The following is an excerpt from Garland S. Tucker III’s new book, Conservative Heroes: Fourteen Leaders Who Shaped America, from Jefferson to Reagan, which is available for 30% off as ISI’s Book of the Month.
During his first term, President Franklin D. Roosevelt grew frustrated over the Supreme Court’s rulings that found New Deal legislation unconstitutional. Flushed with his great 1936 electoral victory, in which he took 523 of a possible 531 electoral votes, he recognized an opportunity to keep the courts from thwarting the popular will (as he saw it). In February 1937 he proposed what came to be known as his “court-packing” scheme. Under the flimsiest of pretenses, Roosevelt would expand the court from nine justices to fifteen.
This presidential proposal did more to galvanize conservative opposition to the New Deal than any other single event. And the man who did more than anyone else to rally the congressional opposition was a member of Roosevelt’s own party: Senator Josiah W. Bailey of North Carolina.
FDR’s “Attack on the Court”
Like many other Democrats who had served enthusiastically under the progressive Woodrow Wilson, Josiah Bailey became increasingly conservative later in his career. It was not so much a conversion to conservatism as a gradual realization that Wilson’s progressivism had begun to undermine basic Jeffersonian principles—limited government, strict constructionism, individual liberty, and economy in government. As early as 1931, Bailey foresaw the damage that government activism could do: “The danger in such a situation is that ill-informed and inconsiderate men will get into the leadership and bring to pass measures that will not only not accomplish the purpose desired, but will actually do lasting injury to all of us.”
By the time the FDR rolled out his New Deal, Bailey saw battle lines forming between “the bureaucrats in Washington and the representatives of the people in Congress.” True to his character, he responded defiantly: “I shall go straight forward for economy, regardless of this stimulated propaganda proceeding out of the bureaus at Washington for the purpose of frightening our people, and thereby bringing pressure on me.”
A legal scholar, Bailey reacted with genuine outrage to FDR’s court-packing scheme in 1937. On February 10 the New York Times quoted him as saying: “I am opposed to any attempt whatever to enlarge the number of justices. The judicial department has always been and must always be absolutely independent of the legislative and executive departments. Governments exist upon popular confidence, and confidence in the courts is fundamental.”
On February 13 Bailey delivered a powerful attack on the court proposal over national radio. In what Senator Harry Byrd would later call “one of the classics of American oratory,” Bailey systematically dismissed FDR’s reasons for the proposal and concluded with the stern warning that the Supreme Court and the Constitution are inseparably linked, and that “to weaken either is to weaken the foundations of our Republic; to destroy either is to destroy the Republic.”
After the Senate Judiciary Committee, by a 10–8 vote, rejected FDR’s bill as unconstitutional, Senate Majority Leader Joseph Robinson brought an amended version of the bill to the floor on July 6 with a rousing speech demanding party loyalty.
Bailey found the amended bill to be as unconstitutional as the original and led the floor fight against it. When Bailey rose on the Senate floor to respond to Robinson, the chamber fell silent; in Robinson’s own words, “That rare thing, a successful and convincing argument, was being made on the Senate floor.” Recognizing that the tide had turned, Robinson left the Senate chamber in the midst of Bailey’s speech to telephone the attorney general: “Bailey’s in there and he’s making a great speech. . . . He’s impressing a lot of people, and I tell you I’m worried.” Bailey’s speech secured the necessary votes to defeat the bill. Roosevelt was forced to abandon court reform.
“The Conservative Manifesto”
Despite Congress’s willingness to enact Roosevelt’s far-reaching, free-spending economic policies from 1932 to 1936, the economic recovery remained weak. Then, in mid-1937, the economy dipped back into recession. Suddenly the press was filled with talk of the “Roosevelt Recession.”
Throughout 1937, Bailey spoke out on the economic crisis. In a March speech that was broadcast nationally and reported in the New York Times, he warned of the dangers of “the unbalanced budget” and predicted a day of reckoning “when any government goes on spending for six years like yours and mine has without balancing the budget.” On November 2, in a speech to the Economic Council of Worcester, Massachusetts, Bailey said: “If President Roosevelt means business, he can balance the budget. If he does not do so, the United States is in for a period of inflation. If the people will let us, we can reduce government expenditures. The present rate is nine billion dollars; the government can be run on three billions.”
Already galvanized by the court-packing scheme, Bailey and other conservatives in the Senate recognized the need to build a bipartisan coalition to stand for limited-government ideals and resist New Deal activism. These Democrats, with support from a handful of conservative Republicans, formulated a document that came to be known as “The Conservative Manifesto.” Though often viewed as a historical footnote, this manifesto was an important milestone in the history of American conservatism—clearly articulating the importance of free enterprise, limited government, and separation of powers.
Bailey saw the manifesto as an opportunity to bring cohesion to the conservative opposition: “There must be a definite rallying ground. We must have an end of this business of one man denouncing regimentation, another denouncing Congress, another denouncing the President, another protesting the tariff, and so on. On the other hand, we must have a constructive policy upon which the American people may concentrate their support.”
As Bailey and his colleagues began to seek signatures from fellow senators, the strict confidentiality the group had sworn to was broken. Republican Charles McNary, the Senate minority leader, leaked the plan to the press. On December 16 the New York Times broke the story with a front-page article.
What had originally been termed “An Address to the People of the United States” soon became known as “The Conservative Manifesto.” Its tone was well-reasoned, reflecting Bailey’s authorship. Though not explicitly anti-Roosevelt, it was stoutly conservative and aimed at appealing to a wide range of conservative senators.
The manifesto’s preface addressed concerns over the recession and the need to abandon deficit spending and reaffirm basic free-market principles. The statement called for reliance on “liberal investment of private savings as a means of employment” rather than continued increases in public spending. “It ought to be borne in mind that private enterprise, properly fostered, carries the indispensable element of vigor.”
The manifesto laid out ten points, or “paramount principles”:
- “The capital gains tax and the undistributed profits tax ought thoroughly to be revised at once. . . so as to free funds for investment.”
- Government spending must be reduced to achieve “a balanced national budget, and an end of those fears which deter investment.”
- The United States must bring an end to “coercion and violence in labor relations” and ensure “the constitutional guaranties of the rights of person and of property—the right of the worker to work, of the owner to possession, of every man to enjoy in peace the fruits of his labor.”
- “We oppose every government policy tending unnecessarily to compete with and discourage [private] enterprise.”
- “The value of investment, and the circulation of money, depends upon reasonable profit, not only to protect the investment and assure confidence, but also to provide increasing employment, and consumption of goods from farm and factory. We favor the competitive system as against either private or government monopoly.”
- “Credit depends upon security,” and so policies must safeguard “the collateral which is the basis of credit.”
- “There ought to be a reduction in the tax burden, and if this is impossible, firm assurance of no further increase to be given.”
- “Except where State and local control are proven definitely inadequate, we favor the vigorous maintenance of States right of home rule and local self-government. Otherwise we shall create more problems than we solve.”
- “The administration of relief [to the unemployed, poor, and suffering] ought to be non-political and non-partisan, and temporary,” as well as “economical,” so as to encourage “individual self-reliance” and maintain “the natural impulses of kinship and benevolence of local responsibility in county, city, and state.”
- “We propose to preserve and rely upon the American system of private enterprise and initiative, and our American form of government. It is not necessary to claim perfection for them. On the record they are far superior to and infinitely to be preferred to any other so far devised. They carry the priceless content of liberty and the dignity of man.”
The document concluded with these words: “Pledging ourselves to these principles, we summon our fellow citizens without regard to party to join with us in advancing them as the only hope of permanent recovery and further progress.”
On December 20 supporters as well as opponents filed into the chamber to hear Bailey speak on the matter. After reading the ten-point declaration, Bailey ended with this plea: “If there is a thing wrong in that statement, strike it out. If there is anything in it that offends you, condemn it. If you have a better paragraph, write it in. But, in God’s name, do not do nothing while America drifts down to the inevitable gulf of collectivism. . . . Give enterprise a chance, and I will give you the guarantee of a happy and prosperous America.”
By February 1938, more than two million copies of the manifesto had gone into circulation.
Bailey’s vision of a bipartisan conservative coalition seemed for a brief moment a real possibility. With congratulations flowing in, the North Carolina senator was optimistic that FDR would respond to popular support and move to the right. He wrote hopefully to a friend in late December, “I may say to you that there are good evidences that the President wishes to turn decidedly to the right.”
Hope soon faded, however. Even as Bailey was writing that letter, the White House had convened a group of stalwart New Deal supporters to suppress the “conservative uprising.” By early 1938 it had become clear that the early leak of the manifesto had eliminated any possibility of securing the forty-plus signatures Bailey had hoped for.
Josiah Bailey was ahead of his time in seeking a conservative coalition. Conservatives agreed that the ten-point manifesto accurately expressed their foundational principles. The document offered clear evidence of congressional independence and resistance to New Deal assaults on Jeffersonian government, and it produced an identifiable bipartisan conservative bloc totaling some thirty senators. That bloc was able to restrain or defeat much New Deal legislation in the years leading up to World War II.
In the postwar period, Senator Robert Taft provided the conservative leadership to form a powerful coalition of Republicans and southern Democrats that dominated Congress for more than two decades. The Conservative Manifesto of 1937 served as a rallying point for these conservatives, underlining the “paramount” importance of limited government, strict constructionism, separation of powers, and free enterprise.
Garland S. Tucker III is the author of the new book Conservative Heroes: Fourteen Leaders Who Shaped America, from Jefferson to Reagan (ISI Books), from which this article is excerpted.