Madison's Union

President James Madison, speaking at his inauguration in March of 1817, was able with satisfaction to look back at the Revolution of 1776, at the country's success in defending itself in the War of 1812, and at the economic and geographic growth of the nation. Having seen the Bill of Rights through the ratification process from 1789 to 1791, he was an experienced legislator, and a proven supporter of personal freedoms.

The early history of the United States can be seen as a paradox: how could the nation moved away from the Articles of Confederation toward the Constitution, in order to have a somewhat stronger central government for purposes of military self-defense and coherent foreign policy, while at the same time preserving individual liberties and independent state governments. It was with this tension that Madison and others wrestled. He noted that

In explaining my sentiments on this subject it may be asked, What raised us to the present happy state? How did we accomplish the Revolution? How remedy the defects of the first instrument of our Union, by infusing into the National Government sufficient power for national purposes, without impairing the just rights of the States or affecting those of individuals? How sustain and pass with glory through the late war? The Government has been in the hands of the people. To the people, therefore, and to the faithful and able depositaries of their trust is the credit due. Had the people of the United States been educated in different principles, had they been less intelligent, less independent, or less virtuous, can it be believed that we should have maintained the same steady and consistent career or been blessed with the same success? While, then, the constituent body retains its present sound and healthful state everything will be safe. They will choose competent and faithful representatives for every department. It is only when the people become ignorant and corrupt, when they degenerate into a populace, that they are incapable of exercising the sovereignty. Usurpation is then an easy attainment, and an usurper soon found. The people themselves become the willing instruments of their own debasement and ruin. Let us, then, look to the great cause, and endeavor to preserve it in full force. Let us by all wise and constitutional measures promote intelligence among the people as the best means of preserving our liberties.

Almost two hundred years later, this same tension continues to make itself felt in American politics. The rights of the individual, and the self-determination of each of the fifty states, stands across from the need for a centralized government which is strong enough to militarily defend our interests and to present to the world a coherent foreign policy. Historian Laura Ingraham writes:

So our federal government has two big problems. One, our country is too large and diverse to be adequately covered by a single set of policies. Two, because the country is so big, it is very difficult to even for members of the House to adequately represent the people who elect them. Neither of these problems is going away anytime soon. Certainly the country is not going to get smaller. And I don't think anyone really believes we should have thousands of members in the House of Representatives - talk about "big government." The congressional dining room would become a drive-through and C-SPAN would constitute half of your cable lineup. In light of these facts, how can we truly give "Power to the People"?

Like James Madison, Laura Ingraham considers John Locke's principle that the sovereignty - the legitimacy - of a government is derived from the consent of the governed. "Power to the People," as the slogan goes, is also "Power from the People." Power is given to citizens when it is recognized that it is they who lend power to the government. Locke's principle is most effectively implemented by smaller local governments, which are more flexible to respond to regional conditions, and which are easier for the individual citizen to access. It's easier for a citizen's expressions and communications to impact his city council than his national Congress.

Federalism is a big part of the answer. In general, it is far better that issues be decided by a town council than a state legislature, and better that issues be decided by a state legislature than the federal government. Each step up that ladder takes governmental power farther away from the people it's meant to serve and puts more power in unreachable government bureaucracies.

When we compare the national government in Washington with state, county, and city governments, we note that the national government piles up ever-larger amounts of debt quickly, while most local governments have enacted rules which prevent them from having debt at all; the national government increases taxes often and significantly; local governments are more likely to concentrate on ways to keep taxes as low as possible. By definition, local governments can more accurately reflect the cultures of those in their territories, while the large national must choose a course which corresponds to the views of a very small segment of the nation's citizens.

Stabilizing the Defeated Mexican Government

Historian Irving Levinson offers a more nuanced account about the war, conducted between 1846 and 1848 between the United States and Mexico, and its political and social dynamics than is given, according to him, by typical textbook narratives:

to many, the fighting that began on 8 May 1846 at Palo Alto, Texas, and ended with the signing of the Treaty of Guadalupe Hidalgo on 2 February 1848 constitutes the military history of the United States of America’s war with Mexico. This framework has remained fundamentally unchanged for more than 150 years. Then, as now, the war stands as a conventional nineteenth-century conflict fought by armies of two sovereign states in set-piece battles as well as in ongoing partisan warfare. This paradigm is seriously flawed and ought to be replaced.

Within Mexico at that time, various demographic factions – delineated along economic, racial, and other variables – prevented much of a consensus on policy, and certainly made any mandate by a mathematical majority impossible. The country was so fragmented that as one group offered intense, guerilla-style resistance to U.S. soldiers, major cities gave no resistance – not even objection – to being occupied by the U.S. Army, and in some cases seemed to even benefit from such occupation:

when U.S. forces entered Mexican territory, they crossed into a nation divided along lines of class, race, and rights. The U.S. Army marched into a nation at war with itself as well as at war with the invader. This particular duality remains essential to understanding the subsequent course of events that involved governments, armies, and civilians.

Wise military leaders – Levinson chooses Winfield Scott as an admirable example – understood this dynamic, and went to great lengths to demonstrate benevolence toward the citizens of the occupied cities. At the same time, U.S. forces in the region were dependent upon long supply lines through unsecured territory; supply convoys needed large numbers of soldiers to guard them along the way. Despite peaceful and masterful occupation of cities, therefore, the U.S. troops were at risk because supplies were uncertain, and the larger U.S. strategy endangered because many men were tied up guarding supply lines instead of attacking military targets.

Levinson compares and contrasts the U.S. presence in Mexico with the occupation of Spain by Napoleon’s troops. That latter event, thirty or forty years prior to the U.S. conflict with Mexico, was the actual origin of the term ‘guerilla’ warfare; whether it was the origin of the form of warfare itself, and not merely the word, is subject to debate: one might possibly conceive of Germanic resistance to Roman soldiers between 50 B.C. and 476 A.D. as guerilla warfare. Levinson’s point is, however, that Winfield Scott did better than Napoleon, because Scott, while facing the same type of hit-and-run adversary, did a much better job of forming friendly relations with that segment of the local population which was willing to countenance the possibility of a mutually beneficial arrangement with the occupying U.S. forces.

The guerilla-style efforts at disrupting U.S. supply lines were effective; they might have even crushed the U.S. military operations in Mexico, but they did not, largely because a significant segment of the population was indifferent to, or even slightly supportive of, the U.S. presence. This comfort with the presence of U.S. troops was the result of some Mexicans’ ambivalence with their own government.

At this point, Levinson’s narrative omits a detail included by fellow historians Allan Millett and Peter Maslowski. Their account of the same events notes that, at one point, Scott, realizing his vulnerability in depending on long and difficult-to-defend supply lines, decided to operate his army without a supply line, living off the land for needed materials. Levinson’s description of the effective guerilla operations, and their effect on those supply lines, reciprocally sheds light on Scott’s decision to abandon temporarily those lines and work without them.

As the war progressed, and the Mexican military increasingly turned its resources toward offering resistance to U.S. operations, those segments of Mexican society most opposed to the Mexican government saw an opportunity, and rebellions arose in various parts of the country. The Mexican military could not simultaneously harass U.S. troops and quell rebellions. Faced with their inability to fight basically two wars at the same time, the Mexicans – or more exactly, the Mexican government – was willing to negotiate a peace treaty. “The 2 February 1848 Treaty of Guadalupe Hidalgo and the almost equally important truce agreement of 6 March 1848” ended the war, but did not end U.S. military activity in the country. The latter document pledged U.S. military support for the Mexican government’s efforts to put down rebellions. In addition to direct military action, the United States also sold significant amounts of weapons to the Mexican army at deeply discounted prices.

Levinson’s article is important because it reminds to be alert for situations in which there is a significant internal division in one of the belligerents. Such cases appear at different points in history: in the incident involving the U.S.S. Panay, in 1937, there were three countries involved – Japan, China, and the U.S. – there were in essence six parties, because each of those countries had two major internal factions: in China, the Communists opposed the Nationalists; in Japan, the militarists were eager to expand the war, while the civilian government was not; in the United States, isolationists opposed internationalists. Mexico during the 1846-1848 war was even more fractured: there were divisions of race, divisions of wealth, and divisions of political agendas. Mexico’s internal schisms led to its inability to defend itself from the U.S., and ironically also led to military aid from the U.S.: having defeated Mexico, the U.S. found it necessary to then stabilize Mexico in order to form a lasting peace.

A final lesson to be learnt concerns the distinction between victory in battle and success in war. In Mexico, as would be the case at the end of the Second World War, the U.S. Army could destroy any enemy formation that the Americans wished to destroy. But domination of the battlefields did not guarantee the emergence of the desired postwar political result. In Mexico, a stabilization program for a cooperative government emerged as the prerequisite for peace. Similarly, the willingness of prominent Japanese and Germans made possible the transition of both nations from defeated tyrannies to emergent democracies. Clearly, Scott recognized such reality even if civilians above his grade did not. And so let us, even if it be late in the day, now praise a famous man.

The U.S. Army not only occupied, but placed its men and resources into the service of, the government it had so recently defeated – an irony. The management of the situation on the ground immediately after the peace treaty and ceasefire agreements was essential to creating a stable situation. Managing, and maintaining good working relations with, the locals during and after the war was as important as the actual battles themselves.

Reshaping the USMC

When thinking of U.S. military leaders, lots of names come to mind – Washington, Grant, Pershing, Eisenhower, Patton – but the name Ben Fuller probably does not come to mind. Although relatively unknown, he guided the United States Marine Corps through some important developmental phases.

Ben Hebard Fuller was born in Michigan in 1870, and educated at Annapolis. Fuller’s first important assignment was to the Philippines in 1899, reflecting a new era in U.S. foreign policy and correspondingly new types of military deployment. Fuller’s career also coincided with William Fullam’s controversial vision of a totally new role for the Marines. Over the next two decades, Navy officers and Marine officers would debate whether the USMC was mainly a police force onboard and in port, or whether it would assume activities on land – activities larger than merely the occasional landing party.

In 1928, Fuller had been promoted to the position of assistant commandant and brought into USMC headquarters. A document entitled “Advanced Base Operations in Micronesia” had been prepared and would dictate much of the USMC’s training and planning over the next decade – leave the Marines amazingly well-prepared for the outbreak of WWII.

By contrast, the First World War had seen Marines used as infantry, apart from any amphibious landing. Ben Fuller saw no action in WWI, being posted elsewhere. Although his lack of combat experience probably slowed his advancement through the ranks, he was seen as valuable and ultimately promoted in part because of his extensive training – in institutions like the Naval War College and the Army’s Field Officer’s Course – which made him a capable tactician, strategist, and theoretician.

Historian Merrill Bartlett has written a hagiographic account of Ben Fuller’s career in the USMC. Bartlett’s panegyric takes the form of a reappraisal – Bartlett falls into the noble tradition of historians who ask their readers to rethink the ‘standard account’ – seeking to rehabilitate Ben Fuller as a significant and praiseworthy Commandant of the USMC from 1930 to 1934. Inter-service power politics, which Fuller faced, are notoriously thorny, but even more so for the Marines, who stand not only vis-a-vis the Army, Coast Guard, and Air Force, but also occupy an internal status within the Navy which places them technically ‘under’ Navy command.

Among the reasons for which President Herbert Hoover appointed Fuller to be Commandant was that Fuller’s classmate from Annapolis was Chief of Naval Operations, and that the two could be expected to work well together. “But Fuller stood firm every time the admirals attempted to gain ground at the expense of the Marine Corps, and he never hesitated to take issue with” his old friend from the academy days, as Bartlett writes.

During Fuller’s career, the USMC not only retained “traditional duties in support of the Navy at sea and ashore, but also” adopted “new missions as colonial infantry, an advanced-base force, and finally an amphibious-assault force.” Under Fuller’s command, the USMC’s role “as a subsidiary of the Navy” ended. Fuller’s steadfast advocacy before Navy high command was central to the USMC’s increased independence.

In 1933, Fuller had restructured the deployment of Marines within the Navy, and restructured the chain of command; he ordered the officers to develop amphibious landing techniques, which would be important in WWII. In this same year, the Navy authorized increased manpower for the Marines, and procured equipment according to the USMC specifications instead of Navy specifications; these steps were the fruit of Fuller’s advocacy.

In the previous years, there had been considerable dispute about the roles of Marines vis-a-vis the Navy, and their role vis-a-vis the Army. The Army was eager to form a monopoly on aircraft, and so the USMC aircraft were linked closely with Navy aircraft to prevent them from being absorbed into the Army. Likewise, the Marines were defined as being

responsible for the seizure and defense of advanced bases; subsequent operations ashore would then pass to the Army. Planners argued that the Marines should only be employed as an adjunct to the Army if necessary, because in any likely scenario the Marine Corps would be busy supporting the fleet. Prophetically, the Director of the War Plans Division posited that Marine Corps air assets should always remain an integral part of naval aviation and never operate as a separate component; otherwise, it would open the way for criticism from the Army Air Corps.

Through 1931 and 1932, the economic conditions of the country combined with the schemes of the famous and infamous General Douglas MacArthur to cut the USMC to somewhere in the neighborhood of 15,000 to 16,000 men. MacArthur believed that the USMC “should be limited to the traditional duties aboard ship.” MacArthur’s trademark ego would allow no place a for a significant Marine Corps to compete with his Army. It was from these depths that Fuller would lift the Corps.

One wonders about the relative impact of two factors in strengthening the USMC: Fuller’s advocacy for more manpower and better equipment, versus FDR’s view that the military could be a “make work” program for unemployed civilians and boost production through procurement of equipment.

Ben Fuller died in 1937, and was buried beside his son, who had died in WWI.

Jay's Defense Policy

John Jay, writing in the third of the Federalist Papers in 1787, stated his notion about national defense, and how it would be strengthened by adopting the proposed Constitution. Under the Articles of Confederation, national defense had been a murky subject. Arising from an equally murky foreign policy, in which each of the thirteen states was free to make its own treaties with other nations, the nation's defensive structure was ambiguous. It was not clear if or how the national government had the authority to call up the militia of one of the states. This left the central government toothless, and the need for a stronger centralized military structure was obvious. But at the same time, it was far from obvious how one might create a national defense without harming the rights of the individual states, counties, towns, and individuals.

This, in a nutshell, is the paradox behind the Federalist Papers as they advocate for the ratification of the new Constitution: how to obtain the benefits of a strong national government without hindering the liberties of the individual citizen. This same tension lies behind the ninth and tenth amendments to the Constitution, found in the Bill of Rights.

Jay wrote that

Among the many objects to which a wise and free people find it necessary to direct their attention, that of providing for their safety seems to be the first. The safety of the people doubtless has relation to a great variety of circumstances and considerations, and consequently affords great latitude to those who wish to define it precisely and comprehensively.

He begins by indicating that the issue of safety can be perceived or interpreted differently. Honest and intelligent men might differ as to what they mean by the phrase "provide safety" for the citizens of a nation. To clarify and sharpen the discussion, then, Jay continues:

At present I mean only to consider it as it respects security for the preservation of peace and tranquillity, as well against dangers from foreign arms and influence, as from dangers of the like kind arising from domestic causes. As the former of these comes first in order, it is proper it should be the first discussed. Let us therefore proceed to examine whether the people are not right in their opinion, that a cordial Union under an efficient national Government, affords them the best security that can be devised against hostilities from abroad.

Refining the definition, then, Jay writes that the types of safety in which the federal government will have an interest are "security for the preservation of peace and tranquility," and "against dangers from foreign arms and influence," and "dangers of the like kind arising from domestic causes." John Jay is telling us that the national government will protect its citizens from foreign military attack and from domestic criminals. Expanding the definition slightly, he includes that the constitutional government will protect its citizens also from foreign "influence" - we have rightly here to ask, what he means by this: propaganda, economic pressures, spying, etc.

Jay's ruminations on national security did not take place in a vacuum. The experience of the war (1775 to 1783) was close at hand. The Continental Congress had faced then the same tension: how to provide a military defense for the liberties of the inhabitants of the thirteen colonies - soon to be the thirteen states - without violating the same freedom which it was protecting. Mounting a defense of freedom required taxing citizens to pay for the military, as well as conscripting or impressing men to be soldiers - the draft. Yet taxes and government interference with the private lives of citizens were exactly the causes of the rebellion.

Describing how this tension played out in practical terms, historians Allan Millett and Peter Maslowski write that

It looked as if the colonies were embarked upon an unequal war. A population of two and a half million (20 percent of whom were slaves), without an army, navy, or adequate financial resources, confronted a nation of eight million with a professional army, large navy, and vast wealth. Yet many colonists were confident and determined. They believed in the "natural courage" of Americans and in God's divine protection. Congress admitted that colonial soldiers lacked experience and discipline but insisted that "facts have shown, that native Courage warmed with Patriotism is sufficient to counterbalance these Advantages." And a British captain wrote that Americans "are just now worked up to such a degree of enthusiasm and madness that they are easily persuaded the Lord is to assist them in whatever they undertake, and that they must be invincible." Colonists were determined because they struggled for high stakes, summed up by George Washington: "Remember, officers and soldiers, that you are freemen, fighting for the blessings of liberty; that slavery will be your portion and that of your posterity if you do not acquit yourselves like men." The Revolution was no European dynastic squabble, but a war involving an ideological question that affected the population far more than did the kingly quarrels of the Age of Limited Warfare. Large numbers of colonists ardently believed freedom was the issue, not only for themselves but for generations yet unborn.

The focus on freedom as the goal of the war provided enough motivation to allow the thirteen colonies to overcome their deficits in technology, in money, and in manpower. Other wars in the preceding decades and centuries had been rivalries between competing European dynasties. Soldiers were commoners employed by the royal houses - precious little motivation for them to risk their lives. In adventures like the War of the Austrian Succession and the Seven Years' War, then, we see soldiers fighting without the concept of "total war" which motivated the colonists in throwing off the British yoke. (The phrase "total war" would come to have a negative connotation, two centuries later, when it was used by fascists against democracies, but in George Washington's time, the phrase was unknown - we apply it retroactively, as an anachronism, to denote the passion and dedication of the Continental Army.) The colonists knew that, once begun, they would either win the war, or be devastated by the British. There would be no negotiated compromise as a 'middle way' out.

Shouldering arms freely and believing freedom was the issue, Continentals never became regulars in the European sense. They became good soldiers, but they remained citizens who refused to surrender their individuality. They asserted their personal independence by wearing jaunty hats and long hair despite (or perhaps to spite) their officers' insistence upon conformity in dress and appearance. Furthermore, they were only temporary regulars. Unlike European professionals, they understood the war's goals and would fight until they were achieved, but then they intended to return to civilian life.

The Americans revived the concept of "citizen soldier" from ancient Rome - a citizen who fought for the goals of the war, not for pay, and who had a hand in determining those goals. European soldiers of the 1700's fought for pay; the Americans fought for freedom. The Americans had so thoroughly embraced the ideology of liberty that they were willing to die for it.

Americans reintroduced ideology into warfare, fought for the unlimited goal of independence, and mobilized citizen-soldiers rather than professionals. In the spring of 1783, Washington summarized the drastic implications of these changes. "It may be laid down as a primary position, and the basis of our system," he wrote, "that every Citizen who enjoys the protection of a free Government, owes not only a proportion of his property, but even of his personal service to the defense of it...." To protect the nation, "the Total strength of the Country might be called forth." Mass citizen-soldier armies would be motivated by patriotic zeal as they fought for freedom, equality, and other abstract ideological virtues.

As abstract as the goals of war may have been, they took specific and concrete form in the minds of the Americans: the list of grievances against the King of England in the Declaration of Independence - drawn from the Intolerable Acts, the Stamp Act, the Townshend Acts, the Sugar Act, the Tea Act, and others - was no mere ideological abstraction, but a physical reality. This specificity prevented the American Revolution from becoming the debacle which was the French Revolution.

Wartime Shortages

America's War of Independence - or, if you prefer, The Revolutionary War - was one in which the young United States faced perpetual deficits: a shortage of men, a shortage of money, and a shortage of material. One might add a shortage of political support among the colonists. The Continental Congress, and the governments of the individual colonies, took various steps to cope with this shortfall, e.g., printing paper money, borrowing money, and seeking the aid of the French. Another measure was the draft: the conscription or impressment of men to serve as soldiers. The word 'impressment' can also be broadened to describe the confiscation or other appropriation of property and material (food, horses, etc.). Historian John Maass notes:

The War of American Independence (1775–83) created an incessant demand for troops, weapons, provisions, and supplies in quantities most states could not readily provide. A relentless need to bring soldiers into the field, keep them in the ranks, and provide them with necessities to fight the enemy and prevail in the struggle for liberty were constant challenges for all of the nascent state governments, all of which lacked a sufficient financial foundation, manufacturing base, and logistical network to sustain a concerted war effort. North Carolina was particularly beset by these challenges. War with the Cherokees on the western frontier, persistent Loyalist hostility, and several British incursions beleaguered the state from the winter of 1776 to the end of the conflict. Financial concerns added to the considerable obstacles that confronted North Carolina upon independence, taxing its meager resources and disturbing the internal stability of its society and newly created political institutions.

A policy of conscription and impressment, however, could easily backfire. Given that one of the needs was more broad-based popular support for the war, confiscating property could easily turn citizens against the independence movement. Impressment of property, if it was to be successful, had to be done with the utmost delicacy, wisdom, and diplomacy. Those who did it well learned, e.g., that property could safely be taken from those who were firmly against the war, because there was no potential support from them anyway. Appropriating property from others needed to be done with expressions of regret, and with an eye toward distributing the burden fairly.

Conscription of men - the draft - was even more difficult, given the low level of information technology to accurately census the population. Men could easily hide or disguise their identities. In some cases, substitutes were hired to fill a conscription obligation. Those who served grudgingly often served poorly.

Given the deprivations faced by the Continental Congress - not only in terms of its armies in the field, but in terms of financing, staffing, and equipping them - the American War of Independence remains a historical David-and-Goliath narrative.

John Jay on the Nature of Government

John Jay, writing in The Federalist Papers, addressed the perennial question of government's power versus citizen's rights - only, in 1787, it was a far from theoretical question. The United States had found its "Articles of Confederation" to be inadequate for organizing the nation, and was considering whether or not to adopt the new Constitution. The Federalist Papers were a series of articles written by Alexander Hamilton, James Madison, and John Jay. These articles were written to encourage the ratification of the Constitution. Jay wrote:

Nothing is more certain than the indispensable necessity of government, and it is equally undeniable, that whenever and however it is instituted, the people must cede to it some of their natural rights in order to vest it with requisite powers.

At that moment, this eternal question took the concrete form of the Union. Specifically, should the thirteen former colonies continue to form one nation, and - under the new Constitution - an even more cohesive nation than they had been under the articles of confederation? Or should the thirteen states be even more independent from each other? It might have been a step toward greater liberty for the thirteen colonies to function as independent governments; but it might also have been the end of them - if the Union were indeed necessary for the continued freedom from British rule - and the step toward greater liberty would have resulted in the termination of liberty. John Jay hoped to persuade the citizens that the Union was necessary for continued survival; that, without the Union, independence and freedom would disappear, and English rule would resume:

It is worthy of remark that not only the first, but every succeeding Congress, as well as the late convention, have invariably joined with the people in thinking that the prosperity of America depended on its Union. To preserve and perpetuate it was the great object of the people in forming that convention, and it is also the great object of the plan which the convention has advised them to adopt. With what propriety, therefore, or for what good purposes, are attempts at this particular period made by some men to depreciate the importance of the Union? Or why is it suggested that three or four confederacies would be better than one? I am persuaded in my own mind that the people have always thought right on this subject, and that their universal and uniform attachment to the cause of the Union rests on great and weighty reasons.

Jay, writing in the second of what would ultimately become a series of 85 articles, reminds his readers that it is the nearly unanimous opinion of the Congresses run under the old articles of confederation, and the opinion of the people at large, that the Union is necessary for the preservation of the thirteen states.

The Sick Chicken

After Franklin Roosevelt took office in early 1933, he launched numerous programs during his first hundred days in office. These programs - the first wave of the "New Deal" - affected many different aspects of daily life for ordinary citizens, and involved massive increases both in the amount of control which the government exerted over people and in the amount of debt which the federal government was creating. One of the largest of these programs was the National Recovery Administration (NRA), created by the National Industrial Recovery Act (NIRA).

FDR did so much so quickly that it took the public a while to sort out exactly what had happened during those first hundred days (the phrase 'first hundred days' is routinely used in many history textbooks to define the launch of New Deal programs). In fairness, President Roosevelt is not alone to blame for the misery created by the New Deal - he had a willing Congress. The legislation which passed both the House of Representatives and the Senate, the legislation which began the New Deal, would eventually be understood as having prolonged and intensified the Great Depression.

That was certainly not FDR's goal. The purpose of the New Deal was to help America during a severe economic downturn. Yet history so often reminds us about the law of unintended consequences. New Deal programs made things worse, not better. In addition to their harmful economic effects, they also impinged on personal freedoms. As these programs unfolded and developed in the months following "the first hundred days," ordinary people began to feel the tightening grip of many federal regulations on various aspects of their lives - like buying chicken in a grocery store.

Chicken was the topic of a major lawsuit which found its way to the Supreme Court, and which offered a defense of individual liberty in the face of Roosevelt's New Deal regulations. Historian Robert Murphy writes:

Perhaps the most outrageous injustice occurred in the Schechter case, which was appealed to the Supreme Court and led (in 1935) to the overturning of the original National Industrial Recovery Act as unconstitutional. The Schechter brothers were chicken butchers in Brooklyn, and were subject to the NRA's Code of Fair Competition for the Live Poultry Industry of the Metropolitan Area in and about the City of New York.

Historian Amity Shlaes describes the Byzantine maze of NRA regulations governing poultry operations. Even the most compliant butcher would find it difficult to understand, much less conform to, the endless pages of fine print:

Section 2 of article 7 declared that it was prohibited "knowingly to purchase or sell for human consumption culls or other produce that is unfit for that purpose" ... The code prohibited "straight killing," defined it as "killing on the basis of official grade." The rule meant that customers might select a coop or a half coop of chickens for purchase, but they did not "have the right to make any selection of particular birds."

The Schechter brothers were prosecuted for failure to comply with the NRA rules, but the trial quickly settled on the question of whether the NRA rules were constitutional. Robert Murphy describes the facts of the case:

The Schechters were accused (among other code violations) of selling unfit chickens. However, the evidence against them "in the end, was based on the selection of ten chickens, which was then reduced to three suspect chickens, which, upon autopsy by the health authorities, turned out to include only one unhealthy chicken. It was an 'eggbound' chicken [meaning that] eggs, upon its slaughter, were discovered to have lodged inside it, something that would have been hard for the Schechters to detect before sale." This was the only "crime" that related to anything that would strike the average person as actually criminal. Nonetheless, the Schechter brothers were found guilty of violating the NRA code, and fined $7,425 - the equivalent of more than $100,000 at today's prices. One of the brothers received three months in jail, while his other brothers received lighter sentences.

As evidence was presented, and as the Supreme Court justices asked questions, it became difficult for those in the courtroom not to giggle, as "the absurdity of NRA became evident." Justice James Clark McReynolds asked questions to clarify the butcher's terminology of "straight killing" and how the selection of chickens for slaughter and sale was conducted:

McReynolds wanted to probe the meaning of straight killing, and he started with the chickens. "How many are there in a coop?" There were thirty to forty, according to the size of the coops. "Then when the commission man delivers them to the slaughterhouse, they are in coops?" They were in coops. "And if he undertakes to sell them, he must have straight killing?" He must have straight killing, yes. As [Schechter lawyer Joseph] Heller put it: "His customer is not permitted to select the ones he wants. He must put his hand in the coop when he buys from the slaughterhouse and take the first chicken that comes to hand. He has to take that." At this point there was laughter in the court. Then Justice McReynolds asked: "Irrespective of the quality of the chicken?" Irrespective of the quality of the chicken, Heller replied. Later on, Justice Sutherland asked, "Well suppose however that all the chickens have gone over to one end of the coop?" (More laughter.)

It became laughably clear that the NRA was an irrational compilation of rules and regulations attempting to manage specialized industrial processes about which the regulators knew nothing; it became clear that the NRA was an unconstitutional violation of individual liberty; and it became clear that the NRA was harming, not hurting, the economy's attempt to return to normal levels.

When the Supreme Court struck down the NIRA, it would seem a defeat for Roosevelt and his New Deal, and it would seem a victory for personal freedom. However, Roosevelt had another maneuver: his famous attempt at "court packing," although a tactical loss, would prove a strategic victory. When he moved to increase the total number of judges on the Supreme Court, which would allow him to "pack" the bench with judges favorable to his programs, he was again overruled, and the "court packing" plan found to be unconstitutional. But Roosevelt had shown that he would not stop, he would not give up, and he would continue to look for ways to exceed the limits placed on government by the constitution. Robert Murphy continues:

Although the Supreme Court would overturn the absurdity of the NRA, they were not nearly so bold after FDR's attempt to pack the Court with more justices who would see the wisdom of the New Deal. Rather than risk their (waning) sphere of power against the charismatic Roosevelt in an open confrontation, the Supreme Court became more compliant with the New Deal. Roosevelt, for his part, dropped his plan to pack the Court once it stopped throwing out his legislative victories.

Roosevelt's steady efforts at undermining the concept of "limited government" had long-lasting effects: for decades, the notion of what a government could properly regulate, and how a government could invade the personal lives of citizens with its rule, was expanded. Historian John Steele Gordon writes:

The Schechter case and others overturning major aspects of the New Deal led Roosevelt to attempt to "pack" the court with new justices more favorable to his programs. He failed, but in the "switch in time that saved nine," the court began to move to a more expansive view of federal-government power, especially with regard to delegation of powers and interstate commerce. Only in the 1990s did the court once more begin to narrow these powers.

As years went by, Roosevelt continued to bully the judiciary into allowed his New Deal programs. Eventually, as he appointed his own judges, the judicial branch went from allowing New Deal programs to actively fostering government intervention in the private sector. The Supreme Court went from striking down the NRA in 1935 to upholding a similar program in 1942. Historian Mark Levin writes:

The Constitution's interstate commerce clause had as its purpose the promotion of commerce and trade among the states. However, in 1942 the Supreme Court ruled in Wickard v. Filburn that a farmer growing wheat on his own land and for his own use was still subject to federal production limits, even though none of his wheat ever left the state, the Court "reasoned" that by withholding his wheat from commerce, the farmer was affecting interstate commerce, even though there was no commerce, let alone interstate commerce. This meant that private economic activity conducted for the sole purpose of self-consumption and occurring wholly within a state’s borders would now be subject to federal regulatory authority under the Agricultural Adjustment Act. Wickard swept away 150 years of constitutional jurisprudence, decentralized governmental authority, and private property rights protection.

FDR had successfully manipulated and reshaped the judicial branch so that it would conform to his notion that the government should be able to intervene and regulate almost anything and almost everything. Roosevelt's “judiciary seized a role for itself — the manipulation of law to promote a” New Deal agenda. FDR's version of the judicial branch

continues to this day. Indeed, through a succession of laws and rulings, all three branches - the judicial, the legislative, and the executive - now routinely exercise power well beyond their specific, enumerated authority under the Constitution.

Indeed, Roosevelt's massive influence on American politics changed the nature of political discourse. Since FDR's inauguration and the "first hundred days" with its New Deal legislation, a major question in the United States is whether we can ever return to the degree of personal liberty and individual freedom which we enjoyed up until 1933.