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No. 119 "The Need For Constitutional Growth By Construction Or Amendment" Speech of Raoul E. Desvernine, Chairman of the National Lawyers Committee of the American Liberty League before the Kentucky State Bar Association, April 3, 1936.
No. 119 "The Need For Constitutional Growth By Construction Or Amendment" Speech of Raoul E. Desvernine, Chairman of the National Lawyers Committee of the American Liberty League before the Kentucky State Bar Association, April 3, 1936. American Liberty League. 400dpi TIFF G4 page images Digital Library Services, University of Kentucky Libraries Lexington, Kentucky Am_Lib_Leag_119 These pages may freely searched and displayed. Permission must be received for subsequent distribution in print or electronically. No. 119 "The Need For Constitutional Growth By Construction Or Amendment" Speech of Raoul E. Desvernine, Chairman of the National Lawyers Committee of the American Liberty League before the Kentucky State Bar Association, April 3, 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 American Liberty League National Press Building Washington, D. C. Date......... i desire to be enrolled as a member of the American Liberty League. Signatu Town .................................. County .......................... State. Enclosed find my contribution of $........ to help support the activities of the League. THE NEED FOR CONSTITUTIONAL GROWTH RY CONSTRUCTION OR AMENDMENT â˜… â˜… â˜… Speech by RAOUL E. DESVERNINE Chairman of the National Lawyers Committee of the American Liberty League before the Kentucky State Bar Association Louisville, Ky. April 3,1936 AMERICAN LIBERTY LEAGUE National Headquarters NATIONAL PRESS BUILDING WASHINGTON, D. C. Document No. 119 The Need for Constitutional Growth by Construction or Amendment 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 24. 1 HIS SUBJECT has been so often selected for public discussion in recent months and so much has been said and written on both sides that it is rather difficult to call your attention to any arguments on either side not already well known to you. There is, however, it seems to me, an attempt to frame the issue in such a way as more to conceal than reveal the true issue involved. The issue is not so simple as to justify a flippant "Yes, or, No" answer. There might be, or, there might not be, a need for constitutional change, depending entirely on what specific change is proposed. I have used the word "change" advisedly, because the word "growth" as used in the subject is unfortunate and it gives an inaccurate orientation to the actual situation and is apt to unintentionally prejudge the issue. With your indulgence, therefore, I will try to present the misunderstood, and sometimes misrepresented, view of those incorrectly reputed to be against "Constitutional Growth," when in fact they are ardent advocates of normal and healthy growth, but positive opponents of fundamental political transformation for social and economic experimentation of doubtful value and soundness. We can properly measure the future purposes of "growth" by the record of the past efforts. To do this removes much speculation and makes the issue more concrete. It at least exposes the constitutional attitude of the persons advancing or opposing such changes. I have no delusion to preserve the Constitution in its pristine glory, but to protect it against hasty experimentation. OUR CONSTITUTION is the Charter of our national ideals. It contains within its four corners the basic and characteristic principles of our political philosophy, individual freedom and self-government; it establishes an organic governmental structure of a Federal union of autonomous States. We believe that the ideals of individual liberty, as reduced to written guarantee in the Constitution and especially in the Bill of Rights, and the structure of our government, expertly designed to protect those rights against the oppression which always follows the concentration of unlimited power in any one political unit of government, are of vital concern, if freedom is to prevail. We believe that the civil rights, guaranteed by the Constitution, are the minimum civil rights essential to freedom, and that the States must not be "obliterated" (to use the phrase of the Supreme Court in respect of recent efforts), and that local self-government must be preserved. We believe that these principles are not sterile epigrams, but living, moving, vital forces. IF THE DUAL sovereignty of Federal Government and the States; if the separation of Federal powers in three coordinate departments, each a check upon the others; be broken down and unlimited power be concentrated in an unrestrained Executive; then we share the opinion of the Founding Fathers, reasserted by the Supreme Court, that despotism is possible, a totalitarian State threatens. Likewise, Congress is freed from its constitutional restraints, then a pure democracy wisely rejected by our Founding Fathers is substituted for a Constitutional Democracy which is the original political philosophy of the United States Americanism. We would then be exposed to the tyranny of a majority, which bitter experience taught our ancestors was as perilous to individual freedom as absolutism. Our government was created by the "consent of the governed"; the State is the creature of Man, not Man of the State; our Government is the servant, not the master of the citizen. Inalienable rights are placed beyond the reach of the Government. That is the kind of Government the Founding Fathers established, and which we have cherished throughout our history. We MUST EXAMINE every proposed amendment, every "growth" by interpretation, in the light of those fundamental institutions before we come to any decision as to their acceptability. We are not opposed to "change"; we simply demand that any "change" affecting our poBtical ideals of freedom be carefuUy examined and patiently considered before we depart from what we have. We do not contend that the Constitution is an untouchable sacred document. We do, however, emphatically maintain that, in addition to prescribing a popular and efficient mechanical system of government, it also formalizes and vitalizes a distinct political philosophy Americanism and that the right of the people to determine the form and character of their government is a sacred, an untouchable right. If the Constitution should need to be made more perfect in order to fulfill its philosophy in changed conditions, we should proceed to such perfecting in conformity with the prescribed constitutional process of amendment. It is not necessary, in our opinion, to scrap, or to evade, the fundamental theory of democracy by denying the people their sovereign right to express their consent to the kind of government by which they desire to be governed, by making changes through indirect means and under the alluring pretext of "growth." Proposed AMENDMENTS must be carefully analyzed, for there can be amendments which are dedicated not only to adapt our form of government to new and unforeseen situations and changed conditions, but also those which completely destroy or change our fundamental and traditional political philosophy and result in the establishment of an entirely different theory of government. The distinction between the two is fundamental. We must, therefore, carefully weigh each proposal to see in which class it falls. One class of such proposed amendments is growth, adaptation: the other is nul- lification. One is evolution: the other revolution. The Constitution has been accurately described as a "living organism"; but we must not forget that all "living organisms" have definite physical characteristics and natural attributes and that these attributes cannot be changed without destroying the organism itself, or substituting an entirely different organism in its place. Therefore, to answer the question proposed by our subject, we must first be given the opportunity to determine if the amendment proposed is "growth" or "change." This distinction must be made most clear and understandable to the people, so that there can be no doubt in their minds as to implications and consequences of their choice. Of course, this is impossible unless those advocating the necessity for such change present the amendment. It might readily be that even the alleged opponents to "growth" may accept and advocate it. It is quite significant, however, that most advocates of such change do not formulate their proposals. They try to force the issue in the realm of philosophical abstraction and humanitarian idealism. Certainly, as lawyers, we can demand that they make their petition more definite and certain that they furnish us with a bill of particulars. We claim that their refusal to meet this demand is because they are politically fearful to define the issue. They interpose rather a plea of confession and avoidance. Furthermore, the advocates of "growth" persistently refuse to debate the political and constitutional issues involved in their proposals, and skilfully try to limit all discussion to the purely social and economic aspects. They fail to recognize, or deliberately evade, the constitutional aspects until forced to do so. Even conceding, for the sake of the argument, that their social and economic proposals should be accepted, they still fail to accept the burden of proof, which is logically theirs as complainants and proponents, to demonstrate that their proposals are not possible of attainment by methods within the framework of our institutions; or clearly to define how drastic a constitutional change is necessary to effectuate their social and economic objectives. It might well be that, in terms of political freedom, the price of their alleged "economic security" might be too high. At any rate, the choice is ours. We do not want economic security imposed on us at any price. Why be so distrustful of popular judgment as not to frankly submit the issue to the people? THE PROFESSED OBJECTIVES of these proponents of "growth" have been in recent months reduced in many important respects to statutory form, so that we have had some concrete examples to guide our opinion as to their real effects. To characterize them as destructive of our constitutional system and violative of our individual liberties is not expressing an opinion. The efforts to penetrate our constitutional barriers to "put over" new economic theories by "obliterating" the States, and by breaking down the division of governmental functions into separate departments in a word, by attempting to lodge unlimited and untrammeled power in the Executive Department, and even encroaching upon our reserved individual rights, have progressed so far that the Supreme Court has had repeated occasion to administer stinging rebukes and to sound clear and dogmatic words of warning. We have been judicially told, even though it should have been self-evident to us from the record, that these artificially forced "growths" in the organic structure of our government result in depriving us of the exercise of those inalienable rights, and of rights of self-government, which are the basic institutions of our freedom. This is not opinion but adjudicated fact. Apparently the Supreme Court did not recognize the prize-flowers, the "growths" of the New Deal, as having sprung from the seeds of the Constitution, planted by the Founding Fathers, but more as alien weeds which must be uprooted for fear they might choke the very life out of our native Americanism. The Supreme Court has clearly exposed that the word "growth" is a mild term of soft connotation for transformation. THERE IS NO DOUBT that efforts to extend the scope of Federal power under the Constitution have been made practically throughout our national life, that the application of the Constitution has already been greatly expanded by judicial construction. But these "growths," as determined by the courts, kept within the framework of our Federal system. There is, however, no single period in our history when so many and so far-reaching "growths" were stimulated: "growths" which attempted to extend Federal jurisdiction over every conceivable social and economic activity; not only to change our political system, but completely transform our economic order. We now should clearly recognize these "growths" for what they really are. It should also be clear to their advocates that they cannot consummate their program by "construction." It just will not fit into the scheme of our Government. NOW, WE MUST NOT forget that the Constitution has "grown" considerably and has been found thus far adequate to meet all changing and even emergency conditions, including foreign and civil wars. Perhaps it has been found inadequate to achieve the program of the New Deal by the particular methods chosen. That, however, does not prove that the Constitution is inadequate to meet existing conditions, but only that the methods selected were improper. The New Dealers labor under the mistaken idea that our Constitution is mechanicaUy obsolete. WeU, it is, in the sense that it cannot be operated and utilized according to the methods chosen. It probably would not expand the Fed- eral power to suit their desires of proving that transformation of our political system is necessary, and that seems just as desirable in their minds as improving our social and economic fortune and security. Let me illustrate! After the Schechter decision the sentiment was expressed that our government was far behind the governments of Europe in dealing with problems of social welfare. This criticism overlooks entirely the true nature of our government. It confused the Federal Government with what our government reaUy is a composite of Federal, State, and local governments all of which must be taken together in order to understand what actually constitutes our government. It assumes that what the Federal Government cannot do, must remain undone. A RESTRICTION against Federal action in no way demonstrates that our government is impotent to take action. It merely shows that the Federal Government is not the proper division of the government to act in that case unless, of course, it is also shown that the State or local governments are equaUy unable to take the action. There is no reason to assume that, because some powers are given to State and local governments rather than to the central or Federal Government, our government as a whole is less effective or less powerful than the more centralized governments of Europe. To show surprise that all governmental powers are not vested in the Federal Government completely overlooks the true nature of our government, and fails to recognize not only the powers but also the duties of the several States to provide for local matters. The United States Supreme Court in the Schechter decision clearly recognized that the government of our people consists of more than just the Federal Government, and that the duties of the State and of the local government should be duly respected. At no place did the Court indicate that it proposed any limitation on governmental action as such; but it did indicate a dividing line between the powers and duties of the two divisions of our governmental system. WHEN CONSIDERING the powers of our government, the sovereign powers of the several States are of as much importance as the centralized powers of the Federal Government. Each has its proper sphere of action, and to look only at one is to overlook the carefully planned system of our government as a whole. We fear that those who have been guilty of this misconception are making their wish the father to their thought! The Supreme Court itself has observed that this erroneous conception of our governmental system existed in the minds of the draftsmen of some of our recent legislation and it took the occasion in the recent A.A.A. case to refresh their recollections. It said: "The question is not what power the Federal Government ought to have but what powers in fact have been given by the people. It hardly seems necessary to reiterate that ours is a dual form of government; that in every State there are two governments the state and the United States. .Each State has all governmental powers save such as the people, by their Constitution, have conferred upon the United States, denied to the States, or reserved to themselves. The Federal union is a government of delegated powers. It has only such as are expressly conferred upon it and such as are reasonably to be implied from those granted. In this respect we differ radically from nations where all legislative power is vested in a parliament or other legislative body subject to no restrictions except the discretion of its members." The Supreme Court even seems here to find it expedient to make the comparison between our system and foreign systems, as if it were aware that confusion existed in the minds of some as to their distinctive differences. THE REAL QUESTION is today, as it was at the time of the writing of the Constitution, only one of degree; that is to say, the extent to which it was deemed necessary or advisable to implement the Federal Government with power ade-10 quate to promote the common and united interests of the States without destroying the autonomy of the States, or to encroach upon or to curtail their powers, as to make them incapable of local self-government. The boundary lines between Federal and State rights were more pronounced then than now. The thirteen original States were more or less self-contained and each was to a large extent economically self-sufficient. Trade between them was more a convenience than a necessity. Furthermore, each had its own colonial history L and had, therefore, developed a distinct political individuality and a somewhat different set of I traditions. Each had a pride in its own inde-1! pendence. They had a diversity of social and economic problems, occasioned by differences in climate, origin, development, social and economic activities, and other conditions, which made local self-government necessary to meet different local requirements. And, above all, they had bitterly suffered from political "absentee landlordism" and they well knew the necessity of having the sovereign and the citizen live in close proximity. Distant sovereigns did not understand local needs, and they became irresponsible because they could not readily be made accountable. NOW GEOGRAPHICAL boundaries often seem arbitrary and do not necessarily constitute cultural, social, or economic units, but our tradition of a Federal union of autonomous States was predicated on sound reasons. Undoubtedly the expansion of the country, ' the development of instrumentalities of intercommunication, the sectional diversity of production, and the interdependence of different ' sections on the products and the markets of others all tended to lessen this separateness and to integrate the States economically, so-ciaUy, and politically. Our foreign trade and our international interests have increased our need for greater united national action. All of this is admitted, and obviously the mere form 11 of government must yield to the substance of its objectives, but when the concentration of power in the Federal Government transcends mere matters of form and tends to obliterate the States and break down our Federal system, then this is a matter of substance not form. We cannot deny that our courts have clearly recognized the necessity for greater integrated action and have greatly expanded the Federal powers to meet the exigencies of new conditions, but always within definite confines, and always cautiously preserving the sovereignty of the States and the constitutional divisions of power. Those WHO MAINTAIN that our Federal system is antiquated, and is no longer adequate under changed conditions, must take upon themselves the burden of proving their contention, and thus far the convincing proof has not been produced. That the formula they select to accomplish their objectives is prohibited is not proof that the objectives could not be attained through permissive formulas. Moreover, they have not yet proven that the objective itself is desirable. It is no answer to say that the constitutional processes of amendment move too slowly. The Constitution has been amended twenty-one times, and the last time with a rapidity which conclusively proves how amenable to amendment it is when the public demand is clear. Furthermore, we have been told that certain recent legislation was absolutely imperative to meet emergency conditions and essential to meet the new order of things. But when certain key-essential measures were nullified, we experienced none of the advertised troubles which they were claimed to be the sole protection against, but on the contrary witnessed an improvement in economic conditions. Even the correctness of their economic prophecy has not been demonstrated to be absolutely certain. Therefore, why permanently change our political institutions to meet unproven and, in some cases, disproven economic speculations. If it 12 had been established that certain specific changes were essential as the only means to meet new conditions, that would be entirely different; but up to the present that has not been demonstrated. On the contrary, the argument upon which they predicate their claim for change has thus far proven to be mere assumption. It is urged that such "growth" is necessary to "adapt" the Constitution to existing conditions; that the Constitution is outmoded and obsolete. Now, i wonder if the advocates of "growth" are not confusing conditions with their theories. When they speak of modernizing the Constitution to meet present conditions, do they really mean conditions or are they in fact referring to their theories their theories of government, economics and sociology? They argue in support of their contention that the Constitution is inadequate, that the Constitution, as construed by the courts, is an obstacle to their program. But it is quite debatable if their theories, as carried out in some of their recent laws, are the only means, or, in fact, if they were even proper or effective means, to meet the conditions they were designed for. Moreover, it might well be that some economic enterprises agriculture, natural resource industries, and some other types of industry have become, by the very forces of economic development, invention and sectional interdependence, so integrated as to have transformed them from distinctly local enterprises into an inseparable part of the national economy and therefore, that they have in fact become national, even though still local in a constitutional sense. To meet such a changed economy, constitutional adaptation may well be necessary or expedient. But let us go one step further and understand the real substance of even this suggestion. Let us ask ourselves: What is the real purpose behind their desire to expand the Constitution so as to include new enterprises in the 13 sphere of Federal jurisdiction? Is it for the purpose of the necessary conservation of natural resources, the correction of recognized abuses and malpractices, and desirable regulation in the national interest, or is it rather to regiment absolutely such enterprises according to a blueprinted planned economy? Is it to implement the Federal Government with the capacity to regulate our existing economy, or, is it to set up an entirely new economy? There IS a fundamental difference in these two uses of governmental control. So that we find implicit in the so-called jurisdictional question, the whole problem of the future character of our national economy. Many of the advocates of "growth" have already clearly revealed their theories of the form that they think our national economy should take. This has been disclosed by the "rounded whole" of their legislative program. Obviously this "rounded whole" does not fit into the framework of our constitutional system, but to change our constitutional system so that it will fit is not adapting the Constitution to actual new conditions hut rather transforming it to legalize novel theories. Perhaps the people might prefer this "New Order" of society; but that is a question which the people have not yet answered authentically, and, until they do so, why change our fundamental law to embrace mere theoretical potentialities, dictated by individual ambitions, not demanded by popular desire? We can risk experimenting with statutory law, but not with the Constitution. At any rate, their proof of inadequacy has thus far always been the fact of the failure of some particular pet law to survive judicial scrutiny. The RECORD of the recent attempts to force "growth" by interpretation is significantly different in its ultimate purport than all previous efforts. 14 The present school of constitutional expansionists have resorted: First: to the so-called emergency powers of the Federal Government. They have attempted to convert the emergency power into the creation of "new instruments of public power," not constitutionally granted to the Federal Government. Second: They have attempted to expand the commerce clause beyond its well-defined limitations into an instrument of control over all activities of production, manufacture and crop-growing, on the theory that such production burdened or affected the free current or flow of interstate commerce, and that wage distributions (to use one illustration) "provide the necessary stimulus in starting the cumulative forces making for expanding commercial activity." Practically to utilize this express power by expanding a limited Federal Government into a general and complete sovereignty, with the resultant obliteration of the States and local self-government. Third: They have attempted the expansion of the taxing power from its intended purpose of providing revenue into an instrument of social and industrial control and as a punitive weapon to impose "voluntary" submission. Fourth: They have attempted the expansion of Federal jurisdiction over navigable streams into the field of economic development and invention, including even the establishment of yardsticks with which to establish rate structure; and Fifth: They are attempting to utilize Federal control over the postal system into an instrument of public control. Is it not clear that all these so-called "growths" far transcend "adaptation," and, in fact, constitute transformation? You can see how necessary it is to examine each proposal and not be blinded by such misleading words as "growth," "progress." 15 It IS UNNECESSARY for me to reiterate the dogmatic language of the Supreme Court of the United States repeated so many times of late that the theories and policies contained in these laws do not fit into the framework of our political institutions. Has it been demonstrated that all of the controls established by this legislation are necessary to meet existing conditions and that existing conditions cannot be met adequately without them? If so, where is that proof? The President himself urged Congress to pass a biU notwithstanding "doubts as to constitutionality, however reasonable." Congress itself seems perfectly wiUing to enact laws without any great legal scrutiny and to pass them on to the courts for final decision as to their constitutionality. We would hesitate to accuse anyone with deliberately planning to accumulate laws of questionable validity, or of known invalidity, and with passing the responsibility to the courts of deciding this point, so that a record could be made that it is the courts which are thwarting the popular will, but for the fact that one who has been circumstanced in his official contacts so as to be able to speak knowingly, said in respect of the necessity of meeting "issues faster": "One group, as you know, headed by my friend Professor Frankfurter of Harvard is rather anxious that this should be done by getting the Supreme Court gradually to modify its views. I think the famous phrase is 'judicial attrition.' In practice this means serving up case after case in the hope that the court will modify its more dogmatic statements, its very broad dicta about interstate commerce. Another group prefers to do the job directly by debating the question of whether we should or should not amend the Constitution.** These are words of Prof. A. A. Berle, Jr. (July, 1935.) DR. TUGWELL uses a different idiom in describing his impatience with judicial restraint interposed against the acceptance of his views; for he said, in his University of New Mexico 16 speech apropos of the Schechter decision, that the Schechter decision gave rise to a constitutional crisis "quite as great as one of war," and that the industrial revolution moved too fast "for the accommodation of judicial theory." The words "revolution," and more especially "judicial theory," as applied to a unanimous decision of the Supreme Court, cannot be idly dismissed without serious apprehension. This is a perfect expression of his contempt for law which blocks his progress. "Judicial theory," by which he oddly means law, must be amenable to his will; it must be "accommodated" to his "revolution." How, by "judicial attrition" or nullification, he does not say. There seems to be some evidence of an effort to impair public confidence in the courts, so as to lay a foundation for removing them as barriers to meeting "issues faster," and for "the accommodation of judicial theory"; that is to say, to hasten to replace Americanism by the "New Order" and to "adapt" our law to suit its demands. In THIS CONNECTION it is weU for us to meditate deeply on the wisdom of what Chief Justice Hughes writes in his book: "The Supreme Court of the United States." Citing with approval Judge Bradley in the case of Boyd vs. United States (1886), he tells us how best to resist the transformation of our institutions by interpretive expansionists, and by "judicial attrition." He says: "It was in this opinion that Justice Bradley sounded his eloquent warning against permitting invasions of constitutional rights because they were of a relatively mild and but slightly offensive character; 'illegitimate and unconstitutional practices get their first footing in that way, namely: by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of persons and property should be liberally construed. A close and literal construction deprives them of half of their efficacy and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of the courts 17 to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon. Their motto should be ofcsta principles.'" This warning, to "oppose encroachments at the start," is more needed today than ever in our history; it is the technique with which to oppose this confessed technique. It IS FITTING that I should also call your attention to another fundamental change in our legal concepts which is being subtly promoted. We find it lately boldly advocated on the public platform by some, and subtly suggested by implication by others, that law emanates solely from the will of the majority of the people, and can, therefore, be modified at any time to meet majority wishes. This school of legal philosophy is being revived in order to remove the restraints of impersonal law. This doctrine is absolutely contrary to our basic concepts of the source of law. Our political system is predicated on the doctrine that there are some immutable laws of nature and certain other divinely sanctioned rights, which the Constitution and our tradition recognized as being above and beyond the power of the majority or of any other group of individuals or officials of the Government; and that there are, also, other rights which, because of man's historic experience, are specifically protected by the Constitution and which can only be modified under the prescribed method set forth in the Constitution; and, consequently, the majority-will is not free to modify them as it pleases, but only in the circumscribed manner prescribed by the Constitution. That is why our system has been characterized as a government of laws, not of men. That is the distinction between impersonal law and personal law. Americanism is the system of government by impersonal law. To HOLD that all law emanates from popular will implies that the decision of the majority is by its nature impartial and just toward all and that no restrictions to protect minorities 18 and individuals are necessary. Historical experience shows that that is contrary to fact. Our Constitution, and especially our Bill of Rights, were designed from this experience and were intended to prevent violation, by majorities or by powerful governmental groups, of the basic rights recognized as beyond government interference. If this were not the fact, man would exist and live at the will of every transient majority, and his natural and inalienable rights would exist in name only. All human institutions and individual rights would be the creature of man's emotionalism and would have no protection against the foibles of each fleeting moment. Obviously, there are, on the other hand, many respects in which majority-will does and should control. Our Constitution affords the fullest expression of majority-will in all fields except only those in which certain rights are expressly reserved. Our whole political philosophy of constitutionalism relies on this philosophy of law as its only sustaining sanction. To advocate the majority-will philosophy of law is to revert to an older philosophy rejected by our Founding Fathers as being insufficient to provide adequate protection for their ideals of individual liberty. The modern Totalitarian State in its new disguises Fascism, Nazism and Sovietism is, like all its historic prototypes, founded upon this doctrine of majority law. Once released from the restraint of written and impersonal law, man or any group of men are absolutely free to grasp all power unto themselves. History and recent European experience demonstrate that majority-will is soon supplanted by the absolute will of one man or one group. It is the straight road to despotism. Our ancestors clearly saw this and therefore adopted the only political and legal philosophy which experience had demonstrated as being the only bulwark against despotism. I FIND, in many of the "growths" advocated, a tendency toward the destruction of impersonal 19 law. Impatience with constitutional restraint is due primarily to a recognition that those re-traints are an obstacle to absolute power. All "growths" in this direction must be condemned. I fear me that there is considerable evidence of the efforts of some of the interpretative expansionists having far transcended mere constitutional adaptation to changed conditions. At any rate, with the recent decisions of the Supreme Court before us, we cannot be criticized if we want to stop, look, and listen, and refuse to speed ahead with absolute confidence in our destination. CAN ANYONE correctly read the history of the Supreme Court without being impressed with the great flexibility of the Constitution and its molding by the Court to fit the exigencies of changed conditions? With such "growth" there can be no quarrel. It is only when "growth" is substituted with the transplanting of entirely non-constitutional concepts that we challenge such transplanting by indirect methods and demand that the advocates of the new "plant" go to the people as provided in the Constitution. I have relieved you of the monotony of reading from the many recent decisions of the Supreme Court, all of which are known so well to you. I have only tried briefly to define the position which many of us take. We refuse to be maneuvered into the class of reactionaries opposed to all progress and growth, and we also refuse to join these pseudo-modern political theorists who believe more in their own speculations than in the proven value of Constitutional Democracy as established by the Founding Fathers and under which we have fared fairly well; at least until we are convinced rationally, not emotionally, that the specific proposals made are practical and advisable. tally transforms our constitutional system, our political institutions, and our ideals of individual liberties, to meet, not those demands of our changed economic and social conditions, which have naturally developed and which are actually existent, but to constitutionally permit imposed theories of doubtful soundness and utility which have not been sanctioned by the people. The attempt to make it appear that we are opposed to progress is simply to divert the debate of the real issue away from its true import and substance. It is in that sense that we answer the question proposed by the subject of this discussion in the negative. To concentrate unlimited power in one political unit the Executive by interpretation or amendment is not progressive, but reactionary it is in the nature of a collapse backward into a society of primitive and pagan ideals. This reversion in many countries since the World War is rather a beacon light to us. If the interpretative expansionists seek to advance in the direction of totalitarianism, then I am opposed to the reaction. They are offering us something very old not new; something tried and repudiated. IN SUMMARY, what I am opposed to is forced and unnatural, artificial "growth," either by amendment or construction, which fundamen- 20 21