a stunned Congress and public. This initiative revealed that its advocate had a narrow and imperfect understanding of the U.S. Constitution, with its built-in system of checks and balances, designed by the founders to prevent one branch of government from dominating the other two. Roosevelt attempted to do what no other American president before or since would dream of doing, and in the process demonstrated that he had a limited knowledge of the law, U.S. constitutional history, and an imperfect understanding of what is meant by an independent judiciary.;Taking such a ""decision"" on his part was more reflexive than thoughtful; it is revealed in this study as a raw exercise in revenge against an eminent tribunal because it had defied his will by invalidating important elements in his New Deal. No issue in domestic politics ever aroused the country's anger as did this presidential proposal to increase the size of the Supreme Court to fifteen by giving the president the power to appoint a new judge for every justice over the age of 70 who refused to resign or retire. For background, the case histories which led up to this bold stroke are, for the first time, chronicled and analyzed in a setting that places the stirring events which ensued in their proper perspective. The case histories are an integral part of the historical episode popularly known as the ""court fight."" In what follows, the book offers a dramatic recreation of the amazing manner in which an aroused electorate rose up in wrathful protest against what it considered to be the chief executive's deliberate effort to subordinate the judiciary to his will in order to obtain favorable New Deal decisions.;In an age of dictators, Americans became understandably suspicious of the motives of their leader who already had a supine Congress virtually rubber-stamping nearly all he asked for or included on a ""must list."" The claim made by the Roosevelt administration that the court bill was 100 percent constitutional is demolished by the evidence the author puts forth in this comprehensive study. That claim was called by one eminent journalist (Walter Lippmann) ""the most immoral argument yet, because it amounted to saying that public officials may use the letter of the law to violate its spirit."" The work is the product of more than ten years of research and rests on a solid evidentiary base derived from contemporary documents, memos, state papers, letters, archival sources of all kinds, newspaper and periodical research sources as well as a sampling of some, if not all, the subsequent secondary sources devoted to the subject. Nor is the valuable material in law reviews neglected. But this is a work of history, written by a historian, not a lawyer.;This mass of evidence mirrors the controversies, debates, political struggles, and internal divisions within the Congress, the Roosevelt administration, and the Democratic party. The importance of the book's subject, the thorough documentation, its reasoned and reasonable criticism, all set forth in a lively, but lucid writing style should give this book a popular readership that reaches well beyond academia.

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