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No. 124 "Constitutional Heresy" Speech of Raoul E. Desvernine, Chairman of the National Lawyers Committee of the American Liberty League at the Yale-Harvard-Princeton Constitutional Forum, Princeton University, May 9, 1936.
No. 124 "Constitutional Heresy" Speech of Raoul E. Desvernine, Chairman of the National Lawyers Committee of the American Liberty League at the Yale-Harvard-Princeton Constitutional Forum, Princeton University, May 9, 1936. American Liberty League. 400dpi TIFF G4 page images Digital Library Services, University of Kentucky Libraries Lexington, Kentucky Am_Lib_Leag_124 These pages may freely searched and displayed. Permission must be received for subsequent distribution in print or electronically. No. 124 "Constitutional Heresy" Speech of Raoul E. Desvernine, Chairman of the National Lawyers Committee of the American Liberty League at the Yale-Harvard-Princeton Constitutional Forum, Princeton University, May 9, 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. I desire to be enrolled as a member of the American Liberty League. Signature Name . Town.................................. County.......................... State. Enclosed find my contribution of $........ to belp support the activities of the League. CONSTITUTIONAL HERESY â˜… â˜… â˜… RAOUL E. DESVERNINE Chairman of the National Lawyers Committee of the A: Liberty League Yale-Harvard-Princeton Constitutional Forum, Princeton University May 9, 1936 AMERICAN LIBERTY LEAGUE National Headquarters NATIONAL PRESS BUILDING WASHINGTON, D. C. (124) Document No. 124 Constitutional Heresy 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 16. IT VISIT HERE today dramatically recalls to my mind the forebodings which that great political seer and philosopher expressed not so many years ago that the world was being rendered unsafe for democracy. He viewed the facts, upon which he predicated this opinion, with alarm and consternation. He knew only too well that human freedom could survive only if democracy survived. History had taught him that no other political philosophy had yet been devised by the ingenuity of man which permitted and promoted human liberty: and it was a deep-seated conviction with him that human freedom was the goal, if not the achievement, of our civilization. The survival of democracy was, therefore, the paramount issue in his mind, and apparently in the minds of all of us who unanimously rallied to his slogan. Many facts and circumstances contributed to the World War, but the real, basic casus belli was the political philosophy which dominated the Central Powers. We are too prone to overemphasize the force of material facts, and to under-estimate the power of intellectual and spiritual forces, emotional reactions, all of which spring primarily from our philosophy. As each human being is prejudiced, controlled, and motivated largely by his personal philosophy of life, so with nations, which are only the aggregate of individuals. Nations are built out of philosophy, not out of bricks and mortar. It is their national ideals which shape their national destinies. It is their popular thinking which determines their ideas of the political nature, rights, and ambitions of the individual. Economic and social forces and circumstances obviously play a vital part in man's existence, particularly in determining the measure of his creature comforts and in providing for his material well-being, but man is not a mere robot completely and exclusively controlled by them. He is given power over na- ture; that is his divine heritage and is what makes him a MAN. The church edifice does not prescribe the religion; the religion prescribes and produces the edifice. So with our political structure. It is built with political ideals and ideas. Our ideal is to have a social and economic structure in a framework in which freedom can live. now, OUR CONSTITUTION is the Charter of our national ideals. It contains within its four corners the principles of our political philosophy. These principles may be summarized as Individual Liberty and Self-Government safeguarded and guaranteed by a written solemn compact between the sovereign people and the State. Our Constitution expressly enumerates and reserves the civil rights deemed the minimum essential to individual liberty. Our Constitution has erected a structure or framework of self-government and has prescribed the mechanics by which self-government can best express itself and individual liberty can be most effectively achieved. The limitations on the powers of the government; the division of government prerogatives between the Federal and State governments; the separation of governmental functions between different, coordinate branches of the government; the express reservation of certain specific and enumerated rights and the general reservation of all rights not expressly, or by necessary implication, delegated; and more especially the power of the Supreme Court to preserve and maintain the Constitution against invasion from any source; are not mere mechanical devices or legalistic formulae, designed only to create a workable form of government; but are fundamental principles established to prevent the concentration of power in any single unit of government, no matter how democratic, which our ancestors feared, and unequivocally called, "despotism," and to protect the reserved liberties of the individual against governmental oppression. Freedom to them meant not only political liberty, but economic independence. Freedom to them was a reality; not a philo- sophical abstraction. Freedom was specifically defined; its essential elements catalogued. Obviously some restrictions are placed upon the unlimited enjoyment of these individual rights by virtue of common and public interest. Man can only enjoy individual freedom in a land of the free. Each citizen must yield his individual liberty to the necessary requirements of the general welfare of the society of which he is a member. Therefore, some regulation of his individual conduct is essential. Furthermore, he, undoubtedly, has certain responsibilities imposed upon him as an incident to his membership in that society. The measure and extent of his subordination of his individual liberty to the general welfare, and of the assumption of responsibilities in the public interest, will vary under different circumstances and conditions. In determining this measure, the integration and interdependence of economic and social life must be considered; emergencies and special situations must be met; and, progress, scientific and otherwise, must play a part. But it is one thing to make such adaptations within the flexible framework of our political philosophy; and quite another to strive to replace our traditional philosophy with an alien and incompatible philosophy. This is especially true, if it becomes apparent that new political architects design (and in some respects they have already laid and dedicated the cornerstone of) the foundation and structure of a "new order," which in its characteristic principles violate the basic concepts of Constitutional Democracy. IT MIGHT well be that our constitutional system has become outmoded by the march of time, but let us be certain that that is the fact before we tamper with its foundations. The mere fact that our Constitution forbids certain theories and prohibits certain methods does not prove its inadequacy to meet actualities. Other remedies and other methods might be employed which are within the scope of the Con-5 stitution and, in fact, such remedies and methods might he equally efficacious. The burden of proof is on the proponent to establish that our Constitution is antiquated and inadequate and that the remedies proposed and methods pursued are sound, necessary, and exclusive; and that the public welfare demands their adoption. Thus far, this proof has not been furnished, although daily demanded. The assertion that the Constitution has proven to be and is fully adequate to meet every circumstance which has thus far arisen, is met only by abuse, not argument; by assumption, not proof. But should it be established that modernization of the Constitution is advisable or necessary, then such modernization can easily be effectuated, even if it requires amendment. The sovereign people have made provision for the method by which their sovereign consent to the kind of government by which they wish to be governed can be authentically ascertained. Any other method is a direct challenge to democracy itself. NOW, YOU MAY CONSIDER all this the mere proclamation of platitudes; the observation of the obvious; but unfortunately, it is in these simple, homely, truths that we find what is today called the "Constitutional Crisis." The establishment of certain general doctrines of law does not make a government. Men embodying those principles in their personal views and conduct can alone make the law living and effective. The political philosophy of those directing our government is, therefore, of paramount importance, and inevitably determines our political direction. If our Constitution and the Supreme Court are now in the twilight of their existence, it is only because men have intellectually dimmed the light of our traditions, and are willing to see them darkened by the shadows of the so-called "New Order." They fail to tell us, however, that their proposed "New Order" is very, very old in its philosophical principles, and that the dazzling light of its promised economic security has always proved to lead to political slavery wherever it has been embraced. Its historic and contemporary European prototypes make this perfectly clear. I WONDER if the argument is not really, not that the Constitution has been outmoded by the march of time; but rather by the march of the intellect of our political leaders; not by actual conditions, but rather by pet theories. Time does not permit me to detail the teachings of the official advocates of these theories, but their speeches and books are available to you all. Their teachings have already been expressed in governmental action. The record has been written. Let him who would learn, read! But above all, the Supreme Court of the United States has spoken in no uncertain words and its determination is binding upon us all. The Court has made it perfectly clear that the political philosophy and methods of these pseudo-modernists do not square with our institutions. Their "blueprint" of the "New Order" does not fit into our constitutional concepts. To fit their theories into the framework of our government will necessitate their removing the present structure and building an entirely new governmental structure, which can only be done by amendment. And why do they hesitate to frankly pursue that course! Perhaps, political sagacity, after the preliminary soundings, has told them that that course spells defeat. THE SO-CALLED SCHOOL of "reactionary constitutionalists," however, are only "reactionary" in the sense that they maintain that the people themselves should be given the opportunity of deciding for themselves the form and nature of their political institutions and that that determination should be made in the manner they have prescribed. The verdict of the people, if arrived at by "due process of law," will be entirely acceptable to the "reactionaries." But the progressives choose otherwise. They don't want to go to the people; they purpose to "impose" transformations on the people by what they mildly term "constitutional growth by judicial interpretation." FROM THE FORMULATION of the Constitution to the present day, there have been two schools of constitutional interpretation; and controversy between them has been often actively waged. Such differences have been clearly recognizable in the judiciary itself and have been a constructive force in the molding of our constitutional law. Differences in political, economic, and social philosophy undoubtedly are a factor in determining one's constitutional attitude. At the present time, such differences are sharply noted. There is no doubt that efforts to extend the scope of Federal power under the Constitution have been made practically throughout our national life, and that the Constitution has been judicially found to be sufficiently flexible to meet changing conditions and emergencies, both of war and peace. The Constitution is not a fossilized historical document; but a living organism. Accommodating the Constitution to new conditions by reasonable and even liberal construction is, however, fundamentally distinguishable from transforming our constitutional institutions by forced and illogical "interpretations." The recent repeated attempts to centralize unlimited sovereign power in the Executive is not an "interpretative" expansion, but a violation of the fundamental conception of our constitutional life. Governmental power was distributed and scattered into separate jurisdictions, departments, and agencies for the express purpose of safeguarding our institutions of self-government and individual freedom from governmental oppression. To strike at this principle is not "liberalizing," "modernizing"; it is setting up a new scheme of government. The Supreme Court has dogmatically declared and even unanimously in one case where these very principles were at issue that recent legislation was destructive of our constitutional system itself. It is not a modernizing adaptation of governmental jurisdiction to "obliterate" the States and set up an unlimited 8 sovereign Federal Government, as a substitute for a limited Federal union of autonomous States. THE STRUCTURE of our government is the bulwark erected to preserve our individual liberties. They storm the ramparts in the hope of penetrating these constitutional barriers so as to get at the human freedom which they shield. That this is true, some recent cases positively demonstrate. In this connection it is well 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 v. 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 to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon. Their motto should be obsta principiis? " THIS WARNING, to "oppose encroachments at the start," is more needed today than ever in â€¢j our history; it is the technique with which to / oppose this confessed technique. I The President himself urged Congress to pass a bill notwithstanding "doubts as to constitutionality, however reasonable." Congress itBelf seems perfectly willing 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 the 9 Administration 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 enjoyed high Presidential favor and 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 assumes a different, but yet a defiant, attitude in describing his impatience with judicial restraint interposed against the acceptance of his views; for he said, in his University of New Mexico 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 a "judicial attrition" or nullification, he does not say. There are other examples of officials of the Administration chafing at the bit of Constitu-10 tional restraint. For instance, Henry Wallace's impetuous outburst in characterizing the effects of a Supreme Court decision as "the greatest legalized steal in history"; proposals to free the Executive and Legislature from Constitutional accountability by curbing the jurisdiction of the Courts, especially in injunction cases; attempts to single out the judiciary as the barrier to social and economic progress; threats to increase the number of the Supreme Court judges so as to make place for those having more sympathetic views; and suggestions, politics permitting, that amendment to the Constitution be made. OUTSIDE OF OFFICIAL CIRCLES the controversy is carried on with a crusading, and, in some instances, a belligerent temper. Decisions of the Supreme Court are viewed with a lessened respect. New legislation is proposed and enacted without careful Constitutional scrutiny and without analysis based upon established principle and precedent. Of course, all of these indirect manoeuvres have an educational value; but the point I want to accent is that a new directive force is being supplied by many who are in a position to give direction to public thinking, and that that direction is away from the traditional political philosophy of America. Obviously, we have had other so-called "constitutional crises," and many of the forces presently unleashed have been experienced before; but never in our Constitutional life has there been such a concerted, persistent and comprehensive attempt to challenge and change the fundamentals of our Constitutional concepts. President Roosevelt has broken the all-time presidential record for the number of federal laws initiated and signed by him which have been declared unconstitutional; and it is most significant that most of these laws were judicially found to have the same Constitutional vices, the same disregard for the same Constitutional processes and forms. And furthermore, little regard has been paid to such judicial rebukes and warnings. New legislation having 11 substantially the same legal characteristics has been passed. No, AS I READ the record of the "new chapters in popular government," I cannot be convinced that the Constitutional issue today is only a revival of the old conflict between two schools of interpretation; but, on the other hand, I am convinced that the "new chapters in popular government" do present a different philosophy of government than that written by the Founding Fathers. The issue is, therefore, basic. I intend no partisan activity by this address. I only purpose, regardless of the relative merits of the two philosophies of government presented, to define what I consider to be the heart of the "Constitutional Crisis." The issue must be decided by the direct and authentic determination of the people that is the vital principle of the democracy and any activity which directly or indirectly deprives the people of the fullest opportunity to select the form of their government is a direct challenge to democracy itself. LET ME REPEAT, I am not opposed to adaptation with judicial approval, or change by popular mandate authentically expressed; but I am opposed to transformations under the pretext of adaptation and free from judicial scrutiny, and without the sanction of the people ascertained in the prescribed manner. The choice of a political philosophy is ours. It cannot be imposed. That choice is the essence of democracy, in which we firmly believe. My only purpose and hope is to pose the question to reveal the issue in its true light to free it from the clever, designed labyrinth of technicalities and emotions in which it has been cast. IF AN IMPATIENCE with Constitutional restraints is displayed that evidences an intellectual disbelief in Constitutional Democracy; if theories are advocated fundamentally incompatible with the Constitution, as judicially construed, that evidences a displeasure with our scheme of political life. It is with the philosophy upon which this impatience and displeasure is based, with which we must immediately concern ourselves. We must be certain that we are faced with a choice between different ideals, and not be led to believe that we are only passing judgment on specific detailed propositions. Economic and social progress and security is a worthy ideal, but not at the price of political freedom. To profess lip service to the faith of our fathers, and then set about to destroy confidence in their creed is Constitutional heresy, if not political immorality. PAMPHLETS AVAILABLE ^ OPIES of the following pamphlets and other League literature may be obtained upon application to the League's national headquarters. Statement of Principles and Purposes American Liberty League Its Platform Inflation The Holding Company Bill The Farmer's Home Bill The Supreme Court and the New Deal Expanding Bureaucracy Lawmaking by Executive Order New Deal Laws in Federal Courts Dangerous Experimentation Economic Planning Mistaken But Not New Work Relief The AAA and Our Form of Government Alternatives to the American Form of Government A Program for Congress The 1937 Budget Professors and the New Deal Wealth and Income The Townsend Plan The Story of an Honest Man The New AAA The President's 1936 Tax Proposals New Work Relief Funds The President Wants More Power (leaflet) The Townsend Nightmare (leaflet) A Farmer Speaks (leaflet) Will It Be Ave Caesar? (leaflet) Our New Spoils System (leaflet) The Magi and the Showdown (leaflet) Government by Busybodies (leaflet) Gratitude In Politics (leaflet) The National Labor Relations Act Summary of Conclusions from Report of the National Lawyers Committee Straws Which Tell An Open Letter to the President By Dr. Neil Carothers The Duty of the Church to the Social Order Speech by S. Wells Utley PAMPHLETS AVAILABLE (continued) Two Amazing Years Speech by Nicholas Roosevelt The Duty of the Lawyer in the Present Crisis Speech by James M. Beck The Constitution and the Supreme Court Speech by Borden Burr Inflation is Bad Business Speech by Dr. Neil Carothers The Fallacies and Dangers of the Townsend Plan Speech by Dr. Walter E. Spahr What of 1936? Speech by James P. Warburg Americanism at the Crossroads Speech by R. E. Desvernine The Constitution and the New Deal Speech by James M. Carson The American Constitution Whose Heritage? Speech by Frederick H. Stinchfield The Redistribution of Power Speech by John W. Davis Time to Stop Speech by Dr. Neil Carothers The Facts In the Case Speech by Alfred E. Smith The Townsend Utopia Speech by Dr. Ray Bert Westerfield Inflation and Our Gold Reserve Speech by Dr. E. W. Kemmerer The Constitution The Fortress of Liberty Speech by James A. Reed Entrenched Greed Speech by Dr. G. B. Cutten Should We Amend the Constitution to Grant the National Government General Welfare Powers? Speech by W. H. Rogers The New Inquisition Speech by Jouett Shouse It Can Be Done Speech by Merrill E. Otis The Voice of the Constitution Speech by Arthur H. Vandenberg The Need for Constitutional Growth by C struction or Amendment Speech by R. E. Desvernine Shall We Have Constitutional Liberty, or D tatorship? Speech by James A. Reed An American Philosophy Speech by Jouett Shouse The Liberty League Old Friendships De stroyed Speech by Daniel O. Hastings A Federal Union National and State Responsibilities Speech by Fitzgerald Hall