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No. 70 "The Constitution And The Supreme Court" Speech of Borden Burr of Birmingham, Alabama, before the Kiwanis Club at Columbus, Mississippi, September 19, 1935. American Liberty League. 400dpi TIFF G4 page images Digital Library Services, University of Kentucky Libraries Lexington, Kentucky Am_Lib_Leag_70 These pages may freely searched and displayed. Permission must be received for subsequent distribution in print or electronically. No. 70 "The Constitution And The Supreme Court" Speech of Borden Burr of Birmingham, Alabama, before the Kiwanis Club at Columbus, Mississippi, September 19, 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: Statement of Principles and Purposes American Liberty League Its Platform An Analysis of the President's Budget Message Economic Security Inflation The Thirty Hour Week The Pending Banking Bill The Holding Company Bill Price Control The Labor Relations Bill Extension of the NRA The Farmers' Home Bill The TVA Amendments The New Deal, Its Unsound Theories and Irreconcilable Policies Speech by Ralph M. Shaw How to Meet the Issue Speech by William E. 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Stayton New Deal Laws in Federal Courts Potato Control "Breathing Spells" Speech by Jouett Shouse The National Labor Relations Act Summary of Conclusions from report of the National Lawyers Committee Consumers and the AAA Straws Which Tell The Duty of the Lawyer in the Present Crisis Speech by James M. Beck AMERICAN LIBERTY LEAGUE NATIONAL PRESS BUILDING WASHINGTON, D. C. THE CONSTITUTION AND THE SUPREME COURT â˜… â˜… â˜… BORDEN BURR of Birmingham, Ala. Member of the National Advisory Council of the American Liberty League Before the Kiwanis Club at Columbus, Mississippi September, 19, 1935 AMERICAN LIBERTY LEAGUE T^ational Headquarters NATIONAL PRESS BUILDING WASHINGTON, D. C. Document No. 70. October, 1935 The Constitution and the Supreme Court â˜… A Birmingham newspaper honored me by stating that the Kiwanians had selected me as "a teacher" of the Constitution. There is sufficient merit in the subject matter to justify even a poor teacher in making the effort to give instruction. There is sufficient merit in the suggestion to justify not only Kiwanians but the American people in "going to school" on this important subject. Most of us know too little of this great document. Its greatness is demonstrated by the fact that living under its ever-present protection has given us such a feeling of security that we have failed to realize the necessity of keeping our memories fresh, and of seeing that our children are properly educated, concerning its imperishable principles. Like the ancient Greeks, we have regarded it as the "Oracle," but unlike them, we have failed to seek its guidance and inspiration. The Schechter Decision However, the recent decision of the Supreme Court of the United States holding the National Recovery Act illegal because violative of the Constitution brought the Constitution and the Supreme Court to the attention of everyone. This decision has had, and will continue to have, a tremendous effect upon the thought and action of the people of this country and their future welfare. It was received in various moods and tempers. Some, probably a majority of the people, sincerely and conscientiously believing that the Recovery Act and similar New Deal legislation had proven beneficial to the country, that the ex-3 isting emergency justified the experiment, and that the end sought justified the means used, received this decision with unrest and alarm. Some, consisting for the most part of those who, dreaming dreams and seeing visions, had been the framers or the political godfathers of this and similar legislation, were bitter in their attacks on the Court and extravagant in their demands for new legislation, or an amended Constitution. Some of these boldly accused the Supreme Court of "usurpation," "tyranny," and the assumption of "dictatorial power",1 one Democratic Congressman promptly introduced a resolution to deprive the Supreme Court of its power to declare congressional acts illegal because unconstitutional; another one presented the plan of limiting the terms of Federal judges and turning them out if their decisions proved unpopular; a Senator proposed the requirement of a two-thirds vote of the Court before an Act of Congress could be stricken down. General Hugh S. Johnson syndicated his views that the "nine old men in their black nightgowns" had wrongfully interpreted the Constitution. 1 The following extracts from the Congressional Record are fair illustrations: "Mb. Truax (Dem.) of Bucyrus, Ohio: Mr. Speaker, I submit it is high time for the Congress and the people of the United States to limit the terms of the Federal judges, both of the district and the circuit courts and of the United States Supreme Court. ... I claim the term of every judge in this country ought to be limited, and when they cease to serve all the people, and look at these questions only with their cold legalistic minds, never considering the humanitarian side of the question, it is time for them to step out or be kicked out by the people of this country...... "This is the only country in the world . . . where your Supreme Court has the dictatorial power which they have asserted, where they have taken over the power to negative and nullify the acts of Congress." "Mr. Sabath (Dem.), of Chicago, 111.: Day in and day out ... we are charged with abrogating our constitutional power and that the President is usurping our rights. ... If there is a usurpation of power, it is not on the part of the President, and surely it is not on the part of Congress, but I fear it is on the part of our judiciary. ... I predict that in the not far distant future our nation will amend the Constitution, or through congressional action restrict the courts from assuming powers never intended or delegated to the judicial branch of our Government." 4 There are many others and the time has come when their views should become militantly audible who, realizing that in Nazi Germany, Fascist Italy, Soviet Russia and under the dictatorships of other countries, there is no appeal against centralized authority, are unwilling to barter their rights under the American Constitution for that kind of pottage, and who, believing in the Constitution and in government under it, are convinced that the Supreme Court in this unanimous decision, with judicial wisdom, courage and patriotism followed the Constitution and thereby indicated the dangers of these legislative journeys through unconstitutional bypaths and detours, even though they be taken in the name of emergency or humanitarianism, and even though they be planned and executed by warmhearted reformers and acclaimed by honest and sincere men and women who fail to properly distinguish between schemes on paper and facts presented by living realities. Attacks on the Constitution The attacks upon, the criticism directed against, and the campaign to abrogate or restrict the power of the Supreme Court are, when analyzed, not directed at the Court, but at the Constitution. In the light of history, it cannot be said that the Supreme Court has arbitrarily exercised a dictatorial power over acts of Congress. It was sixteen years after the adoption of the Constitution before the Court exercised its right to strike down an act of Congress because unconstitutional, and since the formation of the Government, out of approximately twenty-five thousand Federal laws, the Supreme Court has voided as unconstitutional only fifty-nine. Of these fifty-nine, fourteen were decisions holding that Congress had gone too far with legislation based on the Thirteenth, Fourteenth and Fifteenth Amendments, adopted as a result of the Civil War, abolishing slavery and dealing with political and civil rights of citizenship, and six were recent decisions holding as unconstitutional New Deal legislation. 5 Surely those making these attacks cannot classify the present personnel of the Supreme Court as being reactionary or conservative. It has been but a few months since they were acclaiming the Court as being socially inclined and liberal minded. Considering the "New Deal" as defined by its sponsors as being a movement, a concept of government emphasizing the obligation of the Government to aid the unfortunate and to protect suffering humanity, the Supreme Court has been more favorable to the New Deal than otherwise. This attitude was indicated by its decisions in the Minnesota mortgage moratorium case; in the New York milk case; in the case sustaining an emergency statute of Maryland changing and restricting the rights of mortgagees with respect to foreclosures; in its decision abrogating gold clauses in money obligations in its application to private bonds; in its decision affirming the constitutionality of legislation for the reorganization of railroads. These and other decisions of our present Court were all widely acclaimed by supporters of the Administration as constituting blanket endorsement of New Deal policies. Can any intelligent man doubt the liberal, socially inclined and humanitarian views of Hughes, of Brandeis, of Stone, of Car-dozo, of Roberts? And yet when these five admitted liberals joined with Van Devanter, Mc-Reynolds, Sutherland and Butler, the so-called conservatives, in declining to abolish by judicial decree the Constitution of the United States; in refusing to emasculate on the ground of emergency or for the sake of expediency its two fundamental principles; in re-affirming the doctrines that the Federal Government can exercise only those powers granted by the Constitution; in protecting the States reserved rights against encroachment by the Federal Government; and in maintaining our form of Government based on the fundamental doctrines of separation of powers and dual sovereignty, the Court becomes (and mind you not by the rabble but by those high in power) reactionary and dangerous, and the destruction or restriction of its powers is demanded But remember that those who assail the Court and its decision have been forced to expose as the real object of their attack the Constitution, because it must be admitted that only through its amendment can they peaceably accomplish their purposes. Certainly in the face of vicious attacks upon the Supreme Court and insistent demands that its supervisory power over the laws of Congress be limited or entirely destroyed, that we abandon our form of government by amending the Constitution so as to institute a completely centralized government, and in the face of the probability that these are the issues upon which the next national political campaign will be fought, it is time for the people of this country to consider, not controversially, but coolly, deliberately, intelligently and fearlessly, these questions, the most momentous ones since the Declaration of Independence. Our inquiry should be, what is the Constitution of the United States? What has it meant to this country and civilization? Has it served us well in the past? Will it prove useful in the future? Should it be discarded or stripped by amendments of its fundamental principles? Historical Survey This Constitution of ours is the oldest form of written government in the world. It was framed by the most remarkable gathering of men that ever assembled. In that great convention the master minds of their generation, or of any other generation, were present: Washington and Franklin, Hamilton and Madison, King and Mason, Elsworth and Rutledge, the Pinck-neys and Morrises, Randolph and Gerry, Sherman and Martin, Patterson and Dickinson, Johnson and Wilson, Blair and Butler, Baldwin, Blount, Bedford, Livingston and others. They came together not as governmental theorists but as men of the deepest learning and experience. They had a full sense of the political wants of the era and of the various remedies proposed. They were impressed with the necessity of en- larging the scant and loose powers of the national government, but had an abiding realization of the essential need of securing the liberty of the people of the States by retaining inviolate the principles of States' rights and local self-government. Their piety and devotion to God, country, home and liberty, were outstanding. In the midst of the discussion of a controversial subject, Benjamin Franklin said: "I have lived, Sir, a long time, and the longer I live the more convincing proof I see of this fact, that God governs in the affairs of men. And if a sparrow can not fall to the ground wthout his notice, is it probable that an empire can rise without his aid? We have been assured, Sir, in the Sacred Writings that 'Except the Lord build a house, they labor in vain who build it.' I firmly believe this; and I also believe that without His conquering aid, we shall succeed in this political building no better than the builders of Babel." These were men who had fought, sacrificed and suffered for the principles of government which they were seeking to establish and to perpetuate in a written constitution. They were the men who had given leadership to a comparatively small company of patriots who having as their chief weapons their minds, souls and bodies and their sublime devotion to God, country and home, had dared the arbitrament of arms with the greatest and most powerful nation of the world, and who had inflicted upon our Anglo-Saxon forefathers the only ultimate defeat that great country has ever sustained. These were the men who, aided by an unparalleled strength of intellect, guided by the lessons of experience and sustained by a living faith and dependence upon the Almighty, were able out of the impoverishment of a costly victory to formulate our Constitution and lay the foundation of the greatest country and the greatest civilization the world has ever known. It is no wonder that success crowned the efforts of such men and enabled them after emerging victorious from the war, to construct a government which has stood for a hundred and forty-eight years as the most intelligent, liberty-loving and enduring form of government that the mind of man has ever conceived. As Senator Borah so well recently said: "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 ... it has served the cause of human freedom and the advancement and enlargement of human happiness as has no other document in the history of the world." The American Method Our forefathers were suspicious of government. They devised every safeguard they could think of to keep government from ever extending its power beyond the field they limited for it. They erected barriers in the Constitution to prevent government from ever placing the deadening hand of bureaucracy upon the initiative, enterprise, energy and self-reliance of the private citizen. They were determined that government must never be permitted to become a menace to the honest citizen conducting an honest business in an honest way. And they founded the nation on this plan. It was a good plan. It has served us well. It has obtained most wonderful results. It has been the beacon light of civilization not only of this country, but of the world. With only six per cent of the land area in the world and only seven per cent of the world's population, the United States has thirty-two per cent of the world's railroads, fifty-eight per cent of its telephone and telegraph facilities, thirty-six per cent of its developed water power, seventy-six per cent of its automobiles, thirty-three per cent of its radio broadcasting stations, and more than forty-four per cent of its radio receiving sets. In the United States are produced sixty per cent of the world's oil, forty-eight per cent of the copper, fifty-three per cent of the pig iron, forty-seven per cent of the steel, fifty-eight per cent of the corn, and until recently, sixty per cent of the cotton.2 Compared with any country in the world, we have twice the number of home owners per thousand population; we consume four times as much electricity, and we have seven times as many automobiles per thousand of population. With only seven per cent of the world's population the people of this country have achieved a standard of living so much higher than other countries that we consume half of the world's coffee, half of the rubber, half of its copper, one-fourth of its sugar, three-fourths of its silk, one-third of its coal, and two-thirds of its petroleum. The possession and enjoyment of these material things, however, is not the only measure of success of the American method and the American idea of government. In 1933, a depression year, there was spent in the United States more than three billion dollars for education, which was more than the amount expended for education by all of the other countries of the world. For the school year 1932-1933, thirty million children were enrolled in public and private schools in the United States out of thirty-two million children of school age. Our country has more than seven billion dollars invested in public and private schools and nearly four billion dollars invested in colleges and universities. It has nearly four billion dollars invested in churches. In 1932 there were more than 44 million savings deposits in banks in various parts of the United States, almost all by different individuals, with aggregate deposits exceeding 24 billion dollars. There were 1,545,000 postal savings deposits, with total deposits of $1,185,000,000. In the same year there were ten million members of building and loan associations with assets approximating eight billion dollars. a During the past year, notwithstanding the pegging of the price for cotton, its export market has for the first time been reduced to where it was less than fifty per cent, of the world's cotton production. 10 At the beginning of 1932 there were about 34 million ordinary life insurance policies in force, for a face amount of over 90 billion dollars, and 88 million industrial policies for a face amount of over 18 billion dollars. In 1930 the number of owned homes was over 14 million, or close to 50 per cent of all the homes. Of the owned homes, exclusive of farm homes, almost five million were valued in excess of $5,000 each. Of the rented non-farm homes, 2,102,000 were rented at more than $50 per month. In 1930 the average net value per farm, after deducting all indebtedness, was $7,500. And of all farms three and a half million were actually operated by the owners. The Workers' Share The workers' share in the national income moved from 38 per cent in 1850 to 65 per cent in 1929. In 1931 and 1932, it equalled 75 per cent to 80 per cent of the income actually produced and was even more in the case of manufacturing and related industries, which paid the workers out of capital or borrowings two and a half billion dollars in excess of the total receipts of these businesses. From 1880 to 1929, the increase in the share of the national income paid to employees was greater than the increase of employees, both in numbers and as a percentage of population. In the past 90 years, business has absorbed 43 millions of our population in productive employment, increased the number of employed in the manufacturing industry nearly 17 times, reduced the average hours of weekly work from 66 to 48 and increased the purchasing power of each hour of work in terms of commodities more than four and one-half times. More than a million children were taken out of employment during the twenty-year period that preceded the "New Deal." This was not an achievement of government, of social workers, of socially-minded exponents of new doctrines and new philosophies. It was an achievement of business, the American system of busi-11 ness, which decreased child labor in the only sure and lasting way not by codes, not by governmental edicts, but by raising the standard of living. And the American system of business did even more for these children which it had saved from child labor. It gave them an education. It paid the taxes which supported the schools and colleges in which these children were obtaining education. During the twenty years before the NRA was conceived, the number of children who were able to remain in school until they had completed high school and college courses was steadily and rapidly increasing. In the entire world, the American workman and his children have the highest standard of living, and the greatest opportunity for education and advancement. They are the envy of the workers in every other country.8 Above and beyond all of this is the fact that this unparalleled progress can be chiefly ascribed to the successful operation of our form of government, by which freedom of the individual has been maintained and tyranny either of dictatorship or of a ruthless majority has been prevented. This Constitution, this palladium of liberty, this document described by Gladstone, the greatest of English statesmen, as "the most wonderful work ever struck off at a given time by the brain and purpose of man," is neither verbose nor unintelligible. It is as compact as dynamite with its explosives against tyranny and oppression. It is as strong as Gibraltar in its preservation of liberty. It stands alone as the proposer and prover of the blessings of the dual form of government. Its language is as simple and clear as the recorded words of Christ. Its first seven articles and the twelve almost contemporaneously added by amendment, are as brief as the Ten Commandments, but they so well embraced the true theories and practices of 3 The statistics given above and the method of their presentment have been taken from a recent address delivered by the Hon. P. S. Arkwright to the Alumni of the University of Georgia. 12 a vibrant, liberty loving democracy that for a period of one hundred forty-eight years, in peace and in war, in famine and in plenty, only nine amendments have been added to it. Protect Fundamentals The fact that our Constitution has endured and served so well over such a long period of time, with so few amendments is conclusive evidence of its greatness, and an excellent reason as to why we should proceed cautiously in making further changes and should never permit a departure from its fundamental principles. We have no quarrel with those who insist that the Constitution is not like the laws of the Medes and Persians unchangeable; that it is not an Ark of the Covenant; that it is not sacrosanct. We agree that its amendment is not only necessary but was provided for by its founders; that as time and conditions change, so must the Constitution change so long as its form of government is not destroyed. The amendments relating to taxation, intoxicating liquors, election by popular votes of Senators, conferring upon women the right of suffrage, changing terms of office of the President and Vice President and the time of convening of Congress were for the purpose of meeting changing times and conditions. None of them affected, or sought to affect, the fundamentals of the form of government. Of similar nature is the now pending but shelved proposal to amend the Constitution so as to prevent the issue of tax-exempt bonds and securities. The failure to submit this proposed amendment is evidently due to the fact that governmental bonds and securities necessary to be sold to continue present abnormal expenditures would have difficulty in finding a market if the tax exemption features were by constitutional amendment forbidden. It is estimated that the amount of partially and wholly tax-exempt bonds is rapidly approaching the alarming total of $50,000,000,000. This represents property entirely free from taxation, property guaranteed principal and interest 13 by the Government and contributing nothing to the support of the Government. No wonder that every day in increasingly large amounts idle capital of the rich is seeking this sanctuary of tax exemption. Amendments have been and will continue to be adopted but I challenge anyone to find since the formation of the Government until the present time, where there has ever been made until now a serious effort to amend the Constitution so as to destroy or abrogate either of the two fundamental principles which constitute the foundation of the form of its Government. And what are it fundamental principles? Its preamble, its welfare clause and those articles added by contemporaneous amendment4 defining the sacred rights of liberty, providing for the free exercise of religious beliefs, for freedom of speech and press, for the right of people to assemble peaceably, to keep and have arms and to be secure in their persons and property against unreasonable searches and seizures, its protection against cruel and unusual punishments and its assurance of the right of bail and of trial by jury, etc., are by many erroneously regarded as constituting the most important provisions of the Constitution. These constitute the texts for patriotic addresses. As well expressed as these provisions are, and as dear as they are to liberty loving hearts, they by no means represent its most important features. These had become with our forefathers through bitter experiences axiomatic, and no difficulty was found in agreeing upon and expressing clearly these great underlying principles. However, without a plan of government to preserve and protect these principles, their mere pronouncement would have been futile, just as would have been a statement of the Ten Commandments without an assured plan of reward for the elect and punishment for the doomed. 'The Constitution became effective Maroh 4, 1789. The first ten amendments were proposed by Congress September 25, 1789 and became effective December 15, 1791. 14 Basic Plan of Government It was therefore not in the statement and reiteration of these admitted principles of liberty but in the forming of the plan of government that the writers of the Constitution earned their reward of a deserved immortality. It can be safely said that the two fundamental principles of the plan of government constructed were, first, the division of powers, in the maintenance of liberty, between the legislative, executive and judicial departments of government, and, second, its dual form by which the rights of the Federal Government and those of the several States respectively were held in nicest equipoise and the reserved rights of the State over its local affairs and conditions were carefully preserved. Both were directed against centralization. Let it be remembered that the recent National Recovery Act decision related solely to the consideration of these two fundamental principles of our government; that it did nothing except, first, reaffirm the separation of powers by denying the right of the legislative department of the government to confer upon the executive department duties and obligations which by the Constitution had been clearly and definitely imposed upon the legislative department,6 and reassert and defend the principle of the Constitution that Congress must under the Constitution enact the laws of the country, the executive department must administer them, and the judiciary must construe them; and, second, reassert the never disputed principle that the Federal Government acquired under the Constitution only such powers as were expressly granted by it and the respective States expressly retained their rights of self-government of and control over their internal and local affairs. Let it not be forgotten that the complainers and critics of this decision and those who pro- BIn the oil case decision rendered a short time before this decision the Supreme Court for the first time declared unconstitutional an act of Congress because it improperly delegated legislative matters to the Executive. 15 pose to meet it by amending the Constitution, must take and maintain the position that our government must be changed in its two greatest fundamentals, namely, States' rights must be abrogated and Federal centralized control must be enthroned, and that any department of our government must be given the right to trespass upon the constitutionally defined domain of any other department, the executive upon the legislative, the legislative upon the executive, and both, if need be, upon the judicial. In fact, in their disappointment over this decision of the Supreme Court, some go so far as to deny the authorty of the Court to set aside as unconstitutional an Act of Congress. Judicial Power There can be but little controversy in reference to this contention. While the power to declare an Act of Congress unconstitutional was not actually exercised by the Supreme Court until its decision in the famous case of Marbury v. Madison, rendered sixteen years after the adoption of the Constitution, there was never during the Constitutional Convention, nor has there ever been until recently a serious suggestion that this power did not exist.6 At the time of the framing of the Constitution, the Supreme Courts of the various States had exercised this power without question. During debates of the Convention, the right of judicial review of Congressional Acts was conceded by most of the great minds of that convention. During its deliberations one of the delegates presented a proposition for the President and the judiciary to act together as a "court of revision," with authority to veto Congressional legislation. The Convention promptly voted down this proposition and held that the judiciary and the executive should not be mingled together in such a func- 8"Whatever may be said.of its (the Supreme Court) exercise of jurisdiction over State legislation its veto power over Federal law-making is too well settled and too well grounded to admit of discussion," Warren, The Supreme Court in United States History, 79. 16 tion -"it would violate the principle of the separation of powers." Elbridge Gerry objected to the proposal because its adoption "would mean involving the judges in decisions on policy of public measures rather than on their constitutionality." Eufus King expressed the opinion that the judiciary ought not to act with the executive "in negative of a law because the judges will have the expounding of those laws when they come before them; and that will no doubt stop the operation of such as appear repugnant to the Constitution." Among other members of the Convention who expressed positive opinions on the necessity and the right of the Supreme Court to consider the constitutionality of Congressional Acts were Washington and Madison, who became Presidents; Elsworth and Patterson, who became judges of the Supreme Court; Hamilton, the coauthor with Madison of the Federalists Papers, and other prominent leaders in their respective States. As a fact, only three members of the entire Convention entertained different views. In addition to this the Constitution itself provides "the judicial power shall extend to all cases in law and equity arising under this constitution" (Article III, Section 1) and that "this Constitution and the laws of the United States which shall be made in pursuance thereof and all treaties made or which shall be made under the authority of the United States, shall be the supreme law of the land, and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding" (Article VI). It would have been difficult to state more clearly the bestowal upon the judiciary of the right to determine what laws were "pursuant to the Constitution" by having vested in it the exclusive and final authority to determine "all cases arising under the Constitution"; and by the definite instruction that judges, bound by oath to follow the Constitution must recognize "its supremacy." 17 There arises out of this the clearly established and until now the never disputed doctrine throughout this country that every law of every State and of Congress, as well as every Act of Federal officers inconsistent with the Constitution of the United States, is void and the judiciary has the power to so declare. Wisdom of Judicial Review Let us make a practical and personal application of the wisdom of this fundamental principle of our Government: How would you like your personal rights of liberty, or of property to be determined by an Act of Congress with no right of judicial review to ascertain whether it came within the limits of the constitutional boundaries? Compare the two proposals: On the one hand we have the Supreme Court composed of nine men of learning, dignity, poise, character and experience, selected as the outstanding representatives of a great profession, holding office, subject only to impeachment, for life; free from political pressure, influence or control; undisturbed by popular clamor; separated from mob, partisan or political pyschology; immune from the wiles of the professional lobbyist; unmindful of the zeal of honest defenders or sincere opponents of legislation; secure from governmental pressure or favor. No wonder that in the quiet atmosphere of the Supreme Temple of Justice and in the environment of wisdom, dignity and patriotism, this Court, rich in courage, profound in knowledge, has always stood against assaults coming from any source directed against the Constitution and its fundamental foundations. No wonder that it has always withstood the passions of a ruling majority, the stratagems of political leaders, the demands of the rich, and the cry of the rabble. No wonder that it has always thrown the powerful circle of the Constitution as a defense around the humblest as well as the greatest of American citizens. No wonder that this Court, following the defeat of the South in the War Between the States, although composed 18 of Union men, had the courage to defeat the unconstitutional laws enacted by a bitter, partisan Congress. On the other hand, let us consider the situation if legislation was enacted, or the Constitution was so amended, as to strike down the â™¦ judicial power of reviewing unconstitutional legislation, and vesting in Congress (or where Congress is controlled by the President, in him) the power to act finally and without control in all legislation. Congress, with its members holding office for short terms by the grace of votes of the people; interested primarily in the affairs of their local constituents; subject to the party lash; on occasions like dumb driven cattle fleeing before what they deem to be the popular opinion of their constitutents; encompassed about by those interested in pending legislation; fawned upon by office-holders and office-seekers; approached, entertained, dined, danced and, on occasions, controlled or influenced, by individuals and organizations and ofttimes used as a rubber stamp by the executive of the party in power. What I am trying to say to you in indicating the danger of vesting in Congress the final power not only to make all legislation but to determine its validity and as to why this power can not safely be intrusted to members of Congress, is more strikingly said in a recent editorial of The Birmingham Post, one of the many links in a national chain of newspapers (Scripps-Howard chain) whose centralized canned editorials appearing in its various links day after day call for a centralized form of government, and criticise the obstacles said by the chain to have been placed by the Supreme Court in the path of human progress and human welfare. This editorial, entitled "For Freedom of the House," among other things, says: "A two-edged investigation has been ordered of the lobbying that was done on the holding company bill. We are for it. We are for it going both ways. We are particularly for it being done by the House for it may lead to freedom of the House, and we are for that. It was on the House that the ia full pressure fell from the strongest lobby that ever gathered in Washington. The spectacle was a disgusting one, a thing of shame in a Democratic form of government. Cringing under threats, knowing they risked their political futures, men elected to high places in a great nation, groveled through the ordeal, trying to hide, employing viva voce and teller voting devices by which their identity might be kept secret. Congressmen are no more cowardly than other men. The very fact that they have been so much respected as to be elected to make the nation's laws would indicate that they are above the average in forthrightness and intellectual strength. But the old first law of all, that law that is written on no statute book, the law of self-preservation, works with Congressmen as it does with even you and me. And so when the threat of their job hangs over their heads, Congressmen cower." What more can be said as indicating the absolute unfitness of a political body like Congress to enact legislation and then determine its constitutional validity? However, there could have been added to the strictures contained in the editorial quoted above that others have charged that this same Congress has also been subjected to the "party lash" and that the power and pressure of the administration in favor of its "must" laws, has been used to a degree never before witnessed. Separation of Powers It may surprise you to know that the separation and independence of governmental departments was not the product of the thought or genius of our great forefathers. Baron de Montesquieu in his remarkable work "The Spirit of Laws," published in 1748 had so great an influence on the members of the Constitutional Convention that a distinguished writer has declared that "Neither the institution of a Supreme Court nor the entire structure of the Constitution of the United States were the least likely to occur to anybody's mind before the publication of 'The Spirit of Laws'." This great Frenchman wrote: "When the legislative and executive powers are united in the same person or in the same body of magistrates, there can be no liberty, because apprehensions may arise lest the same monarch or senate 20 should enact tyrannical laws, to execute them in a tyrannical manner. Again, there is no liberty if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression. There would be an end of everything were the same man, or the same body, whether of the nobles or of the people, to exercise those three powers that of enacting laws, that of executing the public resolutions, and of trying the cause of individuals."7 Our forefathers had the courage and foresight to make a proper application of these great principles. We find them weaving them into every part of the imperishable fabric of the Constitution. Thomas Jefferson said, "an elective despotism was not the Government we sought for, but one founded on free principles with its powers divided and balanced." James Madison said, "A mere demarcation on parchment of the Constitutional limits of the several departments is not a sufficient guarantee against encroachments which lead to a tyrannical concentration of all the powers of government in one hand." The judiciary was designed as the impartial arbiter to define and declare such encroachments and to halt them. Washington, in his Farewell Address, said: "It is important, likewise, that the habit of thinking in a free country should require caution in those intrusted with its administration to confine themselves within their respective constitutional spheres, avoiding in the exercise of the powers of one department to encroach upon another. The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of Government, a real despotism. A just estimate of that love of power and proneness to abuse it which predominates in the human heart is sufficient to satisfy us of the truth of this position. 7 Montesquieu also said: "A State may alter in two different ways either by amendment or corruption." By all means if our form of Government is to be changed let it be done by the orderly process of amendment of the Constitution and not through its corruption by the passage and attempted enforcement of admittedly unconstitutional laws. 21 The necessity of reciprocal checks in the exercise of political power, by dividing and distributing it into different depositories, and constituting each the guardian of the public weal against invasions by the others, has been evinced by experiments ancient and modern, some of them in our country and under our own eyes. To preserve them must be as necessary as to institute them. 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 transient benefit which the use can at any time yield." The approval of this principle of government was well expressed by Professor Felix Frankfurter in an article appearing in the Forum for June, 1930, where he wrote: "In all governments there must be organs for finality of decision. In a union of States like ours with the respective powers of the States and the Union distributed in the Constitution in necessarily broad terms, a detached and strong (Supreme) court is the most dependable mechanism for adjusting controversies between State and nation. . . . The power of the court to mediate between the State and the nation in interpreting the commerce clause must be left intact. . . . Here is an area of conflict in which peace must be preserved by the Supreme Court." Are the American people ready to abandon or restrict this proved principle of government? Are they ready to take from the judiciary the power in the solemn, quiet, unpolitical, studious atmosphere of the temple of justice to keep within constitutional bounds laws enacted by an excited, partisan, political Congress? States' Rights The other great fundamental principle of our government reaffirmed by the recent unanimous decision of the Supreme Court, is of equal importance. It probably caused more debate than any question considered by the Constitutional Convention. On no other question were our forefathers so determined as they were in preserving the rights of the respective States over their local 22 affairs. Twjce by express terms this immutable principle was written into the Constitution, first by expressly denning and limiting the powers granted to the Federal Government (Article IV) and then by expressly providing that "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." (Article X.) Not only were these rights in opposition to a centralized dictatorship thus preserved, but many of the States in their ratifying Conventions made this principle an express condition of ratification. For illustration, the Convention of New York declared "That every power, jurisdiction and right which is not by the Constitution clearly delegated to the Congress of the United States or the departments of Government thereof, remains to the people of the several states, or to their respective state governments to whom they may have granted the same," and South Carolina placed in its ratification a declaration against any construction other than "that all powers not expressly delegated by the aforesaid constitution are reserved to the several states to be by them exercised." An interesting illustration as to how determined the States were to maintain States' rights free from encroachment, was the adoption of the 11th Amendment to the Constitution (Article XI). In the case of Chisolm v. Georgia (2 Dallas 419), the Supreme Court decided that a citizen of South Carolina could sue the State of Georgia under the Constitution. This decision created great alarm throughout the Union and resulted in the adoption on the part of the States of the 11th Amendment in these words: "The judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by citizens of another State or by citizens or subjects of any foreign state." The very wording of this Amendment indicates how strongly our forefathers felt on this subject. 23 They were not willing to admit that the Constitution as originally written authorized the bringing of a suit against a sovereign State without its consent, but believing that the Supreme Court was wrong in its construction of the Constitution as authorizing such a suit, they amended the Constitution so as to have the people declare as a mandatory construction that the original Constitution should not be construed by the judiciary in the manner that it had been construed. Though it was an amendment in form, it did not change the Constitution, but gave to it a mandatory interpretation. The adoption of this Amendment was also a recognition of the power of the judiciary to construe the Constitution because it was in effect a ruling that the decision of the judiciary could be controlled not by an Act of Congress, but only by an amendment to the Constitution proposed and adopted in accordance with the Constitution. Wisdom of States' Rights It may be instructive, and certainly should be interesting to recall to our memory the statements of great men of our Nation in reference to this fundamental principle of States' rights. Chief Justice Marshall said: "No political dreamer was ever wild enough to think of breaking down the lines which separate the States and of compounding American people into one common mass." On July 4, 1858, Rufus Choate, probably the greatest of all lawyers, said: "The Union is an artificial aggregation of the States which are indivisible, indestructible, impenetrable political entities." Chief Justice Chase said: "The Constitution in all its provisions looks to an indestructible Union composed of indestructible States." (Texas v. White, 7 Wallace 700.) Thomas Jefferson in a letter to James Madison, said: "With respect to every external, we be one nation only, firmly hooked together. Internal Government is what each State should keep to itself." 24 John Randolph Tucker, the great Virginian, said: "The forty-five States on our flag make one constellation. Each star is distinct and one star may differ from another in glory but are united in one galaxy of mutual affinities; a galaxy moving and known by one name in the firmament of Christendom, but each with its original name, its distinct life, its separate motion, its special type of civilization, and its original sovereignty as a body politic. ... If the States in their full autonomy as independent bodies politic are pulled down, the Federal Samson would be destroyed among their ruins." Abraham Lincoln, who recently has been so often referred to by those advocating changes in our form of government as having in the emergency of war disregarded constitutional limits, firmly placed himself on his great statement "indissoluble Union of indestructible States." Similar quotations from the great men of our Nation, irrespective of party affiliations could be quoted indefinitely. It is not reasonable or proper for us to treat lightly these convictions of our great men of the past as being antiquated or as belonging to the "horse and buggy days" not only because they relate to immutable principles, but they represent the ofttimes announced views of the most highly regarded among our leaders of the present generation. Many have spoken authoritatively and forcefully on this great subject. President Calvin Coolidge in May, 1926, said: "No method of procedure has ever been devised by which liberty could be divorced from local self-government. No plan of centralization has ever been adopted which did not result in bureaucracy, tyranny, inflexibility, reaction, and decline. Of all forms of government, those administered by bureaus are about the least satisfactory to an enlightened and progressive people. Being irresponsible, they become autocratic, and being autocratic, they resist all development. Unless bureaucracy is constantly resisted it breaks down representative government and overwhelms democracy. It is the one element in our institutions that sets up the pretense of having authority over everybody and being responsible to nobody. "While we ought to glory in the Union and remember that it is the source from which the States derive their chief title to fame, we must also recognize that the national administration is not and 25 can not be adjusted to the needs of local government. It is too far away to be informed of local needs, too inaccessible to be responsive to local conditions. The States should not be induced by coercion or by favor to surrender the management of their own affairs." Referring to this speech, Senator Carter Glass, of Virginia, Democrat, recently said that Mr. Coolidge's address was the finest declaration on States' rights he had ever heard from the lips of anybody. We believe, however, that the following quotations taken from public addresses of President Roosevelt when Governor of New York, deserve to rank equally as high as a forcible logical and clear declaration on States' rights: "As a matter of fact and law, the governing rights of the States are all of those which have not been surrendered to the National Government by the Constitution or its amendments. Wisely or unwisely, people know that under the 18th Amendment Congress has been given the right to legislate on this particular subject, but this is not the case in the matter of a great number of other vital problems of government, such as the conduct of public utilities, of banks, of insurance, of business, of agriculture, of education, of social welfare and of a dozen other important features. In these, Washington must not be encouraged to interfere. "The proper relations between the Government of the United States and the governments of the separate States thereof depend entirely, iu their legal aspects, on what powers have been voluntarily ceded to the central Government by the States themselves. What these powers of government are is contained in our Federal Constitution, either by direct language, by judicial interpretation thereof during many years, or by implication so plain as to have been recognized by the people generally. "The United States Constitution has proven itself the most marvelously elastic compilation of rules of government ever written. Drawn up at a time when the population of this country was practically confined to a fringe along our Atlantic coast, combining into one nation for the first time scattered and feeble States, newly released from the autocratic control of the English Government, its preparation involved innumerable compromises between the different commonwealths. Fortunately for the stability of our nation, it was already apparent that the vastness of our territory presented geographical and climatic differences in the nature of their industry, their agriculture and their commerce. Already the New England States had turned towards shipping and manufacturing, while the South 26 was devoting itself almost exclusively to the easier agriculture which a milder climate permitted. Thus, already it was clear to the framers of our Constitution that the greatest possible liberty of self-government must be given to each State, and that any national administration attempting to make all laws for the whole nation, such as was wholly practical in Great Britain, would inevitably result at some future time in a dissolution of the Union itself. "The preservation of this Home Rule by the States is not a cry of jealous commonwealths seeking their own aggrandizement at the expense of sister States. It is a fundamental necessity if we are to remain a truly united country. The whole success of our democracy has not been that it is a democracy wherein the will of a bare majority of the total inhabitants is imposed upon the minority, but because it has been a democracy where, through a division of government into units called States, the rights and interests of the minority have been respected and have always been given a voice in the control of our affairs. This is the principle on which the little State of Rhode Island is given just as large a voice in our national Senate as the great State of New York. "The moment a mere numerical superiority by either States or voters in this country proceeds to ignore the needs and desires of the minority, and, for their own selfish purposes or advancement, hamper or oppress that minority, or debar them in any way from equal privileges and equal rights that moment will mark the failure of our constitutional system. "For this reason, a proper understanding of the fundamental powers of the States is very necessary and important. There are already, I am sorry to say, danger signals flying. A lack of study and knowledge of the matter of the sovereign power of the people through State government has led us to drift insensibly towards that dangerous disregard of minority needs which marks the beginning of autocracy." President Roosevelt, on another occasion declared: "the great strength of our Government was due to the basic fact that we had forty-eight laboratories in which the people could acquaint themselves with and work out their policies . . . that this was indispensable to a self-governing people . . "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. . . . 27 "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." No stronger, clearer or wiser words can be found than these words of Governor Roosevelt of New York. Without burdening you with further quotations, may I propound to you the following questions taken from a lecture delivered by Charles Evans Hughes at Columbia University in 1928: "In looking to the future the fundamental questions are these: Are we ready to give up a written Constitution with its definition of powers? "Do we desire to abandon our dual system and to confer upon a single legislature the supreme authority of the people through a completely centralized government? "If we maintain our dual system and a written Constitution, with the limitations essential to such a plan, do we wish to attempt to define more specifically in the Constitution the division of authority as, for example, in relation to interstate commerce? "Is it likely that we could make a success of such a plan? "If we prefer to retain the dual system and limited governmental powers, are we ready to give to Congress the final determination whether the States exceed the powers retained by them or whether Congress transcends the limitations of its own powers? "If not, what substitute is there to suggest for the Supreme Court? "Do we desire constitutional questions, if such there are to be, to be determined by political assemblies and by partisan divisions? "Is there any better plan, whatever imperfections our present one may have, for securing a reasonably continuous, non-partisan and philosophical exposition of the Constitution than by regarding it as the supreme law of the land to be applied in actual cases and controversies through the exercise of the judicial power?" Let us now, not in the spirit of controversy but out of a deep concern for the future of our country and the welfare of its people, consider why the question of maintaining States' rights as an essential fundamental of the Constitution is of such paramount importance, and why it is 28 necessary for the American people to become aroused and vigilant in its defense. Application to Present Conditions It is said that the improvement in transportation and other changes in modern life have broken down State lines and make necessary the abdication of State sovereignty to Federal centralized control. Professor John Dickinson, formerly Assistant Secretary of Commerce and recently placed by the administration as second in command in the Department of Justice, in a very recent address advocating an amendment to the Constitution providing for centralization of power in the Federal Government, says: "The issue of state rights and of centralization versus decentralization has too frequently been discussed in a vacuum or purely from the standpoint of history. It is, of course, relative always to the definite economic and social relationships which exist among the people of the different governmental units concerned. "When the constitution was adopted, the States consisted of little republics, each with a definite economic and social organization as distinct from that of the rest as would have been the case with independent countries. The man of Virginia and even the man of Connecticut had a different background and lived a different life from the man of Massachusetts. But today the little republics of the States are no longer even social units." On the contrary, the "life and background" between different sections of the country is more distinct and the cleavage between their "social and economic units" sharper today than they have ever been. It is submitted that the reasons in opposition to the surrender of State sovereignty are by far greater now than they were at the foundation of the government. Then we had thirteen States and some three million inhabitants; now we have forty-eight States and 125 million inhabitants. Then lives were simple; now they are complex. Then there was little difference in the thoughts and purposes of the people; now they are in many important aspects as far apart as the poles. A centralized government at Washington could have legislated with better results for the thir-29 teen States along the Atlantic coast line than it could now for the forty-eight States from Canada to Mexico and from the Atlantic to the Pacific. The conditions of living, of traditions, of ancestry, of climate, of industry, of labor, of agriculture, of education, of feeling, of wealth, of poverty, of soil and even of language, are so varied as to demand now more than ever before the right of the State to determine its local laws. Take as an illustration your State Legislature. When it is in session legislators are constantly combining, trading and trafficking. Each legislator is interested primarily in legislation for his county. But, for the settlement of these differences you have, whether you are rich or poor, important or unimportant, the privilege of personal contact with the members of the Legislature and the opportunity to present your views and to learn and appreciate the views of your neighbors, and you find that these views, while differing in some essentials, can be welded together by the similarity of local conditions and the mutual feelings of personal acquaintanceships, friendships and tradition. Contrast your troubles with State Legislatures with what would follow the surrender of legislative control over local and internal affairs to the Federal government. There one State or a group of States has interests adverse to another State or group of States. Each member of Congress is interested primarily in legislation for his State. The poor man, the unorganized man, has no opportunity to present his views, and the rich man very little opportunity. Organized minorities speaking through their ever present and well financed representatives constantly enjoy field days. There is no personal contact and instead of the similarity of background that exists in the small unit of the State, there exist a multitude of backgrounds and diverse and different views and interests. Do we desire to throw State control into the legislative hopper at Washington for the purpose of grinding out laws standardized to apply to 30 forty-eight States? Are we willing for these standardized laws to be imposed upon us by the action of approximately five hundred members of the House of Representatives of which, for illustration, Alabama has only eight and of the 96 Senators, of which Alabama has only two? State Needs Differ We know economic living and social conditions, wages, conditions of employment and other relationships are entirely different for the Eskimo in Alaska, the Negro in Harlem; the Negro in the South (where in many counties they outnumber the whites twenty to one); the un-Amer-icanized foreigners in the congested districts of our large cities. We know they are entirely different for the Japanese on the coast and the Mexican on the border; the Swedes in Minnesota; the Germans in Wisconsin; the Yankee in the far East, the farmer or laborer in the South; the cow tenders in the cattle country of the West; the farmers and laborers in the drought sections; those who work in regions frigid and those in regions torrid of the United States. We know that laws cannot be so standardized as to fit these varied people and varied conditions. We know that each State knows best its own problems and how to deal with them. We know the danger of allowing a majority of the Representatives and Senators, subject to trading and trafficking, to partisan politics, interested primarily in the affairs of their particular constituents, guided by the trend of the times toward reaction or radicalism, Fascism, or Communism, most of them totally unfamiliar with the problems and conditions of any of the States other than their own, to provide a legislative strait-jacket for all of the States of the Union. An amusing illustration of how Congress works "its wonders to perform" can be found in the recent undenied newspaper reports of how the passage of the Guffey Coal Bill and the potato control amendments to the triple A Act were finally secured. So many Congressmen, includ-31 ing a majority of the committee having the Guffey Bill under consideration, were apparently convinced of its unconstitutionality that notwithstanding the President had expressed the hope that Congress "would not permit doubt as to its constitutionality however reasonable, to block the suggested legislation" and notwithstanding its passage was demanded at the point of a gun in the threat of a nation-wide strike, the passage of the bill seemed improbable. At this time a number of representatives from States where Irish potatoes constitute a leading crop, demanded that the triple A include the control of all potatoes produced in the United States. The administrators of triple A objected to the proposed amendment. However, in order to secure the passage of the Guffey Bill, it became necessary to agree to the potato bill and thereby by an interchange of votes, both bills became laws. The Guffey Bill, patently unconstitutional, will take its route through the courts. The Department of Agriculture has announced that on account of the failure of funds, the administration of the potato control act will not be undertaken. A reading of this Act thus used as a pawn for the purpose of securing the enactment of the Guffey Bill will show conclusively to what limits Congress could and would go in the passage of centralized, bureaucratic legislation if the restraint of constitutional limitations should be removed.8 â– The following quotation from a recent editorial in the New York Times gives an entirely correct and interesting statement in reference to the "potato language" of this Act: "Potato Language" "The amendment to the Agricultural Adjustment Act dealing with potato control represents so well the difficulties that confront those who would amend the law of supply and demand that a portion of it deserves to be reprinted. Section 203 reads, in part: " 'The Secretary of Agriculture shall investigate probable production and market conditions for each allotment year and shall determine from available statistics of the Department of Agriculture and proclaim, at least thirty days prior to the beginning of each allotment year, the quantity of potatoes which, if produced dur-32 Economic Problems One of our best citizens has recently advocated giving to the Federal government by amendment to the Constitution, control over the employment and work of children, and the power to name a bottom for wages and a top for hours of work for all employees. In other words, let a majority of the Representatives and Senators determine the conditions under which, the age at which, the amount of wages to be paid and hours children under twenty-one years of age shall work, and be controlled on the farm, in the factory, in the stores, or, for that matter, in the homes of each and every State in the Union. Or let a majority of the Representatives and Senators fix the wages, and hours of employment for the employees of each and every State. At the risk of being accused of sectionalism let me refer to the South. Providence has appar- ing such year and sold during or after such year, will, in his opinion, tend to establish and maintain such balance between the production, sale and consumption of potatoes and the marketing conditions thereof as will in his opinion, tend to establish prices to potato producers at a level that would give potatoes a purchasing power with respect to articles that farmers buy equivalent to the purchasing price of potatoes in the period August 1919 July 1929 without reducing the total net income of potato producers from potatoes below the largest probable net income of potato producers from potatoes produced during such allotment year, and without tending to cause to producers of potatoes disadvantages in competition by reason of an excessive shift in consumption from potatoes to some other commodity or commodities.' "The Secretary of Agriculture, it will be noticed, is required to have two separate opinions. One would be enough for nearly everybody else who had to read the language. "The administrative features are interesting. All potatoes harvested and sold in this country after December 1 must be 'packed in closed and marked containers,' to which must be affixed tax stamps or tax-exemption stamps. A number of crimes are then created. It is a crime punishable by $1,000 fine or a year in jail to sell potatoes not packaged this way, or even to buy or offer to buy them not so packaged. It is a crime punishable by the same penalties to sell or buy potatoes without tax stamps or tax-exemption stamps. It is a crime punishable by the same penalties to counterfeit these stamps or to use them twice, or to sell or buy any emptied package without destroying them, or to make any false statement in getting the stamps, or to be found with them in one's possession, if they have not been obtained as provided in the law. Critics have pointed out that even under prohibition the buyer of liquor was not subjected to such penalties." ently leveled the advantages of ore and eoal lying almost on the surface in competing fields by giving us a climate and a class of labor that enables us to compete and survive. The multitude of laborers who throng the cities of the East and West require high wages in compensation for the rigors of climate and the high cost of living. A bottom wage that would enable them to survive would destroy Southern industries. We know that a proper wage differential is essential for the life of Southern industry and that conditions justify it without in any way degrading labor. Before the death blow was given National Recovery Act, eastern Congressmen, Senators and textile manufacturers were making a determined fight, with prospects of success, to wipe out the Southern wage differential so as to reestablish in the East (where for so many years, through the favoritism of Congressional legislation, it has been maintained against all of the natural advantages of the South) textile supremacy. In the same manner coal operators of other sections were demanding (what at one time the Code Authority under the direction of "Top Sergeant" Johnson and the President, directed) the practical abandonment in the South of wage differentials. General Johnson in a speech made in New York on June 10, 1935, attacking the Supreme Court's construction of the Constitution and demanding cooperation of the judiciary with the legislative and executive departments, said: "The cotton textile industry used to be largely centralized in New England. Mills began to move into the South partly to get near their raw material but principally to take advantage of the low labor rates in Southern States. That immediately confronted the Northern mills with the same bitter alternative go out of business or degrade their labor.6 B We deny that the labor in the South has been degraded. We assert that their treatment, condition and happiness will compare favorably with other parts of the country. We are not willing for a majority of 435 Representatives and 96 Senators, most of whom have never set foot in the South, to have the authority to convict us of labor degradation and "compel" us to "elevate and reform" our internal affairs in accordance with their opinions. 34 "What can Michigan do when the products of Alabama foundries destroy her stove industry on the basis of cheap labor, or Massachusetts against South Carolina in the textile industry?" It is too plain for argument that the other alternative is by national control to put the South out of business notwithstanding its closeness to raw material and its natural climatic and labor advantages. Do you have any doubt that should this control be given to Congress the attempt would be made to place bottom wages sufficiently high or other labor conditions sufficiently burdensome to enable the New England States to overcome the natural advantages that the South holds in respect to the textile industry? This applies also to the coal industry, or for that matter any other industry. This statement may appear provincial. It is not, because if the State right is surrendered no one knows what combination of States will make the laws. A majority could lower the base with the same ease that another majority could raise it. Dangers of Bureaucracy Not only would it be foolish for the States to surrender to Congress the right to enact laws controlling their local activities, but such surrender would result in the administration of laws affecting our social and economic conditions through innumerable bureaus and agencies. In discussing the power placed in the hands of the President by the National Recovery Act, the Supreme Court in its decision stated that by the provisions of the Act and codes adopted thereunder the discretion of the President was "virtually unfettered" and Justice Cardozo said that the law was a "roving commission to inquire into evils and, upon discovery, correct them." In upholding the wisdom of the decision of the Supreme Court, Senator Borah used the following language: "Under the riotous power given the Executive in the National Recovery Act to make rules and regu-35 lations 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, over $41,000,000, all of which must be paid by the people. Men have been charged with the violation of laws of which they had no knowledge and could not, as a practical matter, secure knowledge concerning them." Senator Borah understated what was done by the Federal Government under the centralized control given to it by the National Recovery Act. If such a dangerous and far reaching control were exercised under an Act the constitutionality of which was considered doubtful, we can reasonably expect, if such legislation were authorized by the Constitution, that the evil effects of autocratic, bureaucratic control would become so great as to become unbearable. Should the Constitution be amended in the manner proposed, Federal searches, seizures, inquiries, demands for statistical information, visitation and filing and hearing of complaints, through innumerable agents puffed up with authority and in number as numerous as the sands of the sea, many of them ignorant of the conditions existing in the State into which they are sent, most of them Democrats if the Democrats are in power, Republicans if they are in power, and Socialists if they are in power, will be inflicted not only on the business activities of the State but upon their social and living conditions. It applies to any combination of States against a State or a group of States. It would give the opportunity and furnish the temptation for trading and trafficking that would make present and past "pork barrel" conditions smell as sweet as a geranium and appear as small as a mustard seed. 36 Reasons for Concern It is unthinkable that this fundamental departure from the foundations of our Government should be given serious consideration. However, the fact that it is being given consideration, and that those suggesting and advocating it occupy many of the most important and highest positions in the country is abundant reason why it should give us at this time the greatest concern. The President of the United States and the titular head of the Democratic Party, if he has not advocated the proposed amendment to give Congress control over "national economic and social problems" (and what have you left), has publicly approved the suggestion and in reference to it has stated: "In other words, in some way, we are going to retain or restore to the federal government the powers which are vested in the national government 10 in every nation of the world the right to legislate and administer laws that have a bearing on genera] control over national economic and national social problems. That actually is the biggest question which has come before this country outside of war-time and has got to be decided. It may be five or ten years." And as a matter of administration policy the President called upon Congress to continue to enact legislation similar to that voided by the decision of the Supreme Court and expressed the hope that Congress "will not permit doubt as to its constitutionality however reasonable to block the legislation." Professor Tugwell, into whose hands the President has placed important governmental responsibilities, has said: "We have a century and more of development to undo things we love as well as things that are only privileges will have to go it will require the laying of rough, unholy hands on many a sacred precedent. "The difficulty in attaining the experimental habit of mind towards social or economic arrangements arises largely from a confusion of ends with means and from an emotional attachment to the instru- 10 This notwithstanding the unanimous decision of the Court following unanimous precedents that the Federal Government had never possessed these powers. 37 ments of social life. An illustration of such feeling is the unreasonable, almost hysterical attachment of certain Americans to the Constitution. "The challenge of Russia to America does not lie in the merits of the Soviet system, although they may prove to be considerable. The challenge lies rather in the idea of planning, of purposeful, intelligent control over economic affairs. This, it seems, we must accept as a guide to our economic life to replace the decadent notions of laissez-faire philosophy." We find Professor Dickinson advocating the centralization in Washington of power over "economic and social relationships"; Secretary of Agriculture Wallace advocating a form of judicial review by popular referendum; and many others high in government service advocating in Congress, in the press, on the forum, and over the radio these changes in our Constitution. We find Congressmen and Senators assailing the Court and attacking the Constitution. We find inspired resolutions presented to the farm and various other groups advocating these changes and almost daily we hear and read mass propaganda in favor of providing for complete centralized government through constitutional amendment if necessary.11 The Constitution should never be involved in "Secretary of Interior Roper, evidently speaking for the Administration in his Constitution Day speech on September 17, 1935, said: "The unusual aspects and demands of the emergency situation have brought to the forefront one dominant question which sooner or later must be answered by the American people: "If there is not sufficient constitutional authority for the federal government to deal properly with a devastating nation-wide economic and social emergency, is it the will of the American people to amend their Constitution so that the federal government, in times of acute distress nationally, may by bold, direct action avert utter chaos? Unless the lessons taught by the depression go unheeded, as war lessons generally have, and unless clearly evident economic signs and portents are largely wrong, this is a question that must be answered during the next decade if our present economic and governmental system is to endure. "The first requirement of a progressive society is a progressive constitution. That is the essence of a democracy. That is the great heritage which is ours today, set forth by our forefathers 148 years ago. That is the principle which is embodied in today's fundamental challenge, 'Forward with the Constitution!'" 3S partisan politics. The quotations that I have read to you are from the outstanding leaders of both parties and the expressions of these leaders are in perfect harmony in reference to the fundamentals of our Government. Unfortunately in the past we have seen a party majority seek to enforce its will upon the minority, and criticize, condemn and deride the Supreme Court when it bravely exercised its constitutional duty of keeping legislation within constitutional limits. The Republican and Democratic Parties have each been guilty of this offense. During a Democratic administration, the majority party bitterly attacked the Supreme Court on account of its decisions involving the Bank of the United States. During the Republican administration of Lincoln and Johnson, the majority party with an unbelievable bitterness assailed the Supreme Court on account of its decisions striking down the slavish reconstruction Acts of Congress. And now both parties admit the correctness and justness of these decisions. All of which illustrates more forcibly than anything that can be said the cruel, unreasonable ruthlessness of an arrogant majority and the helplessness of the minority should they be deprived of the protection of the Constitution. Expediency and Fundamentals Another matter of concern is the prevalent thought that an existing emergency justifies the use of extra-legal means and the application of extraordinary remedies. The unsoundness and danger of sacrificing fundamental principles on the altar of expediency and emergency, has oftentimes been brought to the attention of the American people. The greatest of American philosophers, the outstanding apostle of thrift, Benjamin Franklin, gave a strong reason for conservative caution when he said: "A nation that gives up its liberty for a little temporary safety, deserves neither liberty nor safety." In the case of Ex Parte Milligan, 71 U. S. 2, 39 the Supreme Court of the United States, speaking through Chief Justice Chase, said: "Time has proven the discernment of our ancestors; for even these provisions, expressed in such plain English words, that it would seem the ingenuity of man could not evade them, are now, after the lapse of more than seventy years, sought to be avoided. Those great and good men foresaw that troublous times would arise, when rulers and people would become restive under restraint, and seek by sharp decisive measures to accomplish ends deemed just and proper; and that the principles of constitutional liberty would be in peril, unless established by irrepealable law. The history of the world had taught them that what was done in the past might be attempted in the future. The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false: and the government, within the Constitution, has all the powers granted to it, which are necessary to preserve its existence." The Appellate Court of Virginia, that great State which has just announced its budget balanced with a surplus in its treasury, with its Valley Counties declining Federal relief, with its two great Senators boldly and fearlessly upholding the Constitution, a short time ago, answered the argument of emergency and expediency in the following words: "Emergencies or fancied emergencies constantly arise and for the time absorb our attention and we are prone to 'view them with alarm.' Within the lives of living men has been witnessed the period of Reconstruction, the panic of 1873, of 1907, and others scarcely less distressing. Problems that today seem portentious are by the next generation as forgotten as Pharaoh's famine." Under the stress of economic depression in the name of suffering humanity the temptation is great to sacrifice principles in the effort to obtain promised relief. It is inevitable that an acute financial depression not only tempts those who are struggling to survive to impose upon others, but it exposes and brings to light unjust prac- tices and this has the effect of making over-plain the necessity of reform. Under these conditions we are apt to forget that recovery should be our first objective. Many are placing reform ahead of recovery. A distinguished judge has recently said: "We are going through a crisis in the history of the world. Everywhere the ideals of the past are being assailed. In scholarship, in business, in morals in every realm of human thought and human activity there is revolt against established standards. 1 am not one to think that this is an unmixed evil. On the other hand I believe we are witnessing the birth of a new civilization, a civilization of higher standards of righteousness and of greater opportunity for the expanding nature of man. But such a period is one of grave danger. The danger is that in our zeal for reform we may destroy the good in our civilization as well as the bad, that in our passion for the ideal we may sacrifice the principles upon which alone the ideal may be measurably attainable." In view of the fact that those in high places are demanding these departures from the fundamentals of the Constitution; the apparent effort to bring the judiciary into the disapproval of the people by insisting upon the enactment of laws of doubtful constitutionality; the taking advantage of the depression to appeal separately through the promise of various forms of relief, assistance and subsidy to various groups, does not the danger of destroying the Constitution become apparent and imminent? We may be accused of exaggerating the plans of those in authority when we ask the following questions, but it must be admitted that the tendency of the administration justifies their asking and that through the activities of Coughlin, Townsend, Tugwell, Dickinson, Cohen, Corcoran, Frankfurter, Johnson, Wheeler, La Follette, Norris, and others they fairly represent a cross-section of American thought and tendency. I do not ask the questions nor suggest the answers because of my belief in them but for the purpose of agitating your minds in order that you may consider well the journey's end. What price the Constitution if industry can be re-established through price and production con- trol, and the elimination of unfair competition, though thereby monoplies be promoted and small enterprises be oppressed? What price the fundamental principle of the complete independence and separation of powers of the executive, the legislative, and the judiciary if labor can be assured of higher wages, less hours of work, better working conditions and the right of unionization and free bargaining? What price the sovereign, reserved rights of the states if agriculture can by Federal control have the prices for its products fixed, its production thereby increased, and its excess of production then controlled by killing off and plowing under? What price Yankee thrift, Ango-Saxon regard for contract obligations, the preservation of American opportunity and initiative and the assurance of individual liberty and independence, if we can spend ourselves rich through a propagandized encouragement for riotous and reckless piling-up of national, state, county, municipal and individual indebtedness? If we can discharge our indebtedness in a depreciated currency; if Congress can close the door to just claims of citizens by repealing the laws authorizing the payment of said claims and affirmatively re-establishing the doctrine of sovereignty "The King can do no wrong"; if every fifth citizen is employed by the Government; many not employed are fed; labor and industry and all individuals are sought to be reformed; and if citizens are promised "willy nilly" a home with bath tubs and all modern conveniences, and education, music, art, recreation and luxury? Get me straight, it is not my purpose to question here the wisdom of what has been done thus far by the Government. That is water over the dam. Many men sincerely objecting to many of the governmental plans have loyally gone along with the hope that these movements would be temporary and that there would be no effort on the part of thhe administration to attempt to permanently change our form of government, concentrate the sovereign power in the Federal 42 Government, deprive the States of the right to control their local activities, and scuttle the fun-amentals of our Constitution. We must remember that the placing of sovereignty in one department inevitably leads to despotism and tyranny. We might admit that under conditions which have been existing a benevolent dictatorship,having in mind and heart the interest of the people, might temporarily bring relief and happiness, but if this opportunity for dictatorship is permanently set up by a change of the Constitution, who knows what type executive will come into uncontrolled power? Will it be one who favors labor or one who favors capital, or one who favors only his lust for power? Who knows? Can we so soon forget how the courage of Andrew Johnson, supported by the independent and correct thinking of the Supreme Court in striking down as unconstitutional, unjust punitive laws, halted the tyrannical despotism and oppression of Congress following the Civil War? Can we so soon forget the disgrace and shame of the executive department, its weakness and subjectness to predatory control during the terms of Grant and of Harding? Can we fail to remember the dictatorships that now exist in almost every country of the world, how they are acquired and how they have been used, and how through them every liberty of the individual citizen has been taken away? But it may be argued that the laws which the Supreme Court of the United States disapproved in the decision under discussion (the effect of which is sought to be nullified by amending the Constitution) were not designed and did not lay the foundation for the establishment of autocratic and centralized control by the Federal Government and did not tend towards the establishment of a dictatorship. Let the language of the Supreme Court answer these arguments. Speaking through Chief Justice Hughes, the Court said: "To summarize and conclude upon this point (the unlawful delegation of legislative powers to the executive) Section 3 of the Recovery Act is without 43 precedent. It supplies no standard for any trade, industry or activity. It does not undertake to prescribe rules of conduct to be applied to particular states of facts determined by appropriate administrative procedure. Instead of prescribing rules of conduct, it authorizes the making of codes to prescribe them. From that legislative undertaking, Section 3 sets up no standards aside from the statement of the general aims of rehabilitation, correction and expansion described in Section 1. In view of the scope of the broad declaration and of the nature of the few restrictions that are imposed, the discretion of the President in approving or prescribing codes and thus enacting laws for the Government of trade or industry throughout the country is virtually unfettered." While Justice Cardozo, a Liberal, in his concurring opinion, said: "The delegated power of legislation which found expression in this code is not canalized within banks that keep it from overflowing. It is unconfined and vagrant. . . . Here is an attempted delegation not confined to any single act or any class or group of acts identified or described by reference to a standard. Here in effect is a roving commission to inquire into evils and upon discovery, correct them. . . . Nor is the substance of the power changed because the President may act at the instance of trade or industrial associations having special knowledge of the facts. His function is strongly advisory; it is the imprimatur of the President that begets the quality of the law. When the task that is set before one is that of cleaning house, it is prudent as well as usual to take counsel of the dwellers. The law is not indifferent to consideration of degree. Activities local in their immediacy do not become interstate and national because of distant repercussions. What is near and what is distant may at times be uncertain. There is no penumbra of uncertainty obscuring judgment here. To find immediacy or directness here is to find it almost everywhere. If centripetal forces are to be isolated to the exclusion of the forces that oppose and counteract them, there will be an end to our Federal system." The views of these two great judges are not new in our jurisprudence. The same principles equally well expressed are set forth in the following former utterances of our Supreme Court: "Commerce with foreign countries and among the States, strictly considered, consists in intercourse and traffic, including in these terms navigation, and the transportation and transit of persons and .property, as well as the purchase, sale, and exchange of commodities. If it be held that the term includes the regulation of all such manufactures as are in- tended to be the subject of commercial transactions in the future, it is impossible to deny that it would also include all productive industries that contemplate the same thing. The result would be that Congress would be invested, to the exclusion of the States, with the power to regulate, not only manufactures, but also agriculture, horticulture, stock raising, domestic fisheries, mining in short, every branch of human industry. For is there one of them that does not contemplate, more or less clearly, an interstate or foreign market? Does not the wheat grower of the Northwest, and the cotton planter of the South, plant, cultivate and harvest his crop with an eye on the prices at Liverpool, New York and Chicago? The power being vested in Congress and denied to the States, it would follow as an inevitable result that the duty would devolve on Congress to regulate all of these delicate, multiform and vital interests interests which in their nature are and must be, local in all the details of their successful management." (County of Mobile v. Kimball, 102 U. S. 712.) "Thus the Act in a twofold sense is repugnant to the Constitution. It not only transcends the authority delegated to Congress over commerce but also exerts a power as to a purely local matter to which the Federal authority does not extend. The far reaching result of upholding the act cannot be more plainly indicated than by pointing out that if Congress can thus regulate matters entrusted to local authority by prohibition of the movement of commodities in interstate commerce, all freedom of commerce will be at an end, and the power of the States over local matters may be eliminated, and thus our system of government be practically destroyed." (Hammer v. Dagenhart, 247 U. S. 276). "If the possibility, or, indeed, certainty of exportation of a product or article from a State determines it to be in interstate commerce before the commencement of its movements from the State, it would seem to follow that it is in such commerce from the instant of its growth or production, and in the case of coals, as they lie in the ground. The result would be curious. It would nationalize and withdraw from the State jurisdiction and deliver to Federal commercial control the fruits of California and the South, the wheat of the West and its meats, the cotton of the South, the shoes of Massachusetts and the woolen industries of other States, at the very inception of their production or growth, that is, the fruits unpicked, the cotton and wheat un-gathered, hides and flesh of cattle yet 'on the hoof, wool yet unshorn, and coal yet unmined, because they are in varying percentages destined for and surely to be exported to States other than those of their production-" 44 Conclusion A loyal, patriotic American citizen in times of great emergency, in aid of suffering humanity, in correction of grievous economical and social abuses, should be willing to journey far in support of the plans of those entrusted with the responsibilities of government. He should be sparing of criticism, unselfish in his willingness to entrust his talents and his fortune in the service of his country so long as the emergency endures, and especially is this true if he has no better plan to offer. The patriotic men and women of America, however, must defend the Constitution against those who would take advantage of an emergency to attempt to destroy it: "What does the Constitution mean to you? It means government of laws and not a government of men. It means personal security, personal liberty and private property protected not only against the fury of the mob, but also against the tyranny of majorities and the power of the demagogue. It means the eternal principles of righteousness written into the fundamental law of the land. "Upon that fundamental law the greatness of the Republic has been builded; upon its preservation depends not alone the future of the Republic, but the future of the liberties of mankind. "Let the poor man who would destroy the Constitution remember that it is his surest defense against oppression at the hands of the rich and powerful. Let the rich man who would flout its provisions remember that it constitutes his surest protection against the mob. And let the reformer who chafes at its restraints remember that under it we have achieved the greatest success ever attained in all the long history of men's efforts to govern themselves." When it is proposed to strike down the two great fundamentals of the Constitution by completely surrendering to the Federal Government the sacred and necessary right of the State to control the social and economic affairs of its citizens and by abolishing or restricting the power of the Supreme Court to keep the laws of Congress within the limits of the Constitution, it is time for loyal and patriotic citizens to call a halt. No emergency can be so great, no suffering so 46 intense as to justify the permanent abandonment of these fundamental principles and the tearing down of the government. When this is attempted we have reached the Rubicon. We may be led to the water by the Chief Executive of the Nation. The way across may be made easy by the use of the Nation's funds and the Nation's credit. Passage may be urged under the lash of Party loyalty. Hesitation may be dubbed Fascism. It may be made tempting in the name of and the necessity for reform and social welfare. But on the other side if our vision is not obscured, we will see the evils of a centralized government of national control, of autocratic bureaus and agencies, the placing in one man's hands of unfettered power, the essential elements of dictatorship, tyranny and despotism. For my part I prefer to turn my face towards the oracle of our forefathers, to turn my steps towards the mountain top, and though the going may be difficult and the journey long, by the grace of God and the strength, endurance and independence of the American people, we will pass out of the valley of depression, of doubts, of suffering, of experimentation, on to the mountain top where State sovereignty has not abdicated, where the judiciary, as an impartial arbiter, has the power to keep laws within the limits of the written Constitution, where American independence and initiative may be revived, where self-reliance may again be enthroned, and where we can maintain and preserve for our children and our children's children the greatest government that civilization has ever seen. 47