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No. 116 "A Layman Looks At The Supreme Court" Speech of Hon. Arthur H. Vandenberg, United States Senator from Michigan, broadcast over the National Broadcasting Company network on March 2, 1936. American Liberty League. 400dpi TIFF G4 page images Digital Library Services, University of Kentucky Libraries Lexington, Kentucky Am_Lib_Leag_116 These pages may freely searched and displayed. Permission must be received for subsequent distribution in print or electronically. No. 116 "A Layman Looks At The Supreme Court" Speech of Hon. Arthur H. Vandenberg, United States Senator from Michigan, broadcast over the National Broadcasting Company network on March 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 Town .................................. County.......................... State. Enclosed find my contribution of $....... to help support the activities of the League. A LAYMAN LOOKS AT THE SUPREME COURT â˜… â˜… â˜… Speech of HON. ARTHUR H. VANDENBERG United States Senator from Michigan over the network of the National Broadcasting Company March 2, 1936 AMERICAN LIBERTY LEAGUE National Headquarters NATIONAL PRESS BUILDING WASHINGTON, D. C. (116) Document No. 116 A Layman Looks at the Supreme Court 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 12. L RESPOND to the subject "A Layman Looks at the Supreme Court." I am not a lawyer. This is neither a boast nor an apology. It is simply a statement of fact. Lawyers usually monopolize the discussion of constitutional questions. But there are many more laymen, fortunately, than lawyers. Therefore, a layman's view may be tolerated in the present discussion which rumbles up and down the country and intermittently breaks hotly in the Congress and the White House. The cause of these discussions is that the Supreme Court is repeatedly stopping Congress and the President in enterprises which violate the Constitution. This has happened 10 times since March 4, 1933. In anticipation of similar inevitable denunciations, Congress itself has repealed a number of its other recent laws. Promptly an age-old controversy resumes. Since the foundation of the Republic whenever Congress and the Court have thus clashed, impatient agitation has argued that the Supreme Court's authority over the constitutionality of acts of Congress ought to be abolished. Although the Court has repudiated only 62 acts out of 24,300 public laws since the beginning, each time it happens there is a cry that Congress must be released from this Court veto. In this layman's view, if any such movement ever succeeds, it will be a sad day for popular government and for the perpetuation of American liberties. It WILL simplify our thinking if we realize that when an act of Congress is thus rejected it is the Constitution which is speaking. That means, in turn, that it is the people speaking. The Supreme Court in such instance is only the Constitution's voice. The judges are not passing their opinions upon the intrinsic merits of the law. Their sole responsibility is to reject the law if it violates the Constitution. The judges are human. Their judgments may err. But somewhere, somehow, sometime in our American system somebody must speak for the Constitution in this precise fashion or, manifestly, the Constitution becomes mute and impotent. Better to risk occasional error of interpretation than to risk the loss of ordered liberty. This is our choice. It is our theory of government that the Constitution belongs exclusively to the people. They fought for it. They died for it. They wrote its guarantees. Into it they put those inalienable warrants which set American liberty apart and make it the grandest thing on earth. To make certain that the people should never be robbed of its protection, the founders provided that none but the people can ever change it. They prescribed in the Great Charter itself just how it may be amended. It thus has been amended 21 times. That makes of it a living, progressing thing. But it is impregnable to any attack save by the people themselves; and any time it loses this granite character it will be the people who have been victimized. It may be changed, but it must not be cheated. NOW, IN ORDER to protect this popular right, the founders realized they had to provide checks and balances. They had to defend the Constitution against nullification and usurpation. So they wisely as every lesson of the years has proved separated the executive, legislative, and judicial functions. They set up the legislature to legislate and the executive to execute; then they provided an independent judiciary to require each to respect the rights of the other, and to require both to respect the rights of the people. Thus the Supreme Court became the voice of the Constitution which, remember, is, in turn, the voice of the peeople. Today's recurrent question is: Shall this voice be stifled? The founders of America knew exactly what they were doing. They knew that if Congress could decide whether its own acts are constitutional, the entire American system would be 4 flung to transient politics. The Constitution and its sacred guaranties would become whatever each succeeding Congress might want to make it. It would change with the ebb and flow of each election. The rock whence we are hewn would become the shifting sandpit in which the rights of the people could sink to destruction. The founders discussed it very frankly. PATRICK HENRY, who was the great liberal of his time, said in the Virginia Constitutional Convention: "I take it as the highest encomium that the acts of the legislature, if unconstitutional, are liable to be opposed by the judiciary. * * * The judiciary are the sole protection against a tyrannical execution of the laws." Remember that warning! The Supreme Court protects the people against tyranny! John Hancock, who wrote his name upon our Declaration of Independence where all times shall see and honor it, said: "Lest the pride of office or the hand of lawless power Bhould rob the people of their constitutional security, a proper balance is provided in the judicial department." Hamilton and Madison, collaborating in the production of the illuminating and authentic Federalist Papers to expound the new American system, said: "An elective despotism was not the government we fought for. * * * For this reason the Constitution required that the legislative, executive, and judiciary departments should be separate and distinct, so that no person should exercise the powers of more than one of them at the same time." ARE WE SUCH egotists in this new day that we think to escape the implications of this wisdom? Listen: "An elective despotism was not the government we fought for." No; and it is not the government which the people of the United States will embrace in 1936 or in any other year if they intend to protect themselves against the tyrannical trends toward dictator-5 ship which are engulfing the balance of the world. The Federalist Papers wisely said: "Limitations only can be preserved by the courts whose duty it must be to declare all acts contrary to the Constitution void. * * * Without this, all our rights and privileges would amount to nothing." I TAKE IT that no loyal American citizen wants his rights and privileges to amount to nothing. Here he is put on direct notice that he hazards their loss when he would poison the constitutional jurisdiction of the courts. As laymen, let's be practical about this matter. Let's see what could happen if you eliminate the Supreme Court and permit Congress to decide the constitutionality of its own acts. It is not enough to say that these things probably wouldn't happen. That begs the question particularly at a time when amazingly unbelievable things are happening under every flag on earth. The priceless function of our own Constitution and its voice in the Supreme Court is to see that no opportunity for such perversions shall exist. You cherish your right of free speech. What guarantees it to you? The Constitution. Suppose Congress were to abridge or destroy your right of free speech. Where could you go for redress? To the Supreme Court. But suppose the Supreme Court be eliminated and Congress be permitted to decide the constitutionality of its own acts. Would not a Congress which was brazen enough to rob you of free speech be equally brazen in finding excuses to validate its tyranny? YOU BELIEVE in freedom of religion. It is a cardinal American right. Where do you get it? From the Constitution. Suppose it is assailed by law as is the case tonight in many another land. Where would you go for protection? To the Supreme Court. But suppose Congress decides for itself what is or is not constitutional. Would not a Congress which dared curb your religious freedom dare equally to validate its own act? Would not this be elective despotism? You believe in a free press. It is the well-spring of democracy. What guarantees its freedom? The Constitution. Who speaks for the Constitution in behalf of this guaranty? The Supreme Court. Would you think it safe or wise to strike down this vigilant sentry? Time and again the Court has rescued freedom of the press from its assailants. Only last week the Court rescued it from a State legislature which would have put it in chains. No other agency could rescue it. It was the Court or nothing. Translate that same situation into Federal legislation. Would it be prudent to let Congress decide for itself whether it has raped the freedom of the press? Would not any such assailant inevitably insist that his tyranny was orthodox and respectable? Is that not the way with tyrants? So it is all down through the Bill of Rights your right of petition; your protection against search and seizure; the sanctity of your home; your right of trial by jury; your right to own private property; your protection against cruel and unusual punishment; your ballot: your entire American heritage. Whether you know it or not you are relying upon the Constitution for these privileges, and you are relying upon the Supreme Court to make the Constitution vocal and effective in your behalf. Would IT BE prudent to toss this protection away just because sometimes you dislike the Court's decisions? Most of the time you are so completely in tune with it, and you subconsciously rely so completely upon its vigilance, that you scarcely realize it is functioning at aU. Those who dislike its conclusion on the A. A. A. suddenly discover that it is a pretty dependable tribunal when it passes on T. V. A. This phenomenon has been constant through the years. Those who are inclined most vehemently to complain at one moment usually live to see the day when, at some other moment they whole- heartedly applaud. Thus the great South, which originally was the chief critic of the Court's so-called usurpation in decisions amplifying Federal authority at the expense of State sovereignty, turned to the same Court in reconstruction days and gratefully gained protection from it against an improper exercise of this same amplified authority. Thus, too, when labor unions were shocked in 1908 when the Court found that a labor boycott violated the Sherman Act, and proclaimed it an evidence of the servility of the bench to big business, they totally forgot how equally shocked big business had been when the same Court in 1897 found that railroad pools were illegal under the same act. So it always has been and will be. The Supreme Court honorably and conscientiously goes its own unruffled way and bravely functions under its constitutional responsibility. It does not seek to please an electorate. It woos no constituency. Its only master is the Constitution, whose only master is the people. It may be popular or otherwise; it may be right or wrong; hut one thing is certain, it is absolutely indispensable to the American system and to the preservation of American liberty. CARRY THE INQUIRY a little further. Suppose Congress and the Executive concluded to perpetuate themselves; to extend their terms; to cancel elections. What is to prevent? The Constitution. How? Through the Supreme Court. Is there any other veto? No. Suppose you strike down the Court and let Congress review its own works. Suppose you make Congress and the Executive supreme. What becomes of the people's sovereignty? It is no answer to say that such hypothesis is fantastic or that it would be too revolutionary to be stopped even by the Court. Exactly this sort of thing has happened elsewhere. The founders of the American system were near enough to these examples to know their menace. The British Parliament, unchecked by a written constitution, rendered articulate by a supreme court, on several occasions changed the period of election; in one instance continuing itself in place 4 years beyond the term for which elected by the people. Indeed, under the British system, Parliament can do no wrong. A recent book by a former British Cabinet member has said: "Parliament could pass a law that every red-headed man should be hanged, and the courts of law would have to carry out its bidding." Is that sort of thing, or any part of it, a desirable substitute for the American system? I repeat, it is no answer to say that no American Congress and no American Executive would so far transgress the constitutional order. An excellent test of any proposition is to assess its ultimate and extreme possibilities. No man knows what would happen if we should let down the bars particularly at an hour when the whole world is restless with new dictatorships. We might revert to type. Once upon a time the State of Pennsylvania had a "council of censors" to inquire whether the legislature and the executive had exceeded their constitutional powers. It found many such occasions â– even that "constitutional trial by jury had been violated." CAN IT POSSIBLY be progressive to invite an American renaissance of these outrages upon our conception of a people's government? Can there be any logical liberalism in emasculating the people's primary defense of their own sovereignty under the American flag? This layman does not think so. He believes that all these threats to the existing independence of the Supreme Court and its right to call Congress and the Executive to account in the name of the Constitution, no matter how nobly meditated, are threats to the fundamental liberty of the people themselves. This conclusion by no means supposes a greater patriotism in the Court than in the Congress. It only recognizes the reality that their functions are separate and different. The Court could no more be trusted both to legislate and to judge than can the Congress. It is the separation and division of these prerogatives that counts. This conclusion by no means supposes a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the Legislature, declared in its statutes, stands in oposition to that of the people, declared in the Constitution, the people have a right to rule. Their only reliance at such a moment is an untrammeled Supreme Court. This does not make the Supreme Court the actual ruler of America. That is a subtle, self-serving sophistry. It does not put the Court above Congress. It merely puts the Constitution above both; and that is precisely where it belongs and where it is going to stay if the Republic shall survive. YOU CAN NEVER make a tyrant of the Supreme Court. It lacks one single power of affirmative enslavement. It cannot take one single step toward oligarchy. But you can make any sort of monster, suited to the prevailing appetite of the ruling passion, out of a supreme Congress which is above all things and all men. Again I quote the Federalist Papers: "To accumulate in a single body all the most important prerogatives of sovereignty is to entail upon our posterity one of the most execrable forms of government that human infatuation ever contrived." Proposals to escape the existing jurisdiction of the Supreme Court periodically take differing forms. Sometimes it is urged that Congress be freed entirely from restraint. Sometimes it is urged that more than a majority of the Court be required to stop a congressional invasion of the Constitution; perhaps that a unanimous Court be required. These latter propositions differ only in the matter of degree. The same infirmity, from the people's viewpoint, attaches proportionately to all. For example, if a unanimous Court be demanded, one Justice out of nine could stifle the voice of the Constitution. Thus one-ninth of the Court would outweigh eight-ninths. All of these schemes would increase the presumptions in favor of Congress and relatively decrease them in favor of the Court. This layman believes that the direction, even more than the length, of such proposed steps is subversive of the American system. The extent to which the judiciary can permanently usurp legislative power is utterly limited, because the people can amend their Constitution if, as, and when they please, and the Congress can impeach the Court if it misbehaves. Furthermore, the Court has no power to enforce its decisions save the power of a loyal and enlightened public opinion. It commands neither the arms nor the purse of the Nation. But the extent to which the Legislature and the Executive can usurp judicial power, in the absence of these American checks and balances, is wholly without any limits whatsoever. They command every implement of tyranny. Therefore, though some may think that the former evil exists in some degree, the people wiU find it infinitely the lesser of two evils if they are wise in the vigilance with which they defend and preserve their birthright. If we hamstring this function of the judiciary, we deliver ourselves to a new formula under which "special privilege" would have to control but one congressional election in order to dominate the United States and write its uncen-sored ultimatum into the lives of a defenseless people. Or we deliver ourselves to a formula under which a revolutionary order need but capture a single November referendum in order to bind our Nation to whatever subversion the passion of an inflamed moment might prescribe. This layman rejects any such invitation to jeopardy. Therefore this layman looks upon the Supreme Court with deepest attachment and respect, not because it is a court, not alone because of the consistently high character of its personnel, but because it is the voice of the Constitution, which in turn is the voice of the American people themselves. 10 11