Franklin D. Roosevelt, World War II, and the Reality of Constitutional Statesmanship

In his survey of American statesmanship, Herbert Storing identified a tension between authentic statesmanship — with its “‘way of life’ setting” scope and “character-forming” ambition — and modern constitutional government, which is designed to tame executive prerogative.1 Because “true statesmanship lives in a space outside of any constitutional order and would be a threat to constitutionalism,” Jeffrey Tulis later posited looking to “the idea of a constitutional officer,” rather than a statesman, “as the solution to the problem of statesmanship and emergency power.”2 Recently, Partick Overeem likewise observed that the American Founders “relegated statesmanship to a secondary role after constitutionalism” and thereby “emptied it as a moral ideal.” As such, the American constitutional order leaves few opportunities for the exercise of statesmanship.3 Still, each concedes at least the “possibility” of a modern, circumscribed brand of American rulership called “constitutional statesmanship.”4

While statesmanship receives little scholarly and popular attention today, some has been written about the place for statesmanship, in theory, in the American constitutional design. Much less has been said about its historical presence or absence.5 Whether constitutional statesmanship is a chimera, a rarity, or a recurring reality remains an empirical question. To address it, we should examine political practice. To that end, and to help color in the content of constitutional statesmanship, this article probes the leadership of President Franklin D. Roosevelt (FDR) at home as America readied for and later waged war abroad. I argue that FDR’s exceptional domestic leadership under extraordinary geopolitical circumstances evinced constitutional statesmanship. More specifically, I contend that Roosevelt applied constitutional statesmanship to prepare his country for war. However, his wartime leadership also exposed some of the limits and ambivalences of constitutional statesmanship as a means of resolving the tension between the demands of war and the dictates of constitutionalism.

This article proceeds in six parts. First, I urge the rehabilitation of “statesmanship” as an evaluative standard, a standard undervalued in presidency studies and ill understood in American public discourse. To this end, I define constitutional statesmanship and posit a method of evaluating leadership against its standard. Because evaluating a leader against this standard requires an appreciation for the conceptual relationship between constitutionalism and statesmanship, I also illustrate how distinct notions of constitutionalism generate distinct expectations of statesmen. Second, I discuss my case selection, Roosevelt in World War II, the sources dictated by that case, and the intellectual and historical contexts that framed prevailing understandings of American constitutionalism and statesmanship in that era. Third, I outline FDR’s own conceptions of the U.S. Constitution and the place for statesmanship within it.6 Fourth, I explain FDR’s prewar, national defense–oriented leadership in terms of those conceptions and then evaluate his leadership against the standard of constitutional statesmanship.7 Fifth, I likewise explain and appraise his wartime actions. Finally, I conclude by comparing Roosevelt’s contemporaries’ evaluations of his constitutional leadership, demonstrating what the standard developed herein adds to those evaluations, and illustrating how precedents Roosevelt established have been used and abused by his successors.

Constitutional Statesmanship as a Concept and Standard

Defining Constitutional Statesmanship

Statesmanship is political leadership that combines power and prudence to realize the common good.8 Affixing the qualifier “constitutional” to it implies that both the ends (the common good) and the means (power and prudence) are at least in part shaped by the state’s constitutional form. Thus, a (ideal-typical) constitutional statesman exercises power and prudence to secure the common good, as that good is defined by the constitution, in a manner consistent with the state’s constitutional arrangements.9

The word “statesmanship”­ sounds quaint, even foreign, today. Because contemporary political scientists often treat politicians as self-interested agents guided by parochial constituencies,10 it may seem anachronistic to resurrect statesmanship — a form of leadership celebrated in classical antiquity and oriented toward the public interest — as a standard against which to judge FDR, arguably the first “modern president.”11 Amid presidents’ promises of transformational leadership, it may also seem odd to judge a president’s success in preserving, rather than altering, the established constitutional order.12

Statesmanship, constitutional or otherwise, is never only about preserving something, however. A statesman who merely reaffirms the existing constitutional order would not be worthy of the name.13 Reaffirming an underperforming constitutional order in crisis is the presidential equivalent of fiddling while Rome burns. For this reason, few have James Buchanan (on the eve of the Civil War) or Herbert Hoover (at the onset of the Great Depression) in mind when thinking of American statesmen. Yet few think of Donald Trump either, who seemingly aimed to shatter an order he scarcely understood — if he thought of it all. This is because constitutional statesmen must reaffirm as they revise. As Landy and Milkis observe, “great presidents,” like constitutional statesmen, reconcile their constitutional revisions with the existing constitutional order. They superimpose constitutional amendments on the existing order to fill gaps exposed by changing circumstances.14 They do not cite constitutional features as excuses for political paralysis, but neither do they ignore the inconvenient features. They “think constitutionally” about what present circumstances demand, and they justify constitutional changes “in terms of fundamental principles and constitutional norms.”15

What it means to justify constitutional changes in constitutional terms depends, of course, on the state’s constitutional form (a point explained more fully below). While all constitutions constrain the exercise of power, they do so by different methods.16 Thus, a monarch of a constitutional monarchy faces different limits on her statesmanship than an elite aristocrat of an aristocracy, a democratic leader of a democracy, and so forth. Distinguishing the constitutional statesman of a democratic republic such as the United States, then, is her embrace of the democratic and republican character of her office, which shapes the way she introduces constitutional change.17 Since she “commands a view of the whole ground,” as Thomas Jefferson thought only a national executive could, a constitutional statesman may sometimes deliberately disregard the people’s more myopic preferences.18 But she always facilitates their judgment. Put differently, although the constitutional statesman of a democratic republic may flex her first-mover advantage, she does not deprive the people of their “retrospective advantage.”19 Instead, she explains her use of power and submits herself to the people for judgment.20 Constitutional statesmen are not exempt from democratic politics.21

Statesmanship in a rule-bound constitutional order is the act of supplementing, skirting, bending, or breaking the rules, when required to secure the public good, without sacrificing the benefit of rules in the first place.

But neither do they capitulate to the vicissitudes of public opinion. Constitutional statesmen appreciate their office’s representative basis without subjecting it to plebiscite. They do what Alexander Hamilton in Federalist No. 71 said constitutional guardians do: “When occasions present themselves in which the interests of the people are at variance with their inclinations,” constitutional statesmen “withstand the temporary delusions in order to give them time and opportunity for more cool and sedate reflection.”22 In short, they aim at the public good, even when the public is not good at discerning its collective interest.

What justifies statesmanship in a rule-bound constitutional order is necessity — the fact that the common good would be imperiled but for such leadership. Statesmanship in a rule-bound constitutional order is the act of supplementing, skirting, bending, or breaking the rules, when required to secure the public good, without sacrificing the benefit of rules in the first place.23 Because the object of statesmanship is the public good, a constitutional statesman cannot ignore the effects his leadership will have on a constitutional order designed to promote the public good. Therefore, to identify constitutional statesmanship, as opposed to executive aggrandizement, we must assess the necessity of circumventing the rules to secure the common good as well as the consequences of circumvention on the rules’ future functioning.

A leader can fail to harmonize statesmanship and constitutionalism in three ways. First, he can supplement the rules when existing rules are adequate to secure the common good, or skirt the rules when the situation does not warrant it, thereby substituting the rule of law for his own rule. This undermines constitutional government — hence the requirement of necessity. Second, he can bend the rules so badly that they cease functioning once the necessity subsides. This sacrifices the long-term benefit of rules for expedience — hence the need to assess the consequences of circumvention. Finally, he can fail to break the rules when necessary, for example, to preserve the state within which the constitutional order operates. Here, a “scrupulous adherence” to the rules would “absurdly sacrific[e] the end” of those rules “to the means.”24

I later apply this framework of constitutional statesmanship to evaluate FDR’s leadership. By most standards, Roosevelt ranks among the greatest presidents.25 In terms of structural change, few presidents can match the mark he left, in part because only a few can match the exceptional circumstances of his tenure, and none can match its length. What has remained less clear is how we might appraise his performance as president against the standard of constitutional statesmanship. Multiple volumes have been written demonstrating how FDR’s domestic agenda reconstructed the American constitutional order.26 This article specifies and applies the standard of constitutional statesmanship to show how Roosevelt’s national security leadership likewise reconstructed that order, and in ways that both reinforced and contradicted the New Deal’s imprint on the Constitution.

This standard’s attention to statesmanship, a form of exceptional leadership under exceptional circumstances, assumes the importance of Neustadt’s emphases on bargaining skill and persuasion, Barber’s observations on administrative personality, the role of rhetoric championed by Kernell and Tulis, and political transformation highlighted by Skowronek.27 But unlike most political approaches to the presidency, this standard is not indifferent to a president’s motivations. It “requires an assessment of the purposes for which power is deployed.”28 Absent this assessment, we cannot hope to distinguish the statesman from the mere leader (or the demagogue, for that matter).29 The constitutional statesman benchmark allows us to explore a systemic question larger than power strategies in scope: is statesmanship, even a circumscribed brand of it, compatible with American constitutional government?30

The Relationship between Constitutionalism and Statesmanship

“‘Statesmanship’ is almost un-American,” wrote Storing.31 This is because the ambitious scope and capacious character of traditional statesmanship, in Storing’s view, was replaced by the U.S. Constitution. In “ancient,” or preliberal, constitutions, the statesman defined the good for his society and paved the way toward it. For example, the Spartan lawgiver Lycurgus defined the good life as one marked by equality, military preparedness, and austerity, and he instituted a constitutional arrangement calculated to produce those conditions.32 The U.S. Constitution, by contrast, effectively decided the state’s political ends for the statesman. The exclusive “legitimate end” of U.S. government would be “the securing of individual rights.”33 The demands on and authorities of American statesmen would differ from those of traditional statesmen as a result. Whereas ancient constitutions required an “architectonic,” or universal and paramount, orchestrator, the American Constitution needed something considerably less grand and intrusive: a technocratic superintendent to adjudicate conflicts that arise as Americans pursue pluralistic and contending conceptions of the good.34 The Founders decided, Storing argued, that “[t]here is never needed that kind of statesmanship which had formerly been regarded as its essence: great, ‘way of life’-setting, character-forming political leadership.”35

To be sure, in antiquity, a constitution assumed a definition almost altogether divorced from our modern idea of a constitution as supreme law.36 To many ancients, “constitution” meant a polity’s organic composition.37 Storing’s point is that Greco-Roman statesmanship (or more aptly, “lawgiving”) — the type of leadership expounded by Plato, Aristotle, and Cicero — owed its expansive scope to the notion of constitutionalism that preliberal societies held. Since the “constitution” referred to the state’s “way of life,” the statesman’s prerogative was to order that way of life and to mold its citizens in a way that would promote it. Government by American constitutional design, however, “no longer seen as directing and shaping human existence” but merely “facilitating the peaceful enjoyment of private life,” reduced statesmanship to the service of what James Madison called the “permanent and aggregate interests of society.”38

In lectures delivered in 1940, the constitutional historian Charles McIlwain drew out more systematically how a particular constitutional form begets a particular brand of statesmanship. In one lecture on “ancient constitutionalism,” he dissected Plato’s Statesman, “a dialogue whose central theme is the problem of ‘constitutionalism’.” For Plato, constitutional government, a form of rule guided by laws, ranks as a “second best” regime type, something like a necessary evil. This is because law, “like an obstinate and ignorant tyrant,” necessarily stifles the prerogative of an ideal statesman who, possessing the virtue of practical wisdom, could best promote the common good “not by laying down rules, but by making his art a law.” This art, thought Plato, would always be “superior to the [written] law.” Modern constitutionalism, however, limited government’s ambit and, along with it, the statesman’s purview.39

But perhaps the divide between ancient and modern constitutionalism is not as wide as Storing and McIlwain implied.40 As Paul Eidelberg noted, “the Right of the people” articulated in the Declaration of Independence to “institute new Government . . . in such form, as to them shall seem most likely to effect [sic] their Safety and Happiness,” suggests room for traditional statesmanship. That “Right” may imply, he writes, the Founders’ belief that:

the purpose of government [is] to bring about or produce happiness or to assist in its realization. This is a positive view of government which recalls the teachings of classical political philosophy. It greatly enlarges the sphere of statesmanship and makes possible an architectonic politics.41

Such a reading reminds us that the document’s draftsman, Thomas Jefferson, explained that the declaration derived its “authority from the harmonizing sentiments of the day.” Those sentiments, according to Jefferson, came from both ancient and modern sources as varied as “Aristotle, Cicero, Locke, Sidney, etc.”42 The U.S. Constitution similarly fused elements of ancient and modern constitutions, according to its architects.43

In short, Roosevelt borrowed from both the ancient and the modern constitutional traditions to form his own constitutional conception.

Such a reading was not unfamiliar to Roosevelt, either. While on the campaign trail in 1932, he said that prior to industrialization, “government had merely been called upon to produce conditions within which people could live happily” but that “[n]ow it was called upon to aid in the consummation” of this happiness.44 By 1938, Roosevelt was declaring that government had assumed “final responsibility” for that happiness.45 Many have found in Roosevelt’s New Deal and in his wartime leadership more than a hint of the architectonic politics that sought to transform, or remake, a constitution.46 Yet even when, like an ancient statesman, FDR promoted policies to create “the good life,” he also stressed that those policies simply fulfilled the intent of the Constitution and the Declaration:

We who support the New Deal do so because it is a square deal and because it is essential to the preservation of security [versus “Safety” in the Declaration] and happiness in a free society such as ours. … The New Deal is an old deal — as old as the earliest aspirations of humanity for liberty, justice, and the good life. … It is new as the Declaration of Independence was new, and the Constitution of the United States; its motives are the same.47

In other instances, however, Roosevelt defined the Constitution’s purpose and the American statesman’s sphere more narrowly, in terms that Storing’s reading of the Founders’ intent would expect. In a speech on agricultural production, the president outlined what “seems to me” to be the “true function of Government under our Constitution.” The “Government’s part” was:

to promote the general welfare, not by interfering unduly with individual liberties, but by bringing to the aid of the individual those powers of Government which are essential to assure the continuance of the inalienable rights which the Constitution is intended to guarantee. It is democracy in the good old American sense of the word.48

In short, Roosevelt borrowed from both the ancient and the modern constitutional traditions to form his own constitutional conception (a conception I sketch below).

This conception, however, did not mean FDR was always free to lead as he wished. Constitutional form always shapes the possibilities for statesmanship. Roosevelt’s leadership was confined by procedural features of the U.S. Constitution that so routinely influence politics that their conditioning effects often go underappreciated.49 For instance, Article II required that FDR face election at the height of the war in 1944. Even before the president was limited to two terms by the 22nd Amendment (ratified only in 1951), FDR faced considerable opposition when running for his third and fourth terms, in part because his candidacies violated a constitutional norm established by George Washington’s two-term precedent. The Constitution also governed inter-branch relations during FDR’s tenure. Even though the executive branch drafted most of the legislation introduced during Roosevelt’s first “Hundred Days,” the nation’s constitutional structure required Congress to pass those bills. The Supreme Court checked Roosevelt, too. It enjoined enforcement of much of his “First New Deal” aimed at addressing the banking crisis. This check informed how he proceeded with his Second and Third New Deals.50

In this way, constitutional arrangements forced Roosevelt to persuade where an autocrat might have simply made his “art a law.” Even after securing the only fourth-term presidency in American history, Roosevelt recalled as much when he said, “In a democratic nation, power must be linked with responsibility, and obliged to defend and justify itself within the framework of the general good.”51 Scholars often discount presidents’ rhetorical defenses of prerogative as attempts to lend legitimacy to actions of dubious constitutionality. In so doing, they fail to recognize that the president’s chosen action is often selected from a menu of possible actions, often conditioned by a recognition that he must defend that action, and often in constitutional terms.52

Having defined what constitutional statesmanship is, specified how to identify it, and illustrated how constitutional form begets expectations of statesmanship, I now turn to the case against which I apply the theory of constitutional statesmanship: Roosevelt’s defense-oriented leadership.

Case, Method, and Context

The Case and Method

The World War II period lends itself nicely to an evaluation of the possibility of constitutional statesmanship for several reasons. First, if statesmanship ever occurs in a constitutional democracy, it is likely only politically permitted under conditions of acute uncertainty and insecurity, such as major war.53 Only exceptional circumstances, or “states of exception,” can justify exceptional leadership.54 Second, Roosevelt had powerful reasons to retain America’s constitutional character during World War II. He spoke of America’s “united crusade” against totalitarianism as a Manichean struggle.55 In so doing, the president could hardly have created a greater personal incentive to bolster the constitutional order on whose behalf the war was supposedly being waged. Finally, the “thickened” federal government that FDR’s New Deal left in its wake made even rarer the few opportunities the U.S. Constitution had afforded for statesmanship.56 Therefore, we are more likely to observe examples of statesmanship in FDR and his predecessors than thereafter.

But if World War II lends itself to testing this standard, our subject does not. The constitutional statesmanship standard requires an account of the leader’s motives because, like any statesmanship, it must intend to achieve the common good, not only incidentally secure it. Without accounting for intentions, distinguishing between a savvy, reelection-seeking president and a constitutional statesman is impossible.57 Roosevelt’s motives, however, were famously inscrutable. He reportedly possessed a “multiplex” mind impervious to penetration.58 “You know I’m a juggler,” he told his treasury secretary Henry Morgenthau in May 1942, “and I never let my right hand know what my left hand does.”59 Understandably, Morgenthau found his boss an “extraordinarily difficult person to describe.”60 It was no accident but rather the self-conscious administrative style of a shrewd politician.61 Rexford Tugwell, a member of FDR’s so-called Brains Trust and a principal advisor on New Deal programs, explained that the president “deliberately concealed the processes of his mind.”62 As one biographer notes, Roosevelt “relished his sphinxlike image,” an identity historical and scholarly distance has done little to demystify.63 For a man who kept no diary or had no “real confidantes” (according to his wife), left no memoirs, and reflected only pithily in written form, uncovering motives is difficult but not impossible.64 It does require, however, turning to three sets of sources, each with unique merits and liabilities.

Analysts may doubt whether presidents care about the harmony of their words and deeds, but Roosevelt apparently did.

First, produced in the wake of Roosevelt’s death was a litany of memoirs composed by actual and self-styled “insiders” of the Roosevelt administration. Some of these accounts disclose Roosevelt’s thought process and suggest motives underlying his decisions. Others, however, merely offer descriptive accounts “rendered suspect” by the “ring of the cash register,” as Clinton Rossiter put it before the bulk of them even emerged.65 Another limitation is noted above: None of their authors claimed to have really known the workings of FDR’s mind. On this difficulty Tugwell wrote, “[w]e do not know what was in [Roosevelt’s] mind except by inference; and inference can always be challenged; and what was the intention is often the most important information we could have.”66 Moreover, the memoirs are written by FDR’s loyal partisans.67 Notwithstanding such prejudices, they offer windows to rediscovering Roosevelt’s decision-making.

Second, we can examine Roosevelt’s personal correspondence: his letters, memoranda, and the rare reflections he composed about the job. The letters and memoranda, however, only infrequently reveal any motives underpinning policy, owing to Roosevelt’s brief writing style and inclination toward secrecy — especially during wartime.68 The rationales driving most policies were hashed out with advisors behind doors, not through extended correspondence (making the memoirs especially valuable). We can also review the seven “introductions” Roosevelt wrote for his Public Papers, though none were written during or about his post–Pearl Harbor presidency.69 These chapters do, however, provide his recollections of events in office and constitute his only written attempts to interpret their significance.

Third, I refer extensively to FDR’s public expression: his congressional addresses, campaign speeches, radio messages, “fireside chats,” and press conferences.70 Because rhetoric is a tool of persuasion intended for public consumption, we must exercise caution when using it to infer a leader’s intentions. A subject like FDR warrants particular caution. In his May 1942 conversation with Morgenthau about keeping his right hand unaware of his left hand, FDR also confessed that he was “perfectly willing to mislead and tell untruths if it will help win the war.”71 Yet “there is nothing in the nature of constitutional rhetoric,” Tulis and Bessette note, “that prevents it from being a sincere expression of personal beliefs. We must take seriously the possibility” that presidential rhetoric can be more than a constitutional smokescreen and sometimes, a genuine reflection of the rhetorician’s rationale.72 Analysts may doubt whether presidents care about the harmony of their words and deeds, but Roosevelt apparently did. Robert Sherwood, the playwright-turned-FDR speechwriter, wrote, “Roosevelt knew that all those words would constitute the bulk of the estate that he would leave to posterity and that his ultimate measurement would depend on the reconciliation of what he said with what he did.”73

Moreover, what Roosevelt said can be read as reflections of what he thought because he did, in effect, “write his own speeches.”74 As Rosenman, the speechwriter and compiler of FDR’s official papers, attested, “The speeches as finally delivered were [Roosevelt’s] — and his alone.”75

Taking FDR’s Ideas Seriously

I argue Roosevelt’s constitutional interpretation, conveyed largely through his rhetoric, impacted his behavior.76 This argument implies that FDR did in fact have a “philosophy” of the Constitution, or coherent ideas about the Constitution’s purpose, operation, and ends, as well as the president’s role within it. Many scholars assert, however, that FDR regarded the Constitution as a “nuisance,” as something not “elastic” enough to accommodate his grand, reconstructive project.77 Others charge he simply had no coherent philosophical foundation at all.78 Once asked by a reporter, “What is your philosophy?” Roosevelt huffed and puffed before retorting, “Philosophy? I am a Christian and a Democrat — that’s all.”79 It was an unsurprising answer from a politician who rarely, if ever, read any works of philosophy.80 A man with abundant confidence in his own intuition, “stories abound concerning Roosevelt’s obliviousness to theory.”81

When FDR did mention theories, he spoke about them, their architects, and their adherents condescendingly.82 Like his one-time boss Woodrow Wilson, FDR was skeptical of theory because he believed it oversimplified reality and could not supply the answers it aspired to. Although he consulted daily with intellectuals comprising his Brains Trust, he believed they lacked political know-how.83

But as Neustadt observed, the presidency “is not a scholar’s job.”84 We should not be surprised, then, to learn that the man who longest held the job “was an indifferent student” who “did not much enjoy reading books,” who “was highly pragmatic” and “did chafe at theories.”85 However, we should also not be surprised to learn that he did use theory to navigate uncertainty (as all politicians do, consciously or not). Unlike his predecessor, Wilson, who authored Constitutional Government in the United States, or his wartime ally, Winston Churchill — who wrote an essay interpreting the American constitution (in which he accused Roosevelt of defiling it) — FDR never offered a constitutional analysis in the written form.86

But if we are willing to listen to his articulation of his constitutional interpretation, FDR’s spoken words evince a fairly coherent sensibility through which he interpreted events of constitutional import and devised solutions of constitutional consequence. Clearly, that sensibility was not shared by strict constructionists, but neither was it unstructured. It was malleable but not amorphous. Roosevelt did not ignore the Constitution or lack understanding of it, but simply imagined its guarantees, ends, and possibilities in enlarged ways.87 The next subsection turns to the sources, both historical and intellectual, that formed his ideas of the Constitution and statesmanship, before laying out those ideas.

FDR’s Historical Context and Intellectual Influences

James Ceaser has noted that “[a]ny political action, no matter how noble, must spring from a hope or a fear.”88 And Ira Katznelson has written that “fear defined the context within which political action in the United States proceeded” during Roosevelt’s presidency.89 The widespread fear over constitutional democracy’s wherewithal may not have caused Roosevelt’s conceptions of the Constitution and statesmanship. Many of his contemporaries, of course, adopted very different ideas about the proper role of the presidency and federal government. Moreover, Roosevelt did not subscribe to his era’s dominant anxieties. Instead, he prophesized hope in an age deprived of it, famously proclaiming, “The only thing we have to fear is fear itself.”90 That fear, nonetheless, “served a motivation to act” for Roosevelt and his progressive cohort.91 And it created a climate receptive to the practical expressions of Roosevelt’s ideas concerning the Constitution and statesmanship. The sources of FDR’s constitutional conception were thus twofold. First there was this fear, an outgrowth of his historical context. Second was hope, the product of Roosevelt’s intellectual influences who believed government could conquer that fear.

The 1929 stock market crash and its ominous aftermath signaled to many the burden of being governed by a document written before the Industrial Revolution, the advent of railroads, and the rise of Wall Street. What appeared to be an economic crisis soon matured into a crisis of constitutional faith.92 Just as faith in American institutions plunged to new lows, authoritarian regimes were sweeping across Europe, marking what one political scientist called “a universal moment” of “seemingly irresistible surge.”93 McIlwain situated his lectures on Constitutionalism in context when he said that “never” before had “constitutionalism been so questioned” and that “never has the attack upon it been so determined or so threatening as it is just now.” “We must make our choice,” McIlwain reckoned, “between the orderly procedure of law and the processes of force which seem much more quick and effective.”94 The dictators solved, or so it seemed to Roosevelt, the most pressing problems of modernity still vexing democracies, from “the problem of idle men and idle capital” to “labor trouble” and internal violence.95 Striking a more hopeful note, Roosevelt still believed that “in these tense and dangerous situations in the world, democracy will save itself with the average man and woman by proving itself worth saving.”96

When FDR announced his readiness to assume "broad executive power" during his inaugural address on March 4, 1933, the crowd erupted in such loud applause that Eleanor Roosevelt found the reaction "a little terrifying."

Many prominent Americans, however, were not convinced that constitutional democracy was worth saving. Before becoming the architect of America’s Cold War containment strategy, George Kennan thought Americans might as well “travel along the road which leads through constitutional change to the authoritarian state.”97 The ubiquitous question was whether constitutionalism could (or should) be preserved, and, if so, in what form? One political scientist wondered, “Can our government meet the challenges of totalitarianism and remain democratic? Is the separation of powers between the legislative and executive branches compatible with the need for authority?”98 Harold Lasswell mused, “What democratic values can be preserved, and how?” in light of what he envisioned as the country’s inexorable transition to a “garrison state.”99 In 1939, Roosevelt himself asked, “Can we compete with [the dictators] by boldly seeking methods of putting idle men and idle capital together and, at the same time, remain within our American way of life, within the Bill of Rights, and within the bounds of what is, from our point of view, civilization itself?”100

FDR believed so, but many prominent thinkers were resigned to compromising that way of life. They alleged that to make democracy work, America needed an emergency government directed by a dictator. Though the majority were never seriously enticed by the totalitarian model, they were not averse to adopting some of its methods. The political scientist Lindsay Rogers, who in 1919 condemned Wilson’s “presidential dictatorship,” was by 1934 insisting the president needed “free hands” for “revamping the machinery of representative government.”101 Countless opinion leaders agreed, calling for a “benevolent,” “temporary,” or “constitutional” dictatorship. Among them was the preeminent columnist Walter Lippmann, who recommended “a mild species of dictatorship.”102 “For the period of say a year,” he thought, the president should have “the widest and fullest powers under the most liberal interpretation of the Constitution.” While visiting the president-elect at his home in February 1933, Lippmann counseled, “[t]he situation is critical, Franklin. You may have no alternative but to assume dictatorial powers.”103

It was not obvious that the public would have protested such a usurpation, either. When FDR announced his readiness to assume “broad executive power” during his inaugural address on March 4, 1933, the crowd erupted in such loud applause that Eleanor Roosevelt found the reaction “a little terrifying.”104 Citizens across the nation wrote to the president imploring him to administer a “benevolent autocracy.”105 As the nation’s largest (and Republican) newspaper put it, “A lot of us have been asking for a dictator. Now we have one” in Roosevelt.106 This was the environment in which FDR entered office, indelibly shaping his perspective. The threats evolved during his 12-year presidency, but uncertainty about the worthwhileness of constitutional government persisted until his death.

Unlike FDR’s historical context, the intellectual origins of his constitutional conception were likely second-hand and perhaps unacknowledged by Roosevelt, who never read much political theory. What he did study were successful and pragmatic politicians he aspired to emulate.107 Therefore, the philosophical roots of his conception of the Constitution are located in the practice and reflected in the writings of the politicians he most revered, namely his cousin Theodore Roosevelt (TR) and his former boss Woodrow Wilson.108 As we will see, Roosevelt’s conception of the Constitution largely reflects Wilson’s meditations on the topic, and how FDR imagined the potential for American statesmanship largely tracks TR’s thinking.

Before occupying the White House, Wilson was a scholar of American government perhaps best described as “an antitheoretical theorist of politics.”109 “The Constitution contains no theories,” he once wrote, mocking “literary theory” proponents.110 FDR would share Wilson’s skepticism about employing theory as a guide to policymaking. But Wilson later posited a historicist interpretation of the Constitution that challenged the then-dominant understanding of the Constitution in mechanistic terms.111 The government was not an instrument that, once set in motion, operated effortlessly like clockwork. Instead, Wilson argued in a lecture-turned-book, it was an organic, living, perpetually evolving reflection of the state’s inhabitants. Because the Constitution is “not a machine but a living thing,” it “is accountable to Darwin, not to Newton.”112 The Constitution, for Wilson, is what Americans are, not a device they have. Because “[t]he Constitution of the United States is not a mere lawyer’s document” but “a vehicle of life” capturing “the spirit of the age,” Wilson mocked those presidents who refrained “from using the full power they might legitimately have used, because of conscientious scruples.” They held the “Newtonian theory” of the Constitution and therefore “were more theorists than statesman.” Under Wilson’s understanding of the Constitution, “[t]he president is at liberty, both in law and conscience, to be as big a man as he can” because he alone represents the entire nation.113 “Crises,” Wilson remarked elsewhere, were natural occasions for presidential bigness because they “give birth and a new growth to statesmanship.”114

No less than Wilson, FDR learned from TR.115 It is difficult to overstate the admiration FDR had for Theodore Roosevelt.116 The younger Roosevelt perfectly imitated the elder’s political career, serving, successively, as a New York state legislator, assistant secretary of the Navy, New York governor, and finally, as U.S. president. In his Autobiography, TR explained that he, like Wilson, rejected the “narrowly legalistic view” that the Constitution hampered presidential initiative. Because the executive is “a steward of the people” and not the servant of Congress, “[m]y belief was that it was not only his right but his duty to do anything that the needs of the Nation demanded unless such actions were [expressly] forbidden by the Constitution.”117

Being the people’s steward required correctly gauging their interests. For this, TR enthusiastically recommended to FDR Thomas Macaulay’s work.118 Macaulay was a man in the political arena, like Wilson and TR, and just the sort of “theorist” Roosevelt respected. As Rosenman notes, Macaulay’s dictum, “‘Reform if you would preserve,’ was one of Roosevelt’s maxims, which he quoted frequently and observed always.”119 The correct reforms, contended Macaulay in his History of England, could be discerned by “trimming.”120 Convinced that extremes made for poisonous politics, Macaulay urged statesmen to “trim” between those centrifugal forces by introducing incremental reforms that maintained the English constitution’s balance between order and liberty.121 FDR self-consciously trimmed by observing the spectrum of public opinion, identifying the poles, and then “going down the whole line a little left of center.”122 He maintained that his New Deal was an exercise in reforming to preserve.123 The president often argued, wrote Rosenman, that the New Deal “saved the country from communism” by trimming between policies “congenial to communism,” on the one hand, and protective of an economic oligarchy, on the other.124

A “Layman’s” Constitution Begets “Practical Statesmanship”

Roosevelt’s Conception of the Constitution

Unlike TR and Wilson, FDR never put his constitutional philosophy to paper. But his public expression exhibited coherent ideas about the Constitution. This section, outlining Roosevelt’s conceptions of the Constitution and statesmanship, respectively, draws almost exclusively from his prewar rhetoric. Inferring his constitutional conception from his post–Pearl Harbor rhetoric would make it impossible to determine whether FDR’s wartime actions were a cause or instead, as I argue, an effect of his understanding of the Constitution. By separating FDR’s constitutional interpretation from the wartime context, I demonstrate that his established understanding of the Constitution, and the statesman’s role within it, conditioned how he performed his duties as a wartime president.

Three central themes pervade Roosevelt’s constitutional rhetoric (if not always his actions). First, like TR and Wilson, FDR saw the Constitution as a dynamic and pragmatic “layman’s document” that empowered more than it constrained the president.125 Second, like Wilson’s understanding of an organically evolving Constitution, Roosevelt urged that the Constitution could adapt to emerging circumstances without losing its characteristic form. Indeed, he believed that often the only way to secure the Constitution’s guarantees was by experimenting with institutional rearrangement until “democracy could be made to function” in the 20th century.126 Finally, consistent with TR’s stewardship theory of the presidency, FDR believed constitutional contests were best adjudicated by democratic politics. Because the Constitution was not a “mere lawyer’s document” (as Wilson first put it) but a “layman’s document,” complex “legalistic interpretation” should yield to the judgment of democratic voters and their representatives.127

In these times of "unprecedented demand and need for undelayed action," the "normal balance between executive and legislative authority" may prove inadequate.

Each of these themes was present from the very beginning of Roosevelt’s presidency — indeed, in his first inaugural address. And he introduced them in martial language and through military similes that foreshadowed how the president would later transmit this constitutional philosophy into wartime.128 Searching for what William James called a “moral equivalent of war” that could engender national unity, Roosevelt identified the Great Depression as the enemy and vowed to treat the “emergency at home” as one “would treat the emergency of a war.”129 Perhaps influenced by the era’s pragmatists, who extoled the “social possibilities of war” witnessed in World War I, Roosevelt implored Americans to “move as a trained and loyal army … with a unity of duty hitherto evoked only in time of armed strife.”130

First, because the Constitution empowered more than it constrained the president, he pledged to “assume unhesitatingly the leadership of this great army of our people dedicated to a disciplined attack upon our common problems.” He called on Congress to draft legislation he would “bring to speedy adoption.” But if Congress failed to take his carrot, he would not hesitate to swing sticks to meet “the clear course of duty that will then confront me.” In the face of legislative lethargy, he vowed to assume “broad executive power … as great as the power that would be given to me if we were in fact invaded by a foreign foe.”

Second, such a shift in the institutional balance of power was permissible because “[o]ur Constitution is so simple and practical that it is possible always to meet extraordinary needs by changes in emphasis and arrangement without loss of its essential form.” In these times of “unprecedented demand and need for undelayed action,” the “normal balance between executive and legislative authority” may prove inadequate. Fortunately, FDR assured Americans, the Constitution accommodated “temporary departure[s] from that normal balance of public procedure.”

And third, what legitimized this departure from normal politics and his assumption of broad executive power was not constitutional text but the will of “the people of the United States,” who “have registered a mandate” by making him “the present instrument of their wishes.” The only thing that would “mak[e] possible a leadership which aims at a larger good,” after all, was a people “willing to submit” to the “lines of attack” he drew.131

Roosevelt elaborated these themes in subsequent speeches before Pearl Harbor, notably in an address on Sept. 17, 1937, or Constitution Day.132 Seemingly taking a line from Wilson’s lectures, Roosevelt called the Constitution “a layman’s document, not a lawyer’s contract.”133 Like TR, FDR criticized how past presidents vainly assumed “the law catches up with life.” In so doing, they “sacrifice[d] each generation.”134 Those presidents failed to lead because they erroneously believed the Constitution neatly differentiated the powers of each branch. On the contrary, FDR implored, “[t]his great layman’s document was a charter of general principles, completely different from … the fine print which lawyers” use. Guided by “broad and general language capable of meeting evolution and change,” the “fundamental powers of the new national government” were articulated with “generality” that “flexible statesmanship of the future, within the Constitution, could adapt to time and circumstance.” Decades before Neustadt would argue that the Constitution did not create a government of “separated powers” but one of “separated institutions sharing powers,” Roosevelt argued that each federal branch “was treated with a purposeful lack of specification” precisely so that one institution (presumably the presidency) could expand its reach without offending the others’ domains.135 “[W]e revere” the Constitution, he asserted, “not because it is old but because it is ever new” and capable of meeting the day’s challenges.136

But aware that constitutional statesmanship is about reconciling the old with the new,137 Roosevelt elsewhere claimed that his project was to create a “new order” within the “framework and in the spirit and intent of the American Constitution.”138 Within that spirit and intent FDR sought to introduce a more muscular democracy. Acknowledging the “practical advantages” that the “more spectacular” dictators enjoyed, he declared “it was high time for democracy to assert itself” by “making democracy succeed” in the modern world.139 His resolve to remold American constitutionalism into a 20th-century shape prompted him (despite routinely disavowing the “methods” of dictators) to send public administration experts — comprising the Brownlow Committee — to fascist Italy in 1937 to study means of strengthening the executive’s administrative capacity.140 The committee’s report observed that Roosevelt’s intent was “but one grand purpose, namely, to make democracy work today in our National Government; that is, to make our Government an up-to-date, efficient, and effective instrument for carrying out the will of the Nation.”141 As FDR understood it, it was his “task to prove that democracy could be made to function in the world of today as effectively as in the simpler world of a hundred years ago.”142 He concluded that the “challenge to our democratic form of government” could only be solved by “successful adaptation of our historic traditions to the complex modern world.”143 And the only way “to prove that we can meet new national needs with new laws consistent with an historical framework” was by adopting a “liberal and not narrow interpretation” of the Constitution, which would sanction “unprecedented activities of federal leadership.”144

Impeding his project to “make democracy work,” thought Roosevelt, was a “legalistic interpretation” of the Constitution.145 Following his failed attempt to pack the Supreme Court, FDR lambasted judges, who were “not elected by the people” and claimed legitimacy only “by reason of life tenure.” The court, charged FDR, frustrated the “will of the overwhelming majority” who elected officials to “handle these problems in an effective, decisive way.”146 After the Supreme Court nullified key components of his First New Deal, Roosevelt demanded the court “do its part in making democracy successful.”147 “The process of our democracy,” and his project to recast that democracy in a 20th-century mold, “must not be imperiled” by those who would apply a constitutional standard from “the horse-and-buggy age.”148

For a president who enjoyed exceptional popularity, artfully shaped opinion with rhetoric, and disdained “complicated legalism,” it is unsurprising that FDR held an almost plebiscitary conception of policy legitimation.149 To FDR, not only should “the will of the people as expressed on election day” overrule the court, but it was an historical fact that it did.150 Although each era’s legalists would “cry unconstitutional” — from the “unconstitutional” Constitutional Convention to the Louisiana Purchase and the Civil War — politics had always “overruled” those “who would shrivel the Constitution into a lawyer’s contract.”151 What separated the constitutional from the unconstitutional, for FDR, was whether the people sanctioned it or later acquiesced. Therefore, Roosevelt often invoked an “anchor” of legitimacy that those with life tenure could not: “democracy — and more democracy.”152

Roosevelt’s Conception of Statesmanship

Never one to doubt his own abilities, Roosevelt believed he knew what statesmanship required and that he could provide it. First, it required the kind of trimming between the extremes recommended by TR and expounded by Macaulay. Second, it required educating those extremes so they could realize their common interests. Not unlike the pragmatism so often associated with Roosevelt’s leadership, FDR’s roles as a trimmer and educator-in-chief are not evidence of statesmanship itself. Rather, they are extraconstitutional tools of leadership that can render statesmanship compatible with American constitutionalism. If statesmanship is a means of securing the public good, then trimming and public education are but some of the various means through which a leader may attempt to exercise statesmanship. Trimming and public education, nonetheless, are tools particularly well suited to leadership under a democratic constitutional order. By trimming, the leader posits moderate policies that are more likely to reflect the desires of the entire public. By educating, the leader seeks to inform the legislature and citizens about the public interest so that they might see it and support policies in furtherance of it.

FDR revealed his propensity for trimming early on. In Federalist No. 10, Madison contemplated a generic debate over tariff policy. Naturally, the question “would be differently decided by the landed and the manufacturing classes.”153 Madison warned it would be “in vain to say that enlightened statesmen will be able to adjust these clashing interests, and render them all subservient to the public good. Enlightened statesmen,” he predicted, “will not always be at the helm.”154 Therefore, Madison posited the deliberate incorporation of factional competition over an extended republic as the surest safeguard of the public good. Nearly a century and a half later, while campaigning for his first presidential bid in 1932, Roosevelt (apparently unknowingly) took Madison’s challenge head on when he proclaimed, “The day of enlightened administration has come.”155 When deciding a “a proper tariff policy,” he said that “the task of statesmanship is to determine” the middle ground between dueling proposals and weave them together — in a word: trimming.156 As he would put it years later, “The first duty of our statesmanship is to bring capital and manpower together.”157

Moreover, educating the public was an indispensable tool of statesmanship for a president who believed his exercise of power was legitimized (sometimes solely) by popular support.

It was through such gradual trimming that Roosevelt sought to “build on the ruins of the past a new structure designed better to meet the present problems of modern civilization.”158 While reconciling old institutions with new conditions of modernity required him “to abandon the comfortable attitude of statesmen of the old school” — the kind criticized by TR and Wilson — he remained nonetheless confident that it was “possible under vigorous leadership to find the answer within the spirit and framework,” if not the letter, “of constitutional government and democratic processes.”159 Quoting Wilson’s 1913 inaugural address, FDR pledged in 1937 to “deal with our economic system as it is and as it may be modified, not as it might be if we had a clean sheet of paper to write upon; and step by step we shall make it what it should be.”160 The clearest articulation of Roosevelt’s conception of statesmanship, however, comes from a speech he delivered at Gettysburg in 1938. There FDR expressed his agreement with Lincoln that the “purpose for which the Nation was founded” was “to preserve under the changing conditions of each generation a people’s government for the people’s good.” Although “[t]he task” of statesmanship “assumes different shapes at different times … the challenge is always the same.” The question is “whether each generation facing its own circumstances can summon the practical devotion to attain and retain the greatest good for the greatest number which this government of the people was created to ensure.”161 It was a utilitarian goal that squared well with his majoritarian conception of policy legitimation, but it would not be achieved without deliberate leadership. Candidate Roosevelt had earlier argued that “[t]he task of statesmanship has always been the re-definition of [foundational] rights in terms of a changing and growing social order. New conditions impose new requirements upon Government.”162

Trimming toward a new structure and redefining rights are never easy or guaranteed in a democracy, of course. FDR recognized it required educating others, or using the political technique Neustadt later identified as the essence of presidential leadership: the power to persuade.163 While a “dictatorship may command the full strength of a regimented nation … the united strength of a democratic nation can be mustered only when its people” are “educated by modern standards to know what is going on and where they are going.”164] Because he understood statesmanship as an exceptional form of leadership, like any other leadership, it required followers.165 It required “courage,” yes, but the man-alone-on-an-island, Senator-in-filibuster courage later exalted as “statesmanly” behavior in John F. Kennedy’s Profiles in Courage was not leadership at all.166 Moreover, educating the public was an indispensable tool of statesmanship for a president who believed his exercise of power was legitimized (sometimes solely) by popular support. Even before assuming the presidency, Roosevelt scoffed at those who insisted “on the prompt production of a patent scheme guaranteed to produce a result,” as if governing meant simply promulgating policies. Technocratic expertise was not American statesmanship. But neither was following public opinion. Statesmanship entailed seizing opportunities to “refine and enlarge the public views” so that Americans could recognize their common interest.167 “Government includes the art of formulating a policy, and using the political technique to attain so much of that policy as will receive general support; persuading, leading, sacrificing, teaching always, because the greatest duty of a statesman is to educate.”168 With a Jeffersonian faith in the people’s collective judgment, Roosevelt trusted that if presented with the facts (always curated and sometimes exaggerated), the people would “generally choose the right course.”169

Occasionally, however, the people chose differently than FDR had hoped. For his early efforts to refine and enlarge public views vis-à-vis the Axis threat, for instance, he was called a fearmonger (in no small part due to his reliance on apocalyptic imagery).170 Undeterred, Roosevelt continued to educate Americans about world affairs before U.S. entry into the war. He “educated” in dramatic fashion, too. By declaring states of “limited” (followed by “unlimited”) emergencies, FDR attempted to apprise Americans of global developments (all the while laying claim to “inherent” executive powers).171 What uniquely qualified him to educate the public on looming threats was, he reasoned, the fact that the president alone had “a view of the whole ground,” as Jefferson put it.172 The president, not his detractors, had access to privileged information about the proximity, probability, and gravity of threats. In a prewar letter to a vocal critic, Norman Thomas, Roosevelt invited the isolationist Socialist Party leader to “be here for a week sitting invisibly by my side. It would not be a pleasant experience for you because you would get a shock every ten minutes” from the intelligence crossing the president’s desk.173 Moreover, the president alone possessed the institutional resources for “decision, activity, secrecy, and dispatch” needed to respond to the “new lightning speed of modern warfare” he so often emphasized.174 Because the presidency alone had the information to know and the institutional competence to respond, the president had the duty to educate.175

This section has outlined Roosevelt’s conceptions of the U.S. Constitution and American statesmanship. For Roosevelt, the Constitution empowered more than it constrained the presidency, it accommodated shifts in the institutional balance of power, and it could be best elucidated through democratic politics. FDR believed that the task of American statesmanship was to reform the constitutional order to preserve its promise of delivering the greatest good to the greatest number of Americans. In this endeavor, his tools of choice were trimming and education.

The following two sections show, first, that the constitutional philosophy articulated by “Dr. New Deal,” well before the war, shaped the leadership of “Dr. Win-the-War.”176 This is not altogether surprising. On his first day as president, Roosevelt introduced his constitutional philosophy with a call to arms. When an actual shooting war later emerged, he would ask Americans to recall that moment. “I want to do the same thing, with the same people, in this new crisis which faces America. We met the issue of 1933,” with “courage and realism” and will “face this new crisis … with the same courage and realism.” 177 In some ways the war would challenge the New Deal, but in more significant ways it would reinforce FDR’s domestic project. FDR had promised, “if war does come we will make it a New Deal War.”178 The constitutional historian Edward Corwin later concluded the president had kept this promise. In 1946, Corwin told an audience that “thanks to the New Deal,” the “Constitution of peacetime and the Constitution of wartime” are “very much the same Constitution.”179 After explaining Roosevelt’s leadership during the preparation and prosecution of the war in terms of his own constitutional philosophy, I then turn to evaluating that leadership against the standard of constitutional statesmanship.

The War Before the War: 1936 to Pearl Harbor

In that same lecture series, Corwin observed that locating the beginning of America’s mid-20th-century war was difficult.180 Scholars continue to disagree about the beginning of Roosevelt’s “wartime,” but most agree with Corwin’s claim that “[i]n the Second World War the emergency preceded the war,” or that there was a “War before the War.”181 In 1936, FDR warned that he saw in the world “many of the elements that lead to the tragedy of general war,” elements he would later claim made World War II “unmistakably foreseeable since 1936.”182 A year later, even the usually prescient Winston Churchill insisted in his essay “Hitler — Monster or Hero?” that “both possibilities are open at the present moment.”183 Acknowledging that Roosevelt stood “almost alone” in seeing “early what Hitler’s coming to power meant,” I take 1936 as the outset of Roosevelt’s wartime presidency, as the president did.184

For a man who saw statesmanship as gradual steps in the right direction, a game of inches suited him.

This section explains and then evaluates Roosevelt’s defense-oriented actions between 1936 and the attack on Pearl Harbor on Dec. 7, 1941. The following section does the same with respect to his actions from Pearl Harbor to his death before Nazi Germany’s surrender in 1945. We find greater evidence of statesmanlike behavior in the former period, perhaps because there was more opportunity for it. Before the “date which will live in infamy,” Roosevelt had to prudently lead public opinion, educate citizens to threats, and co-opt his foreign policy opponents so that Americans might choose (not without some prodding) their own best course.185 Pearl Harbor, argued the historian Arthur Schlesinger, Jr., “solved the President’s constitutional dilemma.”186 After it, FDR rode a wave of nationalism, ensuring that domestic politics (largely) stopped at the water’s edge. After it, the Court validated even his most constitutionally suspect moves while “Congress gave him virtually anything he wanted.”187

As Jon Meacham has said, “From ’39 through Pearl Harbor was one step forward and try not to take two back. It was a game of inches.”188 For a man who saw statesmanship as gradual steps in the right direction, a game of inches suited him. This game of inches goes underappreciated because we tend to read history backward, as if an attack on a far-flung U.S. territory was bound to ignite the “rally ’round the flag” effect that transpired.189 This self-verifying reasoning obscures how assiduously Roosevelt worked, both from the bully pulpit and beneath it, to set the stage upon which the attack would galvanize the nation. The “lend-lease” policy, which FDR signed into law in March 1941, arguably did more than any other policy to end the pretense of American neutrality and increase the likelihood of U.S. belligerency.190 This article, however, ignores the fight over lend-lease itself, focusing instead on the policies that made it possible. Lend-lease’s precursors, like the destroyers-for-bases deal and the cash-and-carry policy detailed below, better illustrate the inter-branch constitutional politics necessary for an evaluation of FDR’s leadership.

Allowing It to Get Ahead: FDR and Public Opinion

After winning reelection in 1936 with 61 percent of the popular vote, Roosevelt’s approval rating plunged to 48 percent by August 1939.191 To explain the loss of public confidence, scholars point to either the 1937–38 “Roosevelt recession” or the president’s failed attempts to pack the Supreme Court, shove a “dictator bill” through Congress, and purge his own party of New Deal skeptics.192 Above all, however, Roosevelt’s standing fell because he set out to awaken a nation “pretending that this war is none of our business” to the dictators who begged to differ.193

It was only natural that a president with such a populist notion of policy legitimation should care deeply about public sentiment.194 But FDR’s closest advisors reveal that the first president with access to passable polling statistics consulted them not for policy prescriptions but to tailor and adjust his appeals.195 Whether he capitulated to, gingerly nudged, or expertly steered public opinion throughout his long career, in his second term Roosevelt tended to “push opinion forward oratorically, allow its avant-garde to surge past him, follow cautiously in practice, and keep repeating the process.”196 Britain’s King George VI put it succinctly when, shortly before America declared war, he commended FDR for “the way you have led public opinion by allowing it to get ahead of you.”197 To do so, FDR had to educate, of course, but he also had to mislead people, circumvent Congress, and lay claim to new presidential powers. Still, he recognized the limits of the bully pulpit.198 Consistent with his conceptions of the Constitution and statesmanship — especially his belief that present circumstances shaped the government’s responsibilities and powers — Roosevelt knew real-world events would be more persuasive than even his most rousing fireside chats. His job, then, was to interpret events, speculate on what they portended, and propagate the U.S. interests at stake.

That Roosevelt was able to use his rhetorical skill to shape public opinion, allowing him to resort to persuasion where unilateral action might otherwise have been deployed, was itself a constitutional innovation of popular presidential rhetoric for which he had Wilson and TR to thank.199 Since the checks on presidential prerogative that FDR most respected emanated not from “complicated legalism” but from opinion polls, elections, and Congress — the stuff of democracy — educating those sources of legitimation was pivotal for Roosevelt. Occasionally, however, FDR failed to read the public’s mood and his attempts at persuasion backfired. One such example came in fall 1937. From this experience FDR learned to lead from behind, a lesson he would heed for the remainder of the pre–Pearl Harbor period.200

Storms From Abroad Come Home

Against the backdrop of European rearmament and Japan’s invasion of China, Roosevelt chose Chicago, the heart of isolationism, to propose a “quarantine” of aggressor nations as an alternative to Congress’s neutrality policy.201 FDR’s speech was “hailed as war mongering,” and he was accused of “search[ing] ‘under the bed’ for dangers of war which did not exist,” he later recalled.202 FDR would not overtly try to overturn isolationist sentiment for another 18 months. “It’s a terrible thing to look over your shoulder when you are trying to lead — and to find no one there,” he confided to Rosenman.203

So wary were Americans of foreign entanglements that Congress considered the Ludlow Amendment, a proposal that would require a public referendum to declare war, during Neutrality Act deliberations each year from 1935 to 1940. Following a Japanese attack on an American gunboat two months after FDR’s quarantine speech, 75 percent of Americans supported the amendment.204 For fear of losing more public support, Roosevelt refrained from publicly condemning the proposed amendment. Instead, he whipped the close 1938 vote on the amendment by sending a note to the House Democratic leadership.205 Though the war-making power was safe from referenda, Americans registered their opposition to belligerence in polls. Two months after the Munich agreement of September 1938, 95 percent of Americans opposed war.206 This opposition hardly relented over the next two years as the German blitzkrieg raced across Europe.

As the precariousness of Europe’s democracies became clearer to Roosevelt, so too did the obstacles posed by Congress’s neutrality laws, which prohibited transfers of U.S. materiel to belligerents. Though he stated the “wholly excellent” embargo provisions should be “clearly and unequivocally enforced” when signing them into law in 1935, he harbored reservations even then.207 The president recorded those reservations in an addendum to his signature on the bill, criticizing the legislation’s assault on executive prerogative: “It is conceivable that situations might arise in which inflexible provisions of law might have exactly the opposite effect from that which was intended.” Instead of “keeping us out” of war, he worried “the inflexible provisions might drag us into a war.”208 If the victims of aggression fell, America could be the aggressors’ next target, and one without any surviving allies. He later admitted that he “regretted” approving the bill, “since situations might arise requiring more flexibility of action than [the law] would permit.”209 FDR nonetheless remained hopeful in 1935, writing his ambassador to Germany, “The country is being fairly well educated, and I hope that next January, I can get” a law granting “authority to the President.”210 Instead, Congress reinstated the embargo three years straight. Already accused of provoking hysteria, Roosevelt would need to package his goal of repealing the embargo in nationalist and transactional terms. If any segment of the public supported repeal, it was less to “to help France and Britain” than “to improve business in this country,” polls found.211

Noting “storms from abroad” that challenge “institutions indispensable to Americans” in his 1939 State of the Union address, FDR did not mention repeal. Instead, he exposed the embargo’s unintended consequences. When we “deliberately try to legislate neutrality,” he posited, our “laws may operate unevenly and unfairly.” The law may “give aid to an aggressor” and “deny it to the victim.” “The instinct of self-preservation should warn us that we ought not to let that happen anymore,” since Americans could not know when aggressors might turn their sights toward the United States.212 Pressed days later to elaborate which reforms “short of war” he had in mind, FDR prevaricated, just as he had before when asked to reconcile his proposed quarantine with neutrality policy.213

To get there, FDR trimmed between accepting the neutrality laws as a fact, on the one hand, and defying them, on the other, to get a policy that empowered the president to respond to the changing threat landscape.

Having sown doubt about the embargo’s efficacy, FDR declined to make further statements on neutrality policy. He instead worked from beneath the bully pulpit to let public opinion foreshadow his moves. He accepted an offer from the chairman of the Senate Foreign Relations Committee to push for repeal.214 He enlisted help in assuaging the concerns of Irish Catholics, the American Legion, and labor groups, each of which opposed what they rightly surmised was Roosevelt’s goal of aiding Britain.215 At Roosevelt’s behest, the Republican newspaper editor William Allen White organized the Non-Partisan Committee for Peace through Revision of the Neutrality Act, which broadcasted radio addresses and published editorials to counteract a nascent grassroots anti-interventionist movement, the America First Committee.216

Roosevelt had abstained from neutrality talk since January when Congress took recess in summer 1939 without amending the embargo provisions. By July, the president’s impatience with legalistic barriers to the “layman’s common sense” prompted him to ask his attorney general, “How far do you think I can go in ignoring the existing [neutrality] act — even though I did sign it?!”217 Enclosed with the memo was the position of the vice president, who insisted, “[t]he President should not be bound at all by legislation [that] offends his constitutional powers” to “conduct foreign affairs.”218 This take was no doubt inspired by the apparent carte blanche provided by the Court’s 1936 Curtiss-Wright opinion, which asserted the “plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations.”219 (Ironically, the opinion’s central holding affirmed the president’s power to enforce the very neutrality laws the administration now sought to circumvent by invoking the opinion’s language.) Attorney General Frank Murphy disagreed, however. Murphy gave Roosevelt an answer that Murphy’s successor, Robert Jackson, would later enshrine into constitutional law through his concurring Supreme Court opinion in the “Steel Seizure” case.220 “The President,” Murphy’s team wrote, “could not safely rely on a claim of constitutional right to justify a disregard of the Neutrality Act.” Acting “without authority of Congress in the field of foreign relations is one thing.” But disregarding the “express” laws of Congress “is quite another thing.”221 Because democracy must be made to work under evolving geopolitical conditions, and the president was best positioned to assess those conditions, Murphy’s advice note did not mesh well with Roosevelt’s understanding of executive power under the Constitution.

Nonetheless, in this instance Roosevelt did not resort to unilateral action but instead to drumming up popular pressure. Having mobilized a nationwide network that loosened resistance to repeal, the president went to the press in August 1939 to exploit Congress’s “bet” that “another international crisis would not erupt.” If one did, Roosevelt told reporters, Congress had “tied my hands,” rendering him powerless “to prevent such a war from breaking out.”222 When, not a month later, Germany’s invasion of Poland seemingly called Congress’ bluff, Roosevelt encouraged public opinion to follow the direction of events, which it did.223 “This nation will remain a neutral nation,” he stated during a fireside chat that made no mention of the embargo, “but I cannot ask that every American citizen remain neutral in thought as well.”224

He delayed convening Congress for a special session until he gathered enough votes for repeal. FDR forbade a cabinet member from speaking to a Polish club in Chicago for fear of appearing unneutral and postponed the Canadian governor-general’s visit to Washington, writing, “I am, almost literally, walking on eggs” and “at the moment saying nothing, seeing nothing and hearing nothing.”225 Finally, in November, after aggressive bargaining complemented by subtle rhetoric, Roosevelt signed the Neutrality Act of 1939, replacing the arms embargo with a cash-and-carry provision that created space for flexibility. To get there, FDR trimmed between accepting the neutrality laws as a fact, on the one hand, and defying them, on the other, to get a policy that empowered the president to respond to the changing threat landscape.

The Arsenal of Democracy

In 1940, Roosevelt embarked on an unprecedented third presidential electoral campaign. “I think I’m needed,” he told his son who expressed misgivings about his candidacy, “and maybe I need it.”226 Consistent with his constitutional conception that prized popular legitimation, he believed that so long as a quadrennial referendum took place, his continued presidency did not deprive the people of their political freedom. Citing “extenuating circumstances” to justify his break from the norm, he later wrote a friend: “The real meat of the question is not the length of term, but the [people’s] continued opportunity to express themselves every four years.”227 “Free elections,” he would emphasize during his fourth-term campaign in 1944, “will always protect our Nation” from those who “build bogies of dictatorship in this Republic.”228 Standing in the way of his third term, however, were two defense policy decisions, either of which could cost him reelection. First, Britain desperately needed war implements. Second, the defense production program he had directed now needed an army of conscripts to field the equipment.

On May 15, 1940, five days after assuming the premiership of a beleaguered Britain, Churchill cabled Roosevelt requesting the “loan of forty or fifty of your older destroyers” to replace Britain’s rapidly dwindling stock.229 The American public was not resigned to the Allies’ cause, however.230 Therefore, in order to get Britain the ships it needed, FDR repeated the steps that won the cash-and-carry policy: a little rhetoric followed by lots of politicking.

Without mentioning any specific materiel, Roosevelt reaffirmed the nation’s cash-and-carry pledge to “extend to the opponents of force the material resources of this nation,” for “the future of this nation” was bound to their fate.231 Still, the 1917 Espionage Act and the recently passed Walsh Act each prohibited the transfer of “essential” U.S. materiel to belligerents. An Interior Department attorney believed he could rescue the deal, positing it would be legal so long as there was “an exchange of the destroyers for strategic British naval and air bases in the Atlantic.”232 FDR quickly alerted White’s network, renamed the Committee to Defend America by Aiding the Allies following the embargo repeal, to preempt the protestations of the America First Committee, now 800,000 strong.233 He directed advisors to furnish a legal basis for aiding “the allies,” which appeared in the New York Times in August.234 FDR welcomed Senator David Walsh — the anti-interventionist Irish-American chairman of the Senate Naval Affairs Committee and sponsor of a bill outlawing the transfer of “essential” war implements — aboard the presidential yacht to dissuade him from raising objections once FDR announced the deal with Britain. Roosevelt secured promises from Republicans and Democrats alike that they would “take no negative action” so long as he could negotiate the agreement unilaterally (lending congressmembers plausible deniability), retroactively convince Americans the United States needed the overseas bases, and then absorb any backlash himself.235

Consistent with his constitutional conception that saw executive initiative appropriate if retrospectively legitimated by the people, Roosevelt presented the “destroyers-for-bases” deal as a fait accompli on Sept. 2, 1940, employing practical statesmanship at a moment he believed the law had misconceived and Congress had misunderstood the national interest.236 He anticipated with some hyperbole, “Congress is going to raise hell about this but even another day’s delay may mean the end of civilization. Cries of ‘warmonger’ and ‘dictator’ will fill the air, but if Britain is to survive, we must act.”237 Cries of dictatorship did emerge, notably from Corwin, who in a lengthy op-ed assailed the memo Attorney General Robert Jackson wrote to justify the deal. Jackson had defended the deal in strategic terms — arguing that it was “beyond doubt that present world conditions forbid [Roosevelt] to risk any delay” — and in constitutional terms, doubling down on the Court’s recent recognition of the president’s “exclusive Power” as the “sole organ” of the nation’s “international relations.”238 Corwin called Jackson’s “endorsement of unrestrained autocracy” the most “dangerous opinion ever before penned by an Attorney General.”239 The public’s reception was more acquiescent, though. As Warren Kimball explains:

One critic of Roosevelt’s disingenuousness quotes the Book of Psalms: “Put not your trust in princes.” … Where should trust be placed? … In the American democratic republic, the alternatives are Congress and the courts. No one in Congress introduced legislation to nullify the destroyers-bases deal. No one filed charges against his Cabinet for violating the law. Public opinion — created and expressed in polls, print, and radio — supported the arrangement, as did the bulk of White House mail, to Roosevelt’s surprise. One hundred and seventy-five years earlier James Madison had argued that the prince, in this case the president, could be restrained only by politics, not by law. Perhaps the reason FDR could manipulate the politics and even dissemble and lie is that the “people” did not disagree. That is how politics works.240

And that is how politics should work, thought FDR: the mess of democracy, not “technical legalistic reasoning,” adjudicating constitutional contests.241 The deal “seems to have worked out perfectly,” Roosevelt wrote King George VI following his reelection. “There is virtually no criticism in this country except from legalists who think it should have been submitted to the Congress first. If I had done that, it would still be in the tender care of the Committees.”242

Second, following the fall of Paris to Nazi occupation in June, public opinion was warming to the need for a draft. Catching up with public opinion, FDR signed the draft into law, calling it "America’s answer to Hitlerism."

Two weeks later, Roosevelt signed the Selective Service Act into law on Sept. 16, 1940 (the day before “Constitution Day”).243 The act was the subject of fierce debate in Congress because its passage would impose the nation’s first peacetime draft, breaking with an American tradition deeply skeptical of standing armies.244 Congressional opponents claimed it courted, rather than deterred, war. They argued “there will be time enough” for military conscription “when we are threatened and war is inevitable.”245 Legislators and constituents alike also wondered what the draft — decidedly more personal in its implications than sending arms to democracies — suggested about the state of constitutional government. “If you pass this bill,” a senator from FDR’s party admonished, “you slit the throat of the last democracy still living.”246

Worried the conscription bill could cost him the election, Roosevelt again remained silent on the issue. He worked closely with congressional allies to gain votes and allowed public opinion to catch up and then precede him.247 He was greatly aided by two events. First, his opponent, Republican presidential nominee Wendell Willkie, jilted his party’s platform by endorsing conscription.248 Second, following the fall of Paris to Nazi occupation in June, public opinion was warming to the need for a draft.249 Catching up with public opinion, FDR signed the draft into law, calling it “America’s answer to Hitlerism.”250

A month and a half later and just days before the election, Roosevelt visited Boston. Addressing mostly Irish-American “mothers and fathers” skeptical of Roosevelt’s decision to help the British, he told them, “I have said this before, but I shall say it again and again and again: your boys are not going to be sent into any foreign wars.”251 His speechwriters convinced him to drop his usual qualifier, “except in case of attack.”252 When asked to explain why he omitted it, FDR said it was implied.253 Incensed by Roosevelt’s duplicity, Willkie howled, “That hypocritical son of a bitch! This is going to beat me!”254 The accusation was fair, and the prediction correct.

Causing an “Incident”: The Greer Story and Other Statesmanlike Lies

FDR’s pledge in Boston was a deceptive statement because FDR had, by 1940, foretold U.S. entry into the world war.255 During this period, Roosevelt minimized how some of his actions entangled the U.S. military, he exaggerated the threats to U.S. security, and he downright lied about some events. Presidents have been impeached for lying, which can erode public confidence in democratic leadership.256 But lying — and its softer variants like misleading, spinning, and concealing — can occasionally achieve noble aims.257 In June 1941, Roosevelt recalled that since 1937, “I deemed it as my duty constantly to keep before the people of the United States the ever-growing menace of a general European war.”258 But he also knew, as he wrote a friend in fall 1941, that “[g]overnments, such as ours, cannot swing so far or so quickly. They can only move in keeping with the thought and will of the great majority of our people,” and that great majority was not yet resigned to war.259 Educating others to see what the president saw by virtue of his position required events he could spin to illustrate the growing threat.

Thus, in September 1941, FDR narrated a grossly misleading account of the “Greer incident.” A month earlier, when Churchill discreetly climbed aboard the U.S.S. Augusta to meet Roosevelt and discuss what would become known as the Atlantic Charter, Roosevelt committed to “creating an incident.” Emboldened by the “decidedly unneutral” destroyers-for-bases deal, Churchill pleaded for American belligerency.260 Roosevelt replied that he was “skating on pretty thin ice in his relations with Congress.” Nevertheless, as Churchill later explained to his cabinet, the president “said he would wage war, but not declare it, and that he would become more and more provocative.” The president would order the U.S. Navy, then escorting British convoys carrying American aid, “to attack any [German] U-boat which showed itself, even if it were 200 or 300 miles away from the convoy.” The president “made it clear that he would look for an ‘incident’ which would justify him opening hostilities” with Germany.261 As the congressional testimony of FDR’s War Secretary Henry Stimson put it, it was FDR’s intent to “maneuver” Axis powers into “firing the first shot” so as to gain “the full support of the American people” to join the war.262

Stretching the geographical boundaries of the Western Hemisphere and thus defying congressional statute, Roosevelt ordered the Navy to provide armed escorts as far out as Iceland, where he was confident convoys would find U-boats.263 Only weeks after FDR and Churchill’s meeting, the U.S.S. Greer, accompanying British military aircraft, encountered a German U-boat in the North Atlantic. The British planes dropped depth charges but quickly returned to base to refuel, at which time the Greer unilaterally pursued the submarine. The Germans fired a torpedo, at which the Greer released its own depth charges, but both missed their targets. A week later — ample time to sort out the details with U.S. naval commanders — Roosevelt broadcasted an exceptionally deceptive fireside chat, telling Americans that the attack on the Greer was unprovoked. Moreover, he chose not to disclose the fact that the U.S. Navy was accompanying British aircraft or that the Greer had independently attacked the German submarine.264

If he was “perfectly willing to mislead and tell untruths if it will help win the war,” 265 then it seems that FDR was also willing to do so to help enter the war. Referring to the attack as “piracy — legally and morally,” FDR claimed the submarine “fired first upon this American destroyer without warning, and with deliberate design to sink her” in “defensive waters.”266 Moreover, Roosevelt stated that the Greer’s American identity was “unmistakable,” even though Navy officials told FDR that it was unlikely that the Germans knew the ship’s nationality.267 “We have sought no shooting war with Hitler,” he claimed, and “[w]e do not seek it now.” “But when you see a rattlesnake poised to strike you, you do not wait until he has struck you before you crush him.”268 Against Hitler’s orders, another U-boat struck the U.S.S. Kearny the next month, claiming the first American casualties of the undeclared war, shortly followed by a hundred more in a torpedo attack on Oct. 27, 1941. Roosevelt again exploited the opportunity to educate. He claimed to have in his possession documents seized from Germany detailing Hitler’s plans to “abolish all existing religions” and to divide South America into “five vassal states.”269 The charges were sufficient to repeal the neutrality law’s “carry” provisions, freeing the U.S. military to openly provide armed convoy escort of its aid overseas.270

In his memoir, My Parents, the president’s eldest son James recalled a conversation in which he confronted his father about “the dishonesty of his stand on war” before Pearl Harbor. “Jimmy, I knew we were going to war. I was sure there was no way out of it,” FDR told him. “But I couldn’t come out and say a war was coming, because the people would have panicked and turned on me.” The president defended his duplicity, explaining, “If I don’t say I hate war, then people are going to think I want us in it. If I don’t say that I won’t send our sons to fight on foreign battlefields, then people will think I want to send them.” Explaining his understanding of statesmanship as gradual trimming, Roosevelt recalled that “I had to educate the people to the inevitable, gradually, step by step, laying the groundwork for programs which would allow us to prepare for the war.” “[A]s president,” he wished he were granted more discretion since he “was in a position to know what was happening in the world much more than was the public or even members of Congress.” But acknowledging democratic constraints, FDR summarized his approach with the logic of a quintessential pragmatist: “So you play the game the way it has been played over the years, and you play to win.”271

Performance as a Constitutional Statesman (Pre–Pearl Harbor)

FDR’s leadership from 1936 to 1941 reveals the promise, and some perils, of constitutional statesmanship. He exercised power, no doubt, but also prudence, taking care to educate the public and win congressional consensus in many instances. In his campaigns to repeal the arms embargo and institute the peacetime draft, Roosevelt nudged public opinion rhetorically, shaped it from beneath the bully pulpit, allowed it to get ahead, and, finally, caught up to it with policy. While he contemplated violating embargo provisions before they were removed by law, ultimately, he secured a legislative solution. While the military draft challenged conceptions of freedom in liberal-constitutional states, FDR once again won the day via legislation, not executive decree.

While he did skirt the law with the destroyer deal, break a constitutional norm in seeking a third term, and manipulate the public on various fronts, his cunning aimed to secure the public’s good. His circumvention of rules was necessary to prepare a nation — industrially, strategically, and psychologically — for a security crisis Roosevelt did not think it could evade (a prediction vindicated by the attack on Pearl Harbor). And though rules once bent can rarely be restored fully intact, the rules circumvented here largely functioned after the war. For example, the draft first instituted in peacetime ended shortly after the war.272 One uncertain norm — limiting a president to two terms — was even strengthened due to FDR’s breach.273

Instead of articulating a constitutional rationale, he hid behind his attorney general, whose opinion introduced the then-novel, now-routine, practice of furnishing constitutional apologia for the president’s national security actions.

Two instances of leadership, however, merit further consideration. First, while scholars can and do disagree over the necessity of FDR’s deception on the road to war, the long-term, pernicious consequences are clearer. A democratic public generally expects its executive to use its considerable information advantages to apprise them accurately. FDR arguably bent the norm so badly that it functioned poorly thereafter. This article’s conclusion provides an illustration.

Second, the destroyer deal deprived the people of their right to judge his statesmanship. Challenging the constitutional allocation of powers and violating congressional intent, FDR’s destroyers-for-bases deal is an exemplar of Lockean prerogative in action. Complaining about legal constraints, Roosevelt anticipated that “situations might arise requiring more flexibility of action than [the law] would permit.”274 Such situations are the very reason Locke introduced executive prerogative — “the Power to act according to discretion, for the publick good, without the prescription of Law and sometimes even against it” — into his treatise on limited government.275 As Schlesinger observed, “FDR was a Lockean without knowing it.”276

Kimball argues the destroyer deal did not deprive the people and their representatives of their ex post facto right to evaluate and punish the executive, which Locke theorized would check the abuse of prerogative.277 Indeed, Congress indemnified the deal. Mere months after Roosevelt concluded it, Congress appropriated funds to construct bases on the islands gained from Britian in exchange for the destroyers.278 The Supreme Court, by its silence, validated FDR’s leap. The problem, from the perspective of the constitutional statesmanship standard, is that Roosevelt did not facilitate the people’s opportunity to judge him for the decision. As Sarah Burns notes, Roosevelt did not “throw himself at the mercy of Congress or the people.”279 Instead of articulating a constitutional rationale, he hid behind his attorney general, whose opinion introduced the then-novel, now-routine, practice of furnishing constitutional apologia for the president’s national security actions. Ironically, FDR, who despised “complicated legalism,” inspired a tradition that converted Lockean prerogative — an extralegal political device by design — into an essentially legal tool.280 One might argue that the upcoming election effectively threw FDR to the people’s judgment. Roosevelt confessed he expected (if only momentarily) his gamble to cost him the election.²⁸¹ But then one wonders why he put to a congressional vote a much more controversial military draft two weeks later, which he also feared could spell electoral defeat. Because Roosevelt made no obvious attempt to educate the public to the national interest at stake before brokering the deal, nor to facilitate the public’s evaluation of his decision after the deal, the destroyer deal fails the standard of constitutional statesmanship.

In this period more generally, however, FDR did combine power and prudence to prepare his country for a future fight he thought it was unlikely to dodge. In his 1939 State of the Union address, he praised the nation’s “far-flung internal preparedness.” More impressively, thought Roosevelt, it had done so without paying the “costs” suffered by those living under dictatorship. Happily, Americans need not fear “the cost of being cast into a concentration camp” and “the cost of being afraid to walk down the street with the wrong neighbor.” Indeed, at the time, America had prepared for its defense “without any dictator’s power to command, without conscription of labor or confiscation of capital, without concentration camps and without a scratch on freedom of speech, freedom of the press or the rest of the Bill of Rights.” Roosevelt would soon find, however, that prosecuting a war posed different problems than preparing for one. In just three years’ time, as the nation traded in its role as the arsenal of democracy for that of a belligerent demanding unconditional surrender, he would resort to some of these “dictator’s powers” and Americans would suffer some of the “costs” he pledged “the American people will never pay.”282

FDR’s Constitution Goes to War: Pearl Harbor to 1945

On the evening of “a date which will live in infamy,” the president was the calmest person in a room filled with scrambling officials.283 With the Japanese impetus to war and Germany’s declaration of war on the United States days later, Roosevelt’s “terrible moral problem had been resolved,” his labor secretary observed.284 No longer would FDR have to read to Americans from “the Nazi book of world conquest.”285 There were no more “incidents” needed and no more pledges to keep Americans from war “except in case of attack.” His work in preparing America to fight a war most had opposed was over, and thus were achieved his most trying tasks as statesman. After the attack on Pearl Harbor, Roosevelt bent his oratorical skill toward educating Americans on the war’s conduct, sustaining their resolve, and rebutting defeatism.286 But he spoke to the people less after Pearl Harbor because he had more pressing duties.287 Moreover, after the attack he had fewer people to persuade. The country, Lippmann reported, has “overnight” become “at long last a united people,” united in what we now remember as the “good war.”288 Because few opposed America entering the war after Pearl Harbor, World War II on balance gave rise to fewer occasions for repressing civil liberties than prior U.S. wars.289 Even so, Roosevelt faced few of the democratic checks that before had tamed his prerogative. In the absence of such impediments — institutional, legal, and popular — the war engendered the most breathtaking, and ugliest, expressions of his constitutional philosophy.290

FDR as Judge, Jury, and Executioner

To be sure, Roosevelt did not always get his way during the war. A “national service law” he championed, for example, designed to conscript American laborers into “essential” wartime work, collapsed under the weight of public and congressional opposition in 1944.291 FDR’s wartime power, like his prewar power, could be checked by democratic means. Where such popular constraints were lacking, however, FDR’s wartime leadership vindicated Madison’s famous observation that “[w]ar is in fact the true nurse of executive aggrandizement.”292

In a September 1942 address to Congress, FDR forcefully reaffirmed ideas first articulated in his first inaugural address. Claiming to embody the collective will of “the American people,” Roosevelt asserted that he possessed “under the Constitution” the power to override Congress. Specifically, Roosevelt demanded that Congress amend, by a deadline he set, the Emergency Price Control Act passed in January 1942. The amendment would empower the president to stabilize prices, fix wages, and, Roosevelt argued, “avert a disaster” tantamount to military defeat. If Congress balked, FDR vowed that he would simply act as if the act were nevertheless amended.293 The threat worked — not a month later, Congress passed the Stabilization Act of 1942.294

During the war, FDR expanded subversive activities to include not only those of Americans sympathetic to "Fascism and Communism" but also the activities of antiwar groups, labor unionists, and the president’s political opponents.

If Roosevelt sometimes betrayed his annoyance with Congress, he always showed little patience for “fine print,” lawyerly constraints on his wartime leadership.295 Before joining the war, FDR protested that the Supreme Court’s 1939 decision in Nardone, which held evidence obtained via warrantless wiretapping was inadmissible in federal court, was “never intended” to “apply to grave matters involving the defense of the nation.”296 Accordingly, in May 1940, the president ordered his attorney general to authorize the FBI’s deployment of “listening devices” against “suspected subversive activities.”297 During the war, FDR expanded subversive activities to include not only those of Americans sympathetic to “Fascism and Communism” but also the activities of antiwar groups, labor unionists, and the president’s political opponents.298

His contempt for legal process and judicial independence was on full display when, in June 1942, the FBI apprehended eight would-be German saboteurs, two of whom were U.S. citizens.299 Roosevelt issued a proclamation appointing a military commission to try the suspects in secret and granting himself final review of the commission’s judgment.300 Despite concerns that such a proceeding, following the Supreme Court’s 1866 decision in Ex parte Milligan, might violate the Constitution’s Fifth and Sixth Amendment guarantees to indictment by grand jury and trial by jury, as well as Congress’s Articles of War,301 the president impressed on the tribunal before it convened his belief that the “death penalty is almost obligatory.”302 Through his attorney general, FDR warned Supreme Court justices, “I won’t give them up. … I won’t hand them over to any United States marshal armed with a writ of habeas corpus. Understand?”303 By the time the Supreme Court released its written opinion on the constitutionality of the military commission, six of the eight convicted saboteurs had been executed, including a U.S. citizen.304 “The case,” Ex parte Quirin, “was not this Court’s finest hour,” Justice Antonin Scalia would later write.305

A Naked Dictatorship

Less than a month after the Japanese attack on Pearl Harbor, as suspicion of Japanese-American “fifth-column” activities spread, Roosevelt cautioned against punishing U.S. residents on account of “the accident of birth.” He implored the nation to “[r]emember the Nazi technique,” which “pits race against race.” He admonished, “[w]e must not let that happen here. We must not forget what we are defending: liberty, decency, justice.”306 The president had professed before that “imitat[ing] the methods of the dictatorships” is something “Americans never can and never will do.”307 But on Feb. 19, 1942, FDR issued a military order that collapsed the wall separating American and totalitarian methods.308 Executive Order 9066 forcibly evacuated 117,116 Japanese-Americans from the West Coast, interning them at “relocation centers” further inland.309 While the decision is difficult to reconcile with some of Roosevelt’s espoused ideals, it is less difficult to reconcile with his constitutional philosophy in the face of few democratic impediments.

In 1940, the president wrote to the American Committee for Protection of Foreign Born, extolling America’s “tradition of hospitality to men of all races and creeds.” “One of the great achievements of the American commonwealth” was that “groups which had fought each other overseas” were “friends” in America. To protect this tradition, he continued, “we must be vigilant against the attacks of intolerance and injustice. We must scrupulously guard the civil rights and civil liberties of all citizens, whatever their background.”310 In his 1937 Constitution Day address, Roosevelt even went so far as to outline the narrow circumstances under which his administration would violate the civil liberties of a minority: “Let me put the real situation in the simplest terms. The present government of the United States has never taken away and will never take away any liberty from any minority, unless it be a minority which so abuses its liberty as to do positive and definite harm to its neighbors constituting the majority.311 Nowhere in the historical record, however, is there any indication that a single relocated person did “so abus[e]” his or her “liberty as to do positive and definite harm” — either before the internment or during it. Many on the West Coast feared that some Asian residents intended them harm, but Roosevelt’s intelligence sources concluded the worry was baseless.312 Noting the absence of a single conviction for sabotage among those interned, Clinton Rossiter concluded, “The government of the American Republic was a naked dictatorship” to the “Japanese-American citizens of the Pacific Coast.”313

FDR’s 1937 Constitution Day address took a telling turn when he qualified his stance on individual rights. Once again revealing his majoritarian conception of policy legitimation, Roosevelt said, “The government of the United States refuses to forget that the Bill of Rights was put into the Constitution not only to protect minorities against [the] intolerance of majorities, but to protect majorities against the enthronement of minorities.”314 Roosevelt’s second attorney general, Frank Murphy, once asserted that “the greatest protector of civil liberty … is the invincible power of public opinion” — presumably meaning the majority public opinion.315 If that public opinion was supposed to be the Roosevelt administration’s constitutional guardrail, the president’s internment decision is hardly a mystery. Throughout the nation, Americans demanded action in response to the “Japanese problem.”316 In an irony only the fog of war could produce, FBI director J. Edgar Hoover opposed California Attorney General Earl Warren, the future civil liberties champion of the Supreme Court, who demanded the swift removal of Japanese-Americans from the West Coast.317 Over the objections of Hoover, Attorney General Francis Biddle, and Deputy Army Chief of Staff Mark Clark, and on the advice of Assistant Secretary of War John J. McCloy, FDR invoked his authority as commander in chief to order the internment. McCloy’s rationale for his recommendation was blunt: “If it is a question of the safety of the country or the Constitution of the United States, why the Constitution is just a scrap of paper to me.”318

The decision can be squared with Roosevelt’s high-minded rhetoric mentioned above if we recall the president’s conception of a Constitution molded by evolving polity needs, characterized by its flexibility, and legitimized by the day’s public opinion. As Kimball noted about the destroyers-for-bases deal,319 “[n]o one in Congress introduced legislation to nullify” the internment. Instead, Congress reinforced the order with a statute that Corwin called “the most heartless measure ever enacted by the American Congress.”320 Though charges were filed against the administration for “violating the law” in this instance, the Court thrice upheld possibly one of the greatest violations of civil liberties in American history.321 And the public not only largely “supported the arrangement,” but many influential voices demanded it. “Americans across the political spectrum,” observes Samuel Walker, “for their own varied reasons chose not to protest.”322 In the absence of formidable democratic checks on his prerogative, FDR was unlikely to be bothered by legalists who might “cry unconstitutional.”323

Performance as a Constitutional Statesman (Post–Pearl Harbor)

As before Pearl Harbor, FDR’s actions after the attack challenged central features of U.S. constitutionalism. His assertion of unilateral executive power bullied Congress until it delivered the Stabilization Act for his signature. He circumvented congressional statute and creatively reinterpreted Court rulings to expand the government’s wiretapping program, often targeting political opponents who posed no security threat. The undue influence he exerted on the judicial process and outcome of the German saboteurs’ trial arguably made Roosevelt judge, jury, and executioner. And yet, as much as these episodes threatened the constitutional separation of powers, it is the internment — a decision supported by the Congress, the Court, and many citizens — that is most at odds with American constitutional guarantees.

FDR’s order fails the constitutional statesmanship standard on all accounts. It was a display of power unencumbered by prudence.

Acknowledging that the dictates of constitutionalism often conflict with the demands of war, the question, from a constitutional statesmanship perspective, is whether internment was a necessary, even reasonable, response to the demands of war. Roosevelt’s top advisors, most of whom opposed internment before the order was issued, later tried to justify it as an act of military necessity.324 As Corwin observed, however, “the simple chronology” of events casts doubt on the ex post facto explanation.325 The internment order was issued six weeks after Pearl Harbor and executed only five months thereafter. What increased in that interval was not the threat of Japanese-directed sabotage, but instead popular demand for evacuation. Moreover, the order was only discontinued once FDR secured his fourth term, well after field commanders had assured him that the order no longer served a military purpose. The timeline of events, in short, suggests the prioritization of populist politics over constitutional rights. A reading more charitable to FDR would be that, following the Japanese attack on Pearl Harbor, he genuinely (if uncritically) worried that residents of Japanese descent posed a future threat to the homeland. But we will likely never know because Roosevelt never attempted to rationalize his decision to the public, despite stressing only months after the internment expired: “In a democratic nation, power must be linked with responsibility, and obliged to defend and justify itself within the framework of the general good.”326

FDR’s order fails the constitutional statesmanship standard on all accounts. It was a display of power unencumbered by prudence. It broke longstanding constitutional rules — that seizures must be reasonable and based on individualized suspicion, that the equal protection guarantee prohibits discrimination on the basis of race, that due process of law must precede deprivations of liberty — without demonstrating how circumventing the rule would secure the public good. Rather than “refine and enlarge the public view,” Roosevelt allowed a raw and narrow public view to dictate policy.327 Instead of leading public opinion by educating it, he indulged the “temporary delusions” of the loudest voices.328 Rather than trimming between excesses and uniting Americans, Roosevelt “pit[ted] race against race.” And instead of explaining his action and throwing himself to the people for judgment, he deprived the people of their power to evaluate him and instead relied on the deference of justices he found so undemocratic.

Conclusion

Now in a well-ordered republic it should never be necessary to resort to extra-constitutional measures; for although they may for the time be beneficial, yet the precedent is pernicious, for if the practice is once established of disregarding the laws for good objects, they will in a little while be disregarded under the pretext for evil purposes.

 – Niccolò Machiavelli329

Machiavelli goes on to write, “No republic will ever be perfect if she has not by law provided for everything, having a remedy for every emergency, and fixed rules for applying it.”330 Of course, if a republic could fashion a rulebook to address every contingency, constitutional statesmanship would become a simple administrative science. But no such science exists because no such constitution is possible. Since law can only imperfectly foresee exigencies, Machiavelli conceded that all constitutions must provide for something like the Roman dictatorship, an institution that offers republics brief refuge from “urgent dangers” their normal procedures cannot meet.331 By contrast, the American Constitution places its faith in an executive to prudently balance the dictates of constitutionalism against the demands of war.332 If constitutional statesmanship is a possible resolution to the tension between these two imperatives, did Roosevelt evince it?

In 1944, FDR outlined how he hoped posterity would answer the question. Addressing a crowd listening from the banks of the Hudson River, the president said:

We have done it in the American way, with the approval of the American people, and that is something — to go on with our same ideals, our same form of government — as we have always done. And I hope tomorrow that it is going to be said in this country that the war has been conducted constitutionally, and with the approval of the people of the United States. I hope that will be said. I think it will.333

“The American way,” “with the approval of the people,” and “constitutionally” were effectively interchangeable ideas to him. As Robert Jackson revealed, Roosevelt thought “in terms of right and wrong,” not “legal and illegal.” Confident his motives were noble, FDR “found difficulty in thinking that there could be legal limitations on them.”334 Still, Jackson concludes, “I think Roosevelt tried to fulfill his functions within the Constitution.”335 Biddle seems to have disagreed when, reflecting on Japanese-American internment, he concluded, “[t]he Constitution has never greatly bothered any wartime president.”336 How might we reconcile such opposing appraisals, from FDR’s two, successive constitutional advisors?

The difference may be contextual. Jackson served as attorney general before Pearl Harbor, while Biddle occupied the office during the war.337 It is also possible that Jackson’s conception of the Constitution just mirrored that of FDR’s more than Biddle’s did, a possibility reinforced by the fact that FDR later nominated Jackson to the Supreme Court. As discussed above, as attorney general, Jackson carried water for FDR’s destroyer deal. Even after he left the White House for the Court, Jackson exhibited a level of deference to the commander in chief (or at least to his old boss, FDR, if not Truman) that is uncommon even by Court standards.338 In an unpublished opinion he circulated on the Quirin case, Jackson suggested that the Court reviewing the president’s treatment of captured saboteurs was “unauthorized and possibly mischievous.”339 Biddle, representing the government before Jackson and the other justices, had timidly argued as much, but it seems only Jackson really believed it.340 In his dissenting opinion in Korematsu, in which the Court upheld the internment order, Jackson reiterated his misgivings about the Court’s competence to review military decisions. However odious the order, the Court should not interfere with its execution because “military decisions are not susceptible of intelligent judicial appraisal,” he wrote.341 While Jackson — the justice charged with determining the constitutionality of FDR’s wartime decisions — doubted the justiciability of those decisions, Biddle — the attorney general charged with justifying those decisions — doubted their constitutionality.342

Two weeks before Roosevelt issued the internment order, Biddle observed that “the strains and stresses of war bring out the worst as well as the best in men.”343 War did bring out of FDR the best of geopolitical statecraft and postwar vision, as well as the ugliest expression of his majoritarian constitutional conception. The point was perhaps not lost on Roosevelt himself, who often reminded Churchill, “[i]t is permitted you in time of grave danger to walk with the devil until you have crossed the bridge.”344 He recited the proverb to justify their Faustian bargain of embracing “Uncle Joe” Stalin as an ally, but it might just as well have been Roosevelt’s self-conscious confession that constitutional compromises are the unfortunate casualties of major war. Do such compromises render constitutional statesmanship an oxymoron?

Roosevelt’s example suggests not. Unlike Neustadt’s power-maximizing president or Corwin’s president as constitutional custodian, this standard’s two components —constitutionalism and statesmanship — often force tradeoffs that preclude optimizing both simultaneously. Nonetheless, by assessing the necessity and the consequences of a leader’s circumvention of rules in pursuit of the public good, we can apply the standard.

The task was formidable, and not accomplished without compromises of constitutional integrity. But Roosevelt proved that a people governed by that Constitution could fight for its life under the leadership of something like constitutional statesmanship.

Justifying Roosevelt’s prewar circumvention of rules was the necessity of preparing a nation to defend itself when few others could or would. And while war and necessity often go hand in hand, absent from the wartime episodes examined above was, paradoxically, military necessity. Constitutional rules and institutions appeared adequate to secure the public interest (and FDR made no attempt to show they were not). Neither wiretapping political opponents, interfering in judicial proceedings, nor interning a class of people was obviously warranted by necessity. Moreover, just as the necessity faded, so too did impediments to Roosevelt’s will. This combination may explain why the constitutional statesman of the late 1930s later struggled to reconcile statesmanship and constitutionalism. In the prewar period, FDR faced impediments — Congress’ resistance and voters’ preference for isolationism — that supplied the necessity to circumvent rules and the motivation to persuade. During the war, with those impediments mostly removed and public sentiment largely behind him, he exercised prerogative more as a democratic leader than a constitutional one. Where the requirements of statesmanship were at odds with the demands of democracy, Roosevelt’s constitutional philosophy primed him to satisfy the latter. Moreover, Machiavelli’s concern that precedents once established “for good objects” might become the pretext for the exercise of prerogative in unwarranted contexts was not misplaced. As Corwin noted, just as the “emergency preceded the war,” it also “continued beyond it.”345 To be sure, the Court reestablished limits to presidential power after World War II, famously rejecting Truman’s claimed authority to seize steel mills during the Korean War.346 But elsewhere, FDR’s innovations enjoyed staying power. The memorandum in which FDR ordered the FBI to wiretap “suspected spies” in 1940, for example, was quoted six years later by Truman’s attorney general to gain the president’s blessing to retain the authority.347 Recalling FDR’s rendition of the Greer incident, in 1971 Sen. J. William Fulbright contended, “The fact that Roosevelt and Truman were substantially right in their assessment of the national interest in no way diminishes the blamefulness of the precedents they set. FDR’s deviousness in a good cause made it easier for LBJ [Lyndon B. Johnson] to practice the same kind of deviousness in a bad cause.348

The bad cause Fulbright had in mind, of course, was the escalation of the war in Vietnam, enabled in the senator’s estimation by Congress’ “subordination of constitutional process to political expedience.”349 Johnson’s Americanization of the Vietnam War proceeded in terms that would have been familiar to Roosevelt. Just as Roosevelt engineered naval confrontations in the North Atlantic before Pearl Harbor, 23 years later, Johnson sent U.S. destroyers mere miles from North Vietnam to bait “unprovoked” attacks that would “trigger an American reprisal.”350 FDR could not convert fear and fury over torpedo attacks into a casus belli. That LBJ did precisely that to secure a sweeping military authorization marked one of the few occasions on which he bested FDR, his longtime idol.351 Even after Johnson secured the Gulf of Tonkin Resolution, he followed the Roosevelt playbook. Reminiscent of the promise FDR made in 1940 to parents that “your sons are not going to be sent into any foreign wars,” in October 1964 Johnson similarly pledged, “We are not about to send American boys 9 or 10,000 miles away from home to do what Asian boys ought to be doing for themselves.”352

Fulbright’s point, that FDR is not blameless because the precedents he set permitted LBJ’s deviousness, reminds us that an evaluation of constitutional leadership should turn not only on the purposes (good or bad) for which a leader bends the rules, but also on the consequences of so doing. Concluding that because Roosevelt won the “good war,” while Johnson set in motion the loss of Vietnam, the former’s deceit was done in a “good cause” while the latter’s was not, provides an incomplete analysis.353 Even if one commends Roosevelt’s deception in a good cause, that appraisal must be balanced against the pernicious consequence of such deception.

Had Fulbright lived longer, he might have pointed to the “blamefulness” of other precedents Roosevelt set, too. The George W. Bush administration, for instance, cited the Court’s decision in Quirin as precedent for trying suspected terrorists before military commissions.354 Roosevelt was also the first president to employ the Justice Department’s Office of Legal Counsel to furnish preemptive justification for national security policies of contestable constitutionality.355 The result — legalized executive prerogative — effectively insulates presidents today from the retrospective judgment that had before helped render statesmanship compatible with constitutionalism.

Thus, we see that even “in a good cause,” FDR did violate the law, he did stretch the contours of executive power, and he did leave in his wake precedents of presidential prerogative that would later be abused by his successors. But had he observed a “scrupulous adherence to the law” like Corwin urged, he might have won the battle for constitutional fidelity but lost the war for constitutional preservation, “thus absurdly sacrificing the end” of constitutional government “to the means,” as Jefferson put it.356 On the other hand, had he maximized his power at the expense of other institutions, as Neustadt prescribed, he may have deprived Americans of the very freedoms for which they waged war. At a time when many claimed that a binding legal code written a century and a half before was profoundly unfit for a modern world, Roosevelt assumed the task of reminding Americans and enemies alike that “the Constitution of 1787 did not make our democracy impotent.”357 The task was formidable, and not accomplished without compromises of constitutional integrity. But Roosevelt proved that a people governed by that Constitution could fight for its life under the leadership of something like constitutional statesmanship. His leadership did not meet the ideal of constitutional statesmanship, but his example does reveal its reality.

Luke J. Schumacher is a Ph.D. student in political science at the University of Virginia and a J.D. candidate at Stanford Law School. Follow his work on his website. He dedicates his first peer-reviewed article to the best statesman he knows, Kristene Schumacher.

Acknowledgements: For providing encouragement and excellent criticisms of earlier versions of this manuscript, the author thanks: Andrew Preston, Sarah Burns, Sidney Milkis, Aaron Spikol, Theo Lipsky, Macaela Seward Schumacher, two anonymous reviewers, and the editors of the Texas National Security Review. This article benefited from the generous support of the Rotary Foundation, the Rumsfeld Foundation, and the Institute for Humane Studies.

Image: U.S. National Archives and Records Administration