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Magliocca on the Court Packing Plan & Perceptions of the Difficulty of Obtaining Ratification of Constitutional Amendments

By Lawrence Solum

Gerard N. Magliocca (Indiana University School of Law - Indianapolis) has posted The Child Labor Amendment and the Court-Packing Plan on SSRN. Here is the abstract:

This Article presents new material on Franklin D. Roosevelt's Court-packing plan and its relationship to the Child Labor Amendment (CLA), which was passed by Congress in 1924 but never ratified by the States.

While modern lawyers assume that state ratification of a constitutional amendment is incredibly difficult, my analysis shows that this interpretation only emerged in 1937 and was the deliberate product of FDR's campaign to discredit Article Five in favor of judicial "reform." When the CLA was passed, there was a consensus that state legislatures were little more than a rubber stamp for amendments. Indeed, foes of the CLA sought to block the proposal in Congress by seeking to require ratification by state conventions. Even after the CLA was blocked in the States during the 1920s and 1930s, that did not alter the basic premise that state legislative ratification was generally easy.

President Roosevelt changed all of this in 1937 by making the CLA into the paradigmatic case for Article Five instead of the exception that it actually was. He did this in two steps. First, he gave a high-profile endorsement to the proposal even though he knew that it was not going to be ratified anytime soon. Then he used that failure as a leading argument for Court-packing in his public statements about that proposal. This provoked a unorthodox response in Congress and a deep inquiry into Article Five that ended abruptly when the Supreme Court executed its switch-in-time on March 29, 1937.

By demonstrating that the view of state legislatures as a massive obstacle to constitutional change is largely a self-fulfilling construction, this Article hopes to provoke a new discussion about the merits of using the amendment process.

Very interesting & recommended.

Full post as published by Legal Theory Blog on December 04, 2009 (boomark / email).