1937 to 1938: FDR Starts to 'Pack the Court'Roosevelt failed in his famous effort to “pack the court” by expanding its size, partly because Chief Justice Charles Evans Hughes politically outmaneuvered him. However, FDR was able to achieve his ultimate goals by nominating replacements for retiring justices.
He didn’t nominate seasoned jurists. In fact, with one exception, none of his nominees had ever served full-time as a judge. Instead, he chose New Deal activists—including a few of undoubted talent—willing to sacrifice the Constitution for the sake of the liberal agenda.
The retirement of Willis Van Devanter in spring 1937 created the president’s first appointment opportunity. He chose then-Sen. Hugo Black (D-Ala.), presumably as a reward for Black’s support for the New Deal. The appointment certainly wasn't based on merit: Black’s only judicial experience was two years as a part-time city court judge.
Black was still on the bench when I was in law school. Our liberal faculty members portrayed him as a lovable, crusty, old man with an idiosyncratic theory of First Amendment free speech. They didn't discuss Black’s early years on the bench, when he freely invented reasons why Congress and the administration could do anything they wanted to do.
Obviously, if this notion had prevailed, Congress would have become omnipotent, altering the Constitution almost at will. Black actually persuaded three of his colleagues to sign onto this absurd opinion.
In early 1938, FDR nominated his solicitor general, Stanley Reed, to replace the retiring George Sutherland. Like Black, Reed proved to be a reliable member of the “the feds are all-powerful” school of constitutional thought.
1938: The Court Destroys Restraints on Federal Property OwnershipRoosevelt’s appointment of Reed paid off almost immediately, as Reed wrote an opinion for the court dismantling the Constitution’s restraints on federal land ownership.
Power over land is power over people. When the government acquires or retains land, the liberal media say the government is “conserving” or “preserving” it. But those are euphemisms. What government ownership usually means is that the power of the bureaucrats is greater and the freedom of the people is less.
The 1787 Constitutional Convention considered allowing the federal government to hold vast tracts of real estate in perpetuity, but rejected the idea. Most of the Constitution’s framers understood that limiting the federal government required limiting federal land ownership.
The Constitution’s property clause (Article IV, Section 3, Clause 2) governs federal land ownership within state boundaries. It grants Congress unqualified authority to dispose of land, but no unqualified power to acquire land. The Constitution’s enclave clause (Article I, Section 8, Clause 17) governs the power to acquire federal jurisdiction over territory within state boundaries.
Spanning 748,000 acres, Yosemite National Park isn't a “needful Building.” It serves no purpose mentioned in the Constitution. Rather, it's a precious environmental and recreational preserve and should be protected and managed by a fiduciary trust—or perhaps by the state of California—not by the highly politicized federal government.
The Practical Costs of the Court’s DecisionReaders without experience in the American West may not appreciate how damaging the Collins decision has been. It ratified the power of federal bureaucrats and politicians over 28 percent of American real estate. This real estate is disproportionately in the West: The feds own more than 80 percent of Nevada, more than 60 percent of Alaska, Idaho, and Utah, and more than half of Oregon.
Federal land ownership also enables the bureaucracy and the special interests that thrive on federal control to manipulate voters and officials within Western states, thereby impeding local self-government and seriously distorting the entire constitutional balance.