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No. 41 "How to Meet the Issue" Speech by The Honorable William E. Borah, United States Senator from Idaho, June 2, 1935. American Liberty League. 400dpi TIFF G4 page images Digital Library Services, University of Kentucky Libraries Lexington, Kentucky Am_Lib_Leag_41 These pages may freely searched and displayed. Permission must be received for subsequent distribution in print or electronically. No. 41 "How to Meet the Issue" Speech by The Honorable William E. Borah, United States Senator from Idaho, June 2, 1935. American Liberty League. American Liberty League. Washington, D.C. 1935. 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. Pamphlets Available â˜… Copies of the following pamphlets and other League literature may be obtained upon application to the League's national headquarters: Why, The American Liberty League? The Tenth Commandment Statement of Principles and Purposes Progress vs. Change Speech by Jouett Shouse Recovery, Relief and the Constitution Speech by Jouett Shouse American Liberty League Its Platform An Analysis of the President's Budget Message Analysis of the $4,880,000,000 Emergency Relief Appropriation Act Economic Security The Bonus Inflation Democracy or Bureaucracy? Speech by Jouett Shouse The Thirty Hour Week The Constitution Still Stands Speech by Jouett Shouse The Pending Banking Bill The Holding Company Bill The Legislative Situation Speech by Jouett Shouse "What is the Constitution Between Friends?'* Speech by James M. Beck Where Are We Going? Speech by James W. Wadsworth Price Control Yesterday, Today and Tomorrow The Labor Relations Bill Government by Experiment Speech by Dr. Neil Carothers How Inflation Affects the Average Family Speech by Dr. Ray Bert Westerfield The AAA Amendments Political Banking Speech by Dr. Walter E. Spahr The Bituminous Coal Bill Regimenting the Farmers Speech by Dr. G. W. Dyer Extension of the NRA Human Rights and the Constitution -Speech by R. E. Desvernine The Farmers* Home Bill The TVA Amendments The New Deal, Its Unsound Theories and Irreconcilable Policies Speech by Ralph M. Shaw Is the Constitution for Sale? Speech by Capt. William H. Stayton AMERICAN LIBERTY LEAGUE NATIONAL PRESS BUILDING WASHINGTON, D. C. How to Meet the Issue â˜… â˜… â˜… Speech by THE HONORABLE WILLIAM E. BORAH United States Senator from Idaho, over the Network of the Columbia Broadcasting System Sunday, June 2, 1935 AMERICAN LIBERTY LEAGUE National Headquarters NATIONAL PRESS BUILDING WASHINGTON, D. C. Document No. 41 how to meet the issue J_jADIES and gentlemen, we live under a written Constitution. Many people believe that is our good fortune. Some people seem to think otherwise. But, fortunate or unfortunate, it is a fact. This fact is the cause of much debate at the present time. The constitution of Italy is the fertile and restless brain of Mussolini. The constitution of Germany is the daring and resourceful character of Hitler. The constitution of Russia is the iron will of Stalin. The Constitution of the United States is the will and purpose of the American people crystallized into a written document binding upon rulers and people alike. The characteristic of the former constitutions is the restraint and repression they place upon the people and the latitude of power they allow to the rulers. The crowning virtue of the latter Constitution is the restraint and the control it imposes upon the agents and the representatives of, and the liberty it allows to the people. Under the former constitutions the people are subjects. Under the latter Constitution, they are masters. The former constitutions are often referred to as "modern" and "progressive." The latter as "ancient" and "outmoded." Modern forces political and economic are chafing under the restraint of our written Constitution. It may be that it is destined to go. That would not be so strange. It is 146 years old; the oldest constitution in the world. But, if it should go either by absolute rejection or by a transformation, which would leave little of its former spirit and purpose still it would have served the cause of human freedom and the advancement and the enlargement of human happiness as has no other document in the his- â˜… 3 tory of the world. Under it the average citizen emerged from a state of serfdom to that of a sovereign. Greater progress and more universal happiness has been the portion of the masses since the year 1789 than in all the 5,000 years preceding it. Whatever, therefore, may be the future of the American Constitution, "the past is secure." The "oxcart" system may pass out under the demand of a different civilization and of greater leaders. The political philosophy of General Johnson, Mr. Richberg, and Dr. Tugwell may supplant the political philosophy of General Washington, Madison, and Jefferson; nevertheless, in my judgment, the "oxcart" Constitution should and will hold a high place at the bar of history. It has nobly served and marvelously wrought during the "oxcart" period. The only thing I shall urge is that in the matter of the change the people be consulted. The Constitution should not be changed by the Supreme Court. It should not be changed in Washington. It should be changed by the people alone. TrlE decision of the Supreme Court wherein national-recovery legislation was involved has renewed interest in our constitutional form of government. The Court decided three main questions: First, that the Supreme Court in rendering its opinions is bound by the written terms of the Constitution. Second, that Congress alone under the Constitution as it now stands possesses the legislative power of the National Government. Third, that the States alone may legislate, touching matters wholly within the State. Those who criticize the Court seem to contend that the Court under certain circumstances ought not to be bound by the terms of the Constitution; second, that the executive departments should be permitted to exercise 4 legislative power; and, third, that the Federal Government should be permitted to regulate and control the purely internal affairs of the State. During recent years there has grown up a theory wholly at war with American principles of constitutional government, and that theory is: When an emergency exists, or when the Congress and the President declare an emergency to exist, this in some way enlarges the power of the Congress and the Executive under the Constitution. It is further contended that the courts are justified under such circumstances to consider matters other than the terms of the Constitution itself. This theory was urged in this case, but the Court held unanimously that it was bound by the terms of the Constitution. It declared, in effect, that it would sustain in the fullest measure all powers which the people had written into the Constitution, but the Court declared that it did not feel justified in wholly disregarding the language of the Constitution. A decision of the Court based upon the theory that the Court could consider anything other than the terms of the Constitution itself would create a complete judicial oligarchy. It would leave the question of the extent of power to the determination of those exercising power a complete definition of despotic power. In rejecting the doctrine that an emergency justifies a disregard of the plain terms of the Constitution, the Supreme Court announced no new doctrine. Sixty-nine years ago a man, a civilian, was tried by military court and sentenced to death. He appealed to the Supreme Court, claiming he was entitled to be tried by a jury. The argument was made that the great Civil War was an emergency of such a nature that the Court would be justified in disregarding the provisions of the Constitution which guarantees the right of trial by jury. The Court rejected this vicious doctrine, saying: "No 5 doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions (the Constitution) can be suspended during any of the great exigencies of the Government. Such a doctrine leads directly to anarchy or despotism." If any such power is to be given the Court or to the Congress or to the Executive, let those who urge that such powers be given come forward with a proposal in the way of an amendment to the Constitution. A change of this stupendous moment should not be made by the Court through strained and unnatural construction, or by the Congress through disregard of its constitutional obligations. TrlE second proposition which the Court decided was that Congress, elected by the people, alone may make Federal laws for the people. This is an old theory. It cost the friends of liberty a vast amount of suffering and bloodshed in order to establish it. At least two great wars were fought upon the subject. It is a principle as old as free institutions. The Court held that under the Constitution as it now stands, Congress could not abrogate its power and surrender to the Executive its power to make laws. The Court did say, however, and in so saying held it seems to me to the full limit that if Congress would provide in the law a standard, a guide, or a rule governing the Executive in making rules and regulations which would have the force of law, that such rules and regulations thus made would be valid. The criticism of the Court, however, implies that the power to make such rules and regulations having the force of law should be unrestrained and unlimited. This the Court declared it was not authorized to approve under the Constitution. Under the riotous power given the Executive in the National Recovery Act, to make rules and regulations with the force of law, marvelous things have happened. Over 5,000 laws have been promulgated by the executive departments, the violation of which would constitute crimes. Over 17,000 rules and regulations have been promulgated, the violation of which might not constitute a crime, but which regulated and controlled personal conduct. These rules and regulations or laws are to be found in some 10,000 pages of printed material. The cost of administering these laws has been, it is estimated, at over $41,000,000 all of which must be paid by the people. Men have been charged with the violation of laws which they had no knowledge and could not, as a practical matter, secure knowledge concerning them. The Court declared this was carrying the matter too far; that such information ought to be provided in the law passed by Congress which would, at least, indicate to the citizen the limit of authority on the part of the executive department. It held that the Congress must, at least, specify rules and standards by which the executive departments were to be guided, limited, and controlled. The criticism of the decision means nothing less than that the law-making departments should include the executive department. If the people of this country want the executive departments to have unlimited power to make laws for every conceivable activity of the citizen, violation of which would send a man to jail, they at least should have an opportunity to pass upon the question. No such power should be established by the courts or by the surrender of duty by the Congress. Let us have an open proposal by way of a constitutional amendment submitted by those who want such power. I UNDERTOOK to frame an amendment. I wanted to get a full view of its hideous legal and moral aspect. My draft reads as follows: "The legislative power is hereby vested in the Congress of the United States and in the different executive departments which may be created from time to time." That is brief, but I believe it will accomplish all that is desired by those who are dissatisfied with our present Constitution. I would not want it to be inferred from anything I say that this effort of the executive departments to take over the law-making power is of entirely recent growth, or that it is characteristic of any particular administration. It is an evil of long standing. It is one of the subtle and dangerous demands of bureaucracy made under the guise of efficiency and public interest which nothing less than eternal vigilance can restrain and, apparently, no power can wholly prevent. For myself, I am not at all annoyed that this tyrannical practice has boldly intruded itself upon the public attention by its startling demand that it shall enjoy this privilege unrestrained. Under loose and vague rules and standards set up by Congress, authority has been given from time to time to make rules and regulations having the force of law, until today the people are subjected to a species of annoyance that is almost unbearable. The Congress and the courts had already gone to the limit and to some of us it seemed beyond the limit in acquiescing in this practice. It was only when the demand was made that this power be practically unlimited that the Court called a halt and in the language of Hamlet to the ghost as it led him toward the precipice said thus far and no farther. E third proposition decided by the Court was that Congress, the Federal Government, could not regulate or control the purely internal affairs of the State that the Constitution had left to the State the right and power to regulate its local concerns. The Court said, in substance and in effect, that however expedient it may be deemed for the Federal Government to invade the State and take over its affairs, the Constitution has given no such power and we feel bound by the terms of the Constitution. When Governor of the State of New York, our President declared that the great strength of our Government was due to the basic fact that we had 48 laboratories in which the people could acquaint themselves with and work out their policies; that this responsibility was indispensable to a self-governing people. Upon another occasion the Governor of New York, now our President, addressing the Nation over the radio, said: "The preservation of this home rule by the States is a fundamental necessity if we are to remain a truly united country. * * * To bring about government by oligarchy masquerading as democracy it is fundamentally essential that practically all authority and control be centralized in our National Government; the individual sovereignty of our States must first be destroyed. * * * We are safe from the danger of any such departure from the principles upon which this country was founded just so long as the individual home rule of the States is scrupulously preserved and fought for whenever they seem in danger. Thus it will be seen that this home rule is a most important thing a most vital thing if we are to continue along the course on which we have so far progressed with such unprecedented success." The integrity of the State so ably outlined and defended by the man who was soon to become our President and to be entrusted with the duty of preserving our free institutions is the same doctrine embodied in our Federal Constitution and in the recent decision of the Supreme Court, now so sadly misunderstood or so unjustly denounced. I am glad to join with the President in saying that there is no such Th thing as a Federal Union after the States have been whipped and bullied into cowardly submission. I go further and say that so long as the Supreme Court rigidly preserves the rights of the States under the Constitution, it will deserve, and I venture to believe it will have, the respect and the support of the people of this country and, upon reflection, the commendation of the highest of our officials. Nothing should blind us to the fact, no emergency should confuse us to the great truth that the rights of the States are peculiarly the rights of the people and touch their habits and customs and daily way of living as nothing else may. It is important when one department of government invades the jurisdiction of another department of government but that is comparatively unimportant with the invasion of the rights of the people in their everyday living. If any change is contemplated in this respect the first to be consulted should be the people themselves and that can only be brought about through an open proposal for an amendment to the Constitution. The people know what if any portion of their local rights they are safe in surrendering better, far better than the courts or the Congress or the executive departments can possibly know. There is an instinct in regard to such matters more to be trusted than the wisdom of rulers. The Court should be commended for jealously guarding such rights. The lawmakers should resolve all doubts in favor of such rights and when it is proposed to curtail them it should be done only through the approval of the voters. If the people wish to wipe out State lines and consolidate the Union into one unbroken empire they have the power under the Constitution to do so. No one else has. Those who feel, therefore, that the States should be shorn of their power in whole or in part owe it to the people to submit their proposals to the people in the way of a definite amendment. That is the American way to meet 10 this issue. That assailment of the Court is wholly without justification in this particular instance. The Court could not have decided otherwise under the Constitution. The attack is really upon the Constitution itself and that can only be remedied through a constitutional amendment. One can sympathize with the President, with his almost dread responsibility in dealing with this great emergency. Abraham Lincoln, the truest child of democracy ever born under the American flag, it will be recalled in a special message to Congress put the query whether the power necessary to save the Republic might not be of such nature as to destroy the Republic. With great responsibility in a great emergency must necessarily come impatience with opposition in the effort to meet that responsibility. But what can be said in justification of the chirping satellites who hope to win favor and make sure of their salaries by decrying the handiwork of Washington, Jefferson, and Madison ; who because they have not the patience or the ability to frame a statute within the terms of the Constitution seek to cover their failure by talking loud and constantly about an outmoded Constitution and inadequate institutions. I SEE in the morning paper that the President has ordered to be dismissed some 500 cases pending against persons for supposed offenses under the rules and regulations of the codes. It was fine to have acted promptly in this matter. The President will hardly be able to realize the relief that this will bring to those persons and to millions more who have stood in fear of violating some rule or regulation of which they had no knowledge or of receiving letters threatening them for doing something 11 which seemed of right to an American citizen. These are the things, this everlasting fear and mortal dread of the truly law-abiding American citizen, which would have brought the National Recovery Act to ruin sooner or later had the Court not spoken. It is useless now to go into details, but the record is at hand, and the annoyances which have been unnecessarily visited upon millions of American citizens were working to the utter break-down of the law. Before we fully make up our minds, therefore, to govern permanently 130,000,000 people from Washington in all their local affairs of daily life, from the farmer's wife marketing her chickens to the discretion of the husbandman in his planting and sowing, let us bear in mind that these things cannot be done, cannot even he overseen by a President. It is not humanly possible. These things are done by thousands of bureaucratic ascaridaes whose glory is the display of arbitrary power. Let us bear in mind that in the prolific mucous of delegated power are laid and hatched these ravenous insects as fatal to the liberty of the citizen as the locusts to the field of the toiler. I rejoice that the President is putting an end to these activities and is giving rein to the initiative, the personal aims and ambitions, the judgment of the citizen touching his own personal affairs. The value of this in the matter of recovery cannot be overestimated. IN conclusion, I do not wish to be understood as contending that the Constitution is a sacred document, never to undergo amendment. Neither do I wish it to be inferred that the decisions of the Supreme Court are above the consideration and criticism of the people. But I do wish to be understood as contending that the great underlying principles of the American Constitution are indispensable to a republican form of Government that to strike at those 12 underlying principles is to strike at the life of a representative democracy. 1 do not forget either in these days that hardly had the Constitution been adopted before there were those who declared it unworkable, inadequate, and a failure. There has never been a time of stress in our history when there were not those who were fully prepared and anxious to write a much better Constitution and give us a more progressive form of Government. But, in spite of doubts and fears and against all emergencies, and in spite of the efforts of impatient critics, the work of the combined views of Hamilton and Jefferson lived on. Under it the Nation has grown in strength and grandeur. The people have advanced in aU things which contribute to responsible citizenship. It has successfully encountered the devastating forces of two great wars and effectively met the exigencies of more than one depression. It has accomplished these things, not only because of its inherent worth and wisdom but also because in a large measure of the respect for and faith in the Constitution upon the part of the people, a thing which should at no time be underestimated. We all appreciate the serious task devolving upon the general Government at this time, but the constitutional powers which have been sufficient to deal with the great emergencies of the past we still enjoy unimpaired. The decision of the Supreme Court curtails them in no respect. These powers of the National Government under the Constitution are very great they were designed to be and are equal to all the demands of a powerful nation in distress if faithfully and patiently employed. They seem to be ample now as they have been at all times to sweep away all obstacles which stand in the way of their constitutional exercise. The power to regulate and control interstate commerce is full 13 and complete. It may be that greater care and more patient consideration of measures are required. But the country need not doubt, it seems to me, that the constitutional authority is sufficient to meet the emergency at hand. I 14