You have found an item located in the Kentuckiana Digital Library.
No. 134 "The Dual Form Of Government And The New Deal: A Study of the Roosevelt Administration's Persistent Attempt to Destroy Local Self-Government in the United States and Substitute Therefor a Centralized, All-Powerful Federal Authority Similar to the Current Dictatorships in Several European Countries," September 14, 1936.
No. 134 "The Dual Form Of Government And The New Deal: A Study of the Roosevelt Administration's Persistent Attempt to Destroy Local Self-Government in the United States and Substitute Therefor a Centralized, All-Powerful Federal Authority Similar to the Current Dictatorships in Several European Countries," September 14, 1936. American Liberty League. 400dpi TIFF G4 page images Digital Library Services, University of Kentucky Libraries Lexington, Kentucky Am_Lib_Leag_134 These pages may freely searched and displayed. Permission must be received for subsequent distribution in print or electronically. No. 134 "The Dual Form Of Government And The New Deal: A Study of the Roosevelt Administration's Persistent Attempt to Destroy Local Self-Government in the United States and Substitute Therefor a Centralized, All-Powerful Federal Authority Similar to the Current Dictatorships in Several European Countries," September 14, 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. Signature Name................................... Street ................................... Tovm................................... County .......................... State. Enclosed find my contribution of $...... to help support the activities of the League. (134) THE DUAL FORM OF GOVERNMENT AND THE NEW DEAL â˜… â˜… â˜… A Study of the Roosevelt Administration's Persistent Attempt to Destroy Local Self-Government in the United States and Substitute Therefor a Centralized, All-Powerful Federal Authority Similar to the Current Dictatorships in Several European Countries AMERICAN LIBERTY LEAGUE T^ational Headquarters NATIONAL PRESS BUILDING WASHINGTON, D. C. Document No. 134 September, 1936 The Dual Form of Government And The New Deal 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 blan\ on bac\ page. Centralization of the powers of government under the New Deal is changing the respective roles prescribed by the Constitution for the Federal Government and the States. The Federal Government is reaching for more power at the expense of State sovereignty. The trend of the past three and one-half years involves a modification of the dual form of government to the extent of an increase in the economic and social fields in which the Federal Government is sovereign and a narrowing of the scope of power of the States. Encroachment upon the rights of the States by the Federal Government, although held in check by decisions of the Supreme Court, remains a distinctive feature of the New Deal. The Roosevelt administration, unwilling to test the issue through the normal method of amendment of the Constitution, clings to the hope that the desired end will be achieved by the process of judicial interpretation. At stake in the 1936 election is the appointment of new members of the Supreme Court to fill vacancies believed certain to occur during the next Presidential term, or perhaps the appointment of additional members to accomplish a change of attitude. The administration's purpose has been made clear by Secretary of Agriculture Henry A. Wallace who in a foreword to Irving Brant's book, Storm over the Constitution, said: to elect Presidents en to the Supreme "The important thing * * * who will nominate the right Court." It must be assumed that Mr. Wallace, whose desire to interpret the Constitution in such a way as to permit the Federal Government to exercise broad powers over the "general welfare" is elaborated in his own book, Whose Constitution, reflects the views of the President. The question of the preservation of the constitutional system of government, as construed consistently by the Supreme Court, thus cannot be avoided as an issue of the 1936 campaign. Paralleling the assumption of greater power by the Federal Government in fields reserved to the States are two other trends under the New Deal: (a) the delegation of broad legislative power to the executive branch of the Federal Government; and (b) greater control over the lives and business activities of the people by infringement upon individual rights guaranteed in the Constitution. The three-fold movement toward centralized government constitutes a direct attack upon fundamental features of the American system. Significant facts with respect to the dual form of government under the New Deal follows: 1. Many laws have been enacted increasing the authority of the Federal Government in fields reserved to the States. 2. Key measures of the New Deal have been held unconstitutional as an invasion of the rights of the States. 3. Other laws of the same general character remain to be tested before the Supreme Court. 4. Interpretations of the commerce clause by the Supreme Court in earlier years were sufficiently clear to leave no doubt that the New Deal program was in conflict with the Constitution. 5. Adverse court decisions have failed to alter the determination of the administration to accomplish a wide expansion of Federal sovereignty and an unwise and illegal usurpation of the rights of the States. 6. The President and his advisers frankly believe the system of dual sovereignty, as construed by the courts, to be an outworn relic of "horse and buggy days." 7. While some of the New Deal laws originally were limited to an emergency period, the purpose unquestionably is to broaden Federal power on a permanent basis. 8. Spokesmen for the New Deal show an intention to rely upon judicial interpretation to accomplish a change in the American form of government. 9. A proposed amendment to the Constitution is held in reserve in the event that the change cannot be brought about otherwise. 10. Submission of such an amendment to the States would be the only course consistent with principles of democratic government and would avoid the attempt at usurpation of power. 11. Wider Federal power under the New Deal is excused on the ground that it will be of assistance in economic planning and the achievement of social ends. 12. Improved conditions in industry and agriculture following invalidation of the NRA and the AAA serve to refute the claim that greater Federal control is either necessary or desirable. 13. The dual form of government constitutes one of the vital parts of the network of checks and balances by which the Founding Fathers sought to guard against autocracy. New Deal Laws Never before in the history of the United States, not even during the Reconstruction Period following the war between the States, has there been such a mass of legislation broadening the jurisdiction of the Federal Government as during the Roosevelt administration. Under the plea of an emergency, by invoking the general welfare clause of the Constitution and by various other devices, the framers of New Deal laws have sought to establish a basis of validity. The intent to widen the field of Federal activity in more than a score of important laws is clear. In some instances, as in the case of the National Industrial Recovery Act, the pretext of constitutionality was so flimsy that the administration did everything possible to delay a decision by the courts. The two-year life of the NRA had almost expired when the Supreme Court handed down its adverse opinion. The Agricultural Adjustment Act was in effect for more than two and one-half years before it was declared invalid. Repeals of three other agricultural laws were rushed through Congress at the instance of the administration in order to avoid additional adverse decisions, one of these laws even having reached the stage of argument before the Supreme Court. The laws enacted under the New Deal broadening the authority of the Federal Government in matters in which the States are sovereign include the following: ENACTED IN 1933: National Industrial Recovery Act This law attempted to break down the system of dual sovereignty with respect to control over business activities. By the device of codes the Federal Government sought to regulate production and trade of a purely intrastate character. The Supreme Court in the Schechter case held that the Federal Government was invading a field reserved to the States as well as delegating legislative authority to the Executive in violation of the Constitution. In the NRA codes no attempt was made to differentiate between transactions in interstate commerce, properly subject to control by the Federal Government, and those under the jurisdiction of the States. The code provisions of the law remained in ef- feet from the date of enactment, June 16, 1933, until May 27, 1935, when the adverse decision was rendered in the Schechter case. Agricultural Adjustment Act This law, like the National Industrial Recovery Act, represented a major attempt to change the dual form of government. Under its terms the Federal Government sought to control agricultural production. The provisions of the law authorizing the imposition of processing taxes to finance the payment of agricultural benefits under crop control contracts were in effect from the date of the enactment, May 12, 1933, until the Supreme Court, on January 6, 1936, in the Hoosac Mills Corporation case, held that the regulatory plan was an invasion of the reserved rights of the States. Tennessee Valley Authority Act This law is another measure giving the Federal Government the widest power in matters ordinarily under the control of the States. The Supreme Court, in a case involving the sale of power from the Wilson dam, did not pass on the constitutionality of the law. In pending suits commenced by 19 operating utility companies in the United States District Courts the constitutionality of the act is being contested on a number of grounds. One of the chief points raised is that the TVA act and the operations thereunder are unconstitutional because they attempt to extend Federal power over matters of intrastate commerce and local police power in contravention of the ninth and tenth amendments. Securities Act This law, which gives the Federal Government full regulatory power over the issuance and sale of securities, is challenged as an invasion of States rights in a suit commenced in August, 1936, in the Supreme Court of the District of Columbia. The Supreme Court of the United States, in an earlier case involving this law, did not pass on its constitutionality. Banking Laws The Banking Act of 1933, the Emergency Banking Act of the same year and the Banking Act of 1935 give a greater degree of control to the Federal Government over the banks of the country, including banks chartered under State laws and outside the Federal Reserve System. The Federal Deposit Insurance System, created by the Banking Act of 1933, has made it possible for the Federal Government to exercise a considerable measure of control over the State banks which come under its provisions. Similarly the assistance given by the Reconstruction Finance Corporation to State banks, under authority of the Emergency Banking Act, has afforded the Fed- eral Government an opportunity to dictate policies to banks which previously were solely under control of the States. Federal Savings and Loan Associations The Supreme Court, in a decision on December 9, 1935, held that the Home Owners Loan Act of June 13,1933, was an unconstitutional encroachment upon the reserved powers of the States to the extent that it permitted the conversion of State building and loan associations into Federal associations in contravention of State law. Public Works In the Public Works Title of the National Industrial Recovery Act the Federal Government assumed powers which have been questioned in various cases as an invasion of the rights of the States. ENACTED IN 1934: Agricultural Laws The Bankhead Cotton Control Act and the Kerr Tobacco Control Act both were designed to give the Federal Government arbitrary and absolute power over agricultural production. In both cases the taxing power was invoked as a means of enforcing control. Had they been permitted to continue in operation the same dictatorial control would have been extended to other agricultural products. The adverse decision of the Supreme Court in the AAA case, by its express terms, assured that the cotton and tobacco acts and also the Potato Control Act, enacted in 1935, would be held unconstitutional as an invasion of the powers of the States. All three laws were repealed in 1936 on the recommendation of the President, but only to avoid inevitable adverse decisions. National Labor Relations Boards The joint resolution authorizing the President for a period of one year to establish a board or boards to deal with labor controversies under the National Industrial Recovery Act was in line with the attempt to control all industry, whether properly under the jurisdiction of the Federal Government or not. The boards created by the terms of this resolution ceased to function when the Supreme Court held the NRA unconstitutional. Securities Exchange Act This law accomplishes Federal regulation of the stock exchanges, although a large proportion of the transactions involved have no direct relation to interstate commerce. The device used to compel compliance is to deny the use of the mails to brokers or exchanges failing to meet the requirements. Municipal Bankruptcy Act This law, after being in effect for two years, was held unconsti-7 tutional by the Supreme Court on May 25, 1936, on the ground that it impaired the sovereignty of the States. Railroad Retirement Act The Supreme Court, in a decision on May 6, 1935, held this law to be unconstitutional, one of the grounds being that the promotion of the social welfare of railroad employees did not constitute a valid exercise of the power granted to Congress under the commerce clause of the Constitution. It was also held to be in violation of the due process clause of the fifth amendment. ENACTED IN 1935: Guffey Bituminous Coal Act Congress enacted this law on August 30, 1935, after President Roosevelt had urged favorable action in spite of "doubts, however reasonable" as to its constitutionality. The Supreme Court on May 18, 1936, held it to be unconstitutional on the ground that the mining of coal is a local business not subject to regulation by the Federal Government. National Labor Relations Act This law was enacted on July 5, 1935, five or six weeks after the decision of the Supreme Court in the NRA case. Despite the specific finding that the Federal Government had no constitutional power to regulate production and trade of an intrastate character, Congress again invaded a field reserved to the States. The Supreme Court as yet has not ruled on the law. In several decisions in the lower Federal courts it has been held that the act deals with matters which are subject to the jurisdiction of the States rather than of the Federal Government. Public Utility Holding Company Act The encroachment upon States rights under this law is one of the chief questions raised in litigation soon to reach the Supreme Court. In a decision in the United States District Court at Baltimore the act was declared to be unconstitutional in its entirety on the ground of an attempted regulation beyond the authority of the Federal Government. The United States Circuit Court of Appeals, in the same case, held the act to be unconstitutional with respect to public utility companies involved only in intrastate business. The Supreme Court has not yet given its decision. Agricultural Adjustment Act Amendments Congress, on August 24, 1935, enacted extensive amendments to the Agricultural Adjustment Act. The original law was largely rewritten with a view to bringing it within the terms of the Constitution in the light of the decision of the Su- preme Court in the NRA case some months previously. The adverse decision of the Supreme Court in the AAA case, on January 6, 1936, did not deal with the amended act, but a subsequent decision in the so-called Rice Millers case, on January 13, 1936, held that the amended act was subject to the same constitutional objections as the original law. The Court had held that the original act invaded the reserved rights of the States in the regulation of agricultural production. Social Security Act The constitutionality of this law remains to be tested in the courts. A committee of the American Bar Association, in a report submitted to its annual meeting in August, 1936, held that the unemployment compensation plan "requires every State to relinquish its sovereignty to adopt a law of Federal dictation." Work Relief Act Under this law legislative power is delegated to the President in fields properly subject to the control of the States. The United States Court of Appeals for the District of Columbia, on May 18, 1936, in a case involving a project of the Resettlement Administration, held that the Work Relief Act "invades the reserved rights of the States, because it attempts to reach and control matters over which the Constitution has given Congress no power." Soil Conservation Act Under this law, enacted February 29, 1936, the administration is attempting to continue control of agricultural production, which when proposed by more direct methods in the Agricultural Adjustment Act was held to be unconstitutional. The Federal-aid provisions of this law, effective after January 1, 1938, contemplate the autocratic imposition of the sovereignty of the Federal Government upon the sovereignty of the States. Court Decisions The most significant decisions of the Supreme Court on recent attempted invasions of the rights of the States are those affecting the National Industrial Recovery Act, the Agricultural Adjustment Act and the Guffey Bituminous Coal Act. The decision in the NRA case was unanimous, while those in the AAA and Guffey Coal Act were by votes of six to three. In all the cases the Court was emphatic in denunciation of the effort to break down the system of dual sovereignty provided by the Constitution. In the NRA case the Supreme Court said: "In determining how far the federal government may go in controlling intrastate transactions upon the ground that they 'affect' interstate commerce, there is a necessary and well-established distinction between direct and indirect effects. The precise line can be drawn only as individual cases arise, but the distinction is clear in principle. Direct effects are illustrated by the railroad cases we have cited, as e.g., the effect of failure to use prescribed safety appliances on railroads which are the highways of both interstate and intrastate commerce, injury to an employee engaged in interstate transportation by the negligence of an employee engaged in an intrastate movement, the fixing of rates for intrastate transportation which unjustly discriminate against interstate commerce. But where the effect of intrastate transactions upon interstate commerce is merely indirect, such transactions remain within the domain of state power. If the commerce clause were construed to reach all enterprises and transactions which could be said to have an indirect effect upon interstate commerce, the federal authority would embrace practically all the activities of the people and the authority of the State over its domestic concerns would exist only by sufferance of the federal government. * * * "Our growth and development have called for wide use of the commerce power of the federal government in its control over the expanded activities of interstate commerce, and in protecting that commerce from burdens, interferences, and conspiracies to restrain and monopolize it. But the authority of the federal government may not be pushed to such an extreme as to destroy the distinction, which the commerce clause itself establishes, between commerce 'among the several States' and the internal concerns of a State. The same answer must be made to the contention that is based upon the serious economic situation which led to the passage of the Recovery Act, the fall in prices, the decline in wages and employment, and the curtailment of the market for commodities. Stress is laid upon the great importance of maintaining wage distributions which would provide the necessary stimulus in starting 'the cumulative forces making for expanding commercial activity.' Without in any way disparaging this motive, it is enough to say that the recuperative efforts of the federal government must be made in a manner consistent with the authority granted by the Constitution. "We are of the opinion that the attempt through the provisions of the Code to fix the hours and wages of employees of defendants in their intrastate business was not a valid exercise of federal power." In the AAA case the Supreme Court asserted that control of agricultural production is beyond the powers of the Federal Government, that the power of taxation cannot be used to accomplish an unconstitutional end and that the power to tax and to appropriate for the general welfare does not sanction an activity which lacks constitutional authority. The Supreme Court in the AAA decision said: "The act invades the reserved rights of the states. It is a statutory plan to regulate and control agricultural production, a matter beyond the powers delegated to the federal government. The tax, the 10 appropriation of the funds raised, and the direction for their disbursement, are but parts of the plan. They are but means to an unconstitutional end. "From the accepted doctrine that the United States is a government of delegated powers, it follows that those not expressly granted, or reasonably to be implied from such as are conferred, are reserved to the states or to the people. To forestall any suggestion to the contrary, the Tenth Amendment was adopted. The same proposition, otherwise stated, is that powers not granted are prohibited. None to regulate agricultural production is given, and therefore legislation by Congress for that purpose is forbidden. * * * "The power of taxation, which is expressly granted, may, of course, be adopted as a means to carry into operation another power also expressly granted. But resort to the taxing power to effectuate an end which is not legitimate, not within the scope of the Constitution, is obviously inadmissible. * * * "Hamilton himself, the leading advocate of broad interpretation of the power to tax and to appropriate for the general welfare, never suggested that any power granted by the Constitution could be used for the destruction of local self-government in the states. Story countenances no such doctrine. It seems never to have occurred to them, or to those who have agreed with them, that the general welfare of the United States, (which has aptly been termed 'an indestructible Union, composed of indestructible States'), might be served by obliterating the constituent members of the Union. But to this fatal conclusion the doctrine contended for would inevitably lead. And its sole premise is that, though the makers of the Constitution, in erecting the federal government, intended sedulously to limit and define its powers, so as to reserve to the states and the people sovereign power, to be wielded by the states and their citizens and not to be invaded by the United States, they nevertheless by a single clause gave power to the Congress to tear down the barriers, to invade the states' jurisdiction, and to become a parliament of the whole people, subject to no restrictions save such as are self-imposed. The argument when seen in its true character and in the light of its inevitable results must be rejected." In its decision holding the Guffey Bituminous Coal Act to be unconstitutional the Supreme Court cited many earlier rulings in which it was consistently held that production or manufacture was not commerce as used in the Constitution. The Court in this decision said: "As used in the Constitution, the word 'commerce' is the equivalent of the phrase 'intercourse for the purposes of trade,' and includes transportation, purchase, sale, and exchange of commodities between the citizens of the different states. And the power to regulate commerce embraces the instruments by which commerce is carried on. * * * "We have seen that the word 'commerce' is the equivalent of the phrase 'intercourse for the purposes of trade.' Plainly, the incidents leading up to and culminating in the mining of coal do not constitute such intercourse. The employment of men, the fixing of their wages, hours of labor and working conditions, the bargaining in respect of these things whether carried on separately or collectively each and all constitute intercourse for the purposes of 11 production, not of trade. The latter is a thing apart from the relation of employer and employee, which in all producing occupations is purely local in character. Extraction of coal from the mine is the aim and the completed result of local activities. Commerce in the coal mined is not brought into being by force of these activities, but by negotiations, agreements, and circumstances entirely apart from production. Mining brings the subject matter of commerce into existence. Commerce disposes of it. "A consideration of the foregoing, and of many cases which might be added to those already cited, renders inescapable the conclusion that the effect of the labor provisions of the act, including those in respect of minimum wages, wage agreements, collective bargaining, and the Labor Board and its powers, primarily falls upon production and not upon commerce; and confirms the further resulting conclusion that production is a purely local activity. It follows that none of these essential antecedents of production constitutes a transaction in or forms any part of interstate commerce. Schechter Corp. v. United States, supra, p. 542, et seq. Everything which moves in interstate commerce has had a local origin. Without local production somewhere, interstate commerce, as now carried on, would practically disappear. Nevertheless, the local character of mining, of manufacturing and of crop growing is a fact, and remains a fact, whatever may be done with the products." Pending Cases The question of invasion of States rights is involved in numerous New Deal laws which remain to be passed upon by the Supreme Court. Among laws already involved in litigation in the lower courts or certain to be tested are the National Labor Relations Act, the Public Utility Holding Company Act, the Tennessee Valley Authority Act, the Securities Act, the Securities Exchange Act, the Work Relief Act, the Social Security Act and the Soil Conservation and Domestic Allotment Act. The large number of important laws with respect to which the issue of encroachment upon the dual form of government has been raised establishes without question a trend toward greater Federal power as a basic feature of the New Deal. The opinion of the National Lawyers Committee of the American Liberty League that the National Labor Relations Act is unconstitutional has already received support in decisions in a dozen or more United States District Courts and in the Circuit Courts of Appeals in at least three different jurisdictions. A decision by the Supreme Court is expected during the coming winter. An example of the adverse decisions on this law is that of the United States Circuit Court 12 of Appeals at New Orleans in a case involving the Jones and Laughlin Steel Corporation, decided on June 15, 1936. The Court denied a petition by the National Labor Relations Board for the reinstatement of employees of the company. In so doing the Court held that "the Board has no jurisdiction over a labor dispute between employer and employees touching the discharge of laborers in a steel plant, who were engaged only in manufacture." The Court continued: "The Constitution does not vest in the Federal Government the power to regulate the relation as such of employer and employee in production or manufacture. "One who produces or manufactures a commodity, subsequently sold and shipped by him in interstate commerce, whether such sale and shipment were originally intended or not, has engaged in two distinct and separate activities. So far as he produces or manufactures a commodity, his business is purely local. "So far as he sells and ships, or contracts to sell and ship, the commodity to customers in another State, he engages in interstate commerce. In respect to the former he is subject only to regulation by the State; in respect to the latter, to regulation only by the Federal Government. (Utah Power and L. Co. v. Pjost, 286 U. S. 165, 182.) Production is not commerce, but a step in preparation for commerce." Past Decisions While the Supreme Court itself has admitted difficulty in drawing a precise line between the power of Congress over commerce and the power of the States, the decisions in former years would appear to have been sufficiently clear to leave little doubt as to the invalidation of such laws as the National Industrial Recovery Act, the Agricultural Adjustment Act, the Guffey Bituminous Coal Act and the National Labor Relations Act. Prior to the Civil War the constitutional power to regulate interstate commerce was exercised by Congress principally in connection with the construction of interstate bridges and an extension of the admiralty jurisdiction. The Interstate Commerce Act of 1887 was the pioneer in the regulation of interstate railroads. This law and subsequent laws relating to telephone, telegraph and cable companies and sea carriers were upheld by the courts. The Adamson law of 1916 regulating hours and wages of railroad employees and the recapture clause of the 1920 Transportation Act were among important laws in the field of transportation upheld by the courts. The Sherman Anti-Trust Act of 1890, in which Federal regulation of commercial 13 enterprise was undertaken, and the later Clayton Act and the Federal Trade Commission Act, both enacted in 1914, all passed the test of constitutionality. Various other Federal laws based on the commerce clause which were upheld by the courts included the 1906 Food and Drug Act, the 1910 White Slave Act and the 1914 Narcotics Act. Important cases in which the Supreme Court held that Congress exceeded its constitutional authority under the commerce clause included those involving the Child Labor Act of 1916, the subsequent Child Labor Act of 1919, in which the taxing power was invoked, and the first Grain Futures Trading Act of 1921. The second Grain Futures Trading Act of 1922 was upheld as was the Packers and Stockyards Act of 1921. While the Supreme Court over the years has given approval to a gradual strengthening of Federal power, it is careful to confine such power within limits consistent with the American form of government. At no time has the Supreme Court sanctioned Federal regulation of production and manufacture as attempted under the New Deal. New Deal Policies Recent decisions of the Supreme Court have failed to alter the determination of the present administration to strengthen Federal power at the expense of the States. To such extent as the New Deal conforms to constitutional government as defined by the Supreme Court it does so under protest and with the hope that eventually a way will be found to surmount constitutional difficulties. In his famous "horse and buggy" comment, following the adverse decision of the Supreme Court in the NRA case, President Roosevelt showed himself to be out of sympathy with the Court's interpretation of the Constitution. In the President's view the Constitution, as construed by the courts, is an outworn document. The report of the President's comments in a press conference, as given in the New York Times of June 1, 1935, follows in part: "The most important phase of the decision, said the President as he embarked with carefully chosen words on the next part of his argument, was that relating to interstate commerce and the dictum that the government could not deal with any problem not directly interstate commerce. * * * "The whole tendency over many years, Mr. Roosevelt went on, had been to view the interstate commerce clause in the light of present-day civilization, although it was written into the Con-14 stitution in the horse-and-buggy days of the eighteenth century. * * * "Speaking directly for the section of national thought represented by himself, the President said that there had been a hope that the interstate commerce clause could be interpreted in the light of new conditions to permit reorganization of jurisdiction so that a harmful practice in one section could be prevented by Federal action on the ground that it would be harmful to another section. "The implication of the opinion of the court, Mr. Roosevelt added, speaking slowly for emphasis, was that the country had gone backward; that the Supreme Court would no longer take into consideration anything that might affect interstate commerce except actual goods in transit and a few other small situations." Secretary of Commerce Daniel C. Roper, in an address in September, 1935, expressed the ideas underlying "the course which President Roosevelt is pursuing" as follows: "The 'setting-pole' of depression experience has shown clearly what the main current of action must be. Our economic and social system has grown so vast, complicated, inter-related and sensitive that it can no longer maintain a continuity of stability and sound structural growth unless methods and procedures are provided for treating it comprehensively as one inter-related system rather than to allow its broad scope of actions and reactions to be controlled separately and in segmentary fashion. "As far as commerce and business are concerned State lines have now largely vanished. The tremendous growth of corporations and their penetration nationally into all communities and into all phases of the nation's economic activities has made national coordinated treatment of these economic activities mandatory." The New Deal viewpoint ignores the many important differences in habits, soil, climate, industrial development and agricultural pursuits in the different areas within the vast American continent and the dangers involved in the attempt to apply uniform legislation to industry and agriculture. New Deal proponents constantly show their impatience with and their contempt for the checks and balances prescribed by the Constitution. Permanence of Laws Many New Deal laws were enacted on a plea of grave emergency. They contain preambles setting forth the existence of an emergency as a reason for their enactment. In the early days of the Roosevelt administration important laws representing a departure from past precedent usually were limited to specified periods. After more than three and one-half years of the New 15 Deal it is apparent that the objective is a permanent alteration in the system of dual sovereignty. Little pretense is now made that greater powers are sought for the Federal Government merely on a temporary basis. The National Industrial Recovery Act was enacted for a two-year period. At the time of the invalidation of the code provisions, shortly before the expiration of the two years, the administration had under consideration plans for a permanent law. What remained of the act was extended for nine months. Statements by Mr. Roosevelt and his spokesmen indicate that if he is reelected legislation to regiment industry will again be pushed. The original Agricultural Adjustment Act was to remain in effect until the President proclaimed the end of the emergency. The new Soil Conservation and Domestic Allotment Act provides for a permanent system of agricultural benefits. The National Labor Relations Act, the Guffey Bituminous Coal Act and most of the other regulatory laws were intended to be of a permanent nature. Some of the present laws, such as the Work Relief Act, still are on a temporary basis, but the purpose undoubtedly is either to extend them or enact substitutes of a permanent character. Therefore, it is apparent that the policies of the New Deal are designed to bring about a permanent change in the American system of government. The pretense that they were intended merely to promote recovery has been contemptuously abandoned. Amendment by Judicial Interpretation The Constitution provides a method for the submission of amendments by Congress to the States. Under the procedure as laid down it is possible in an orderly way to change the Constitution if new conditions warrant it. Submission of amendments to the States insures a thorough consideration and discussion of the issues involved. Unless public sentiment unquestionably favors an amendment it has little chance of approval, inasmuch as a two-thirds vote is required in each house of Congress, and three-fourths of the States must ratify. The administration has been unwilling, thus far, to submit the issue of a modification of the dual form of government to the people. This attitude cannot be construed as other than a desire to avoid the use of democratic proc-16 esses. The New Deal policy of attempting to achieve its objectives through subterfuge is in harmony with the trend toward dictatorial government. The present purpose of the New Deal is to change the American system of government, if possible, by judicial interpretation. This contemplates the continuing enactment of laws of doubtful constitutionality in the hope that eventually the courts will adopt the views of those who think they are able to reconcile the new program with the Constitution. The policy of altering constitutional principles by judicial interpretation has been openly advocated by some of those who have played a conspicuous part in the framing of New Deal legislation and who on frequent occasions have been the accepted spokesmen of Mr. Roosevelt. Among them is Donald R. Richberg, who helped to draft the National Industrial Recovery Act and who on behalf of the administration defended it unsuccessfully before the Supreme Court. In an address before the Kentucky Bar Association at Louisville, April 3, 1936, Mr. Richberg said: "It seems clearly the lesson written in over 290 volumes of Supreme Court reports that it is much easier and more effective to change the opinions of the Court than to amend the Constitution. And the most appropriate method of accomplishing this is for the legislative branch of the Government to continue to exercise its supreme authority to determine public policy, with confidence that ultimately there will be judicial recognition of the propriety of necessary and reasonable exercises of legislative authority and of legislative discretion, in dealing with all problems within the broadly granted powers of the Federal Government." By changing the opinions of the Court Mr. Richberg presumably had in mind not so much a shift in the views of individual judges as a substitution of new judges with different fundamental concepts. The President and others in the administration have constantly sought to give emphasis to dissenting views of Supreme Court justices. Whenever there has been a close division in the Court it has been pointed out that a change of one or two votes would have meant an entirely different interpretation of the Constitution. The obvious inference is that the administration intends either to play a waiting game so that when vacancies occur in the membership of the Supreme Court new justices may be appointed who will uphold New Deal laws, or 17 else to enlarge the present membership of the Court. It is apparent that an increase in the membership of the Court, which presumably could be accomplished by statute without a constitutional amendment, would be one method of changing its complexion. In connection with possible appointments, if the present administration is continued in power, information presented to the annual convention of the American Bar Association in August, 1936, by United States District Judge Merrill E. Otis of Missouri, is somewhat startling as well as alarming. According to Judge Otis, out of 47 United States Circuit and District judges appointed by President Roosevelt only 49 per cent had college training and only 25.5 per cent had college diplomas. Under the various administrations from Theodore Roosevelt to Hoover, the percentage of appointments of judges with college training ranged from 66.6 to 77, while the percentage of those with college degrees ranged from 52.4 to 57.8. It is apparent that the 1936 Presidential election is of vital importance with respect to the position of the courts on New Deal legislation. Already, under the New Deal, the executive branch of the Government has become dominant over the legislative branch. Appointment of New Deal partisans to the Supreme Court would pave the way for the dominance of the executive branch over the judicial branch as well. Proposed Amendments In the event that the policy of changing the Constitution by judicial interpretation proves ineffective, the New Deal has proposals for constitutional amendments in reserve. A joint resolution proposing an amendment to the Constitution empowering Congress to regulate industry has been introduced in the Senate by Senator E. P. Costigan of Colorado. The Costigan amendment is typical of several dealing with this subject. Section 1 of the Costigan amendment provides that "the Congress shall have power to regulate hours and conditions of labor and to establish minimum wages in any employment and to regulate production, industry, business, trade, and commerce to prevent unfair methods and practices therein." Section 2 of the proposed amendment is particularly significant, inasmuch as it specifically abrogates individual rights guaranteed in 18 the Constitution. This section provides that "the due process of law clauses of the fifth and fourteenth amendments shall be construed to impose no limitations upon legislation by the Congress or by the several States with respect to any of the subjects referred to in Section 1, except as to the methods of the procedure for the enforcement of such legislation." Under Section 3 it is made clear that the sovereignty of the Federal Government shall be supreme over that of the States. This section provides that "nothing in this article shall be construed to impair the regulatory power of the several States with respect to any of the subjects referred to in Section 1, except to the extent that the exercise of such power by a State is in conflict with legislation enacted by the Congress pursuant to this article." Usurpation of Power Under the American system of representative democracy the people should have an opportunity to pass on so vital a change in the form of government as that embodied in the Costigan amendment. Its submission by Congress to the States, if the New Deal is determined to change the American system of government, would be consistent with democratic principles. If the amendment were approved in the proper way the people at least would have given their consent to the strengthening of Federal power. The method now being pursued contemplates the enactment by Congress of a series of laws, despite "doubts, however reasonable" as to their constitutionality. If the plan works out as its sponsors hope, judges will be appointed eventually who will sustain the validity of the laws. This end will have been accomplished by executive domination of Congress and of the courts. Such a method smacks of usurpation of power. George Washington's warning in his farewell address is pertinent. Said Washington: "If in the opinion of the people the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this in one instance may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit which the use can at any time yield." 19 Economic Planning The underlying reasons for the extensions of Federal power under the New Deal are to facilitate economic planning and to accomplish social ends. If the economic order is to be controlled in accordance with the blue-prints of a planned economy it is obvious that the Federal Government must have far-reaching authority over industry and agriculture. It must be able to dictate with respect to the activities of citizens. It should not be restricted by reserved rights of the States or by liberties guaranteed to the people. New Deal economic planning thus calls for a modification of the dual form of government. Economic planning as understood under the New Deal is in conflict with the system of free enterprise identified with the American form of government. A regimented industry and agriculture are abhorrent to American constitutional principles. Industry and agriculture have prospered with a minimum of government regulation. The restrictions upon such regulation inherent in the dual form of government remain as desirable as in the "horse and buggy days." Results of Adverse Decisions If any proof were needed of both the futility and the widely injurious affect of New Deal laws for the regulation of industry and agriculture it can be found in available statistical records. Business recovery did not get really under way until after the invalidation of the NRA by the Supreme Court. Agriculture has fared better since the AAA was outlawed than it did while control programs were in effect. When the NRA was declared unconstitutional after nearly two years of intensive activity, the Federal Reserve Board's index of industrial production, based on 100 for the average of 1923-1925, stood at 84. This was a decline from 93 in June, 1933, when the National Industrial Recovery Act became a law. In September, 1934, after codes had been in operation for about a year, the index had dropped to 69. Commencing immediately after the adverse court decision, the index turned upward and in July, 1936, reached 108. A report of the Bureau of Agricultural economics of the Department of Agriculture states that the general level of prices received by 20 farmers at the middle of August, 1936, was the highest in six years. The price level was 17 per cent higher than a year previously, at which time the crop control program of the AAA was in effect. Cash receipts by farmers from the sale of their principal products showed increases in all agricultural regions during the first six months of 1936 over the same period of 1935, according to the Bureau of Agricultural Economics. The AAA was invalidated on January 6, 1936, so that the comparison between the first half of 1935 and the first half of 1936 should show fairly the difference between conditions under the AAA and without it. The comparative figures make it evident that the New Deal has not acquired mastery over nature and that its efforts toward the regimentation of agriculture have been injurious rather than beneficial. Increased imports of agricultural products, increased relief rolls in the farm areas and burdensome extra costs in processing industries testify further to the harmful effects of the AAA. Dual Sovereignty The dual sovereignty of the Federal Government and the States is one of the essential characteristics of the American form of government. It constitutes the difference between a Federal republic like the United States, which is a union of separate sovereignties, and a national republic such as France, where the smaller administrative units possess only such powers as are delegated to them by the central government. The dual form of government, which was a natural product of conditions prevailing when thirteen independent colonies joined forces, is a vital part of the network of checks and balances created under the Constitution to guard against a reversion to autocracy. The system of dual sovereignty is not merely a theory. It has demonstrated its effectiveness over a period of nearly 150 years. It has served to insure the maintenance of the principles of liberty on which the nation was founded. The restraints upon the authority of the Federal Government have acted as a check upon the power of bureaucracy. Limitations of Federal power have prevented excesses by government officials in new and untried fields. The Constitution has proved sufficiently flexible to meet changing conditions over the years. The courts have found it possible to sustain many laws strengthening Federal authority 21 along lines beyond the vision of the Founding Fathers. In large part these laws have been accepted as in the public interest. Some of the regulatory laws enacted under the New Deal have been in response to a widespread demand for greater protection for the public. Without doubt certain of these measures are in harmony with constitutional government. An extension of Federal authority over all industry, trade and agriculture, as contemplated in the Costigan amendment and as sought by the New Deal at present through the process of judicial interpretation, would sanction a reversal of a fundamental principle in the American government. Instead of a government for the people, the people would become tools of government. Centralized power is consistent with and encourages the European idea of a totalitarian state which recognizes no sphere of individual life as immune from governmental authority. So long as the courts and the people remain firm against laws which break down the system of dual sovereignty and destroy other checks and balances of the Constitution, the United States will be spared the sacrifice of democracy for dictatorship.