OpinioNet Contributed Commentary - Morgan K. Freeberg
January 28, 2002
February 19 Is Coming
This is the third of a four part series that explores the changes in our federal government during the nine years between the inauguration of Franklin Delano Roosevelt and the signing of EO 9066.
The author contends that EO 9066 manifests an egregious infringement on the constitutional rights of U.S. citizens, and that EO 9066 was made possible only by the effort to centralize federal power during that time, thereby weakening the Constitution in the process. Understanding the seduction of the American people and government during that period is crucial to any effort to ensure that nothing like this ever happens again.
The four parts of this series are:
Part Two: FDR Subjugates the Judicial Branch
One of the intellectual pursuits that will be given a lot of energy on Tuesday the 19th, is to find ways to ensure that the events of EO 9066 are never repeated. For reasons I’ve already explained, this effort will get a lot more momentum this year.
But simple logic says that if you want to create some assurance that an event will not be repeated, you need to research into why it happened in the first place. Failing that, any assurance acquired will be a feel-good mentality borne of desperation. Nobody wants that.
EO 9066 was, indeed, a channeling of mistaken popular opinion by our elected and appointed officials. I think we make a mistake when we blame people who were alive at the time, for being suspicious of their Japanese neighbors, and then use this haughty indigence and supposed superiority of racial sensitivity to reassure ourselves that it will "never happen again."
That’s just silly. The biggest atrocity wasn’t racial suspicion - it was suspension of the laws and liberties that make this country great. You have a right to be secure in your person, home, papers and personal effects. You do not have a right to be protected from suspicious thoughts harbored by those around you. Sure, those thoughts may be wrong - but if we’re going to get peeved at how the Japanese citizens were treated, let’s get peeved about things from which they were deprived, that were well within their entitlements. There’s no shortage of examples of this.
The fact is, there were other insidious values creeping into the national consciousness during the years leading up to EO 9066, besides stark racism. Look at it this way: I could take a time machine back to those days and teach magical "sensitivity training courses" to the people who lived there, which are somehow magically 100% effective, guaranteed to eliminate racism in all forms. I contend this would change nothing; in early 1942, we’d still have the same problem. Perhaps the Japanese would escape unscathed, but our government would do something equally monstrous to the German citizens or the Italian citizens.
My point is, a lot of other things were badly broken. The core problem wasn’t racism. The problem was lack of respect for our Constitution.
How much respect did Americans have for the Constitution in 1942? Well the truth is, they had shredded it up so they could eat it. That’s the thing about giving away freedom; you can’t just wake up tomorrow and go, "I think that’s more important to me now" and expect to get it back. Realistically, there was a lot of suffering going on and it’s hard to pass judgement on our grandparents for doing what they did, but that really doesn’t excuse their actions. It’s a travesty to the generations coming later; meaning, to you and to me.
How Could It Have Happened Here?
To understand how EO 9066 came about and what we would really do to ensure it never happens again, it is necessary to go back to the beginning of FDR’s administration.
In 1932, just about everything that was economic, was in a bad way. In this climate, Governor Roosevelt was a real fair-haired boy. The election was a rout, with Roosevelt receiving 472 electoral votes to Hoover’s 59 (Roosevelt received 59.4% of the popular vote, of which Hoover received 39.6%).[1] On inauguration day, the tension between Hoover and Roosevelt was palpable as they rode to the platform in the same car, following tradition of the time - Roosevelt jubilant, Hoover stoic and sullen.[2]
During Roosevelt’s celebrated "First Hundred Days," he established the bold retinue of bureaucracy building that became a hallmark of his first two terms. Not one to stumble out of the gate, he took two bold actions on the second day of his administration: The declaration of a "Bank Holiday"[3] to take effect March 6,[4] and the calling for a "special session" of the 73rd Congress at noon that coming Saturday.[5]
Now on the sixth day of the term, Congress convened at high noon as requested. First on the agenda was the receipt of a message from the White House, requesting passage of HR 1491. The sympathetic Majority Leader declared that Congress was to act in unusual haste:
Did the Minority leader provide loyal dissent, that can be counted on today for any President?
And so it went. Approved within 90 minutes, the bill passed on to the Senate where it was approved with seventy-three votes by 7:30 PM. The President signed it that same evening, and it became law - retroactively sanctioning the action made by FDR on March 6.[8] This would normally not be a legitimate way to govern, and it has had far-reaching implications regarding questions of the United States solvency.[9]
Ernest Lundeen of Minnesota (1878-1940), a former Republican congressman, had been elected to the House of Representatives under the Farmer-Labor party in 1932.[10] He would come to favor the liberal programs proposed during the New Deal, and in fact authored what is widely recognized as a predecessor to the Social Security Act of 1935. Far from being a conservative obstructionist, he nevertheless was the voice of reason that day according to the official transcript.
The great majority of the Members have been unable to get a minute’s time to discuss this bill; we have been refused a roll call; and we have been refused recognition by the Chair...
I WANT TO PUT MYSELF ON RECORD AGAINST PROCEDURE OF THIS KIND AND AGAINST THE USE OF SUCH METHODS IN PASSING LEGISLATION AFFECTING MILLIONS OF LIVES AND BILLIONS OF DOLLARS.[11]
Tragically, sentiments like Mr. Lundeen’s were far, far in the minority on March 9, 1933.
Alphabet Soup
HR 1491 was just the opening salvo. On the same day the President announced[12] that the Secretary of the Treasury had been authorized[13] to determine which of the soundest banks would be allowed to reopen, he passed[14] the Agriculture Adjustment Act. This Act, drafted by Sec’y of Agriculture Henry Wallace, created the Agriculture Adjustment Administration, or AAA. This was to be one of the most controversial programs of the New Deal. Perhaps you have some grandparents or grand-uncles who you were told "were paid by the government to grow corn ... and to not grow it." Maybe you thought that was just some kind of weird, sick joke.
One of the most entertaining skits I ever saw on Saturday Night Live in the ’70s was an opening act in which President Carter was supposed to have asked all citizens to do their part to slow down inflation by burning 8% of all their money. In Carter’s case, that was an exaggeration; in 1933, it was parallel to what was really happening. Corn, cotton and grain were destroyed so that an artificial scarcity would push prices back up to where the government thought they should be. Meat was another such product for which the AAA desired to create a shortage. By the end of that summer, hundreds of thousands of pregnant sows were slaughtered in the name of the AAA, along with millions of baby pigs.[15]
More programs and more bureaucracy were turned out by the bucketful, all in those first 100 days. The CCC, CWA, HOLC,[16] TVA, PWA and FERA[17] were created. For sake of brevity, I’ll refer you to the footnotes if you want to find out what’s behind these acronyms. NIRA took effect[18] on June 16 of that year. Also in June, the Farm Credit Act was passed, enabling $100 million to be loaned to farmers in the first seven months.[19] The FSA was passed.[20] FEMA was created, and Congress passed the Glass-Steagall Act creating the FDIC, and the Truth-In-Securities Act.[21]
The spirit of the first "hundred days" continued into 1934. The FHA,[22.23] FCC and SEC were created.[24] By the end of 1934, the statistics were looking good for this plan, and would continue to do so for at least the next two years. Unemployment fell to 21.7% in 1934, and the GNP rose by 7.7% that year.[25] On February 22, 1935, the Connally "Hot Oil" Act passed, prohibiting interstate commerce in petroleum. 1935 also brought the RA,[26] WPA,[27] NYA,[28] NLRB, REA, and the dubious but now politically untouchable Social Security Act.[29] The Banking Act[30] and Emergency Relief Appropriation Act[31] passed this year. If you’re a lefty, the story just gets sweeter and sweeter. By the end of 1936, the top tax rate had been raised to 79 percent.[32] But that’s okay, because "rich" folks don’t need their own money, right?
The Court Becomes a Problem
About this time, there were clouds gathering on the horizon for FDR that would challenge his methods and motives, and reveal a great deal to us about the character of the man behind EO 9066. The Supreme Court ruled NIRA unconstitutional in Schechter Poultry Corporation v. U.S., 1935[33,34,35,36], and the following January 15 struck down some provisions of the AAA as well in U.S. v. Butler.[37,38,39,40] The previous winter, the Hot Oil Act had already been rendered unconstitutional in Panama Refining Co. v. Ryan.[41,42] Congress had attempted to repair the damage with AAA somewhat by passing the Soil Conservation and Domestic Allotment Act,[43] but friction had already developed between the White House and the Supreme Court.
Of these three landmark decisions, there can be no doubt that Schechter caused the greatest distress in the new administration. The High Court handed down the decision on "Black Monday," May 27, 1935.[44]
If the young counselors from the administration thought this was adequate to make a "Black Monday," they had no idea what was coming next. Two additional decisions were handed down, against their interest just like the first one. They were then summoned to the robing room for an audience with a displeased Justice Brandeis. In that robing room, the oldest Justice on the Supreme Court opened a whole fresh case of whup-ass.
The Justice was visibly excited and deeply agitated. "You have heard," he gasped, "our three decisions. They change everything. The Court was unanimous. Hughes delivered the NRA opinion; Sutherland the Humphreys opinion; and I the Frazier-Lemke opinion. You must phone Felix and have him down in the morning to talk to the President. You must see that Felix understands the situation and explains it to the President. You must also explain it to the men Felix brought into the Government. They must understand that these decisions change everything..."
"...I should not be surprised if everything would have to be redrafted. The President has been living in a fool’s paradise. The Court unanimously has held that these broad powers cannot be exercised over matters within the States."
"Everything you...have been doing must be changed. Everything must be considered most carefully in light of these decisions by a unanimous Court."[46]
Louis Dembitz Brandeis (1856-1941) became the first Jewish person appointed to the Supreme Court, by Woodrow Wilson in 1916. By all accounts, he was a brilliant jurist with a genius intellect. He was also exactly the kind of Justice with whom I disagree. Like Al Gore, Brandeis is known for having advocated a "living law," arguing that the law had to go beyond precedent and evolve to changing reality.[47] He is invariably described in reference material as a "liberal."[48] With Ernest Lundeen, he represented a coalition that was growing quickly at the time: liberals who could normally have been expected to be sympathetic with the President, who nevertheless were becoming terribly upset with his tactic and apparent disregard for constitutional boundaries.
Furthermore, as far as you yourself are concerned - and you know my affection for you - I warn you to send back to the states all those bright young men you have brought to Washington. It is the states where they are needed and it is the government of the states where they belong."[49]
The stock market plunged after this Black Monday, and more problems developed for the President when the previous victims of NRA, naturally, were rejuvenated.[50] Butler and Panama just rubbed more salt into the wound, and the President began fighting back by agitating the electorate, hoping to create for himself some kind of mandate to oppose the High Court’s rulings. Altogether, it became a bad time to invite FDR and the Justices to dinner on the same night.
Morgan K. Freeberg
You can e-mail Morgan at mkfreeberg@hotmail.com.
About Morgan K. Freeberg
Copyright © 2002 by Morgan K. Freeberg -Published with permission
Morgan K. Freeberg
What you always wanted to know about FDR but were afraid to ask
Editor’s note:
"There is nothing more frightful than ignorance in action."
- von Goethe
Under the peculiar circumstances and under the serious circumstances which confront the country, we agree to take this bill up now, pass it, send it to the Senate so it may become a law this evening, and thus enable the President of the United States to open the banks tomorrow.[6]
The house is burning down, and the President of the United States says this is the way to put out the fire. [Applause.] And to me at this time there is only one answer to this question, and that is to give the President what he demands and says is necessary to meet the situation. I do not know that I am in favor of all the details carried in this bill, but whether I am or not, I am going to give the President of the United States today his way. He is the man responsible, and we must at this time follow his lead. I hope no one on this side of the aisle will object to the consideration of the request. [Applause.][7]
Mr. Speaker, today the Chief Executive sent to this House of Representatives a banking bill for immediate enactment. The author of this bill seems to be unknown. No one has told us who drafted the bill. There appears to be a printed copy at the speakers desk, but no printed copies are available for the House Members. The bill has been driven through the House with cyclonic speed after 40 minutes debate, 20 minutes for the minority and 20 minutes for the majority. I have demanded a roll call, but have been unable to get the attention of the Chair...
The government had been aware that its assumption that Congress had the right to delegate even limited legislative authority to the Executive, which in turn gave it to the code-making groups, was the weakest point in its argument. ... It could not be seriously contended, ruled Hughes, that "Congress could delegate its legislative authority to trade or industrial associations or groups so as to empower them to enact the laws they deem to be wise and beneficent for the rehabilitation and expansion of their trade or industries." And, having held that poultry-slaughtering business was not a part of interstate, it followed that the regulation of wages and hours in that business could not be justified by an appeal to the rights of Congress under the commerce clause.[45]
...the justice stood with his arms aloft to have his gown removed, he looked to Tom like "an avenging angel."
Without a preamble, he said, "You go back and tell your President that this Court has told him it is not going to permit the centralization of power in big industrial leaders from the federal government which his advisors are imposing upon this country. He is over-centralizing this country with his planning and you are to tell him so because I have told you so.
Watch for Part 3, "FDR Subjugates the Judicial Branch" to be published here January 26, 2002.
Footnotes:
See History Central, http://www.multied.com/elections/1932.html
Read other commentaries by Morgan.
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