Increasingly, I identify with history’s losers. It is inspiring to read about great men, with truth on their side, who wage an epic battle that they seem to know they are going to lose.
The Four Horsemen of the Supreme Court under FDR are a perfect example. (At least they were eventually under FDR).
Like all of FDR’s enemies, the professoriate has relentless attacked these men. The Horsemen are long dead, but academics are still on guard against their ghosts.
The deeply partisan Felix Frankfurter called its decisions [authored by the Horsemen] “intellectual frivolity” that “reinforced” his doubts about “the capacity of [the] Court and the Constitution to satisfy the needs of our national life.” Irving Brant, whose 1936 Storm Over the Constitution featured a foreword by future vice president Henry Wallace, argued that the Court’s lack of “sympathy” with “the striving of the people for well being” made it “a stimulus to fascist or communist revolt.” He proposed appointing a new liberal majority of justices, although he facetiously distanced himself from the court-packing threat in a footnote that recommended against expanding the Court, “even though Lincoln did it.”
We often forget how absurd the policies of the New Deal were. They may have been crafted by PhDs, but they included some of the most retarded ideas ever created by democracy – which is saying something. For example:
Adkins v. Children’s Hospital . . .concerned a law that forced employers to pay women $71.50 per month. Because this law applied only to women, businesses hastened to replace them with less expensive men. Indeed, such laws were championed by male-dominated unions hoping to block competition for jobs. Washington, D.C., elevator operator Willie Lyons made only $35 a month, but she liked her job, and when the law threatened her with termination, she challenged it in court.
It would be hard to come up with a worse idea.
Libertarians would do well to spend some time with the Horsemen’s decisions (I particularly enjoyed Justice McReynolds’ dissents in the cases about the gold standard):
But Sutherland [a Horsemen] replied that whatever “experimental” latitude states enjoyed, “there are certain essentials of liberty with which the state is not entitled to dispense in the interest of experiments.” Government could not use “the theory of experimentation” to censor newspapers or persecute citizens on the basis of religion, and the right of entrepreneurs to go into the ice business was “no less entitled to protection.”
In later years, new "legal" theories were invented – which now govern us – to get around the Horsemen’s arguments. In one decision that went 5-4 against the Horsemen:
Admitting it could not be reconciled with the Constitution, Chief Justice Charles Evans Hughes nevertheless held that the law was justified by the economic “emergency.” It was “no answer,” he claimed, “to insist that what the provision of the Constitution meant to the vision of that day it must mean to the vision of our time.” To say “that the great clauses of the Constitution must be confined to the interpretation which the framers, with the conditions and outlook of their time, would have placed upon them” simply “carrie[d] its own refutation.”
Eventually, President-for-Life FDR and the full weight of the entire American academia were enough to crush the Horsemen and all effective resistance to the New Deal. These forces were stronger despite the fact that the Horsemen had better legal arguments and that the New Deal was epically failing to "fix" the economy.
There is a lesson for all of us in that story, somewhere.
Read the whole article.