FDR - Jean Edward Smith [245]
In addition to the commerce clause decisions, another line of precedent invoked the due process clauses of the Fifth and Fourteenth Amendments to prevent governments from regulating wages and hours. Beginning with Lochner v. New York in 1905 (198 U.S. 45), the Court held such regulation to be a denial of an individual’s “liberty of contract.” This too had been recently reaffirmed. “Freedom of contract is the general rule and restraint the exception,” said Justice Sutherland in Adkins v. Children’s Hospital, 261 U.S. 525, 546 (1923).
These two lines of precedent were formidable, but in each of the four cases there had been powerful dissents. Hammer and Lochner were 5–4, and Adkins 5–3 (Brandeis not participating). More important, standing opposed to the contemporary commerce clause rulings was no less a figure than John Marshall, whose expansive definition of commerce in Gibbons was a judicial classic.
A wild card in the Court’s anti–New Deal holdings was the legal maxim that delegated power could not be redelegated, delegatus non potest delegare. The origin of that concept is unclear, and its application has been erratic. It has been employed only three times to invalidate legislation (Panama Refining v. Ryan, Schechter Poultry Corp. v. United States, and Carter v. Carter Coal Co.). It was rejected by the Hughes Court in Curtiss-Wright and buried in Yakus v. United States, 321 U.S. 414 (1944). Also see Morrison v. Olson, 487 U.S. 654 (1988). When the Court decided to change course in 1937, the maxim did not pose an obstacle.
* In 1862 Congress, confronted with the need to finance the war, passed the Legal Tender Act, authorizing paper money as a substitute for gold. After the war the act was challenged, and in Hepburn v. Griswold, 75 U.S. 603 (1870), the Court (4–3) ruled it unconstitutional. The government asked that the case be reargued; Congress increased the size of the Court from eight to nine; and one justice (Robert Grier) died, giving Grant two vacancies to fill. Grant appointed two stalwart Republicans, William Strong of Pennsylvania and Joseph Bradley of New Jersey. When the case was reargued, Hepburn was overruled 5–4 and the Legal Tender Act sustained. The decision was written by Justice Strong. Knox v. Lee, 79 U.S. 457 (1871).
Jackson wrote FDR a memorandum to this effect on January 12, 1935. Robert H. Jackson, That Man: An Insider’s Portrait of Franklin D. Roosevelt 65–66 (New York: Oxford University Press, 2003).
* The Eleventh Amendment, adopted in 1795, reversed the decision of the Supreme Court in Chisholm v. Georgia, 2 Dallas (2 U.S.) 419 (1793), and redefined the jurisdiction of the federal judiciary to exclude suits brought against a state by citizens of another state. The Fourteenth Amendment (1868), by granting citizenship to “all persons born or naturalized in the United States,” overruled the Court’s definition of citizenship in the Dred Scott case (Scott v. Sandford, 19 Howard (60 U.S.) 393 (1857)). Similarly, the Sixteenth Amendment, ratified in 1913, made the income tax constitutional, nullifying the Court’s decision in Pollock v. Farmers’ Loan and Trust, 158 U.S. 601 (1895).
† In 1801 the outgoing Federalist Congress reduced the size of the Supreme Court from six justices to five, hoping to deprive Jefferson of an appointment. The new Democratic Congress promptly restored the number to six and increased it to seven in 1807, giving Jefferson an additional appointment. Jacksonian Democrats added two more justices in 1837, bringing the number to nine. In the Civil War, confronted with a potential proslavery majority, Congress increased the Court to ten. When Democrat Andrew Johnson succeeded Lincoln, a Republican Congress reduced the number of justices to seven to deprive Johnson of any appointments. That reduction