The 1936 Election and the Constitution

Sometimes, progressives claim to care about the Constitution, while at other times they argue that it has been superceded, so it is no longer necessary to restrict government power to the powers enumerated in the Constitution.  When the GOP had the Constitution read on the floor of the House, causing much progressive consternation, Ezra Klein took the former view, saying that everybody agreed on the need to follow the Constitution, but that it was difficult to interpret (he claimed it was written in archaic language.)  On the other hand, progressive-leaning legal scholars often take the latter view, claiming that the 1936 Presidential election created a new Constitution, not through the Amendment process, but through the 49-state landslide victory for FDR, which affirmed his assertion of previously unconstitutional government powers.

I see a number of problems with this last idea.  Many things are at stake in a Presidential election, including the question of what personality you trust more or otherwise has greatest appeal to you, how the economy is doing compared to under the previous dude, a number of issues that do not raise Constitutional issues requiring Amendment, which political Party you have preferred throughout your life, whether the politician/political Party in power has delivered the goods to you and those you identify with, etc.  Moreover, people may have elected FDR under the assumption that the Supreme Court would rein him in; he did not push Court packing until after his reelection, and the effort was unpopular.  Nor did he return to the central-planning-lite policy approach that was struck down in the early New Deal*, making it still more unclear what his reelection victory is supposed to have affirmed.

Another crucial problem with this second narrative (the Constitution has been superceded) is the very existence of the first (progressives do care about the Constitution.)  If the Court, those defending the government before the Court, and many public intellectuals justify federal regulations by claiming that they are consistent with the Constitution, their very recognition of the need for such justification indicates the continued need for legitimacy based on the written Constitution.

Finally, the 1936 election argument seems to go in only one direction.  How can a subsequent election place limits on government power, as opposed to endorsing the government’s refraining from exercising a power?  Would the 2010 election, in which the GOP won while pledging to reemphasize the written Constitution (including a promise to engage in the aforementioned reading of the Constitution), and to repeal a health care bill they considered unconstitutional, count as an election affirming a Constitutional limitation?

I’d also be interested in an explanation of how the post-1936 Constitution actually reads.

* Some people, or at least the New York Times editorial page, thought much of the early New Deal was a mistake in retrospect, even while endorsing FDR for a second term.  Their endorsement is pretty devastating to the “1936 election amended the Constitution” argument:

“The wild assertions that he intends to tear up the Constitution and destroy the Supreme Court are not heard today from any serious speaker.”

“[W]e believe that Mr. ROOSEVELT is a keen enough judge of public opinion to make his second Administration more conservative than his first, in the sense that conservatism means consolidating ground already gained and perfecting measures hastily enacted.  We believe this both because the tide of public opinion is now running with steadily increasing strength against hasty experimentation and because the President himself has moved definitely in this direction.  It is significant that most of the genuinely radical ideas sponsored by the Roosevelt Administration, ideas which were radical in the sense that they departed abruptly from the American tradition—NRA and AAA, for example—were products of the panic period…”