I think surviving petitions to Congress are among the most fascinating documents in the National Archives. Concerned citizens have used this constitutionally guaranteed device to seek statutory change or stasis, often by articulating (or parroting) constitutional arguments that deserve to be taken seriously. Some of my most exciting “finds” at the Archives were petitions. For now, I present two that express contrary opinions about the merits of the Roosevelt Administration’s court-packing plan, an episode familiar to most of us.
Because the plan was then “before our national legislative bodies for consideration,” this resolution from voters in Marion County, IN (though they’d better have government-issued photos IDs if they plan to vote!) must have been sent to Indiana’s Congressional delegation in the spring or early summer of 1937.
The “organized effort” mentioned was spearheaded by the ghastly gang of Butler, Sutherland, McReynolds, and Van Devanter. This resolution recalls the implied threat of the Democrats’ 1936 Platform: Allow us to save ourselves, or we’ll negate your shenanigans by amending the hallowed Constitution of your fathers. If your decisions prevent government at all levels from repairing the national economy, we’ll take the admittedly desperate step of amending the Constitution to give Congress the power it needs (and which it now has under a proper reading of the constitutional text). But a less drastic expedient exists–a rejuvenation of the federal judiciary through Congressional enactment. The administration’s plan violates no provision of the Constitution, and it will safeguard our democratic form of government in a time of grave national peril.
Pointing out the obvious: One of the addressees, Senator Sherman Minton, later served on the Court with several of Roosevelt’s hand-picked appointees. I also think it’s interesting that although the signatories invoked the gravity of the Article V amendment process to strengthen their argument for passing FDR’s merely legislative proposal, one of Indiana’s Congressmen–Louis Ludlow–is remembered today for repeatedly championing a constitutional amendment to require a national referendum on all Congressional declarations of war (“[e]xcept in the event of an attack or invasion”). Ludlow sought to curb Congressional power in this respect, while these petitioners wanted to expand it (or at least have its “proper” limits written explicitly into one or more declaratory constitutional amendments). The Constitution wasn’t actually amended to safeguard the New Dealers’ views from unsavory judicial construction, of course. Or was it?
The undersigned have been reading their Montesquieu. Because FDR’s Justice Department strategically selects the appeals it asks the Supreme Court to hear, they likely reasoned, the plan will permit Roosevelt to instruct his cherry-picked constitutional confrères to sustain controversial legislation in proceedings even a schoolboy can now anticipate. This shameful scene will create a culture of judicial docility and presidential superintendence, thereby “undermin[ing] the foundations upon which American institutions rest.”
Notice how the petitioners classify themselves. The endorsers of Document 1 exclaim that the “VOTERS” have spoken, as if ignoring their entreaty would be politically foolish, while the “undersigned” of Document 2 might well be a community of sojourning Swazilanders. Witness how the subscribers to a petition I’ll eventually post in full enhanced their moral authority:
I’ve seen many petitions requesting Congress to abolish slavery in the District of Columbia and/or in the federal territories. Sadly, their authors could often claim only to be “inhabitants,” not “citizens” or “voters,” of the cities or counties in which they resided. (Not that Congress much considered any petitions about slavery for nearly a decade…)