During the nineteenth century, both the US Senate and the President were indirectly elected by the member states. Only the House of Representatives was directly elected by the voters. Broadly speaking, the situation resembled the current set-up in the EU – where the directly elected members of the European parliament are “checked and balanced” by a series of Continental institutions controlled by the member states.
It is a mistake, for example, to suppose that the charismatic leader of the American anti-slavery movement during the Civil War was Abraham Lincoln. To the contrary, he was only transformed into a sainted hero after his tragic assassination. During the country’s four years of bloody battle, it was Thaddeus Stevens, the leader of the House of Representatives, who was the great egalitarian champion of black liberation. (Take a look at volume 2 of We the People for details.).
The very idea that Presidents could legitimately claim “mandates from the People” emerged only gradually during the first third of the twentieth century –with the ascent of Theodore Roosevelt and Woodrow Wilson to the White House. But it was only Franklin Roosevelt who consolidated this principles by vindicating his “mandate” through four sweeping victories at the polls from 1932 through 1944. This set the stage for later presidents to claim similar “mandates” in the post-War era. It is this transformation which permits me, in Revolutionary Constitutions, to compare the attempts by charismatic Presidents to revolutionize American government with similar efforts by Nehru or Mandela or De Gaulle or Walesa, among others.
How do you see the role of the judiciary?
In most of my the studies in Revolutionary Constitutions, the judiciary only begins to play a decisive role after the original charismatic leader has left the scene, and victorious movement-activists begin to lose their political energy now that the old regime has been successfully overthrown. As the nation returns to “normal politics,” its highest court has often taken on the task of defending the constitutional principles that were inscribed into the new constitution initially affirmed under the auspices of leaders like De Gaulle or Nehru.
From this perspective, Roosevelt’s New Deal introduces a variation on this theme. Rather than calling on his followers to endorse an entirely new Constitution, as in 1787, or revolutionary amendments, as in the aftermath of the Civil War, Roosevelt provoked the “Court-packing crisis” of 1937 in response to a series of judicial decisions invalidating key New Deal statutes expressing his movement’s commitment to social democracy. When faced with this profound threat to its legitimacy, the conservatives on the Court reversed themselves, and quickly retired from the bench. This gave Roosevelt the opportunity to replace them with New Deal intellectuals like Felix Frankfurter, William O. Douglas and Robert H. Jackson.