Fear Itself (19 page)

Lippmann did not have Rome or Berlin, let alone Moscow, in mind. Rather, he was arguing that the need for democratic protection required a temporary violation of normal constitutional procedures, much as James Madison had written in The
Federalist Papers
about how “constitutional barriers” are not relevant when faced with the “spirit of self-preservation.”
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The imperatives of the day, Lippmann asserted, required the president and his executive to have the ability to act swiftly with prompt discretion in the present emergency without being constrained by the usual checks and balances. He thus wanted the Constitution’s ambiguous language about presidential power—including its vesting in the president “the executive power of the United States,” giving him responsibility for taking care “that the laws be faithfully executed,” and declaring him “Commander-in Chief”—to be interpreted expansively, treating the economic emergency as a wartime situation. Congress, Lippmann hoped, would authorize and thus legitimate a soft dictatorship in which the new president, on the model of Abraham Lincoln, could be what Lord Bryce had designated as “almost a dictator.”
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The president would not seize power, but have it conferred on him, based on an uncommonly expansive reading of the Constitution of the United States.

There were competing voices. “Do We Need a Dictator?”
The Nation
’s lead editorial inquired during inauguration week. The magazine’s answer, though quite different from Lippmann’s, signaled deep apprehension about the future balance of executive and legislative capacity. “Emphatically not! Nothing in the existing situation, grave, critical, and menacing as it is, warrants the overthrow of our system of government.” However “stupid and frightened” Congress might be, the editors cautioned, “if we muzzle Congress, muzzles for the rest of us will come as a matter of course, particularly if the emergency becomes more critical.”
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Such palpable anxiety was not confined to the left-of-center niche occupied by
The Nation.
At the close of the 1932 campaign, on October 31, President Herbert Hoover warned a mass rally in New York’s Madison Square Garden that a Roosevelt-led New Deal threatened to concentrate power in the presidency and thus “break down the dikes of American freedom” based on “the Trojan Horse of emergency.”
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IV.

O
NE OF
only a small number of Jewish students at quota-governed Harvard, Lippmann had entered the university just months after his most important teacher, William James, the great pragmatist philosopher and psychologist, and older brother of the novelist Henry James, had returned from a visiting professorship at Stanford. James’s stay had been cut short by the great earthquake of April 18, 1906, which leveled much of nearby San Francisco and destroyed a good deal of the Palo Alto campus. In February, James had addressed a well-attended Stanford assembly on the topic “The Moral Equivalent of War.”
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The globe, he worried, even in 1906, might soon be galvanized by a “fear regime.” Warfare, he presciently projected, would shortly be revered as “a sort of sacrament” in which “whole nations are the armies.” The world, he thus argued, was in desperate need to discover a peaceful alternative based on civic honor and collective discipline. As it turned out, these were the very ideas Franklin Roosevelt would invoke immediately upon taking the oath of office.

Unlike Lippmann, whom he preceded at Harvard by six years, and unlike his cousin Theodore, FDR never studied with William James. But like most undergraduates at Harvard, and especially as editor of the
Harvard Crimson,
he must have been aware of James’s views and high standing as one of the country’s most luminous scholars, and might well have heard discussion about the 1901–1902 Gifford Lectures,
The Varieties of Religious Experience
, when James first called for a moral equivalent of war.
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The ideas and language of William James resonated in President Roosevelt’s inaugural address. Suffused with Jamesian language, it reverberated with military similes. Preaching “the clear consciousness of seeking old and precious moral values,” President Roosevelt identified “the clean satisfaction that comes from the stern performance of duty by old and young alike,” and exhorted Americans on behalf of “the warm courage of national unity.”
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Assuming “unhesitantly the leadership of this great army of our people dedicated to a disciplined attack upon our common problems,” the country’s new leader called on his fellow citizens to “move as a trained and loyal army willing to sacrifice for the good of a common discipline, because without such discipline no progress is made, no leadership becomes effective.” Concerned with the current crisis, Roosevelt affirmed a Jamesian quest for warfare’s equivalent. “We are, I know, ready and willing to submit our lives and property to such discipline, because it makes possible a leadership which aims at a larger good. This I propose to offer, pledging that the larger purposes will bind upon us all as a sacred obligation with a unity of duty hitherto evoked only in time of armed strife.”

The new president and his audience knew the stakes. Could constitutional democracy endure “when confronted with an emergency that has the potential to undermine the democracy itself”?
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He went on to voice confidence that it would be possible to find a way within the Constitution of the United States to respond effectively.
¹⁰⁸
“Our Constitution is so simple and practical,” he reassured with a high degree of ambiguity, “that it is possible always to meet extraordinary needs by changes in emphasis and arrangement without loss of essential form.”

But with what “changes in emphasis and arrangement”? In grim and testing conditions, how much adjustment, and of what kind, might be necessary? To what extent must a belief in the values of democracy respond to “the demands of the hour . . . even at the risk and cost of violating fundamental principles”?
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To what extent would emergency powers and procedures be required for the essentially conservative purpose of protecting the legitimacy and effectiveness of democratic government?
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Having drawn a parallel between economic and military emergencies, and having identified his own position as that of commander, the president identified his constitutionally authorized powers as broadly as possible while staying inside the document’s formal stipulated scope.
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Would he seek to find a space to act lawfully beyond that authorized by congressional lawmaking? If so, how broad and how durable would this zone be?

Flirting with Walter Lippmann’s extraconstitutional proposals, the president voiced misgivings about the ability of Congress to cope within traditional bounds. Speaking in terms both portentous and measured, Roosevelt ominously cautioned how “it may be that an unprecedented demand and need for undelayed action may call for temporary departure from that normal balance of public procedure.” Should Congress not act promptly and decisively, he warned, “I shall not evade the clear course of duty that will then confront me. I shall ask the Congress for the one remaining instrument to meet the crisis—broad Executive power to wage a war against the emergency, as great as the power that would be given to me if we were in fact invaded by a foreign foe.” He also spoke of how, at the last election, the American people had conferred “a mandate that they want direct, vigorous action. They have asked for discipline and direction under leadership. They have made me the instrument of their wishes. In the spirit of the gift, I take it.”

The phrase “as great as the power that would be given to me if we were in fact invaded by a foreign foe” was no mere abstraction. When the new president indicated he would ask Congress for such powers, he evoked the near-term history of World War I. Franklin Roosevelt had been at hand, of course, in Washington during the war as assistant secretary of the navy, with regular access to the cabinet, the armed forces, and the president. With the war not a remote historical event but present in popular and elite historical memory, FDR would have recalled the 1917 Espionage Act, which mandated sentences up to twenty years for individuals who encouraged “disloyalty” in wartime, as well as the 1918 Alien Act, which authorized Washington to deport members of anarchist organizations. The same year, a Sedition Act made it illegal to use “disloyal, profane, scurrilous, or abusive language” about the flag, the armed forces, and the country during the war. He also would have remembered that era’s unprecedented congressional delegations of economic power, constituting what the political scientist Lindsay Rogers identified at war’s end as a history of “presidential dictatorship.”
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With Franklin Roosevelt invoking the prospect of wartime powers, the
New York Times
ran a banner headline that prophesied what Roosevelt would do: W
ILL
A
SK
W
AR
-T
IME
P
OWERS
I
F
N
EEDED
. The paper’s chief political correspondent, James A. Hagerty,
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reported that “there seemed to be a general opinion that Congress would grant him this power if it should become necessary,” and observed that this proposal had been greeted favorably by members and leaders of Congress of both parties.
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To be sure, as the historian Frank Freidel has commented, the inaugural’s “strong words . . . bespoke no intent on the part of Roosevelt to assume the role of a Mussolini or Hitler,”
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but his claim to embody a singular popular will, coupled to his suggestion that the legislative branch might be surpassed or displaced, did seem to announce a willingness to convene an emergency and extraconstitutional government that would dodge the federal government’s traditional separation of powers. At this opening moment of the New Deal, even the president was intimating that American liberal democracy, with Congress at its center, might falter, or at least require a substantial, if only provisional, modification to the distinction between legislative and executive power.
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As the New Deal’s early months unfolded, many, including Roosevelt supporters, thought that Lippmann’s arguments had won the day. Writing for the
New York Times
at the start of May, the superb, rare woman journalist Anne O’Hare McCormick described “the atmosphere” in Washington as “strangely reminiscent of Rome in the first weeks after the march of the Blackshirts, or Moscow at the beginning of the Five Year Plan.” The American people, she observed, “trust the discretion of the President more than they trust Congress.” Rather than a seizure of power of the kind that had brought the Bolsheviks or the Italian Fascists to power, the New Deal, she reported, rested on mass popular consent that “vests the president with the authority of a dictator. The authority is a free gift, a sort of unanimous power of attorney. . . . all the other powers—industry, commerce, finance, labor, farmer and householder, State and city—virtually abdicate in his favor. America today literally asks for orders. . . . Nobody is much disturbed by the idea of dictatorship.”
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Looking back on those months from the vantage of Harry Truman’s presidency, the political scientist Clinton Rossiter recalled how Roosevelt had launched “an unvarnished crisis government” that shifted many powers from Congress to the White House. The run on the banks the very day of his address put the private banking structure of the country at risk, threatening an even greater economic catastrophe. Two days later, referring to the national emergency, the president proclaimed a bank holiday, stopped transactions in foreign exchange, and forbade the exporting of silver and gold, all without explicit congressional authorization, basing his authority on the dubious claim that it was sanctioned by the Trading with the Enemy Act of 1917, which had long been considered defunct in peacetime. Only three days later, with the Emergency Banking Act, did the House and Senate ratify what he had done.
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In all, the emergency legislation that Congress enacted in the administration’s Hundred Days was marked by three unprecedented features. First, it was almost entirely drafted, in detail, by the executive branch. The Emergency Banking Act, the Economy Act, and the Unemployment Relief Act of March; the Agricultural Adjustment Act, the Emergency Farm Mortgage Act, and the Federal Emergency Relief Act of May; and the Home Owners Loan Act, the Farm Credit Act, the Emergency Railroad Transportation Act, and the National Industrial Recovery Act of June were passed virtually unchanged from the texts the president had sent to the Hill. In this sense, the president seemed more like a prime minister than a traditional American president.
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Second, while the form of lawmaking was preserved, and no formal institutional rules were violated, the legislative process was pushed forward in a highly abbreviated way. Debate was cut short, limited for the eleven most significant statutes to under four hours. Amendments from the floor were barred unless they had been approved by a congressional committee.
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Third, these measures were characterized by immense powers delegated from the legislature to the executive branch that dramatically expanded the powers of federal agencies, many of which were new. To be sure, this assignment of authority stopped well short of the German Enabling Act. The president and his cabinet did not issue or make laws, but the presidency, as we will see when we consider this era’s radical moment, did gain extraordinary discretion under very broad and often not very well-specified emergency legislation.
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Notwithstanding these features of the early months of the New Deal, it would be a mistake to conclude that Walter Lippmann won the argument. This initial phase proved ephemeral, and the manner in which lawmaking proceeded soon largely returned to preemergency conditions. To be sure, delegation by Congress to the president and the executive branch and a greatly extended public administration became enduring features of the federal government.
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These changes, which rapidly advanced in the opening months of the New Deal, did have long-term implications for the content and form of the country’s democracy. But crucially, Congress not only reasserted its lawmaking prerogatives; it also developed enhanced means to control the growing administrative system of the federal government, at least in domestic affairs.