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No. 113 "Should We Amend the Constitution to Grant the National Government General Welfare Powers?" Speech of William H. Rogers, President of the Florida State Bar Association before the Annual Meeting of the Association, April 2, 1936.
No. 113 "Should We Amend the Constitution to Grant the National Government General Welfare Powers?" Speech of William H. Rogers, President of the Florida State Bar Association before the Annual Meeting of the Association, April 2, 1936. American Liberty League. 400dpi TIFF G4 page images Digital Library Services, University of Kentucky Libraries Lexington, Kentucky Am_Lib_Leag_113 These pages may freely searched and displayed. Permission must be received for subsequent distribution in print or electronically. No. 113 "Should We Amend the Constitution to Grant the National Government General Welfare Powers?" Speech of William H. Rogers, President of the Florida State Bar Association before the Annual Meeting of the Association, April 2, 1936. American Liberty League. American Liberty League. Washington, D.C. 1936. This electronic text file was created by Optical Character Recognition (OCR). No corrections have been made to the OCR-ed text and no editing has been done to the content of the original document. Encoding has been done through an automated process using the recommendations for Level 1 of the TEI in Libraries Guidelines. Digital page images are linked to the text file. JOIN THE AMERICAN LIBERTY LEAGUE The American Liberty League is organized to defend and uphold the Constitution of the United States and to gather and disseminate information that (1) will teach the necessity of respect for the rights of persons and property as fundamental to every successful form of government and (2) will teach the duty of government to encourage and protect individual and group initiative and enterprise, to foster the right to work, earn, save, and acquire property, and to preserve the ownership and lawful use of property when acquired. The League believes in the doctrine expressed by George Washington in his Farewell Address that while the people may amend the Constitution to meet conditions arising in a changing world, there must "be no change by usurpation; for this * * * is the customary weapon by which free governments are destroyed." Since the League is wholly dependent upon the contributions of its members for financial support it hopes that you will become a contributing member. However, if you cannot contribute it will welcome your support as a non-contributing member. Enrollment; Blank Date............ I desire to be enrolled as a member of the American Liberty League. Signature Street . County.......................... State. Enclosed find my contribution of $........ to help support the activities of the League. Should We Amend the Constitution to Grant the National Government General Welfare Powers? â˜… â˜… â˜… Speech of william h. rogers President of the Florida State Bar Association before the Annual Meeting of the Association April 2, 1936 american liberty league National Headquarters NATIONAL PRESS BUILDING WASHINGTON, D. C. (113) Document No. 113 Should We Amend the Constitution to Grant the National Government General Welfare Powers ? Wn HEN you have finished with this pamphlet please pass it on to some friend or acquaintance who might be interested, calling his attention to the membership blank on page 36. In RECENT years we have repeatedly amended our constitution and by-laws but I can not recall that any member has ever suggested that we amend Article VIII which provides: "The President shall deliver an address at the opening of the annual meeting after his election." I therefore take it, that to the present moment at least, it is the unanimous desire of the membership that there be an annual address by the president. No doubt, during the past year you have all tired of my everlasting preaching for reform in the administration of justice. I shall spare you any further sermons; and shall devote the time allotted to me this morning to a subject of more widespread interest. The storm which is brewing over the Federal Constitution is so serious to the welfare of the country that careful consideration of fundamentals is not only desirable but urgent, in order that we may be properly oriented for thought and action. I shall accordingly undertake to answer the question: Should we amend the Constitution to grant the national government general welfare powers? In THE memorable year 1776, the scholarly English historian, Edward Gibbon, published the first volume of his Decline and Fall of the Roman Empire. In the third chapter he defines monarchy to be: "A State in which a single person, by whatsoever name he may be distinguished, is entrusted with the execution of the laws, the management of the revenue, and the command of the Army." Gibbon continues: "But, unless public liberty is protected by intrepid and vigilant guardians, the authority of so formidable a magistrate will soon degenerate into despotism." 3 GlBBON then proceeds to outline the inexorable progress of the transformation of the Roman Republic into the Roman Empire. Augustus Caesar, after his victory over Mark Anthony at Actium, gave rein to his ambition. As with all who have seized power, he protested his undying patriotism and fidelity to the fundamental principles of the Roman Constitution, all the while continuing to concentrate in his own hands the power to direct the Senate to raise such revenues by such taxes as he ordered. He appeased public clamor with free public entertainment and free distribution of food. He made the Senate subservient by a process of distribution of favors. And then he sent peremptory messages to the Senate directing what laws must be enacted. Rome was in the midst of an unprecedented depression and was distracted by civil discord. Nevertheless, not even a Caesar dared to suggest the abolition of the republic, nor openly to violate the established forms of Roman government. Gibbon continues: "Augustus was sensible that mankind was governed by names; nor was he deceived by his expectation that the Senate and people would submit to slavery, provided they were respectfully assured that they would enjoy their ancient freedom." Uniting the power he thus gained over the lawmakers, and therefore over the public revenues, with his constitutional prerogatives to execute the laws and command the army, Augustus finally declared himself the "protector of the people," and proceeded to lay the foundations of the tyrannical regime, ultimately to number among its rulers such outstanding "protectors of the people" as Caligula and Nero. THE AMERICAN Republic was more fortunate in its establishment than was the Roman Republic. One hundred and fifty years ago the great men who were to mold thirteen financially exhausted and loosely confederated 4 sovereign states into a magnificent nation had learned weU the lessons of history history strewn with the wreckage of nations that had permitted too great concentration of power in their rulers. This learning was fortified with practical experience. The then recent experience of the people of France under the I Bourbons, and of the people of England in their struggles for liberty, flowed in the very blood of our American founders, and the pictures of those experiences were cast upon the mind's screen in minutest detail and sharpest outline, through the lens of colonial struggle with the tyranny of an unrestrained monarch and an omnipotent Parliament which reached across the Atlantic and shackled colonial Americans, notwithstanding the Magna Charta and the Bill of Rights. From May 25, 1787, when the delegates to the Constitutional Convention assembled in Philadelphia, until September 17 of that year, Washington, Franklin, Hamilton, Madison, and their immortal collaborators fused their learning and experience to frame "a government of laws and not of men." The spirit of the Constitution, which was ratified by the states, effective March 4, 1789, is the fundamental principle of the limitation of the powers of civil authority over the citizen, and the possession by the citizen of inherent rights, which civil authority is bound to respect. The second paragraph of the Declaration of Independence avows that principle in terms. As the Supreme Court has said: "Our Constitution is the body and the letter of which the Declaration of Independence is the spirit and the thought." THE DECLARATION of Independence repudiated the ancient notion that civil authority in any form is absolute or unlimited. Our Constitution established a government founded explicity upon that repudiation. Theretofore, the accepted doctrine of government had been, S as public officials have recently ventured to assert that it still is, that every right and privilege of the citizen comes to him from the state. This notion is based upon the theory of absolute and unlimited power in government, from which the citizen receives such rights and privileges as civil authority may grant, or as he may wrest from the government, as the Magna Charta was forced from King John at Runnymede. Not only did we announce to the world, on July 4, 1776, the eternal repudiation of the theory of unlimited authority in government, but beyond that, the very theory itself is little more than superstition. True, it has been invoked from prehistoric times to the present moment by those who rule, in order to mesmerize their subjects and perpetuate their regime, but upon analysis it dissolves as a mist in the sun. The fact is, there simply does not exist any such entity as a state or government apart from the officials in office. There is no essential force or power which may be called the State, which is something separate from ourselves and which hovers above us and our governmental officials. Such a concept is a pure illusion, a metaphysical fancy, something of the emotions, but nothing upon the existence of which people may, by process of logic, be proved to be subjects of the State. Government is a mere process or proceeding. Involved in it, there are only the people and those of the people who carry on the governmental procedure. As the law of corporations has in recent years learned in many cases to disregard the corporate fiction, so we, if we are to consider our government wisely, must learn to disregard the fiction of the existence of such a thing as the State, separate and apart from the mere functioning of government of the people by other people. If that is once made clear, then the whole question is simply one of how much authority and power shall we, the people, vest in this, that and the other governmental official or body. THE FEDERAL Constitution was written and adopted as the answer to that one question. It is based upon the principle which underlies the Declaration of Independence, namely: that sovereignty resides in the people, and not in the government of the United States; that the government may exercise such powers and only such powers as are granted to it by the terms and necessary implications of the document itself; and that all other governmental powers remain in the people, to be exercised by them in their local and state governments, subject to such limitations as they may from time to time impose. As Abraham Lincoln said: "This country, with its institutions, belongs to the people who inhabit it." The Federal Constitution embodies seven fundamentals. First. As "all governments derive their just powers from the consent of the governed," we, the people, are ourselves the masters and our governmental officers merely our servants. Second. No governmental officer, or set of officers, be he President, Senator, Congressman, Judge, Cabinet officer, District Attorney, or any one of the hundreds of thousands of federal employees, may exercise any powers whatsoever except those authorized by the Constitution. No majority in Congress, however great, may violate the Constitutional rights of a single citizen. Third. No man or group of men may exercise the combined powers to make the law, decide whether it has been violated, and then execute judgment on the violator; in other words, no man or group of men may exercise despotic sway by the simultaneous employment of legislative, executive, and judicial powers. Fourth. As "an indestructible union of indestructible States," the National Government may exercise only such powers as we have definitely authorized, leaving all other matters to the states and their political subdivisions. 7 Fifth. The Constitution, as it itself states, is "the supreme law of the land." Statutes enacted in contravention of the Constitution are void; and the Courts are therefore necessarily empowered, in the protection of individual constitutional rights, to hold such laws void. THE CONSTITUTION, like the decalogue, contains numerous and emphatic "thou shalt not's." There are to be found within it but twenty grants of power to the national government, but these twenty grants are safeguarded with thirty-one expressed restraints upon government for the protection of the citizen. It places beyond the reach of governmental interference the fundamentals of human life, liberty and happiness. It is no musty document embalmed in the national archives. Every phrase and clause is filled with meaning for the ordinary individual. It records the birthright of every American. It divides the inalienable rights of the American citizen into two fundamental groups. These are equality before the law, and freedom under law. Sixth. Thus, every citizen is entitled to all the rights and privileges of every other citizen; no man may be exalted above his fellow citizens by title of nobility; no state may discriminate against the citizens of any other state; no man may be made the slave of another; every man shall be entitled to equal protection of the law; and laws must apply to all without distinction. Seventh. And every citizen who obeys such laws shall be free to pursue happiness as he pleases; subject to such laws, he may think and speak as he will, and worship as his heart may constrain him; what he earns he may spend as he likes; neither his life, nor his liberty, nor his property may be taken except by due process of law; nor may he be punished without a fair and open trial before a jury of his equals. Such is the essence of the American constitutional system. ALBERT BEVERIDGE closes the first volume of his life of Chief Justice Marshall with a brief intimation of the contents of his three succeeding volumes. In the last sentence of volume one he summarizes this preface to volumes two, three, and four, as follows: "In short," says Beveridge, "we are to survey a strange swirl of forces, economic and emotional, throwing to the surface now one 'issue' and now another, all of them centering in the sovereign question of Nationalism or State's rights." With these brief words, written in 1916, Senator Beveridge not only prefaced the contents of the following volumes of his immortal biography; he summarized not only the events of Marshall's life from 1789 to 1835, but also the history of this country from 1835 to 1916, and with prophetic tongue foretold the future history of America from 1916 to 1936. Today, we "survey a strange swirl of forces, economic and emotional . . . centering in the sovereign question of Nationalism versus state's rights." Today America again considers the fundamentals of its Constitution. The adequacy of the Constitution to meet present-day social and economic conditions is again questioned. The historic pattern of American government is challenged and the Constitution is becoming a national issue. In fact, it looms on the horizon as a major political issue, if not of 1936, then of 1940. Last summer's grass-roots convention of Midwest Republicans at Springfield sounded the keynote of states' rights. An administration spokesman in a Constitution Day address last September propounded this question: "If there is not sufficient constitutional authority for the Federal government to deal properly with a nation-wide economic and social crisis, is it the will of the American people to amend their Constitution?" THE STRUGGLE between centralization and decentralization of power has existed since the adoption of the Articles of Confederation. It was bitterly waged in the deliberations of the Constitutional Convention at Philadelphia. The Constitution was itself a compromise acceptable to the two contending factions, and the limited degree of centralization provided in the Constitution came near preventing its ratification by the states. On June 20, 1788, in closing the debate, in the Constitutional Convention of Virginia, the venerable George Mason, in his last speech in opposition to ratification, uttered an unconscious prophecy of a century and a half of constitutional history. "There are," said Mason, "many gentlemen in the United States who think it right that we should have one great national consolidated government." How true that remark is today after the lapse of 148 years! Nor IS THERE occasion for us to be surprised to observe first one party and then another advocating strong central government as against states' rights; nor to observe 1936 spokesmen of the Republican Party crying for states' rights, nor the Democratic administration demanding "a great national consolidated government." True these great parties have now reversed their historic positions; but that is no novelty. Hamilton, the Federalist, fought the issue with Jefferson the Democrat (Republican). In 1808 New England threatened secession on this very issue. In 1809 the Richmond Enquirer charged the Federalists with being turncoats on the issue, commenting caustically on reversal of their professions of 1799. In 1833 South Carolina lead the states' rights faction toward nullification. In 1859 Wisconsin and Ohio outstripped the Virginia and Kentucky Resolutions of 1788 and 1789. As Carl Schurz writes in his Reminiscences, "The Republican Party went to the very verge of nullification, while the Democratic Party became the ardent defender of federal power." During the Civil War the Republican Party became the champion of federal power, with the Democrats standing for states' rights. 10 And today, we find the position of these two parties again reversed, and view the irony of Jeffersonian Republicans decrying Hamiltonian Democrats. THE SO-CALLED liberals of today are more than apt to disparage those of states' rights persuasion. A prominent professor recently announced: "By serious people who have no economic axe to grind, the states' rights issue may be dismissed as inconsequential. There is nothing sacrosanct about states' rights. It is and always has been a convenient and useful battle cry for any group whose economic toes are endangered by federal action." Another speaker charges that the doctrine is merely "the alibi of those who have selfish interests to protect." I can concede these statements as only half truths. Just as truly we may say that those with selfish interests to protect have, time and again in the past, appealed for a strong central government. The fact is that neither states' rights nor centralized government has been the alibi of the selfish nor the creed of the altruist. My personal observation is that both doctrines have been advocated indifferently by both classes, and that the only generalization which may fairly be made is that those who have at times been in control of the national government are prone to demand centralization of power, while those out of power for the time being take up the cudgels in defense of states' rights. You may readily draw your own conclusions from that circumstance. but at ANY RATE, as respects our attitude towards the Constitution and the kind of government we wish to live under, Americans are again ranging themselves into two groups. This grouping will doubtless vary somewhat as the issue assumes the shape of specific proposals. However, regarding objectives only, and dis- regarding the means thereto, the two schools of thought may he roughly described as follows: First, there are those who believe in the present constitutional framework of a federation of sovereign states, which endow the central government with specific limited powers, and separate its legislative, executive, and judicial powers as rigidly as possible. On the other hand, there are those who believe that the present constitutional framework can be preserved only at the sacrifice of social and economic progress; and that only a more powerful central government can enforce needed social and economic standards. Congress is now flooded with resolutions for the amendment of the Constitution; a Washington paper says there are uncounted numbers; but the Keller Amendment, introduced last June following the decision of the Supreme Court on the n.R.A., is perhaps typical. The Keller resolution reads: "Congress shall have power to pass all laws which in its judgment shall be necessary to provide for the general welfare of the people." Recent speakers, notably Secretary Wallace, lightly refer to amending the Constitution as merely "a change in the rules." Admittedly to change the date of the presidential inauguration from March 4 to January 20, and to change the convening of Congress from the first Monday in December to the third day of January, are mere changes in the rules; but most of the provisions of the Constitution embody fundamental principles which can no more be amended without serious results to the American system of government than the Ten Commandments could be amended without undermining the social order. Other speakers, such as General Johnson, regard the Constitution as a relic of a bygone age. In his picturesque language, he broad-12 casts that "the Constitution is just a foil for clever fencing, an antediluvian joke to be respected in public like a Sacred Cow and regarded in private somewhat as Gertrude Stein probably regards the poet Tennyson." But MANY of us entertain an utterly different view. When our good faith is conceded, as it often is not, we are charged with unreasoning veneration, with viewing the Constitution through an aura of sanctity and with hysterical attachment, resulting from a hundred and forty-odd years of Fourth of July orations, from our love of country, George Washington, and the Stars and Stripes. Such charges are, of course, without foundation. The truth of the matter is that there are very many of us who do not participate in party politics and are therefore not obligated by party loyalties and who do not vote our emotions, but who, nevertheless, oppose the centralization of power in Washington. Personally, I have no quarrel with the motives and worthy desires of those who decry states' rights and appeal for increased centralization of power in the national government. In a broad way I concur in their objectives. Where we part company is on the matter of methods. Too many of our people confuse objectives with methods, fail to distinguish means from ends and vaguely feel that if an end is desirable all that you have to do is to enact legislation providing for the desired end and ipso facto you have it. Too many of our people, especially in public life, fail to count the cost of desirable objectives. Too many needs must have direct results and immediate action regardless of consequences. There are too many who, though they lack Esau's hairy hands, nevertheless perpetuate his mentality. Too many will trade principles for comforts. Too many will risk their liberty for security and too many will sell a birthright for "bread and pottage and lentils." 13 but TO ME it seems there are three imperative reasons against further centralization of powers in the national government. First. It is too dangerous. Second. It will not work. Third. It is not necessary. I am quite as willing as any one to concede the obvious objections to a federal government of limited powers, with state and local self-government. My point is not that such a government is efficient. It is admittedly inefficient. It is cumbersome and slow; there is confusion of purposes; there is inevitable friction; and there is a tendency to end up with unsatisfactory compromises. There is nothing logical or very practical in the division of territory among the States. In fact the States are highly artificial geographic units. From an economic standpoint state lines might well be shifted about and new groups established. But that is not the question. The question is, shall we, because of these admitted defects in our federal system, transfer still greater powers over agriculture, manufacture, and intrastate commerce to the national government? Has the Constitution been rendered obsolete by the economic and social developments of recent years? Or, on the other hand, may we still regard the Constitution as a charter based on eternally sound principles of government which must remain as long as the fundamental principle of self-government is to endure? History EXHIBITS three general types of government. There are those of strongly centralized power, those with decentralization of power, and those of organized balance of power. There are many instances of the first two types, but the third, which is ours, is a modern device. History teaches that centralization of power invariably ends in tyranny. Even when founded upon democratic consent or as an emergency measure, it moves relentlessly in the direction of self - perpetuation, and, once entrenched, 14 grows domineering. It concerns itself less and less with the common good and more and more with self-aggrandizement and perpetuation. In the end, revolt of the governed is the only avenue of escape; all peaceful roads are closed. On the other hand, decentralization of power tends to anarchy. A decentralization of power may work well in a small and simple society. Athens of old and Andorra of modern times illustrate its possibilities in tiny communities. The Articles of Confederation of 1781 illustrate its weaknesses in a sizable territory. And the resolution of Congress of February 21, 1787, calling the Constitutional Convention, records for all time the political aptitude of the founders of the American Republic. Six short years of experience demonstrated to the statesmen of that day the utter hopelessness of decentralized power. And their earlier experiences had already taught them equally well the dangers of centralized power. THE AMERICAN CONSTITUTION was the choice of our forefathers, between the dangers of centralized power and the weaknesses of decentralization. With all its shortcomings, it appeared to be the only practical course to pursue if the extremes of tyranny and anarchy were to be avoided. As Lord Brougham has said: "The devising means for keeping the Union's integrity as a federacy while the rights and powers of the individual States are maintained entire, is the very greatest refinement in social policy to which any age has ever given birth." This organized balance of power is a middle course between two extremes, and a workable compromise that will centralize power enough to achieve reasonable efficiency without danger of tyranny and at the same time decentralize power enough to maintain freedom without anarchy. But we must not fail to bear in mind that the purpose of the Constitution is not to provide for maximum efficiency in government; but 15 rather to protect the people from abuse of power and give them a chance to be as efficient in governing themselves as a free people under democracy can safely be. Centralization of power is the first step on the road to Fascism or Communism. Whether the strong central government will become fascist or communist, depends merely on whether those in power are the disciples of Marx or of Hegel. You may take your choice; they are essentially the same in effect; but one thing is certain, take the first step by granting the central government great power, and if the lessons of history can be believed, the second step is practically certain to follow. These are strong statements, no stronger, however, than history warrants; but then, history after all, is at best a rather vague and unconvincing thing to most of us. Perhaps some of our own recent experiences may serve to confirm the generalizations of history. I WONDER how many of you have noticed, during the short time government relief has been in effect, that federal funds have a tendency to flow more freely in localities where they would do most good on election day? i wonder how many of you have noticed that during this short time 235,000 persons have been added to the direct full time federal civil payroll, and that less than one in a hundred of this new personnel is under the Civil Service System. i wonder how many of you have noticed that postmasters, collectors of customs and of internal revenue, United States Marshals, and innumerable other subordinate federal employees have always been the political henchmen of every national administration. And how many of you would expect that the new additions to the federal payroll throughout the nation are likely, under penalty of summary removal, to prove otherwise? 16 I WONDER how many of you bear in mind the dishonesty, graft and corruption existing in the conduct of the ordinary affairs of even a government of limited powers. And what would you expect of a government whose activities were expanded to cover the whole range of affairs in commerce, industry, and agriculture? I wonder how many of you have noticed that, in the past three years, over seven million persons have been added to the vast army drawing federal pay checks, bringing the grand total up to 9,047,956 at the end of 1935. According to the figures, these nine millions have been paid by the federal government at the rate of $5,300,-000,000 per annum. Large as this figure is, it does not include those 3,600,000 who received $8,000,000,000.00 from various loan and credit agencies of the federal government, but only those receiving regular pay checks from the Treasury. Not taking the Democratic National Chairman's fantastic calculation that each public payee is worth forty votes, but taking the old-time ward politician's standard formula that one payee equals five votes, this group contains a potential 45,000,000 votes, more votes than were ever cast in a national election. At any rate, by the end of 1935 approximately a quarter of the voters of America were federal payees. If each payee can be counted on for just two votes, the coming election and every coming election from now on is in the bag. That this has occurred in defiance of the Constitution is beside the point. The advocates of amendment are merely urging that we now legalize such a situation by amending the Constitution. Please note also, that I make no reference to the crushing burden of taxation ultimately necessary to meet these payments. I merely point to the political machine they support. I WONDER how many of you have been asked to certify to the ability and moral character of any of this army of job holders. It has been 17 my pleasure in my humble way to assist a few of our citizens to their present positions. My observation, and that of my acquaintances who have had similar experience, is that hardly any one may hope for any of these jobs, unless the chairman of his Democratic County Committee certifies to the applicant's regularity and the chairman of his State Democratic Committee adds a certificate of political purity and the "be-fore-Chicago" local campaign manager of 1932 supplements the record with his endorsement. Without these visas on his political passport the applicant may not board the ship of state. But I need not go so far from home for evidence of the overwhelming political effect of the man-power of bureaucracy. In my home city we are blessed with municipal ownership to a very considerable degree. We have municipal lights and power, municipal water works, municipal docks and terminals, a municipal broadcasting station and municipal golf courses, and, of course, the usual corporate and governmental functions. For these blessings, we are saddled with a city political bloc of approximately 3,600 votes, enough to control every election, except those few when the vast majority of us happen to think alike. Multiply our experience by about a thousand and you have a fair estimate of the voting power of a federal bureaucracy of modest proportions. You must amplify it three thousand times to equal the existing Federal situation, or rather the Federal situation as it existed just before the recent A.A.A. decision. But ASIDE from the overwhelming political power of bureaucracy under centralized national government, there are other distinct safeguards inherent in our limited federal government with forty-eight state governments. Such a system of divided authority makes it difficult if not impossible for those in power to usurp the sovereign right of the people to govern themselves. No other known system can guarantee self-government and freedom to a people. 18 But over and beyond those safeguards, the bare existence of the forty-eight separate sovereign states affords us also ample opportunity, as Lord Bryce, the British Ambassador observed, for social experiment which can be indulged in without involving the whole people. We need not fear the impractical notions of a Sinclair, even if put into operation, so long as the experiment is conducted at a distance of 3,000 miles from here, and is confined to the inhabitants of California. In fact, the experiment might be interesting to observe from a distance. If successful, we might take advantage of it; if unsuccessful, the rest of us, at least, are unhurt. Nor need we be seriously concerned about the domination of a sister state by a virtual dictator, no matter how ruthless or reprehensible his practices may be. So long as the political paranoia is confined by state lines and there are buffer states to halt the spread of the disease, there is no cause for alarm. The plight of our sister state might well serve as a much needed object lesson. BUT, SUPPOSE that we amend the Constitution as proposed, that local state government be largely superseded by the transfer of general welfare powers to the national government, and that the states become mere departments of the national government. Then you face a really serious situation. Suppose that a federal administrator of general welfare, with the enormous power of billions of dollars to disburse and millions of men in his pay should by chance feel the urgings of inordinate ambition. The leap from a position of such dominance to the position of "protector of the people," as history endlessly records, is altogether too definitely possible for comfort; whereas the corresponding leap from complete domination of Louisiana to supreme national power altogether exceeds the capacity of any living being, be he man or Kingfish. The hypothetical case suggested is by no 19 means a nightmare. Down the ages history calls the roll of dictators who have seized the opportunity afforded by the centralization of governmental power. The roster of ancient and modern despots is fairly familiar to all. No need to recount them. One instance will suffice for illustration. In 1848 Louis Bonaparte was elected President of France. The 14th Edition of the Encyclopedia Britannica says of him: "By various measures such as subsidies, charitable gifts and foundations he endeavored to show that the idea of improving the lot of those who suffer and struggle against the difficulties of life was constantly present in his mind. His was the government of cheap bread, great public works and holidays." By 1851, he was proclaimed Napoleon iii, Emperor of France. Consider for a moment our neighbors to the South. These so-called republics of Latin America can reiterate this story with monotonous repetition. True, the South Americans rarely bother with the petty detail of the title of their ruler; as a matter of form, they prefer the title of President; but what's in a name? Sir Henry Maine suggests that our American Constitution, as written and rigidly adhered to under the decisions of our Supreme Court, is the vital factor which has saved us from the fate of our disorderly sisters to the South. And what of Russia under Stalin? Russia is officially a "Union of Republics"; but no Czar's powers ever surpassed those of Stalin. And what of Germany under Hitler? Germany is officially a republic with the National Socialist Party in power; but no Kaiser's power equalled Hitler's. Having done 200 human beings to death with the merest mockery of a trial, Hitler proclaimed: "If someone asks me why we did not invoke an ordinary court to deal with these men, I can only tell him: In this hour, I was responsible for the fate of the nation; therefore the Supreme Court of the people during these 24 hours consisted of myself." 20 And what of Italy under Mussolini? What would you be willing to offer as the purchase price of a publishing business in Italy, such as the Literary Digest, if it dared to undertake a straw vote on Mussolini's new deal? How many Italians would even dare to return a secret post card ballot voicing opposition to Mussolini's policies, for fear of a possible finger print remaining on the card? What would you estimate my hours of freedom to be if I were speaking this morning in the Miami of Italy instead of Miami, Florida ? . If ANY OF YOU has had an opportunity to visit Germany, Austria, Hungary or Italy in recent years, as it has been my pleasure, and to talk to the inhabitants of those countries, he would bring home with him one everlasting impression. The people of those lands are stiff with fear. From the highest to the lowest none escapes it. Those in authority fear treachery and assassination. The lowly fear governmental reprisals and oppression, not only for their acts, but for their very thoughts. Universal fear sialics at the elbow of every man. No man dares even express his personal opinion to his friend, for fear of betrayal. Suspicion, the twin brother of fear, lurks in every mind. Every man suspects his neighbor of being a spy, and stark fear paralyzes life into bare existence. Is not fear in every heart too great a price to pay for any government, no matter how efficient, how economic, or however socially desirable it may seem? No all powerful national government, however wisely it might be inaugurated or however desirable its social and economic objectives might appear, can ever be worth what it costs or can ever warrant the surrender of quiet, simple, personal happiness in local security for the gnawing fear that haunts the soul of every inhabitant of those centralized governments. Make A centralized national government as democratic and free as you please, make its base 21 as broad and its principles as liberal as philosophy can devise; it will still be a single government with great power over a vast territory; and it will follow the course of all governments of ancient times and of those centralized governments of modern Europe, which, beginning with liberal institutions, have sunk swiftly into despotism. BUT LET'S ASSUME, for the sake of the argument, that it is really safe enough to vest "general welfare" powers in the national government. Let's assume that the "lessons of history" are false; let's assume that authority has lost its insatiable appetite of old and that the love of power no longer "infects and corrupts those who possess it." Let's assume that by a Constitutional Amendment you can reform human nature. Let's forget the 18th Amendment and assume that a 22nd amendment would somehow share a better fate. Let's assume that neither bureaucrats by the millions nor those who lead them would connive to perpetuate their rule over us, that the vast expansion of the national government would not multiply fraud, graft, and corruption, and that the enormously expanded man power of the national government would be chosen by means of a supremely perfect civil service system simply because authorized by Constitutional amendment, rather than by the victor's spoils system which manned the N.r.A. and the other alphabetical agencies which recently arose without Constitutional sanction. In short, let's assume that we may centralize our governmental powers in Washington and somehow or other safely retain our birthright of liberty enjoyed since Independence was won. Before WE ACT upon such assumptions, we must know that the thing will work. We can ill afford to pay that price upon the hypothesis of a theorist or for a mere politician's promise. 22 For such a price, paid in advance, we are entitled to absolute certainty. The question then is, have we in America achieved a governmental technique upon which we may rely with certainty? And does our experience with government assure successful national planning? American psychology answers "No." As a class, Americans have not yet learned the difference between the verb "should" and the verb "can," nor between the verb "ought" and the verb "will." From the standpoint of a private citizen I have observed three decades of State and Federal legislation, enacted often in utter disregard of that simple distinction. The statutes of this State, and I believe of every State, as well as the Federal statutes, are monuments to the great American fixation that "there ought to be a law." American mentality has not yet been able to distinguish between what it is desirable to do, and what government, and especially a national government in a country extending over 5,000,000 square miles and 125,000,000 people, can actually do. The sole inquiry today seeems to be, is it worth doing? If the answer is "yes," that presumably settles it. Whether the thing can in fact be done by a government composed of average men, never seems to be considered. This trait seems to inhere more especially in those of the academic technique. Don't misunderstand me; I do not decry the recent innovation of the employment of brains in government. I applaud it as a step to overcome the habitual incompetency and lassitude of the chair-warmers of prior years. Nevertheless, brain trusters, with all their excellent qualities, seem most of aU to confuse "should" with "can," perhaps excusably so, for they do not profess either administrative or practical experience. But AFTER ALL, you can't blame the brain trust for impractical and unworkable laws. 23 They haven't passed any laws. We pay Congress $5,000,000.00 a year to determine what shall be law. The responsibility is theirs and theirs alone, and they are presumably practical men. The professors may be too prone to overlook whether something desirable can be made to work or not, but that cross section of ordinary men which we call Congress really reflects the mental state of the country. Well then, can we rely on Congress to prescribe workable plans for the complete control of agriculture, manufacture, and commerce, if we grant them complete authority to legislate for the "general welfare" of the nation? Disregard what I have said, and consider for a moment the log rolling and wire pulling that would start from Maine to California and from Washington to Florida, to secure legislation favorable to one locality over another and one group over another. Recall how tariff bills are passed, how a bill to subsidize seven States producing a handful of the world's annual output of silver is passed, how a bonus bill is passed, and how a veterans' pension bill is some day going to be passed after we veterans get our bonus spent in furtherance of relief and pump priming. If your own memory doesn't convince you, and my necessarily brief references don't carry conviction, perhaps Secretary Wallace's latest book, written from his vantage point of observation, may convincingly state the exact situation. Says Secretary WaUace: "The alarming thing in Washington is not that there are so many special pressure groups, but that there are so few people who are concerned solely with looking at the picture from the broad, national angle. Most Congressmen and Senators, it seems, are of necessity special pleaders for a particular region. It is therefore up to the executive branch of the Government to consider the national interest. This is difficult at times because many officials in the executive branch owe their positions to representations made by particular Congressmen or Senators at the behest of special groups." 24 If WE CAN accept Secretary Wallace's keen observation as sound, then we must agree that Congress simply can't be trusted to plan a national economy covering American agriculture, manufacturing and commerce, and by its very political composition and influence upon executive appointment virtually precludes the executive branch from doing the job. Nor if Congress should perchance be able to adopt a sound program, would it have the slightest chance of success. The administrative personnel simply can not be found to make it work. If we may judge by recent experiences the kind of public officials available can not do the job. There has never been an American tradition of competent, honest and enterprising public service in this country, nor is there any present likelihood of establishing it on a gigantic scale. The driving energy and ability which has made this country the envy of all nations is not at the beck and call of our government, except in rare instances. We all know that men of ability will not often take government jobs. There are too many hazards involved. We all know the class of people who manned the recent alphabetical agencies. By and large, they were failures at home, who scrambled for relief in government jobs in preference to relief doled out at home. Calvin Coolidge is said frequently to have remarked to his secretary, following interviews with those suggesting certain government enterprises : "Why is it, that a man who can not do something in private business, gets the notion that he suddenly acquires miraculous ability the moment he is invested with the title of 'Commissioner'?" Before WE may prudently embark on national planning and control of the whole economic structure, we need years and years of training in civil service. Fifty years ago we departed from the straight spoils system so frankly acknowledged by Andrew Jackson; but a generation and a half has not seen us pursue 2f a steady course in fostering the Civil Service System. The past three years have seen us retrogress to the status we had reached back in 1907. One of the accomplishments of our war to make the world safe for democracy is an act of Congress that gives us veterans an absolute preference in civil appointment and promotion. When the bonus is spent, either we get war pensions, or Dr. Townsend will provide for us, or else practically every position theoretically open to general competition will be limited to veterans of the World War, provided we can make minimum passing grades. My brief service in the army leaves me no illusions as to the type of administration this law portends for future federal civil service. "To the victor belongs the spoils" is the byword not only of the present administration in all its branches, but has been, more or less, of all administrations. It is based upon a false concept. Men in public office regard government as their private affair, for the special benefit of themselves and those to whom they are under political obligation. TODAY WE HAVE neither a democracy nor a representative government. "What we have is a political autocracy, a government of the politicians, by the politicians and for the politicians." The politicians go just as far as they dare; the only restraint on them is the wrath of an outraged people, expressed every once in a while in a housecleaning election. What, then, would you expect of the personnel of a national administration undertaking to control the business of the nation? The theory of centralization is fine, but the practice is a vastly different thing. With party politics, pay off of election obligations, financial and personal, pull, bureaucratic indifference and arrogance, extreme partizanship, greater interest in self and less interest in public welfare, and with party paramount to country in the minds of most men, it is just idiotic to believe that boards, commissions, and departments of 26 government may be relied upon to guide the economic destinies of the country. I HOLD no brief for the outrageous practices of private business in exploiting the poor and defenseless nor for the greed of the powerful. But I submit that business is better, run by its owners on selfish principles, subject to such laws as are enforceable, than to place it under the dominion of a political gang whose corresponding selfishness, being misdirected, will betray the public interest and ruin the business besides. You need not take my word as authority for the point. What I say has been reiterated by our statesmen of all parties from earliest days. Although I should like to quote Thomas Jefferson, Andrew Jackson and Daniel Webster, I shall forbear. They're just "horse and buggy" boys nowadays, even to us Democrats. But, coming down to the days of high speed automobiles, we find that Woodrow Wilson, the Democrat, and Calvin Coolidge, the Republican, are in accord. Both have proclaimed the futility of national economic planning. And Mr. Roosevelt has, himself, expressed the combined views of both of his eminent predecessors. "The doctrine of regulation and legislation by 'master minds,'" said Governor Roosevelt, in 1930, "in whose judgment and will all the people may gladly and quietly acquiesce, has been too glaringly apparent at Washington during these last ten years. Were it possible to find 'master minds' so unselfish, so willing to decide unhesitatingly against their own personal interests or private prejudices, men almost godlike in their ability to hold the scales of Justice with an even hand, such a government might be to the interest of the country; but there are none such on our political horizon, and we cannot expect a complete reversal of all the teachings of history." Moreover, the really serious aspect of this thing is not that it will not work, but rather the evil that it will work; not what it will not do, but what it will do; not only that it 27 will not achieve the desired end, but actually that it will bring about the very thing we seek to avoid. As Professor Lionel Robbins has put it, "Once governments start to control important branches of industry, if they are not willing to reverse the whole line of policy, there is no stop to this process short of complete socialism." Let's test that statement by our own experience. Let's see what happened in the South under the AAA. In the beginning AAA started to limit one southern crop cotton. Later tobacco had to be added. The cotton farmers were turning their idle cotton acreage to tobacco and ruining the tobacco planters. The cotton and tobacco farmers cut down production, accepted their government checks, and promptly turned their unused acreage to peanuts. This threatened the peanut industry. The AAA then had to add peanuts to the list of controlled crops. Thereupon the farmers still with idle acres went heavily into potatoes. The potato market was glutted. Potato control became imperative. FEW HAD FORESEEN that cotton control would drive the farmers into tobacco, tobacco control would drive them into peanuts, and peanut control would drive them into potatoes. Yet that is exactly what happened. Starting out with the avowed purpose of controlling three crops only, the AAA in its brief existence, was unable to stop short of control of fourteen different national crops. That, of course, is not yet "complete socialism;" but, had not the Supreme Court held the AAA unconstitutional, every crop would have had to come under control. Nor could the natural result of the process have stopped with the farm. Once restriction is put on farm crops, it must he put on articles that compete with farm crops. There were AAA restrictions on paper towels and jute bags. Silk and rayon would have followed. In the end control of every commodity would have necessarily re-28 suited; and that is Socialism or Fascism, depending merely on who are the leaders. Turn FOR a moment from agriculture to industry. What did recent industrial planning and control entail? Let me mention a phase of it with which a lawyer would be familiar. Last May, when the Supreme Court relieved the Democratic party my party of one of the greatest political liabilities it ever assumed, the nra was bogging down and breaking to pieces under its own weight. The volume of executive-made law alone comprised seven hundred codes and supplements, roughly 2000 Presidential orders, more than 12,000 nra orders, with penalties of fine and imprisonment for violations, filling 18,000 printed pages, all having the effect of statute law; more new laws, regulating industry alone, than all the statutes ever passed by Congress in its whole history and double the volume of Congressional legislation then in force. It was almost an impossibility for any lawyer to find out and advise his client what was possible to be done under this weight of paper. The NRA and the AAA brought us to the verge of fascism, and quite without Constitutional sanction. It is now urged that we amend the Constitution and authorize the renewal of the experiment. For one, I devoutly hope that the Supreme Court decisions, one last May and one the past January, mark the stopping point which Professor Robbins points out as the only escape from the inevitability of either a Hitler or a Stalin. In RECENT MONTHS, the man who voices opposition to any proposal emanating from Washington, without suggesting what is called an "alternative constructive," is likely to be dubbed as a destructive critic or a reactionary. To avoid such a charge is my only excuse for prolonging this already too lengthy discussion. And so in conclusion, I suggest that amend-29 merit of the Constitution as now urged is not only unsafe, is not only unworkable, but moreover is altogether unnecessary. The Constitutional powers of the national government to deal with our economic and social ills have by no means been exhausted. In more ways than one, improvement may be sought. But in one particular it seems to me not only that the way is open, but that a better way is open, than any one thus far undertaken. I present no panacea. Nor do I pose as an evangel of inspiration. I disclaim affinity with the late Huey Long and his share the wealth plan, with Father Coughlin and his Union for Social Justice, with Sinclair and his EPIC, and with Dr. Townsend and his pensions. These men are aU blood brothers voicing the idea of getting something for nothing from somebody else. Nor is there very much distinction in principle between their alluring solutions and the late lamented AAA. THE TROUBLE with all of them is that they are based upon indirection. The trouble with recent administration measures is that they do not attack the problem directly. They piddle with it. The character of administration measures is perhaps explicable when you regard the President's principles and objectives, and especially when you consider the additional factors in the equation injected by those who are everlastingly pulling at his coat tails, trying to drag him now this way, now that. He has not satisfied either group, nor can he. That can't be done. The papers announce one day that he has turned to the Left, and the next day, to the Right. And he does turn; but he can't go very far with one, while he hangs on to the other. The NRA is a fair sample of the natural result of this situation. It appears to have been little more than a compromise between capital and labor, with capital getting the better of the deal, while the little man and the consumer bore the brunt of the reform. Neither capital nor organized labor ever apparently wanted the problem solved directly. Both knew that two and two make four, but hoped that by legislative transmutation it might come out 5 instead of 4. But it didn't; and the problem is still with us, although NRA has gone. JUST WHAT then is the problem? It is simply that ten per cent of the population is out of work. No need to pause for Mr. Green and Miss Perkins to settle the precise figure. What then is the solution? Simply to put these people back to work. But how? Mr. Moffett, of Standard Oil, had the right idea; share the work. Mr. Kellogg, of Battle Creek, improved upon it. He said let labor share half of the load and capital half. And he has done it, as I see by the papers, in his own plant. Then why not everybody else? Well, some of us stockholders don't want to, and others can't. Besides, none of the working people want to move over and give the other fellow a chance. But of course, it can be done, if we really want to; that is, if we capitalists and we working men can get it out of our heads that somebody else that mythical concept, called "the government" is supporting these folks for us; and get it into our heads that doing it directly will be much cheaper and infinitely simpler than by paying crushing taxes to Uncle Sam and having him dole them out. The taxes are not yet upon us, but they will come soon enough. Paper to print more bonds will soon run out. Well, if neither capital nor labor will cooperate, hoping all the while that Mr. Roosevelt will some day perform a miracle, how can it be done, especially since the NRA and the AAA decisions? The answer seems simple and obvious. We haven't yet tried the 16th Amendment. From the day I undertook, in my home county, to lead the emotional revival through 31 voluntary compliance with the President's Blanket Code of 1933, I have felt that Congress based the National Industrial Recovery Act upon the wrong clause of the Constitution. Maximum hours and minimum wages as a formula for re-employment and better distribution of income in the lowest bracket, was bottomed on the interstate commerce clause. To most of us lawyers it seemed clear that too great a portion of the nation's business was clearly not interstate commerce, and could not be legally regarded as such, even upon the strained construction that whatever happened in any particular local business, necessarily affected all commerce, and therefore aU business was interstate commerce. This theory was in the teeth of every decision of the Supreme Court from the earliest days, distinguishing interstate from intrastate commerce. It seemed to me that the NRA should have been based upon the income tax amendment. Income taxes apply to all business, intrastate as well as interstate. Exemptions might be permitted or lower rates applied to those employers establishing minimum wages and maximum hours. By offering a compensating rate to those employers who shortened hours, the employable unemployed could be largely reemployed. Capital and labor could and should share the cost. There are numerous advantages to such a plan: No new bureau with thousands and thousands of administrators and agents need be set up. The existing internal revenue bureau is already functioning and could handle it, with perhaps some slight expansion. Eighteen thousand pages of codes, orders, and regulations are avoided. A brief statement of law, consisting of a few pages at most, enacted by Congress, and appropriate regulations promulgated by the Commissioner would cover the subject. The law would comprehend both those en-32 gaged in intrastate as well as those in interstate commerce. Neither group would be handicapped. Intimate detailed political control of business and industry in all their phases is definitely avoided. The numerous and obvious evils Which infected NRA are avoided. But best of all, such a statute would affect no employers except those earning taxable income. An employer who is not making a taxable income can not nor should he be asked at his own cost to employ more men by shortening hours. He simply can't do it. But all those making taxable incomes can and might well be expected to do so. It is of little importance how long hours the employer works his employees if he makes no profit. The employer who works men long hours without a taxable net income is at least giving employment. It will be recalled in early NRA days that we had the problem of the employer who had no net profit which would permit him to raise wages to the suggested minimum and cut hours to the suggested maximum. There was that manufacturer at York, Pennsylvania, who was utterly unable to pay more, for he had no net income from which to pay. But he was at least giving employment. He was convicted, and I believe sentenced, for not doing the impossible. The alternative suggested to him was merely to close up shop and join his former employees on relief. And so if those making net profits might, by compensating income tax rates, be induced to work their employees shorter hours, thereby employing more men, the problem will be well on the way to solution. DOUBT MAY BE expressed whether the taxing power of the government may be thus employed in furtherance of economic reform. I do not overlook the decision in Bailey vs. Drexel Furniture Co., the child-labor case, nor what has been recently said in the AAA decision, nor the grain futures case. 33 But remember that higher rates on increased income have been held valid. Different rates for corporations than for individuals have been held valid. Higher rates on larger estates have been held valid. Tax distinctions between domestic and foreign articles have been sustained. And many cases indicate ample power in Congress to vary tax rates. It seems logical and fair that if deductions for local taxes and charitable contributions are allowed, exemptions to married couples and for children, and for earned income, and so forth, an exemption or a lower rate might well be granted to the employer who contributes to the national economy by shortened hours. I am confident that such a law would be upheld by the Supreme Court. But, if not, in my judgment it would be much wiser to amend the 16th Amendment and so provide, than to authorize Washington to attempt to control every detail of the business and industry of the nation. As THE PRESIDENT recently said: "Within democratic nations, the chief concern of the people is to prevent the continuance or rise of autocratic institutions." I can conceive of no more effective method "to prevent the continuance or rise of autocratic institutions" than to preserve our existing Constitutional limitations upon the exercise of power by government. The "chief concern" in the drafting of the Constitution was that very thing. A century and a half has demonstrated the wisdom of embodying those limitations in our Constitution, and of their retention. I, therefore, ask you, before you definitely decide that, for the sake of social and economic amelioration, we should, by Constitutional amendment, surrender greater powers to the national government, you first satisfy yourselves of the answers to three questions: First: Is it safe? Second: Will it work? and Third: Is it necessary? 34