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Excerpts from the Press Conference

February 12, 1937

Q. Can you tell us what the Senators have been telling you about your Judiciary reform bill?

THE PRESIDENT: You don't want to be here all day, do you?(Laughter)

Q. Are you surprised at the reaction to your Judiciary bill?

THE PRESIDENT: It depends on which paper you read. (Laughter)

The only thing that I think it would be proper to talk about at this time is this. Of course, I naturally cannot talk and won't talk about current developments here or on the Hill. That is obvious. But just as background for you, and only as background, I think it might be useful to tell you that this particular message, which I think a week ago took most people by surprise, dates back over about a year and a half, a little over a year and a half, in fact, since the NRA decision. At that time it became perfectly clear that there were certain social economic things that had to be done in the nation. A sincere attempt was being made by the Congress to carry out social economic legislation in the belief that the results could not be obtained merely by different state enactments, and that those subjects were not only national in their scope but were within the contemplation of the Constitution. From that time on most of you have written stories, and everybody in Washington has had a happy thought about what to do; and the happy thoughts of what to do, starting after May, 1935, ran literally into the thousands.

This past summer—going further back than that, for at least a year there have been a lot of people sorting all those different suggestions and trying to formulate some practical way, in view of the decisions, of arriving at results that seemed not only necessary for the country but very much demanded by the country.

Last spring those studies began to take rather definite form. The studies were continued during the summer and autumn.

Right after the election—I think I came back here the Friday after election—I think it was within the next two or three days and before I left for South America, I asked two people to put down in black and white the result of these studies. The two people were the Attorney General and the Solicitor General, and nobody else. When I got back from the South American cruise- the easiest way of putting it is this: They had listed into several categories all of the suggestions that had been made over a period of a year and a half.

The more we studied the categories between the fifteenth of December and about two weeks ago, the more we came to the conclusion that a process of elimination had to be applied on two criteria.

The first criterion was the question of time, and, on the question of time, we eliminated consideration of constitutional amendments, particularly because there were so many different possible kinds of constitutional amendments that it would have been extremely difficult, even for people who had the same objective in mind, to arrive at an agreement on the actual language.

Then, with respect to constitutional amendments, the second consideration was that—not only as shown by history but from the practical, present day point of view—it is not a very difficult trick, over a period of three or four years, to prevent ratification in thirteen states. It is a comparatively simple thing to do if there is thoroughly skilled and organized opposition directed at the point of least resistance.

Therefore, we came down to the other category, which was legislation. There again, a great many of the proposals that had been made were eliminated because of the fact that they were of doubtful constitutionality. There was, to use a simple example, a proposal for legislative action calling for a unanimous decision or an eight-to-one decision in the Supreme Court, or a unanimous decision in a Circuit Court of Appeals where there is more than one judge. Going back to the fundamentals of the commonwealth, it is a great question as to whether any lawyers, if they were on the Supreme Court themselves, no matter how much they might want very necessary and very immediate social and economic reforms, would hold constitutional a law providing for a unanimous decision or an eight-to-one decision or anything of that kind. In other words, they would go way back in the history of constitutional law, and might very easily say, "What was in mind in 1787 in regard to a decision?" There is the background of three or four hundred years of English common law, which was the only known body of precedents in 1787. From the days of Queen Elizabeth or Henry the Eighth, for all we know, the rule of the old English common law has been that the majority of a court could determine the action of that court.

So, by a process of elimination, we came down to an action which was of undoubted constitutionality.

At the same time, all the studies during the past year and every approach to the problem of legislation and the constitutionality of laws, brought in the factor of the other Federal courts besides the Supreme Court. It became more and more a question of the Federal Judiciary as a whole.

Well, that is the easiest way of putting the background of the origin of the message of a week ago. There was nothing mysterious about it. The three people who worked on it were the Attorney General, the Solicitor General and myself.

Q. Was it a composite? It was not one man's idea?

THE PRESIDENT: No, it was a process of evolution, arrived at over a long period of time.

Q. In your message, you said something about the danger of serious consequences that might result from an amendment.

THE PRESIDENT; No, I did not say so.

Q. In the very last paragraph?

THE PRESIDENT: You had better get the paragraph. You haven't quoted quite right. You had better read it.

Q. Is the plan for disposition of power at Bonneville Dam ready?

THE PRESIDENT: That will be ready after I have had a conference. The report of that special committee, the informal committee, I have on my desk. Maybe over the week end and maybe at the beginning of the week, I am having down the Senators and, I think, the members of the House also, from Washington, Oregon and Idaho in relation to the proposed legislation which is, in general, in line with Senator McNary's bill of last year. There are some differences, but not a great many, and the legislation proposed would tie in very nicely with any subsequent legislation in relation to the regional power districts that I talked about the other day.

Franklin D. Roosevelt, Excerpts from the Press Conference Online by Gerhard Peters and John T. Woolley, The American Presidency Project https://www.presidency.ucsb.edu/node/209336

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