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No. 89 "The Constitution and the New Deal" Address of James M. Carson of Miami, Florida, before the Birmingham Forum, Birmingham, Alabama, December 16, 1935, together with A Transcript of Forum Proceedings Following Mr. Carson's Speech.
No. 89 "The Constitution and the New Deal" Address of James M. Carson of Miami, Florida, before the Birmingham Forum, Birmingham, Alabama, December 16, 1935, together with A Transcript of Forum Proceedings Following Mr. Carson's Speech. American Liberty League. 400dpi TIFF G4 page images Digital Library Services, University of Kentucky Libraries Lexington, Kentucky Am_Lib_Leag_89 These pages may freely searched and displayed. Permission must be received for subsequent distribution in print or electronically. No. 89 "The Constitution and the New Deal" Address of James M. Carson of Miami, Florida, before the Birmingham Forum, Birmingham, Alabama, December 16, 1935, together with A Transcript of Forum Proceedings Following Mr. Carson's Speech. American Liberty League. American Liberty League. Washington, D.C. 1935. This electronic text file was created by Optical Character Recognition (OCR). 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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 The Bonus Inflation The Thirty Hour Week Bill The Holding Company Bill Price Control The Labor Relations Bill The Farmers Home Bill The TV A Amendments The Revised AAA Amendments The President's Tax Program Expanding Bureaucracy Lawmaking by Executive Order New Deal Laws in Federal Courts Consumers and the AAA Budget Prospects Dangerous Experimentation Economic Planning Mistaken But Not New Work Relief The AAA and Our Form of Government Alternatives to the American Form of Government A Program for Congress The 1937 Budget The National Labor Relations Act Summary of Conclusions from report of the National Latvyers Committee Straws Which Tell How to Meet the Issue Speech by W. E. Borah The American Bar The Trustee of American Institutions Speech by Albert C. Ritchie The Test of Citizenship Speech by Dean Carl W. Ackerman "Breathing Spells" Speech by Jouett Shouse The Duty of the Lawyer in the Present Crisis Speech by James M. Beck The Constitution and the Supreme Court Speech by Borden Burr The Economic Necessity in the Southern States for a Return to the Constitution Speech by Forney Johnston The National Lawyers Committee of the American Liberty League Speech by Ethan A. H. Shepley Our Growing National Debt and Inflation Speech by Dr. E. W. Kemmerer Inflation is Bad Business Speech by Dr. Neil Carothers The Real Significance of the Constitutional Issue Speech by R. E. Desvernine Arousing Class Prejudices Speech by Jouett Shouse The Fallacies and Dangers of the Townsend Plan Speech by Dr. W. E. Spahr What of 1936? Speech by James P. Warburg Americanism at the Crossroads Speech by R. E. Desvernine â˜… AMERICAN LIBERTY LEAGUE NATIONAL PRESS BUILDING WASHINGTON, D. C. The Constitution and the New Deal â˜… â˜… â˜… Address of JAMES M. CARSON Of Miami, Florida, before the Birminglu Forum, Birmingham, Alabama, December 16, 1935 together with A Transcript of Forum Proceedings Following Mr. Carson's Speech AMERICAN LIBERTY LEAGUE National Headquarters NATIONAL PRESS BUILDING WASHINGTON, D. C. Document No. 89 The Constitution and The New Deal â˜… Mr. Carson was introduced by Mr. Richard Hail Brown, President of the Birmingham Chapter of the American Liberty League, who outlined briefly the history and purposes of the League and added: "I might stress the fact that we have no secret motive or ulterior objective; that we believe in some principles which we believe are common to the good people of this country, and for that reason we asked Mr. Carson to come here tonight because we felt that he is sound as a lawyer, and knows what he is talking about, although he is not a member of the American Liberty League. We wrote to Mr. Carson and asked him if he would present the views of the American Liberty League, and he wrote back that he could not present the vieivs of anyone else, but he could present his own views." Mr. Carson's address follows: It is true I am not a member of the American Liberty League. I am not a member of any political organization except the Democratic Party. I do not undertake, for the American Liberty League or anybody else, to express anybody's views on political situations except my own. I see in the newspapers I am an "Anti-New Dealer." Well, I don't know whether I am or not. Everybody to whom you talk has a different idea of what "New Deal" means. The head of the administration, I suppose, has more right to define what the New Deal means than anybody else. So far as I know he has never defined it but one time, and that time I heard him. Governor Franklin D. Roosevelt of New York flew to Chicago in 1932 after the Democratic platform had been adopted and after he had been nominated for the Presidency of the United States. He flew there to accept the nomination, and in one and the same speech he said he was one hundred per cent for the Democratic platform, and then, in that speech, for the first time, he used the words "New Deal." Now, I am still one hundred per cent for the Democratic platform. If, when Governor Roose- velt said he was one hundred per cent for the Democratic platform of 1932, and used the words "New Deal," if that phrase meant the Democratic platform of 1932, then I am not "Anti-New Deal." There is a good deal of question as to whether the pledges of that platform have been carried out. Some of them certainly have not. It is true that there were unforeseen conditions. It is true that there were things requiring immediate attention after the 4th of March, 1933, that presented an emergency. It is easy enough to find excuses for the temporary failure to carry out the pledges of that platform. The question now is, however, whether the Administration (and I do not confine it to the President; I apply it to the activities of many of the members of the Administration) is justified in continuing not only its failure to carry out the pledges of the Democratic platform, but whether under the conditions there is an justification at all for its subtle and undercover attack upon the Constitution of the United States. The only attack of that sort that I have seen that came from the President himself was last May, after the Supreme Court of the United States by a unanimous decision had held the N.r.A. Act unconstitutional. In that connection he spoke of the Constitution as having been adopted in "horse and buggy" days. Whether he intended to infer that it was no longer binding on the Supreme Court or on Congress or on the President, I do not know. But the fact is that every one of them, when they took office, held up their right hands and swore to "preserve, protect and defend" the Constitution of the United States. "Horse and buggy" days was just a phrase. Of course, the Constitution was adopted more than one hundred and fifty years ago when there were stage coaches and horses and buggies, but the Constitution is based upon principles of government, and principles are eternal. Now, i do not mean that the Constitution is not sufficiently flexible to take care of changing conditions in a changing world. I do mean if there are principles involved, then emergency does not excuse the violation of those principles. It is not argument to say that because the Constitution was adopted in "horse and buggy" days we should not observe it, any more than it would be argument to say that because the Ten Commandments were promulgated before anybody ever heard of horses and buggies, we must not be bound by them. In this, as in every other argument that is carried on throughout the country before the people of the country, we find a good deal of difficulty in defining just what we are arguing about. The reason we find that difficulty is that people are in the habit of arguing with slogans and with phrases that do not mean anything, or the meaning of which change from day to day, just like the meaning of the phrase "The New Deal" has changed since June of 1932. We find a lot of people who talk about "back to the Constitution," or "forward with the Constitution." That is not argument. I think that those lawyers throughout this country who have studied questions of government, particularly in connection with the Constitution, ought to get out and talk about it in layman's language to people who are not lawyers. There is no point to a bunch of lawyers, all of whom think alike, sitting around a table and arguing with each other about the Constitution, or what it means, or what it was intended to accomplish, or what it did accomplish, or whether it has been violated or not. Every great constitutional debate in the history of this country, and in the history of England for a thousand years back, has, in the last analysis, had to be taken to the people themselves, and that must be true in any country where the people are the ultimate sovereigns. The Constitution is nothing more or less than a written charter of government, promulgated by a convention, approved by the States, finding its source of final sovereignty in the people of the United States themselves, and in and by that charter they say to their government what it has power to do and what it does not have power to do. Mr. GLADSTONE, in 1878, said, "The Ameri-can Constitution is, as far as I can see, the most wonderful document ever struck off at a given time by the brain of man." That is a very flattering thing, but it isn't exactly true. It was, of course, agreed upon in convention and ratified by the States, but the principles embodied in it had been in the process of making for many hundreds of years before that. The first nine Amendments to the Constitution, which were adopted simultaneously with it, protected such fundamental rights as the freedom of the individual to worship his God as he willed, his right to express his opinion, his right not to be condemned without due process of law. The Tenth Amendment specifically provided that the powers not by the Constitution directly granted to the government of the United States were reserved to the people or to the States. So, what we have is a government set up by the people themselves. There are nine things that it cannot do against the individual, and those nine things are the things your ancestors and mine have been engaged in a struggle for hundreds of years to obtain and maintain; that is, they safeguard the liberty of the individual. The rest of the Constitution undertakes to set up a frame work of government, to reserve to the people and the States control of certain things, and to grant to the Government of the United States the power to legislate and control as to certain other things. In granting that power, the Constitution undertook to separate the rights of the legislative, the executive and the judicial branches of the Government. The judicial branch of the Government, contrary to many things that have been published in magazines and in newspapers put out by some of the high-powered publicity men in this administration, is not concerned with the right or the wrong or the morals of legislation. In passing upon the constitutionality or the unconstitutionality of legislation, courts can examine only the question of power. When Congress passes a law undertaking to regulate the business of a man who, we shall say, kills chickens in Birmingham, and the Supreme Court is passing on the constitutionality of that law, the question before the Supreme Court for decision is whether or not Congress exceeded its powers in the passage of that law. All the powers the Congress has, it got from the Constitution of the United States, which is the charter given to it, and the officers of the Federal Government by the people. The Supreme Court of the United States, in May, said that no matter how desirable it may be, no matter what the Congress may think, no matter how much the President may desire it, the people of this country, the United States of America, never have given their Congress the right to legislate on local matters. Now, you may say changing times require changing limitations of power. There are two ways that can be brought about. Until last spring I always thought I was extremely liberal on constitutional matters. I thought I was until Mr. Ickes, who is a Republican member of a Democratic cabinet, announced that lawyers had no right to express their opinions on constitutional questions before the Court had decided them. I thought it before this famous pronouncement about horse and buggy days; I thought I was liberal until people who got impatient to see their ideas enacted into laws, talked about the nine members of the Supreme Court of the United States as the "nine old men in black kimonos." I HAD been the sort of liberal that Justice Oliver Wendell Holmes, who died well along in his nineties, had been. Justice Holmes, in a case I had the privilege of arguing before the Supreme Court of the United States, construed the meaning of certain decisions concerning the limitations upon the powers of State Legislatures, and I thought he stated the principle very well. He said, "The meaning simply is that constitutional principles must leave some play to the joints of the machine. But courts cannot go very far against the literal meaning and plain intent of a constitutional text." Public officers are public servants. Suppose I should make Mr. Richard Hail Brown trustee under a deed of trust to handle certain property of mine; suppose in that deed of trust I should say to him what he can do and what he cannot do with it; what expenses he has the right to incur for me, whether he has the right to sell my property, and if he has the power to sell it, what he shall do with the money. That is a solemn compact, a solemn agreement between us. I have made him my trustee. But Mr. Brown decides that conditions have changed; that he is not bound by that contract; that he can take powers I haven't given him, and I object to his taking powers I had never given him, and go into the courts with it. He has two defenses: first, conditions have changed, because when that deed of trust was drawn up he was driving a horse and buggy, and now he has a Ford V-8, and, second, he doesn't want me to attack his powers under that trust agreement because it will have to come before a judge. That is the analogy to the objections certain people rely upon in their attacks upon the constitutional rights of the American people. Mr. Justice Holmes, in his opinion, said, you have got to be reasonable in your constitutional interpretation, because you have got to leave room for the play of the joints of the machine. We have seen another applied method of liberalizing the Constitution, and that is that the Constitution itself, which is a grant of power from the people to their government, contains provisions for its own amendment. That was seen as long ago as the Farewell Address of the first President of the United States, from which Mr. Brown has quoted tonight. Nobody, so far as I know, has ever taken the position that the Constitution must not ever be amended, but the proper position and the only honest position, it seems to me, is that if it is to be amended, it must be amended according to its own terms, because it is a grant of power from the people and the people have the ultimate sovereignty, and the people alone can amend it. Any other course of amendment, by legislation in violation of the terms of the Constitution, or amendment by stealth or usurpation, is a betrayal of the fundamental liberties of these people, and a betrayal of the liberties of the people of each of the forty-eight states in the Union of the United States. I THINK I can stop long enough here to tell you a little story about the argument of the case I have referred to before the Supreme Court of the United States when Mr. Justice Holmes was on the bench. I had taken an appeal from the Supreme Court of Florida. If you think it is an easy matter to argue before that Court, if you think you don't have to keep your wits about you, I will tell you this little story to show how you are apt to be put in the corner from the bench. In the middle of my argument I got a little bit worked up and began waving my finger and shaking my fist on a particular line of argument, and Mr. Justice Holmes, who was a very distinguished gentleman, leaned across the bench and said, "Your name is Mr. Carson, isn't it?" I said, "Yes, sir." He said, "The argument you are using is very much like the argument in an opinion handed down by the Supreme Court of Massachusetts just before I left that bench." I knew that was over twenty years before, and I knew that if he had remembered that opinion for so many years, the chances were that he had written it. I knew I had better make him think I had read it, because all of us have some sort of pride of authorship. I knew if I should say I had read it, he might ask a question about it. So, this is the way it was handled by both of us. I think we both enjoyed it. I think he knew what I was doing, and I think I knew what he was doing. So, I said, "If Your Honor please, for the purpose of argument in this Court, I am prepared only with the decisions of this Court." He said, "That is quite proper, sir." I said, "But, it may very well be that in making the argument I am now using I am guilty of unconscious plagiarism." He bowed and smiled and said, "The opinion was open to the public, sir." The opinion was open to the public! The Constitution is open to the public! All constitutional questions must come back to the people; they must be talked out before the people, and they ought to be talked out in the most kindly spirit; they ought to be argued on principle, without slogans, and analyzed right down to the fundamentals of government and of what we are trying to accomplish. I do not appreciate it when a member of the Cabinet who is trying to get power for himself says that lawyers have no right to express their opinion on constitutional questions. Not only lawyers have the right to do it, but every citizen in America has not only the right but the duty to think about his Constitution and to talk about it. "Out of the clash of opposing opinions comes truth," and those of us who exercise only our right of self-expression, our right of freedom of speech, feel that we have the right to go to the people of this country and talk to them about their business at any time we get ready. JUST last month, in November, in Atlanta the Honorable William L. Ransom, President of the American Bar Association, made a little speech. This is the Journal of the American Bar Association for December. I am just reading one paragraph of it. He said, "By and large, I believe that the average American lawyer has been and is faithful to the fundamentals of democratic government in this country. Above all, he cherishes the American tradition of tolerant, full and un-trammeled public discussion of public questions. There must be no obstruction or challenge of the right and duty of reasoned and tolerant discussion of issues, in the great debate upon constitutional questions that is at hand. Questions of constitutional interpretation as to the powers of government are in first instance for the Courts, which will fully take care of all errors of interpretation, by whomever urged; but questions of the powers and policy of government, and the division of powers between the National government and the States, are always for the people, whose preponderant opinion and deliberate wishes become the supreme law of the land." I think the way I happened to be invited to come here is that on September 11th I made a little thirty minute speech in Fort Lauderdale, Florida, which is just a few miles north of Miami. It was Constitution Week. They had asked me to talk about the Constitution a little bit. I didn't intend to get into any constitutional debate or discussion, but I was pointing out how our fathers who adopted the Constitution had realized that in a continent as large as this all powers should not be centralized at the Capital of the country; that there should be that local self-government for which our ancestors have been fighting for more than a thousand years. Among other reasons why our ancestors did not want all governmental powers centralized in one place was that they realized under such conditions there would be a tendency to have governments run by bureaucrats, with a system of remote control. After I had accepted the invitation and before the time for the little speech rolled around, we had a little breeze in Florida on Labor Day, and in that particular breeze more than five hundred of the men who had served this country in the World War lost their lives. I have lived in Florida all my life, not yet, but all of my life so far. I know a little bit about hurricanes, and I know a little bit about forecasting them. I said this in the Fort Lauderdale speech, and it is true, that the reason those men lost their lives was because the Weather Bureau, which is not a New Deal bureau, is bound down and tied up with red tape, and the sort of control you get under bureaucrats, and they could not put out their warnings in time. In other words, the man in charge of the Miami office, no matter what he knows, is not allowed to broadcast a warning of a hurricane except on instructions from Jacksonville. They can prove to you on paper that he can; there is some sort of a ruling about an emergency, but that rule doesn't work; because if he does broadcast a warning, and if the thing he warns about doesn't happen, he is out of his job. So, because this man in Miami was a bureaucrat, working under Jacksonville, he couldn't put out the warning. Jacksonville was in charge of another bureaucrat, and they didn't permit the putting out of a warning they thought would be against the wishes of the head of a bureau in Washington, and in Washington even the hard-working bureaucrat takes holidays on Labor Day. So, when a hurricane, no matter how dangerous, is approaching on Labor Day, our Miami man, tied down by the red tape that results from centralized, bureaucratic, remote control, cannot put out the warning that may save many lives. That little speech got into print and I got 10 a letter from a young lawyer in Jacksonville, saying it wasn't true and and nothing about it was true. I didn't know him. I wrote him and asked him to get for me from the files of the Bureau certain information. Before I got his second letter I learned that his father was in charge of the Jacksonville Bureau. When I got his reply, he said he had decided not to go forward with the matter, and I never did get the official information for which I asked. The thing that made it amusing was on the 4th of November we had another hurricane that came in from the northeast. Of course, the people in Miami are experienced enough with hurricanes to know when the center of the hurricane is passing the town. There is a lull. The center of the hurricane hit my house at twelve-thirty. The lull lasted until two. At one-fifteen the man in charge of the Weather Bureau in Miami broadcast over the radio a warning issued in Jacksonville telling us that the center of the hurricane might be expected to strike somewhere near Miami in two hours, and a hundred and seventy-five thousand people knew we were in the center of it then. Remote control! Bureaucratic control! Control by red tape! That was an illustration that came home to the people there. I can't give you the illustration that wiU come home to you here in Birmingham; I can't give you the illustrations that wiU come home to people elsewhere, but all of you who have had any experience with Government at all realize that the further from home control gets, the more red tape you have to go through, the more our rights and liberties are in danger. I HAVE always personally voted for prohibition. I was always very doubtful whether prohibition was the sort of thing that could be handled from Washington, because that is a matter for local self-government under the theory I am talking about, but the American people wanted the experiment tried, and they did try it, and it didn't work, and the result is now there are more wet states, by far, than there were before National prohibition was tried. 11 The point to that is, of course, that when you get away from the system of local self-government, when you abolish state lines, when you center power in Washington, you don't know what sort of abuse is going to result. It may be that prohibition might have worked except for the fact that in the first year or two it got into the hands of a particularly inefficient and sometimes corrupt bureaucracy, but after it was out of your hands and in theirs, you were powerless to see whether it would work. There was nothing you could do about it. Now, the thing that is going on in this country now is a discussion about the necessity for amending the Constitution. They have changed their line of attack since last May. Last May the idea was that the Supreme Court ought not to pass on the Constitution. Last May the idea was that we were not bound by the Constitution. Now, when they see the American people don't like that line, they are changing their line, and saying the Constitution ought to be amended. That may be. I don't know. But I do know that neither you nor I nor anybody else in this country ought to be required to answer whether a particular amendment is required or not, until it is formulated and reduced to writing and laid before us. In other words, we don't want to give any government a blank check to say to any administration, "Go ahead and amend it however you want, and we will back you up." AMENDMENTS to be properly adopted must be put in discussable form. They must be written out and put before the American people, and the American people must have a right to pass on them using their own sound judgment. The Supreme Court of the United States is the only final place where the right of Congress, or of the President, or of any State, or legislation under the United States Constitution can be determined. That is necessarily so. A constitution that does not have some machinery, providing some tribunal where acts passed in excess of power or authority can be set aside, is no constitution at all. Written constitutions don't mean much. Mexico has had constitutions that, from reading them, sounded as if they were conceived in liberty as much as ours, but you see what has at times happened to them. There and elsewhere, dictators have come to power. They have ignored the rights of individuals. The peoples of those countries have allowed usurpations of power, with the result that these dictators have at times simply wiped out their liberties and the constitutions in those countries have become just scraps of paper. In this country, under our written Constitution, and in Great Britain, under their unwritten constitution, "eternal vigilance is the price of liberty." Now, that doesn't mean only eternal vigilance to see an attempt to usurp power, but it means eternal vigilance, when you do see it, to tell your fellow citizens about it. If liberty is worth having, it is worth being vigilant for, and if, being vigilant, you see it endangered, then it becomes your solemn duty, and your solemn obligation, not only to your conscience and your country, but to those of your ancestors who have shed their blood that you might have the liberty you enjoy today, to call those things to the attention of the American people, whose power may be usurped, whose sovereignty may be impaired. Our written Constitution is the very chart, the very outline, the very complete grant of power under which your servants and mine are undertaking to discharge their trust as public servants, and don't forget, in discussing the rights of the executive or legislative branches of the Government to exercise powers not granted them, that each member of each of those branches of government, when he took his office, held up his hand and swore before his Maker to "preserve, protect and defend" the Constitution of the United States. It ought to be very easy to remind the people of the South that if one branch of the Government can usurp power, so can another. In the late sixties, Andrew Johnson of Tennessee was President of the United States. The Congress of the United States was under the domination of Thad Stevens of Pennsylvania. That Congress undertook to pass a law saying that the President of the United States could not remove 12 13 an officer of his Cabinet without the consent of the Congress. Andrew Johnson of Tennessee did remove a Cabinet officer. For that, this radical House led by Thad Stevens undertook to impeach him, and only by the narrow margin of one vote, more than that many being cast by Republican Senators from the North who took seriously their oaths to preserve the Constitution, was that attempt at impeachment foiled. It was sixty years later, in the Myers case which arose in Portland, Oregon, that the precise question went to the Supreme Court of the United States for decision; that is, whether the Congress could prevent the Executive from removing an executive appointee without the consent of the Congress, and the Supreme Court of the United States answered that the Congress could not usurp the executive power, any more than the Executive could usurp the power of the Judiciary. Andrew Johnson had to wait sixty years for his vindication, and when he got it, it came from the "nine old men in black kimonos." You can trust your courts. I don't mean by that they don't make mistakes. They do. But I mean that the ultimate question of constitutionality must be raised and decided somewhere. You can not let the Executive pass on the constitutionality of his own acts, nor can you let the Congress pass on the constitutionality of theirs. The Constitution is a contract between the people and the Government, and those officers of the Government who undertake to exercise powers not granted to them are violating not only their contract with the people, but the oaths by virtue of which they hold their offices. Questions and Answers Following Mr. Carson's Speech Mr. Brown: It has been suggested that Mr. Carson will answer any written questions that you desire to propound to him. If there are no written questions now, I will entertain an oral question until the written questions come in. Is there any oral question while the others are coming in? A Voice: I should like to know how the people in the colonies expressed their will and 14 wish in regard to the formation of the Constitution. Mr. Carson: I shall be very delighted to tell you. The Constitutional Convention met and proposed the Constitution and submitted it to the States. Each State, through its legislature, decided for itself just how and when it should hold its own convention, and how delegates should be elected. In all states, ratification was by Constitutional Conventions, but the method of their choosing was such that it was in fact ratified by popular vote. A Voice: I would like to ask what is the nature of the amendment the present administration seeks to have made in the Constitution. Mr. Carson : We can't find out. I have here a "Current History" I bought yesterday on the way from Atlanta over here, in which Mr. Roper has a long article headed "Forward with the Constitution," and aU he says is: "We may have to propose an amendment, and if we do, we want it adopted." The Same Voice: Roughly speaking, I believe they want such an amendment added to the Constitution as wiU permit N.R.A. Mr. Carson: No I think N.R.A. was in their minds until they saw the prosperity that resulted when it was knocked out, and I think now they want it to permit the A.A.A. A Voice: Do you mind giving your opinion on the constitutionality of the A.A.A. ? Mr. Carson : I don't mind giving my opinion on anything, if I have an opinion, but if you will wait a few weeks, you will get it from the "nine old men in black kimonos." A Voice: May I ask if the Liberty League has done anything in relieving the exploitation of the miners that has existed in Alabama as well as in Pennsylvania? Mr. Carson: I am not a member of the American Liberty League, but as I understood Mr. Brown, the American Liberty League doesn't have anything to do with the government of this country, but is only talking about the rights of the Congress and the Government. A Voice: I would like to ask how the Supreme Court, by the very slimness of its margin, can satisfy us definitely of the constitutionalty of laws? Mr. Carson : Some people can never be sat is-15 fied. In all seriousness you must recognize there must be ultimate authority to decide somewhere. You may not be wholly satisfied, but that question must be decided somewhere. If you are proposing to change that, why you have the right to propose an amendment. I wouldn't argue with you on that, until you actually propose your amendment. In Florida we have six Judges of the Supreme Court of the State. Suppose they divide three-three, what happens? The answer is that the Circuit Court is affirmed, his vote making it four against three. It is not satisfactory to us, but we are not starting any revolution about it. A Voice: If the Constitution was written in a horse and buggy age, wouldn't it be most proper for the Constitution to be amended and changed so it will guarantee human rights above property rights? Mr. Carson: You may propose such an amendment, but you must reduce your amendment to writing and let the American people see it. Let them talk about it. Don't say "Let's amend the Constitution" without saying what you want to put in it. You see amendments to a Constitution are just like furniture in a house. They have got to fit. You can't come in with one amendment and upset the whole scheme of Government, but you can, by amendments, enlarge the powers of Congress, or you can write a brand new Constitution by having a Constitutional Convention. You have that right. The people are the final judges. I can think of several amendments I might be for, but before I vote for them, I am going to lay them down side by side with the Constitution itself and see if they fit. The Same Voice : I had in mind the amendment with reference to Child Labor. Mr. Carson: That has been submitted through the regular, orderly process. The Same Voice: It has been turned down. Mr. Carson: Well, that is the vote of the people. That is not my fault. You don't want to take the ultimate power to decide away from the people, do you? The Same Voice: No, sir. A Voice: Would you consider the decision of the Supreme Court in the gold devaluation 16 controversy a violation of the Constitution, or an upholding of the Constitution? Mr. Carson: You put me in the position where I have to either make that five-four decision my friend complained about a six-four, or a five-five decision. You are promoting me temporarily to the post of a member of the Supreme Court. I think that that five-four decision, although in favor of the "New Deal," was all right on constitutional grounds for this one reason: I said to you tonight, you know, that the question is power, not rght or wrong, and not morals. I take it that the Government of the United States has power to control its money system, and I take it that the Supreme Court decided that they have the power to control it, but the Court went out of its way to say it is not good morals for a government to do it when it has promised to pay in gold. On the sole question of power, I think that decision was all right. Written Question: Do you think remote control in politics is worse than remote control in business? Mr. Carson: Well, I think both are bad unless the people at the place where trouble is have power to act in an emergency. Now, I used this Labor Day hurricane to illustrate the danger of remote control in politics. Let me use the same illustration to illustrate the danger of remote control in business. Whenever I can get the money, I take a trip on a ship somewhere, unless my wife and kids have been abroad, which they are now. I was very shocked to learn that for the twenty years following the introduction of radio, the loss of life on ships at sea was greater than for the twenty years next before its introduction. The reason is, that some clerk at a desk in New York tells the captain whether to go into a storm or not. Within the past three months the Dixie, heading into the Florida straits, was grounded and stranded on French Reef. You know, if you stop to think of it, that before the day of radio and before the day of these so-called reports of hurricanes, the captain of that ship, looking at his barometer and the seas and skies, never would have run his ship into the narrow passage and got stuck on the reef. In other words, remote control again failed. 17 Written Question: Would it be possible for the Supreme Court to determine whether any act is constitutional before being voted on by the Congress? Mr. Carson: It would be possible, of course, but it wouldn't be workable. A great many of the States have provisions in their constitutions authorizing the Governor to propound to the Supreme Court constitutional questions, and the Supreme Court is instructed to answer them. In the course of the last hundred and fifty years it had been found that judges are human like everybody else, and when a question is sent in to them, if they don't hear the argument on both sides, they may not be able to decide it correctly. In Florida, in the case of Amos against Gunn, the Florida Supreme Court has held that while the Supreme Court is instructed to answer the Governor's questions, their answer is not binding authority, because they have not heard and had the benefit of complete and free argument. That is precisely my point about amending the Constitution of the United States. A Voice: In how many ways can the Constitution be amended? Mr. Carson: Two or three ways. Any of them have to be submitted by Congress or by the States, but they can be ultimately passed on by the people through the Legislature, or through conventions. In the case of the repeal of prohibition, it was done by State conventions called for that purpose, which was a roundabout way of getting a direct vote of the people on the question. Written Question: Cannot Congress amend the Constitution? Mr. Carson: No, sir. The Constitution is from the people, not from the Congress. Written Question: Were the members of the Constitutional Convention willing to be bound by their limits of power, power in quotation marks, when they formulated a new Constitution instead of amending the Articles of Confederation? I don't know whether you get that question or not. Mr. Carson: You mean, because they were called to consider amendments to the Articles of Confederation and did submit a new Constitution. All they did was to pass it back to the 18 people. They said, "We have tried to amend it, and the best we could do was rewrite it, and you can do the best you can." A Voice: It has been said by some parties that the Constitution, in its beginning, was a class document, formulated by the landlords and the class interests of the Atlantic Seaboard. There are other equally high authorities that say it is yet a class document. Mr. Carson: I say it is a document that came from the people. It belongs to the people, and if the people want to change it they can change it. If there were classes among the people then, there were class interests which were protected in the Constitution and there still are. The Same Voice: Very good, sir; very good. Written Question: Do you wish us to understand that the New Deal and the Administration is opposed to the method the Constitution itself contains for its amendments? Mr. Carson: I wish you to understand that in some instances, not the President, but some members of the Administration, have said in effect to Congress: "Just go ahead and pass this law, whether it is constitutional or not, and we will work with it awhile and get it so bound up in the life of the country, they can't knock it out." Therefore, some of them are trying to amend it by usurpation. A Voice: I am a small business man. You mentioned the Democratic platform. I say the Democratic platform stands for doing away with monopolies. Would any law to that effect be unconstitutional in as much as it has never been attempted? Mr. Carson: Well, the Constitution gives Congress very definite powers. Congress has power over business largely proceeding from the Interstate Commerce clause. The Sherman Anti-Trust Act was enacted under that. It would be, as I say, possible to pass an act condemning monopolies. Of course, there are some things you can't stop being monopolies. There are the natural monopolies. Then there are the public utilities. They have got to be monopolies. Congress has a great deal of power in abolishing monopolies. A Voice: Couldn't the depression be abolished and prosperity brought about without 19 any danger of interfering with the Constitution? Mr. Carson: If you know how to handle the depression, you are a better man than I am. Written Question: What specific things are lawyers doing to place human rights above property rights? Mr. Carson: You have gotten a long way away from the Constitution. I don't know what the rest of them arc doing. I am putting in a third of my time without getting any money for it. I know, as far as I am concerned, I don't accept employment by the year from anybody. I have got to be able to look at a case and decide I believe in it before I take it. A Voice: What will happen to human rights and minority rights if the Constitution is abolished? Mr. Carson: They would be abolished. I have something here. This is a speech made in 1922 by Arthur G. Powell of Atlanta. This is not anything on the New Deal, but is on fundamentals, and was delivered before the "New Deal" was ever heard of: "We find that from early times the striving of our forefathers has been to deprive the tyrant of his weapon, to increase the volume of fixed law and to diminish the discretion of those in power as to granting or refusing rights. Despite the progress made along these lines in the course of the centuries, the cry may still be heard, as in Israel of old, "Give us a King." Not that they phrase it thus what they say is, "Give us more of abstract justice and less of fixed law; let judges and juries decide each case on its own facts and circumstances, unrestrained by precedents and legal technicalities." Then later on is a sentence everybody ought to remember: "Discretion is the weapon of tyranny, and there is no tyranny like the tyranny of an unrestrained democracy." A Voice: What do you think of the chance that the Constitution will be an issue in the next election? Mr. Carson: You are talking politics now, but unless they propose a specific amendment, it can't be. Written Question: What is the difference between human rights and property rights? Mr. Carson: The right to own property is one of the human rights. 20 A Voice: Is it just as easy today to get a full, fair and complete expression of the wish of the people as it was in the horse and buggy days? Mr. Carson: It ought to be easier. We have the radio and other means of communication. Written Question: People in our day live under a centralization of economic control that practically carries with it a control of the electorate. That is the danger in the democratic process. Is it politically possible to get through enough amendments to allow Government to adequately cope with the excesses of our system before those excesses land us in war or fascism? Mr. Carson: That, also, is problematical. I will say this, that in the attempt to do that very thing, cope with it, there are three great dictatorships in the world, all of which have started from the "left," and they have developed into the three greatest tyrannies in the world, and one of the tyrannies finds itself in a situation where it has to go to war to prevent trouble at home. A Voice: What do you think of Senator Norris' proposition that we abolish the National House of Representatives, and place aU the power in the United States Senate to prevent the two branches from passing the buck from one to another and to escape comparison when they come back home to run for office again? Mr. Carson : I think you misunderstood what Senator Norris proposed about that. He proposed and had adopted in Nebraska a bill providing for a unicameral legislature in that State. As long as you recognize state governments in the United States, you have got forty-eight experimental laboratories in government in this country, and you can let them experiment, and if an experiment goes wrong, it is not going to wreck the whole government of the country. That is another good reason for preserving state lines and state rights. A Voice: Mr. Carson, I would like to ask how it came about that the Supreme Court had invested in it the final authority, rather than Congress and the other branches of government? Mr. Carson: That is a long story, but you can find it all the way back. In England the King's Bench had authority to pass upon the 21 laws; that is to say, any law passed by Parliament, the Courts had to fit into the existing pattern of British law and liberty. In the United States there were thirteen colonies before the Constitution was adopted, and those thirteen colonies became states and were all operated under their state constitutions. It was recognized in practically all of them that the State Supreme Court had the right to pass on the constitutionality of laws. It is all the way back. You will find that the courts who have to construe the law must also fit it into the pattern. A Voice: I would like to ask the question what kind of cases can be taken from the Supreme Court of the several states to the Supreme Court of the United States? Mr. Carson: Only a case involving a question of whether there is an infringement by a State law against the Constitution of the United States. A Voice: Mr. Carson, will you give us your interpretation of the welfare clause of the Constitution? Mr. Carson: Yes, I will. Of course, you know that is a very much mooted affair, although there has been only one answer ever given by any responsible tribunal. The Constitution is said to be adopted for the general welfare of the people of the United States, but right on, in the same instrument, it says what can be done, and that the powers not specifically granted are reserved to the people or to the States. Now, if you are going to say that the general welfare clause is a grant of power, then you make the Congress the final judge of everything it thinks may be for the general welfare, and you might as well have no Constitution at all. The Constitution of the country was to provide for the general welfare, and to do that these definite powers were conferred upon the Federal Government and the three branches of it. The Same Voice: Doesn't the clause also occur in the delegation of power to levy taxes? Mr. Carson: Yes. The Same Voice: How do you construe it in that clause? Mr. Carson: In order to levy taxes for the general welfare of the United States. 22 The Same Voice: You couple it up with levying taxes? Mr. Carson: Yes. It is a limitation upon the taxing power, but does not confer any new power to tax. A Voice: Can you conceive, Mr. Carson, of any human rights not guaranteed by the Constitution already? Mr. Carson: Well, I suppose I might conceive of it, but the best guaranty of the human rights is the limited power to Congress, and the prohibiton against them acting directly on the individual in certain respects, and then his final guaranty is his right to a republican form of state government. There he can protect himself at the polls, and the ballot is the best possible weapon for the protection of human rights and liberty. A Voice: Since when, approximately, has the United States Supreme Court been recognized as the ultimate tribunal to pass on the constitutionality of legislation? Has that been ever since it begun? Mr. Carson: The first decision on the question by the Supreme Court itself was in the case of Marbury against Madison soon after 1800. But you have forgotten I have just said that in all the states a similar power in the State Supreme Courts under their written Constitutions had been recognized even before the adoption of the Federal Constitution. In other words, under our system a Court can't decide anything until it is presented to it, and in the very first case that was presented the Supreme Court claimed the power, and it has never been seriously disputed. Of course, it has been disputed by people like Mr. Ickes who say we should not express our opinions. A Voice: Now that commerce has become national and the products of the farm and factory go immediately into national commerce, do you not think that the national Government should have power over all the things that have become the subject of national commerce? Mr. Carson: Your argument proves entirely too much. Commerce nowadays is international, not merely national, and if you are correct in your argument, power over our farms and factories ought to be transferred to the League of Nations at Geneva, or to some world government. 23