On November 14, 2011, the Supreme Court agreed to review the constitutionality of President Obama’s health-care act. The central question is, What limits does the Constitution — specifically, the Commerce Clause — impose upon the federal government’s exercise of power? This health-care act is the defining legislation of the president’s term, and the issue of limited government is at the very heart of the debate between Obama and his opponents. The political, economic, and constitutional stakes are very high. These arguments before the Court will provide a dramatic — and perhaps even decisive — backdrop for the 2012 election.
Constitutional crises of this magnitude are not without precedent. Indeed, the seeds of this case can be found in the court battles of the 1930s and 1940s, as Franklin Roosevelt’s New Deal legislation challenged traditional constitutional bounds. Supported by record congressional majorities, FDR and his fellow Democrats passed a blizzard of programs designed to alleviate the economic hardship of the Great Depression — and to alter the very fabric of the U.S. capitalistic system.
The 1932 Democratic platform, largely written by the party’s 1924 nominee, John W. Davis, was a clear statement of conservative, Jeffersonian principles, but FDR abandoned this platform during his first hundred days in office. So radical were the changes that by 1935, conservatives — Democrats and Republicans alike — agreed with Davis when he wrote, “If the structure of this Government is to be preserved, the courts must do it.”
As conservatives looked in desperation to the judiciary for relief, Davis was their logical leader. A highly esteemed former solicitor general under President Wilson, former ambassador to Great Britain, former president of the American Bar Association, and senior partner at one of New York’s premier law firms, Davis commanded respect from all quarters of the political and legal spectrum. As a founder of the bipartisan, anti–New Deal Liberty League in 1934, Davis repeatedly wrote to his supporters, “I believe in the Constitution of the United States; I believe in the division of powers that it makes. I believe in the right of private property, the sanctity and binding power of contracts; the duty of self-help. I am opposed to confiscatory taxation, wasteful expenditure, socialized industry, and a planned economy controlled and directed by government functionaries. I believe these things to be inimical to human liberty and destructive of American ideals.”
Sensing the gravity of the crisis, Davis seized every opportunity and expertly wielded every legal weapon at his disposal to thwart the New Deal. Publicly labeling the Agricultural Adjustment Act (AAA) “a bribe to farmers,” he signed the amicus curiae brief and successfully led the fight that ultimately resulted in the court’s 6–3 ruling that the AAA was unconstitutional. He successfully opposed the Public Utility Holding Act in the lower courts and led the fight against it within the American Bar Association. Davis personally argued the unconstitutionality of the Frazier-Lemke Bankruptcy Act and the National Labor Relations (Wagner) Act before the Supreme Court.
When Roosevelt responded to these courtroom defeats by setting forth his infamous court-packing scheme in 1937, it was Davis who advised the New Deal’s congressional opponents in defeating the measure. By the late 1930s, he had earned the New Dealers’ enduring enmity, and he wore with pride their sobriquet, “Public Enemy Number One.”
During the course of these battles, Davis repeatedly warned that “paternalism fastens its grasp upon the country, and, little by little, the practice of local self-government fades away. Baptize a scheme, even the most fantastic, with a high-sounding and attractive title, and it will elicit the public support.” Of the failure to limit government, he admonished, “Nothing but mischief, to my way of thinking, can come from any government attempting tasks which lie beyond its power to accomplish.” Ever clear about the indivisibility of property rights from human rights, Davis contended, “The two are not antagonistic. History furnishes no instance where the right of man to acquire and hold property has been taken away without the complete destruction of liberty in all its forms.”