Wednesday, December 9, 2009

FDR, the Failed Child Labor Amendment, and Court Packing

My esteemed colleague, Gerard Magliocca, who blogs at Concurring Opinions, is one of the most innovative, outside-the-box, and consistently interesting legal historians in the country. His articles and books are always  novel, often counter-intuitive, and invariably entertaining to read.

I highly recommend Gerard's newest paper on "The Child Labor Amendment and the Court Packing Plan" (available here) in which he argues that President Roosvelt's support for the Child Labor Amendment was both belated and strategic. The President evidently believed that the Amendment would fail to be ratified by the states, and that its failure would provide ammunition in support of his efforts to "pack" (that is, add several new Justices, of his picking) the Supreme Court. One of his main arguments for increasing the size of the Court was his contention, not well supported by the empirical evidence, that it was too difficult to Amend the Constitution through the Art. 5 process. Ultimately and somewhat ironically, Justice Robert's [thanks to John Q. Barrett for the correction] "switch in time that saved nine" mooted both the court packing plan and the Child Labor Amendment; instead, Congress enacted a Child Labor statute that the realigned Court upheld.

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