‘Not a Lawyer’s Contract:’ Reflections on FDR’s Constitution Day Address

77 Pages Posted: 8 Aug 2022 Last revised: 9 Aug 2022

See all articles by Gerard N. Magliocca

Gerard N. Magliocca

Indiana University Robert H. McKinney School of Law

Date Written: July 26, 2022

Abstract

This Article provides a comprehensive analysis of President Franklin D. Roosevelt's Constitution Day Address, which marked the 150th anniversary of the close of the Constitutional Convention. FDR's remarks speak directly to the problem of "democratic backsliding," in that he explained his constitutional views by reference to the rise of fascism and communism after World War I. From these democratic failures, the President drew the lesson that liberal constitutions could not last without broadly shared prosperity and argued that our Constitution must be read in that spirit.

The most radical aspect of the Constitution Day Address was its dismissal of the rule of law for constitutional success. Roosevelt never used the phrase “rule of law” in any official statement, and in his version of history lawyers were the problem, not the solution, because they opposed efforts to use federal and state power to regulate property and improve quality of life. A more modest take along these lines was offered a few years later in Judge Learned Hand’s “Spirit of Liberty” speech, which declared that neither constitutions nor courts could save liberty from the indifference of average citizens. Even if FDR’s challenge to “legalistic interpretation” overstates the case against the role of law in preserving democracy, his perspective (and Hand’s) deserves serious consideration in a world where democracy is again under siege.

Suggested Citation

Magliocca, Gerard N., ‘Not a Lawyer’s Contract:’ Reflections on FDR’s Constitution Day Address (July 26, 2022). Available at SSRN: https://ssrn.com/abstract=4173201 or http://dx.doi.org/10.2139/ssrn.4173201

Gerard N. Magliocca (Contact Author)

Indiana University Robert H. McKinney School of Law ( email )

530 West New York Street
Indianapolis, IN 46202
United States
317-278-4792 (Phone)

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