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that something in the Constitution has compelled them

regretfully to thwart the will of the people.

In the face of such dissenting opinions, it is perfectly

clear that, as Chief Justice Hughes has said: “We are under

a Constitution but the Constitution is what the Judges say

it is.”

The Court, in addition to the proper use of its judicial

functions, has improperly set itself up as a third House of

the Congress—a super-legislature, as one of the Justices

has called it— reading into the Constitution words and

implications which are not there, and which were never

intended to be there.

We have, therefore, reached the point as a Nation

where we must take action to save the Constitution from

the Court and the Court from itself. We must find a way to

take an appeal from the Supreme Court to the Constitu-

tion itself. We want a Supreme Court which will do justice

under the Constitution—not over it. In our Courts we

want a government of laws and not of men.

I want—as all Americans want—an independent judi-

ciary as proposed by the framers of the Constitution. That

means a Supreme Court that will enforce the Constitution

as written—that will refuse to amend the Constitution by

the arbitrary exercise of judicial power—amendment, in

other words, by judicial say-so. It does not mean a judiciary

so independent that it can deny the existence of facts

which are universally recognized.

How then could we proceed to perform the mandate

given us? It was said in last year’s Democratic platform,

and here are the words, “If these problems cannot be

effectively solved within the Constitution, we shall seek

such clarifying amendment as will assure the power to

enact those laws, adequately to regulate commerce, pro-

tect public health and safety, and safeguard economic

security.” In other words, we said we would seek an

amendment only if every other possible means by legisla-

tion were to fail.

When I commenced to review the situation with the

problem squarely before me, I came by a process of elim-

ination to the conclusion that short of amendments the

only method which was clearly constitutional, and would at

the same time carry out other much needed reforms, was

to infuse new blood into all our Courts. We must have men

worthy and equipped to carry out impartial justice. But, at

the same time, we must have Judges who will bring to the

Courts a present-day sense of the Constitution—Judges

who will retain in the Courts the judicial functions of a

court, and reject the legislative powers which the Courts

have today assumed.

It is well for us to remember that in forty-five out of

the forty-eight States of the Union Judges are chosen not

for life but for a period of years. In many states Judges

must retire at the age of seventy. Congress has provided

financial security by offering life pensions at full pay for

Federal Judges on all Courts who are willing to retire at

seventy. In the case of Supreme Court Justices that pen-

sion is $20,000. a year. But all Federal Judges, once

appointed, can, if they choose, hold office for life, no mat-

ter how old they may get to be.

What is my proposal? It is simply this: Whenever a

Judge or Justice of any Federal Court has reached the age

of seventy and does not avail himself of the opportunity to

retire on a pension, a new member shall be appointed by

the President then in office, with the approval, as required

by the Constitution, of the Senate of the United States.

That plan has two chief purposes. By bringing into the

Judicial system a steady and continuing stream of new and

younger blood, I hope, first, to make the administration of

all Federal justice, from the bottom to the top, speedier

and, therefore, less costly; secondly, to bring to the deci-

sion of social and economic problems younger men who

have had personal experience and contact with modern

facts and circumstances under which average men have to

live and work. This plan will save our national Constitution

from hardening of the judicial arteries.

The number of Judges to be appointed would depend

wholly on the decision of present Judges now over seventy,

or those who would subsequently reach the age of seventy.

If, for instance, any one of the six Justices of the

Supreme Court now over the age of seventy should retire

as provided under the plan, no additional place would be

created. Consequently, although there never can be more

than fifteen, there may be only fourteen, or thirteen, or

twelve. And there may be only nine.

There is nothing novel or radical about this idea. It

seeks to maintain the Federal bench in full vigor. It has

been discussed and approved by many persons of high

authority ever since a similar proposal passed the House of

Representatives in 1869.

Why was the age fixed at seventy? Because the laws of

many states, and the practice of the Civil Service, the reg-

ulations of the Army and Navy, and the rules of many of

our universities and of almost every great private business

enterprise, commonly fix the retirement age at seventy

years or less.

The statute would apply to all the Courts in the Fed-

eral system. There is general approval so far as the lower

Federal courts are concerned. The plan has met opposi-

tion only so far as the Supreme Court of the United States

itself is concerned. But, my friends, if such a plan is good

for the lower courts it certainly ought to be equally good

for the highest Court from which there is no appeal.

Those opposing this plan have sought to arouse pre-

judice and fear by crying that I am seeking to “pack”

the Supreme Court and that a baneful precedent will be

established.

1392 ERA 8: The Great Depression and World War II

What do they mean by the words “packing the Su-

preme Court”?

Let me answer this question with a bluntness that will

end all honest misunderstanding of my purposes.

If by that phrase “packing the Court” it is charged that

I wish to place on the bench spineless puppets who would

disregard the law and would decide specific cases as I

wished them to be decided, I make this answer—that no

President fit for his office would appoint, and no Senate of

honorable men fit for their office would confirm, that kind

of appointees to the Supreme Court.

But if by that phrase the charge is made that I would

appoint and the Senate would confirm Justices worthy to

sit beside present members of the Court who understand

modern conditions—that I will appoint Justices who will

not undertake to override the judgment of the Congress on

legislative policy—that I will appoint Justices who will act

as Justices and not as legislators—if the appointment of

such Justices can be called “packing the Court,” then I say

that I, and with me the vast majority of the American peo-

ple, favor doing just that thing—now.

Is it a dangerous precedent for the Congress to change

the number of the Justices? The Congress has always had,

and will have, that power. The number of Justices has been

changed several times before—in the Administrations of

John Adams and Thomas Jefferson—both of them signers

of the Declaration of Independence—in the Administra-

tions of Andrew Jackson, Abraham Lincoln and Ulysses S.

Grant.

I suggest only the addition of Justices to the bench in

accordance with a clearly defined principle relating to a

clearly defined age limit. Fundamentally, if in the future,

America cannot trust the Congress it elects to refrain from

abuse of our Constitutional usages, democracy will have

failed far beyond the importance to democracy of any kind

of precedent concerning the Judiciary.

We think it so much in the public interest to maintain

a vigorous judiciary that we encourage the retirement of

elderly Judges by offering them a life pension at full salary.

Why then should we leave the fulfillment of this public

policy to chance or make it dependent upon the desire or

prejudice of any individual Justice?

It is the clear intention of our public policy to provide

for a constant flow of new and younger blood into the Judi-

ciary. Normally every President appoints a large number of

District and Circuit Judges and a few members of the

Supreme Court. Until my first term practically every Pres-

ident of the United States in our history had appointed at

least one member of the Supreme Court. President

Taft appointed five members and named a Chief Justice—

President Wilson three—President Harding four including

a Chief Justice—President Coolidge one—President

Hoover three including a Chief Justice.

Such a succession of appointments should have pro-

vided a Court well-balanced as to age. But chance and the

disinclination of individuals to leave the Supreme bench

have now given us a Court in which five Justices will be

over seventy-five years of age before next June and one

over seventy. Thus a sound public policy has been

defeated.

So, I now propose that we establish by law an assur-

ance against any such ill-balanced Court in the future. I

propose that hereafter, when a Judge reaches the age of

seventy, a new and younger Judge shall be added to the

Court automatically. In this way I propose to enforce a

sound public policy by law instead of leaving the composi-

tion of our Federal Courts, including the highest, to be

determined by chance or the personal decision of individ-

uals.

If such a law as I propose is regarded as establishing a

new precedent—is it not a most desirable precedent?

Like all lawyers, like all Americans, I regret the neces-

sity of this controversy. But the welfare of the United

States, and indeed of the Constitution itself, is what we all

must think about first. Our difficulty with the Court today

rises not from the Court as an institution but from human

beings within it. But we cannot yield our constitutional

destiny to the personal judgment of a few men who, being

fearful of the future, would deny us the necessary means

of dealing with the present.

This plan of mine is no attack on the Court; it seeks to

restore the Court to its rightful and historic place in our

system of Constitutional Government and to have it

resume its high task of building anew on the Constitution

“a system of living law.” The Court itself can best undo

what the Court has done . . .

Source:

Franklin D. Roosevelt, The Public Papers and Addresses of

Franklin D. Roosevelt. New York: Random House,

1938–1950.

Bankhead-Jones Farm Tenant Act, 1937

U.S. legislation sponsored by Senator John Hollis Bankhead II

of Alabama and Representative John M. Jones of Texas and

enacted on July 22, 1937, to stop the decline in farm owner-

ship and to check the growth of tenant farming and share-

cropping. This federal act established the Farm Security

Administration (FSA) and authorized it to grant low-interest,

long-term loans to farm tenants, sharecroppers, and farm

workers who wished to purchase their own farms. It encour-

aged the retirement of worn-out land and provided rehabilita-

tion loans, educational assistance, and technical aid. The FSA

also regulated the wages and hours of migrant workers and

The New Deal 1393

provided them with sanitary medical facilities. As part of its

work, FSA sent photographers around the country to docu-

ment the plight of farm workers. Their pictures influenced con-

temporary public opinion and endure in books and exhibits as

a graphic reminder of the Great Depression.

________________________

_______________________

An Act

To create the Farmers’ Home Corporation, to promote

more secure occupancy of farms and farm homes, to cor-

rect the economic instability resulting from some present

forms of farm tenancy, and for other purposes.

Be it enacted by the Senate and House of Represen-

tatives of the United States of America in Congress assem-

bled, That this Act may be cited as “The Bankhead-Jones

Farm Tenant Act.”

Title I—Farm Tenant Provisions

Power of Secretary

Section 1. (a) The Secretary of Agriculture (here-

inafter referred to as the “Secretary”) is authorized to

make loans in the United States and in the Territories of

Alaska and Hawaii and in Puerto Rico to persons eligible

to receive the benefits of this title to enable such persons

to acquire farms.

(b) Only farm tenants, farm laborers, sharecroppers,

and other individuals who obtain, or who recently

obtained, the major portion of their income from farming

operations shall be eligible to receive the benefits of this

title. In making available the benefits of this title, the Sec-

retary shall give preference to persons who are married,

or who have dependent families, or, wherever practicable,

to persons who are able to make an initial down payment,

or who are owners of livestock and farm implements nec-

essary successfully to carry on farming operations. No

person shall be eligible who is not a citizen of the United

States.

farm unless it is of such size as the Secretary determines to

be sufficient to constitute an efficient farm-management

unit and to enable a diligent farm family to carry on suc-

cessful farming of a type which the Secretary deems can be

successfully carried on in the locality in which the farm is

situated.

County Committees and Loans

Sec. 2. (a) The County Committee. . .shall—

(1) Examine applications (filed with the county agent

in the county, or with such other person as the Secretary

may designate) of persons desiring to finance the acquisi-

tion of farms in the county by means of a loan from the

Secretary under this title.

(2) Examine and appraise farms in the county with

respect to which an application for a loan is made.

(b) If the committee finds that an applicant is eligible

to receive the benefits of this title, that by reason of his

character, ability, and experience he is likely successfully

to carry out undertakings required of him under a loan

which may be made under this title, and that the farm

with respect to which the application is made is of such

character that there is a reasonable likelihood that the

making of a loan with respect thereto will carry out the

purposes of this title, it shall so certify to the Secretary.

The committee shall also certify to the Secretary the

amount which the committee finds is the reasonable value

of the farm.

with respect to any farm in which any member of the com-

mittee or any person related to such member within the

third degree of consanguinity or affinity has any property

interest, direct or indirect, or in which they or either of

them have had such interest within one year prior to the

date of certification.

(d) No loan shall be made to any person or with

respect to any farm unless certification as required under

this section has been made with respect to such person and

such farm by the committee.

Terms of Loans

Sec. 3. (a) Loans made under this title shall be in such

amount (not in excess of the amount certified by the

County Committee to be the value of the farm) as may be

necessary to enable the borrower to acquire the farm and

for necessary repairs and improvements thereon, and shall

be secured by a first mortgage or deed of trust on the farm.

(b) The instruments under which the loan is made and

security given therefor shall—

(1) Provide for the repayment of the loan within an

agreed period of not more than forty years from the mak-

ing of the loan.

(2) Provide for the payment of interest on the unpaid

balance of the loan at the rate of 3 per centum per annum.

* * *

(5) Provide that the borrower shall pay taxes and

assessments on the farm to the proper authorities, and

insure and pay for insurance on farm buildings.

(6) Provide that upon the borrower’s assigning, selling,

or otherwise transferring the farm, or any interest therein,

without the consent of the Secretary, or upon default in the

performance of, or upon any failure to comply with, any

covenant or condition contained in such instruments, or

upon involuntary transfer or sale, the Secretary may

declare the amount unpaid immediately due and payable,

and that, without the consent of the Secretary, no final pay-

ment shall be accepted, or release of the Secretary’s inter-

est be made, less than five years after the making of the

loan.

1394 ERA 8: The Great Depression and World War II

* * *

Avoidance of Production Expansion

Sec. 5. In carrying out this title, the Secretary shall

give due consideration to the desirability of avoiding the

expansion of production for market for basic commodities

where such expansion would defeat the policy of Congress

. . . and shall, so far as practicable, assist beneficiaries of

the program under this title to become established upon

lands now in cultivation.

Appropriation

Sec. 6. To carry out the provisions of this title, there is

authorized to be appropriated not to exceed $10,000,000

for the fiscal year ending June 30, 1938, not to exceed

$25,000,000 for the fiscal year ending June 30, 1939, and

not exceed $50,000,000 for each fiscal year thereafter. Not

more than 5 per centum of the sums appropriated for any

fiscal year in pursuance of this section shall be available for

administrative expenses in carrying out this title during

such fiscal year.

Title II—Rehabilitation Loans

Borrowers and Terms

Sec. 21. (a) Out of the funds made available under sec-

tion 23, the Secretary shall have power to make loans to

eligible individuals for the purchase of livestock, farm

equipment, supplies, and for other farm needs (including

minor improvements and minor repairs to real property),

and for the refinancing of indebtedness, and for family

subsistence.

(b) Loans made under this section shall bear interest

at a rate not in excess of 3 per centum per annum, and shall

have maturities not in excess of five years, and may be

renewed. . . .

sharecroppers, and other individuals who obtain, or who

recently obtained, the major portion of their income from

farming operations, and who cannot obtain credit on rea-

sonable terms from any federally incorporated lending

institution, shall be eligible for loans under this section.

Debt Adjustment

Sec. 22. The Secretary shall have power to assist in the

voluntary adjustment of indebtedness between farm

debtors and their creditors and may cooperate with any

pay the whole or part of the expenses of State, Territorial,

and local agencies and committees engaged in such debt

adjustment. He is also authorized to continue and carry

out undertakings with respect to farm debt adjustment

uncompleted at the time when appropriations for the pur-

pose of this section are first available. Services finished by

the Secretary under this section shall be without charge to

the debtor or creditor.

Appropriation

* * *

(b) The President is authorized to allot to the Secre-

tary, out of appropriations made for relief or work relief

for any fiscal year ending prior to July 1, 1939, such sums

as he determines to be necessary to carry out the provi-

sions of this title and to enable the Secretary to carry out

such other forms and rehabilitation of individuals eligible

under this title to receive loans as may be authorized by

law and designated in the Executive order directing the

allotment.

Title III—Retirement of Submarginal Land

Program

Sec. 31. The Secretary is authorized and directed to

develop a program of land conservation and land utiliza-

tion, including the retirement of lands which are sub-

marginal or not primarily suitable for cultivation, in order

thereby to correct maladjustments in land use, and thus

assist in controlling soil erosion, reforestation, preserving

natural resources, mitigating floods, preventing impair-

ment of dams and reservoirs, conserving surface and sub-

surface moisture, protecting the watersheds of navigable

streams, and protecting the public lands, health, safety,

and welfare.

Powers under Land Program

Sec. 32. To effectuate the program provided for in sec-

tion 31, the Secretary is authorized—

(a) To acquire by purchase, gift, or devise, or by trans-

fer from any agency of the United States or from any State,

Territory, or political subdivision, submarginal land and

land not primarily suitable for cultivation, and interests in

and options on such land. . . .

(b) To protect, improve, develop, and administer any

property so acquired and to construct such structures

thereon as may be necessary to adapt it to its most benefi-

cial use.

with or without a consideration, any property so acquired,

under such terms and conditions as he deems will best

accomplish the purposes of this title, but any sale,

exchange, or grant shall be made only to public authorities

and agencies and only on condition that the property is

used for public purposes. The Secretary may recommend

to the President other Federal, State, or Territorial agen-

cies to administer such property, together with the condi-

tions of use and administration which will best serve the

purposes of a land-conservation and land-utilization pro-

gram, and the President is authorized to transfer such

property to such agencies.

(d) With respect to any land, or any interest therein,

acquired by, or transferred to, the Secretary for the

purposes of this title, to make dedications or grants, in

The New Deal 1395

his discretion, for any public purpose, and to grant

licenses and easements upon such terms as he deems rea-

sonable.

(e) To cooperate with Federal, State, Territorial, and

other public agencies in developing plans for a program of

land conservation and land utilization, to conduct surveys

and investigations relating to conditions and factors affect-

ing, and the methods of accomplishing most effectively,

the purposes of this title, and to disseminate information

concerning these activities.

(f) To make such rules and regulations as he deems

necessary to prevent trespasses and otherwise regulate the

use and occupancy of property acquired by, or transferred

to, the Secretary for the purposes of this title, in order to

conserve and utilize it or advance the purposes of this title.

Any violation of such rules and regulations shall be pun-

ished. . . .

* * *

Title IV—General Provisions

Farmer’s Home Corporation

Sec. 40. (a) There is hereby created as an agency, of

and within the Department of Agriculture, a body corpo-

rate with the name “Farmers’ Home Corporation” (in this

Act called the Corporation).The principal office of the

Corporation shall be located in the District of Columbia,

but there may be established agencies or branch offices

elsewhere in the United States under rules and regulations

prescribed by the Board of Directors.

(b) The Secretary shall have power to delegate to the

Corporation such powers and duties conferred upon him

under title I or title II, or both, and such powers under

title IV as relate to the exercise of the powers and duties

so delegated, as he deems may be necessary to the effi-

cient carrying out of the purposes of such titles and may

be executed by the Corporation, and to transfer to the

Corporation such funds available for such purposes as

he deems necessary. In connection with and in the exer-

cise of such powers and duties so delegated, all provi-

sions of this Act relating to the powers and duties of,

and limitations upon, the Secretary shall apply to the

Corporation in the same manner as to the Secretary,

and the term “Secretary” shall be construed to include

“Corporation”.

in an amount determined and subscribed for by the Secre-

tary. Receipts for payments for or on account of such stock

shall be issued by the Corporation to the Secretary and

shall be evidence of the stock ownership of the United

States.

(d) The management of the Corporation shall be

vested in a board of directors (in this Act called the

Board) subject to the general supervision of the Secre-

tary. The Board shall consist of three persons employed

in the Department of Agriculture who shall be desig-

nated by the Secretary. Vacancies in the Board, so long as

there are two members in office, shall not impair the

powers of the Board to execute its functions and two of

the members in office shall constitute a quorum for the

transaction of business. The directors, appointed as here-

inbefore provided, shall receive no additional compensa-

tion for their services as such directors but may be

allowed travel and subsistence expenses when engaged in

business of the Corporation outside of the District of

Columbia.

* * *

(f) The Corporation—

* * *

(3) May sue and be sued in its corporate name in any

court of a competent jurisdiction, State or Federal: Pro-

vided , That the prosecution and defense of all litigation

to which the Corporation may be a party shall be con-

ducted under the supervision of the Attorney General,

and the Corporation shall be represented by the United

States Attorneys for the districts, respectively, in which

such litigation may arise, or by such other attorney or

attorneys as may, under the law, be designated by the

Attorney General: And provided further, That no attach-

ment, injunction, garnishment, or other similar process,

mesne or final, shall be issued against the Corporation or

its property;

(4) May adopt, amend, and repeal bylaws, rules, and

regulations governing the manner in which its business

may be conducted and the powers vested in it may be exer-

cised and enjoyed;

* * *

(6) Shall have such powers as may be necessary or

appropriate for the exercise of the powers vested in the

Corporation (including, but subject to the limitations of

this Act, the power to make contracts, and to purchase or

lease, and to hold or dispose of, such real and personal

property as it deems necessary) and all such incidental

powers as are customary in corporations generally. The

Board shall define the authority and duties of the officers

and employees of the Corporation, delegate to them such

of the powers vested in the Corporation as it may deter-

mine, and require bonds of such of them as it may desig-

nate and fix the penalties and pay the premiums of such

bonds.

* * *

1396 ERA 8: The Great Depression and World War II

County Committee

Sec. 42. (a) The Secretary is authorized and directed

to appoint in each county in which activities are carried on

under title I a county committee composed of three farm-

ers residing in the county.

* * *

agent in the county, or on the call of such other person as

the Secretary may designate.

* * *

Surveys and Research

Sec. 47. The Secretary is authorized to conduct sur-

veys, investigations, and research relating to the conditions

and factors affecting, and the methods of accomplishing

most effectively, the purposes of this Act, and may publish

and disseminate information pertinent to the various

aspects of his activities.

* * *

Separability

Sec. 55. If any provision of this Act, or the application

thereof to any person or circumstances, is held invalid, the

remainder of the Act, and the application of such provi-

sions to other persons or circumstances, shall not be

affected thereby.

Approved, July 22, 1937.

Source:

Statutes at Large, Vol. 49, pp. 522–533.

Fair Labor Standards Act, 1938

Federal U.S. legislation enacted on June 25, 1938, that estab-

lished a minimum wage of 25 cents per hour (to be increased

gradually to 40 cents) and a maximum work week of 44 hours

(to be reduced gradually to 40 hours), with time and a half for

overtime. It also prohibited labor by children under age 16,

and protected children under 18 from hazardous occupations.

The act applied only to businesses engaged in interstate com-

merce and exempted such occupations as farm, domestic, and

professional workers and fishermen. The constitutionality of

the act was upheld in

United States v. Darby Lumber Com-

pany

(312 U.S. 100 [1941]). The act has been amended many

times to raise the minimum wage and extend coverage to

more workers.

________________________

_______________________

(excerpt)

An Act

To provide for the establishment of fair labor standards in

employments in and affecting interstate commerce, and for

other purposes.

Be it enacted by the Senate and House of Representa-

tives of the United States of America in Congress assem-

bled , That this Act may be cited as the “Fair Labor

Standards Act of 1938.”

Finding and Declaration of Policy

Sec. 2. (a) The Congress hereby finds that the exis-

tence, in industries engaged in commerce or in the pro-

duction of goods for commerce, of labor conditions

detrimental to the maintenance of the minimum stan-

dard of living necessary for health, efficiency, and general

well-being of workers (1) causes commerce and the

channels and instrumentalities of commerce to be used

to spread and perpetuate such labor conditions among

the workers of the several States; (2) burdens commerce

and the free flow of goods in commerce; (3) constitutes

an unfair method of competition in commerce; (4) leads

to labor disputes burdening and obstructing commerce

and the free flow of goods in commerce; and (5) in-

terferes with the orderly and fair marketing of goods in

commerce.

(b) It is hereby declared to be the policy of this Act,

through the exercise by Congress of its power to regulate

commerce among the several States, to correct and as

rapidly as practicable to eliminate the conditions above

referred to in such industries without substantially curtail-

ing employment or earning power . . .

Minimum Wages

Sec. 6. (a) Every employer shall pay to each of his employ-

ees who is engaged in commerce or in the production of

goods for commerce wages at the following rates—

(1) during the first year from the effective date of this

section, not less than 25 cents an hour,

(2) during the next six years from such date, not less

than 30 cents an hour,

(3) after the expiration of seven years from such date,

not less than 40 cents an hour, or the rate (not less than 30

cents an hour) prescribed in the applicable order of the

Administrator issued under section 8, whichever is lower,

and

(4) at any time after the effective date of this section,

not less than the rate (not in excess of 40 cents an hour)

prescribed in the applicable order of the Administrator

issued under section 8.

(b) This section shall take effect upon the expiration of

one hundred and twenty days from the date of enactment

of this Act.

The New Deal 1397

1398 ERA 8: The Great Depression and World War II

Maximum Hours

Sec. 7. (a) No employer shall, except as otherwise provided

in this section, employ any of his employees who is

engaged in commerce or in the production of goods for

commerce—

(1) for a workweek longer than forty-four hours during

the first year from the effective date of this section,

(2) for a workweek longer than forty-two hours during

the second year from such date, or

(3) for a workweek longer than forty hours after the

expiration of the second year from such date, unless such

employee receives compensation for his employment in

excess of the hours above specified at a rate not less than

one and one-half times the regular rate at which he is

employed.

(b) No employer shall be deemed to have violated

subsection (a) by employing any employee for a workweek

in excess of that specified in such subsection without pay-

ing the compensation for overtime employment pre-

scribed therein if such employee is so employed—

(1) in pursuance of an agreement, made as a result of

collective bargaining by representatives of employees cer-

tified as bona fide by the National Labor Relations Board,

which provides that no employee shall be employed more

than one thousand hours during any period of twenty-six

consecutive weeks.

(2) on an annual basis in pursuance of an agreement

with his employer, made as a result of collective bargaining

by representatives of employees certified as bona fide by

the National Labor Relations Board, which provides that

the employee shall not be employed more than two thou-

sand hours during any period of fifty-two consecutive

weeks, or

(3) for a period or periods of not more than fourteen

workweeks in the aggregate in any calendar year in an

industry found by the Administrator to be of a seasonal

nature, and if such employee receives compensation for

employment in excess of 12 hours in any workday, or for

employment in excess of 56 hours in any workweek, as the

case may be, at a rate not less than one and one-half times

the regular at which he is employed.

cessing of milk, whey, skimmed milk, or cream into dairy

products, or in the ginning and compressing of cotton, or

in the processing of cottonseed, or in the processing of

sugar beets, sugar beet molasses, sugarcane, or maple sap,

into sugar (but not refined sugar) or into syrup, the provi-

sions of subsection (a) shall not apply to his employees in

any place of employment where he is so engaged; and in

the case of an employer engaged in the first processing of,

or in canning or packing, perishable or seasonal fresh fruits

or vegetables, or in the first processing, within the area of

production (as defined by the Administrator), of any agri-

cultural or horticultural commodity during seasonal oper-

ations, or in handling, slaughtering, or dressing poultry or

livestock, the provisions of subsection (a), during a period

or periods of not more than fourteen workweeks in the

aggregate in any calendar year, shall not apply to his

employees in any place of employment where he is so

engaged.

(d) This section shall take effect upon the expiration of

one hundred and twenty days from the date of enactment

of this Act.

Source:

Statutes at Large, Vol. 49, pp. 1,060–1,069.

Between the Wars

Stimson Doctrine, 1931

Doctrine of nonrecognition formulated by U.S. secretary of

state Henry L. Stimson in response to Japan’s invasion of Chi-

nese Manchuria in 1931. The noninterventionist Hoover

administration, while deploring Japan’s seizure of Manchuria,

was determined to keep the United States from direct involve-

ment in the Far East crisis, favoring a negotiated Japanese-

Chinese settlement. Faced with expanding Japanese aggres-

sion and the threat to U.S. interests in Asia it posed, Secretary

Stimson expounded the nonrecognition doctrine through a

pair of diplomatic notes sent to both China and Japan in Jan-

uary 1932. The notes stated that the United States would

refuse to recognize any territorial gains or other privileges

brought about by use of armed force in violation of interna-

tional law. The declaration of U.S. intentions carried no threat

of armed intervention and amounted basically to a moral

sanction against aggression.

________________________

_______________________

. . . The practice of this country as to the recognition of

new governments has been substantially uniform from

the days of the administration of Secretary of State

Jefferson in 1792 to the days of Secretary of State Bryan

in 1913. There were certain slight departures from this

policy during the Civil War, but they were manifestly due

to the exigencies of warfare and were abandoned imme-

diately afterward. This general policy, as thus observed,

was to base the act of recognition not upon the question

of the constitutional legitimacy of the new government

but upon its de facto capacity to fulfill its obligations as a

member of the family of nations. This country recognized

the right of other nations to regulate their own internal

affairs of government and disclaimed any attempt to base

its recognition upon the correctness of their constitu-

tional action.

Said Mr. Jefferson in 1792:

“We certainly cannot deny to other nations that prin-

ciple whereon our own government is founded, that every

nation has a right to govern itself internally under what

forms it pleases, and to change these forms at its own will;

and externally to transact business with other nations

through whatever organ it chooses, whether that be a king,

convention, assembly, committee, president, or whatever

it be.”

In these essentials our practice corresponded with the

practice of the other nations of the world.

The particular considerations upon which our action

was regularly based were well stated by Mr. Adee, long the

trusted Assistant Secretary of State of this government, as

follows:

“Ever since the American Revolution entrance upon

diplomatic intercourse with foreign States has been de

facto, dependent upon the existence of three conditions of

fact: the control of the administrative machinery of the

State; the general acquiescence of its people; and the abil-

ity and willingness of their government to discharge inter-

national and conventional obligations. The form of

government has not been a conditional factor in such

recognition; in other words, the de jure element of legiti-

macy of title has been left aside.”

With the advent of President Wilson’s administration

this policy of over a century was radically departed from in

respect to the Republic of Mexico, and, by a public decla-

ration on March 11, 1913, it was announced that—

“Cooperation (with our sister republics of Central and

South America) is possible only when supported at every

turn by the orderly processes of just government based

upon law, not upon arbitrary or irregular force.

“We hold, as I am sure that all thoughtful leaders of

republican government everywhere hold, that just govern-

ment rests always upon the consent of the governed, and

that there can be no freedom without order based upon

law and upon the public conscience and approval.

“We shall look to make these principles the basis, of

mutual intercourse, respect and helpfulness between our

sister republics and ourselves.”

Mr. Wilson’s government sought to put this new pol-

icy into effect in respect to the recognition of the then

Government of Mexico held by President Victoriano

Huerta. Although Huerta’s government was in de facto

possession, Mr. Wilson refused to recognize it, and he

sought through the influence and pressure of his great

office, to force it from power. Armed conflict followed

with the forces of Mexico, and disturbed relations

between us and that republic lasted until a comparatively

few years ago.

In his sympathy for the development of free constitu-

tional institutions among the people of our Latin American

neighbors, Mr. Wilson did not differ from the feelings of

the great mass of his countrymen in the United States,

including Mr. Jefferson and Mr. Adams, whose statements

I have quoted; but he differed from the practice of his pre-

decessors in seeking actively to propagate these institu-

tions in a foreign country by the direct influence of this

government and to do this against the desire of the author-

ities and people of Mexico.

The present administration has declined to follow the

policy of Mr. Wilson and has followed consistently the for-

mer practice of this government since the days of Jeffer-

son.

As soon as it was reported to us, through our diplo-

matic representatives, that the new governments in

Bolivia, Peru, Argentina, Brazil and Panama were in con-

trol of the administrative machinery of the State, with the

apparent general acquiescence of their people, and that

they were willing and apparently able to discharge their

international and conventional obligations, they were rec-

ognized by our government.

And, in view of the economic depression, with the

consequent need for prompt measures of financial stabi-

lization, we did this with as little delay as possible in order

to give those sorely pressed countries the quickest possible

opportunities for recovering their economic poise…

Source:

New York Times, February 7, 1931.

Between the Wars 1399

1400 ERA 8: The Great Depression and World War II

Recognition of the Soviet Union, 1933

Notes exchanged in 1933 that established formal diplomatic

relations between the United States and the Soviet Union.

Following the Bolshevik victory in the 1917 Russian Revolu-

tion, U.S. presidents from Woodrow Wilson to Herbert

Hoover refused to recognize the Soviet communist govern-

ment, owing to its repudiation of former Russian debts, con-

fiscation of private property, and promotion of worldwide

communist revolution. The Roosevelt administration pursued

formal U.S.-Soviet ties as a cooperative front against Japanese

aggression in the Far East and as a step toward improved trade

relations, which would help boost an American economy

mired in the depression. On November 16, 1933, at Wash-

ington, D.C., President Franklin D. Roosevelt and Soviet for-

eign minister Maxim Litvinov concluded a series of notes

normalizing U.S.-Soviet relations. The Soviet Union pledged

to settle Russian debts, refrain from supporting subversive

activities in the United States, and protect the religious free-

dom of Americans in the USSR. Roosevelt faced harsh criti-

cism when Joseph Stalin’s Soviet regime failed to abide by the

1933 agreement.

________________________

_______________________

Franklin Roosevelt, Letter to Kalinin

Washington, October 10, 1993

My dear Mr. President:

Since the beginning of my administration, I have con-

templated the desirability of an effort to end the present

abnormal relations between the hundred and twenty-five

million people of the United States and the hundred and

sixty million people of Russia.

It is most regrettable that these great peoples,

between whom a happy tradition of friendship existed for

more than a century to their mutual advantage, should

now be without a practical method of communicating

directly with each other.

The difficulties that have created this anomalous situ-

ation are serious but not, in my opinion, insoluble; and dif-

ficulties between great nations can be removed only by

frank, friendly conversations. If you are of similar mind, I

should be glad to receive my representative you may des-

ignate to explore with me personally all questions out-

standing between our countries.

Participation in such a discussion would, of course, not

commit either nation to any future course of action, but

would indicate a sincere desire to reach a satisfactory solu-

tion of the problems involved. It is my hope that such con-

versations might result in good to the people of both our

countries.

I am, my dear Mr. President,

Very sincerely yours,

Franklin D. Roosevelt.

Mikhail Kalinin, Letter to President Franklin

Roosevelt

Moscow, October 17th, 1933.

My dear Mr. President:

I have received your message of October tenth.

I have always considered most abnormal and regret-

table a situation wherein, during the past sixteen years, two

great republics—the United States of America and the

Union of Soviet Socialist Republics—have lacked the usual

methods of communication and have been deprived of the

benefits which such communication could give. I am glad

to note that you also reached the same conclusion.

There is no doubt that difficulties, present or arising,

between two countries, can be solved only when direct

relations exist between them; and that, on the other hand,

they have no chance for solution in the absence of such

relations. I shall take the liberty further to express the

opinion that the abnormal situation, to which you correctly

refer in your message, has an unfavorable effect not only

on the interests of the two states concerned, but also on

the general international situation, increasing the element

of disquiet, complicating the process of consolidating

world peace and encouraging forces tending to disturb that

peace.

In accordance with the above, I gladly accept your

proposal to send to the United States a representative of

the Soviet Government to discuss with you the questions

of interest to our countries. The Soviet Government will

be represented by Mr. M. M. Litvinov, People’s Commis-

sar for Foreign Affairs, who will come to Washington at a

time to be mutually agreed upon.

I am, my dear Mr. President,

Very sincerely yours,

Mikhail Kalinin.

Source:

Franklin D. Roosevelt Library, President’s Secretary’s Files

(PSF), Box 48, Russia.

World War II at Home and Abroad 1401

Cantwell v. Connecticut, 1940

U.S. Supreme Court decision issued on May 20, 1940,

upholding the First Amendment right to the free exercise of

religion. Newton Cantwell, a Jehovah’s Witness, was con-

victed of a breach of the peace for publicly playing a record-

ing that attacked organized religion and for soliciting funds

without a state certificate. In its unanimous decision, the

Supreme Court ruled that Cantwell had a constitutional right

“peacefully to impart his views to others,” even when such

views were offensive to some citizens. The Court also ruled

that the First Amendment “embraces two concepts—freedom

to believe and freedom to act. The first is absolute but . . . the

second cannot be.” While the state has the right to regulate

conduct to preserve public peace and safety, it may not use

that right to censor a religion.

________________________

_______________________

Mr. Justice Roberts, delivered the opinion of the Court.

Newton Cantwell and his two sons, Jesse and Russell,

members of a group known as Jehovah’s witnesses, and

claiming to be ordained ministers, were arrested in New

Haven, Connecticut, and each was charged by informa-

tion in five counts, with statutory and common law

offenses. After trial in the Court of Common Pleas of New

Haven County each of them was convicted on the third

count, which charged a violation of Section 6294 of the

General Statutes of Connecticut, and on the fifth count,

which charged commission of the common law offense of

inciting a breach of the peace. On appeal to the Supreme

Court the conviction of all three on the third count was

affirmed. The conviction of Jesse Cantwell, on the fifth

count, was also affirmed, but the conviction of Newton

and Russell on that count was reversed and a new trial

ordered as to them.

By demurrers to the information, by requests for rul-

ings of law at the trial, and by their assignments of error in

the State Supreme Court, the appellants pressed the con-

tention that the statute under which the third count was

drawn was offensive to the due process clause of the Four-

teenth Amendment because, on its face and as construed

and applied, it denied them freedom of speech and pro-

hibited their free exercise of religion. In like manner they

made the point that they could not be found guilty on the

fifth count, without violation of the Amendment.

We have jurisdiction on appeal from the judgments on

the third count, as there was drawn in question the valid-

ity of a state statute under the federal Constitution, and

the decision was in favor of validity. Since the conviction

on the fifth count was not based upon a statute, but pre-

sents a substantial question under the federal Constitu-

tion, we granted the writ of certiorari in respect of it.

The facts adduced to sustain the convictions on the

third count follow. On the day of their arrest the appellants

were engaged in going singly from house to house on Cas-

sius Street in New Haven. They were individually

equipped with a bag containing books and pamphlets on

religious subjects, a portable phonograph and a set of

records, each of which, when played, introduced, and was

a description of, one of the books. Each appellant asked

the person who responded to his call for permission to play

one of the records. If permission was granted he asked the

person to buy the book described and, upon refusal, he

solicited such contribution towards the publication of the

pamphlets as the listener was willing to make. If a contri-

bution was received a pamphlet was delivered upon condi-

tion that it would be read.

Cassius Street is in a thickly populated neighborhood,

where about ninety per cent of the residents are Roman

Catholics. A phonograph record, describing a book enti-

tled “Enemies,” included an attack on the Catholic reli-

gion. None of the persons interviewed were members of

Jehovah’s witnesses.

The statute under which the appellants were charged

provides:

“No person shall solicit money, services, subscriptions

or any valuable thing for any alleged religious, charitable

or philanthropic cause, from other than a member of the

organization for whose benefit such person is soliciting or

within the county in which such person or organization is

located unless such cause shall have been approved by the

secretary of the public welfare council. Upon application

of any person in behalf of such cause, the secretary shall

determine whether such cause is a religious one or is a

bona fide object of charity or philanthropy and conforms

to reasonable standards of efficiency and integrity, and, if

he shall so find, shall approve the same and issue to the

authority in charge a certificate to that effect. Such certifi-

cate may be revoked at any time. Any person violating any

provision of this section shall be fined not more than one

hundred dollars or imprisoned not more than thirty days

or both.”

The appellants claimed that their activities were not

within the statute but consisted only of distribution of

World War II at Home and Abroad