PART 1: UNDERMINING THE CONSTITUTION: A HISTORY OF LAWLESS GOVERNMENT
Undermining The Constitution
A HISTORY OF LAWLESS GOVERNMENT
I
THE REPRESENTATIVE, OR REPUBLICAN, FORM OF GOVERNMENT, CAREFULLY CHOSEN BY THE CONSTITUTIONAL CONVENTION IN 1787 AGAINST DEMOCRACY OR DIRECT ACTION BY THE PEOPLE, WAS FIRST UNDERMINED BY THE STATES
In 1893 South Dakota adopted from Switzerland the Initiative and the Referendum, and from then until 1918 one or both of those plans, with the Recall, were taken on by 22 of the 48 States.
Three borrowings from Switzerland against our Constitution
By the Initiative, the people can draft a law and put it to a vote; if the majority favor it the legislature is bound to pass it, even though opposed to it.
By the Referendum, a bill passed by the legislature is referred to popular vote, and it may be approved or prevented from taking effect.
The Recall, is used to unseat a holder of office who has become unsatisfactory, or to revoke a law.
Some States adopted the three expedients, some two of them, some only one. At first the belief spread rapidly.
The first attempt to recall judicial decisions
Colorado was the only State to apply (1912) the Recall to decisions by the courts, and that was held by the Supreme Court of the State to be in conflict with the Colorado constitution.
Theodore Roosevelt, displeased by the decisions of some courts, advocated the recall of decisions of the supreme courts of States. The prestige of the former President gave much impetus to the "movement." The American Bar Association appointed a committee to go to the country in refutation of the constitutionally destructive idea. In 1912 the committee reported the recall of decisions dead. Roosevelt afterward admitted that he had made a mistake.
Kansas limited the Recall (1914) to appointive officials.
The Initiative has never been extensively used, and for a long time not much has been heard of any of the "democratic" devices.
Large populations require representation, not "democracy"
Methods deemed useful to small populations in narrow areas, as in the cantons of Switzerland and the town meetings in New England, could not be accepted as serviceable or safe for large populations and extensive countries. Indeed, that point was discussed in the Constitutional Convention, and the conclusion was reached that for the United States as they then were, and as they would expand to be, only the representative or Republican system would do.
In 1893, when South Dakota led the way, the country had undergone one of its severest panics. There had also been successive crop failures. The advocates of popular action contended that legislatures were not faithful to the people and that therefore the people should take over. However, the remedy was in the election of better legislators, not in a fundamental change in the form of government. And it is doubtful whether the most capable and honest legislators could have stilled the complaints arising from the panic and the failures of crops.
When people seek paternalism from their government
In all such times the disposition is to look around for a scapegoat, and the people usually feel that government should do something to correct conditions and relieve distress.
This inclination of the people in financial distress to look to the governments of the States to do something about it was the forerunner, as it were, of the wide calls for "Federal aid" of many kinds which were raised in the late 1920's and the early 1930's.
In 1920 the Supreme Court upheld (253 U. S. 233) the creation by a vote of the people of North Dakota of an Industrial Commission to take over and manage utilities, industries, and other business projects, some to be established by law. It was authorized to operate the Bank of North Dakota, the Home-Builders Association, flour mills, grain elevators, a fire insurance company, and other projects. It was empowered to issue bonds, and in 1937 it had floated such paper to the amount of $24,798,000 for rural credit.
From 1934 to 1940, in a time of peace, the National Government built up a deficit of $26,500,000,000, of which $21,500,000,000, or 80 per cent, according to the Governor of Virginia, resulted from "grants in aid" to States and individuals. Subsidies from the taxpayers of the country held up the price of wheat and corn to $3 a bushel as late as 1948. And like support to stock men put the prices of their commodities so high that beefsteaks, roasts and lamb almost entirely disappeared from the table of the American.
Dependence on government brings unfortunate conditions
And yet the stock men were unprepared with shelter and feed to care for their herds when the heavy snows and low temperatures came in the Winter of 1948-1949. The States were without organization to help. Governors and stock men cried to Washington to come out and save them! Long dependence of the people and the States on miscalled "Federal money" had debilitated both.
The army was sent out. It kept the roads open and it fed and saved most of the herds.
Caesar, too, helped the people, but they lost their liberty to him.
The Constitutional Convention set up a thoroughly representative form of Government in each of the three Departments -- the Legislative, the Executive, and the Judicial. The States, which wrote the Constitution by their representatives, provided in section 4 of Article IV particular protection for themselves.
Nation and States given representative government by Constitution
"The United States shall guarantee to every State in this Union a Republican [not democratic] form of government, and shall protect each of them against invasion."
They obliged the power over all, which they had set up for the common strength, to protect each in its Republican form, and to defend each physically.
Commenting on that provision for a representative form of government, Madison said in No. 43 of The Federalist:
"The only restriction imposed on them is that they shall not exchange Republican for anti-Republican [democratic] constitutions."
The choice by the Convention of the Republican or representative form over the popular or democratic government followed full and able discussions. In explaining what had been considered in this relation, Madison, the note taker of daily doings in the Convention, said in No. 10 of The Federalist, after pointing out the evils which factions had always done in democracies:
"The inference to which we are brought is that the causes of faction cannot be removed, and that relief is only to be sought in the means of controlling its effects."
Why Convention rejected democracy or popular control
The turbulence and contention which had given short lives and violent deaths to democracies would be controlled by representative government:
"A Republic, by which I mean a government in which the scheme of representation takes place, opens a different prospect, and promises the cure for which we are seeking."
By "the delegation of the government to a small number of citizens elected by the rest," Madison said, the public views are refined and enlarged "by passing them through the medium of a chosen body of citizens whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations."
Accordingly:
"Under such a regulation it may well happen that the public voice, pronounced by the representatives of the people, will be more consonant to the public good than if pronounced by the people themselves, convened for the purpose."
The spread of a governmental evil
The Initiative, the Referendum, and the Recall led to other departures from the representative form of government. Officeholders or aspirants who hoped to advantage themselves brought out the direct primary. That primary suggested later the "Presidential preference" primary to seekers of the highest office, who believed that they could "swing" the crowd when the party might not be for them. In many instances the promoters of the "democratic" primary, which had been hailed as the voice of the people, failed of their expectations through them.
As the decayed apple in the barrel damages all the others, so the badness in principle of the Initiative, the Referendum, and the Recall spread after bringing the direct primary and the Presidential primary. In 1912 some members of the United States Senate, doubtless feeling that they would be more sure of holding their seats if they could appeal to the people from the hustings than if their return were to remain with critical legislatures, proposed an amendment to the Constitution, first suggested in 1869, for the direct election of senators by the people of the States instead of by the legislatures. It was ratified and became effective as the Seventeenth Amendment in 1913.
The great purpose in the Congress frustrated
Thus the two Houses of Congress became alike, whereas the Constitutional Convention designed a House of People and a House of States. The House elected by the States to represent them in the Congress of their Union was destroyed. Two Houses now represent the people and none stands for the States. Does that help to explain why the States have been passing out as the controlling forces in their Union? The extent of their diminution will be fully shown later in this book.
The proponents of the Amendment supported their advocacy by saying that money had been improperly used in some legislatures by backers of candidates for the House of States. But, as we have said with respect to the Initiative, the proper remedy for the people was in electing better legislators, not in unsettling the foundations of the Republic. Besides, candidates for the Senate, in the primary to get the nomination and then in the election contest against the nominee of the other party to get the office, have spent more money than was ever reported as used in a legislature.
A very capable and upright senator from California declined to seek a second term because the expense of the primary which nominated him and of the election campaign which put him in the Senate had been so great that he said the security of his family had been endangered. He was fairly well-to-do, but this "democracy" which had been introduced in the name of "reform" he could not carry.
Some capable men excluded from Senate
Had the Seventeenth Amendment not been put in the Constitution, the legislature of California might have kept him in the service of the State by reelecting him many terms. Thus, Senator Hoar of Massachusetts, an illustrious statesman without means, who did not want to go to the Senate, was chosen by his legislature during his absence from the country and kept there to the end of his life.
Senator Morrill of Vermont and others of those times gave all or most of their working years to their country in the House of States. They did not need to "campaign." That was fortunate, because they had no money.
A poor man who seeks a seat in the Senate now must have "backers," and he may therefore cease to be the owner of himself.
The cure which was sought in haste and some anger through the Initiative and the popular election of senators might have been reached by choosing better legislators. But when the American, after long indifference, arouses himself he is prone "to do the right thing the wrong way."
Lack of learning in Constitution dangerous
It is hard to believe that an educator provided the "slogan" for those two decades: "The cure for the evils of democracy is more democracy." We have it.
In No. 62 of The Federalist the faith in the House of States was expressed (italics inserted):
"It is recommended by the double advantage of favoring a select appointment, and of giving to the State government such an agency in the formation of the Federal Government as must secure the authority of the former, and may form a convenient link between the two systems."
Thus the States would be in Congress as well as the People.
Evil results from decline of Senate
None of the transgressions of constitutional boundaries of recent years could probably have been accomplished had the House of States not been broken down.
It is a fact to be noted that the Sixteenth Amendment, under which Congress has, without specific authority, been gathering the "graduated" income tax of Communism, became effective in February, 1913, and the Seventeenth Amendment, emasculating the House of States, became a part of the Constitution in May of that year. That imports very serious dissatisfaction of a people, unschooled in the principles of their Government, with the system designed by the Constitutional Convention, which contained, Bryce pointed out, "fifty-five men who belong to the history of the world," and many others "less known in Europe who must be mentioned with respect."
Warning of Washington against constitutional innovations
In his Farewell Address caution was given by Washington to resist "the spirit of innovation" upon the principles of the Constitution, "however specious the pretexts."
General and thorough education in constitutional philosophy is essential to our safety.
A final word from The Federalist:
"The necessity of a Senate is not less indicated by the propensity of all single and numerous assemblies to yield to the impulse of sudden and violent passions, and to be seduced by factious leaders into intemperate and pernicious resolutions. Examples on this subject might be cited without number; and from proceedings within the United States, as well as from the history of other nations."
The States in their House would be a check on sudden and ill-considered action by the House of the People.
In the day of the House of States the senators accepted seriously and discharged courageously the responsibility cast upon them by the Constitution in confirming or disapproving the appointments of the President. A confirmation then did not follow as a matter of course. In Autobiography of Seventy Years it is related by Senator Hoar that he went into the Supreme Court to hear Senator Daniel Webster make an argument in a case. Webster began by referring "very impressively" to the changes which had taken place in the Tribunal since he first appeared as counsel before it:
"Not one of the judges who were here then remains. It has been my duty to pass upon the question of the confirmation of every member of the Bench; and I may say that I treated your honors with entire impartiality, for I voted against every one of you."
The alterations in the American system of representative or Republican government here reviewed were as unnecessary as they were ineffectual for the purposes intended.
"Democracy" not suitable to representative system
A review of over half a century of tinkering with constitutional representative government makes plain that "democracy" is unsuited to the United States.
The cases to be reviewed in the chapters following will serve to clarify the meaning in practice of the representative principle running everywhere through the Constitution. They will help also to an understanding of the structurally important — superior and sustaining — place of the States in the constitutional edifice.
Then it will be clear why, as President Cleveland said, "departure from the lines there laid down is failure."
In 1893 South Dakota adopted from Switzerland the Initiative and the Referendum, and from then until 1918 one or both of those plans, with the Recall, were taken on by 22 of the 48 States.
Three borrowings from Switzerland against our Constitution
By the Initiative, the people can draft a law and put it to a vote; if the majority favor it the legislature is bound to pass it, even though opposed to it.
By the Referendum, a bill passed by the legislature is referred to popular vote, and it may be approved or prevented from taking effect.
The Recall, is used to unseat a holder of office who has become unsatisfactory, or to revoke a law.
Some States adopted the three expedients, some two of them, some only one. At first the belief spread rapidly.
The first attempt to recall judicial decisions
Colorado was the only State to apply (1912) the Recall to decisions by the courts, and that was held by the Supreme Court of the State to be in conflict with the Colorado constitution.
Theodore Roosevelt, displeased by the decisions of some courts, advocated the recall of decisions of the supreme courts of States. The prestige of the former President gave much impetus to the "movement." The American Bar Association appointed a committee to go to the country in refutation of the constitutionally destructive idea. In 1912 the committee reported the recall of decisions dead. Roosevelt afterward admitted that he had made a mistake.
Kansas limited the Recall (1914) to appointive officials.
The Initiative has never been extensively used, and for a long time not much has been heard of any of the "democratic" devices.
Large populations require representation, not "democracy"
Methods deemed useful to small populations in narrow areas, as in the cantons of Switzerland and the town meetings in New England, could not be accepted as serviceable or safe for large populations and extensive countries. Indeed, that point was discussed in the Constitutional Convention, and the conclusion was reached that for the United States as they then were, and as they would expand to be, only the representative or Republican system would do.
In 1893, when South Dakota led the way, the country had undergone one of its severest panics. There had also been successive crop failures. The advocates of popular action contended that legislatures were not faithful to the people and that therefore the people should take over. However, the remedy was in the election of better legislators, not in a fundamental change in the form of government. And it is doubtful whether the most capable and honest legislators could have stilled the complaints arising from the panic and the failures of crops.
When people seek paternalism from their government
In all such times the disposition is to look around for a scapegoat, and the people usually feel that government should do something to correct conditions and relieve distress.
This inclination of the people in financial distress to look to the governments of the States to do something about it was the forerunner, as it were, of the wide calls for "Federal aid" of many kinds which were raised in the late 1920's and the early 1930's.
In 1920 the Supreme Court upheld (253 U. S. 233) the creation by a vote of the people of North Dakota of an Industrial Commission to take over and manage utilities, industries, and other business projects, some to be established by law. It was authorized to operate the Bank of North Dakota, the Home-Builders Association, flour mills, grain elevators, a fire insurance company, and other projects. It was empowered to issue bonds, and in 1937 it had floated such paper to the amount of $24,798,000 for rural credit.
From 1934 to 1940, in a time of peace, the National Government built up a deficit of $26,500,000,000, of which $21,500,000,000, or 80 per cent, according to the Governor of Virginia, resulted from "grants in aid" to States and individuals. Subsidies from the taxpayers of the country held up the price of wheat and corn to $3 a bushel as late as 1948. And like support to stock men put the prices of their commodities so high that beefsteaks, roasts and lamb almost entirely disappeared from the table of the American.
Dependence on government brings unfortunate conditions
And yet the stock men were unprepared with shelter and feed to care for their herds when the heavy snows and low temperatures came in the Winter of 1948-1949. The States were without organization to help. Governors and stock men cried to Washington to come out and save them! Long dependence of the people and the States on miscalled "Federal money" had debilitated both.
The army was sent out. It kept the roads open and it fed and saved most of the herds.
Caesar, too, helped the people, but they lost their liberty to him.
The Constitutional Convention set up a thoroughly representative form of Government in each of the three Departments -- the Legislative, the Executive, and the Judicial. The States, which wrote the Constitution by their representatives, provided in section 4 of Article IV particular protection for themselves.
Nation and States given representative government by Constitution
"The United States shall guarantee to every State in this Union a Republican [not democratic] form of government, and shall protect each of them against invasion."
They obliged the power over all, which they had set up for the common strength, to protect each in its Republican form, and to defend each physically.
Commenting on that provision for a representative form of government, Madison said in No. 43 of The Federalist:
"The only restriction imposed on them is that they shall not exchange Republican for anti-Republican [democratic] constitutions."
The choice by the Convention of the Republican or representative form over the popular or democratic government followed full and able discussions. In explaining what had been considered in this relation, Madison, the note taker of daily doings in the Convention, said in No. 10 of The Federalist, after pointing out the evils which factions had always done in democracies:
"The inference to which we are brought is that the causes of faction cannot be removed, and that relief is only to be sought in the means of controlling its effects."
Why Convention rejected democracy or popular control
The turbulence and contention which had given short lives and violent deaths to democracies would be controlled by representative government:
"A Republic, by which I mean a government in which the scheme of representation takes place, opens a different prospect, and promises the cure for which we are seeking."
By "the delegation of the government to a small number of citizens elected by the rest," Madison said, the public views are refined and enlarged "by passing them through the medium of a chosen body of citizens whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations."
Accordingly:
"Under such a regulation it may well happen that the public voice, pronounced by the representatives of the people, will be more consonant to the public good than if pronounced by the people themselves, convened for the purpose."
The spread of a governmental evil
The Initiative, the Referendum, and the Recall led to other departures from the representative form of government. Officeholders or aspirants who hoped to advantage themselves brought out the direct primary. That primary suggested later the "Presidential preference" primary to seekers of the highest office, who believed that they could "swing" the crowd when the party might not be for them. In many instances the promoters of the "democratic" primary, which had been hailed as the voice of the people, failed of their expectations through them.
As the decayed apple in the barrel damages all the others, so the badness in principle of the Initiative, the Referendum, and the Recall spread after bringing the direct primary and the Presidential primary. In 1912 some members of the United States Senate, doubtless feeling that they would be more sure of holding their seats if they could appeal to the people from the hustings than if their return were to remain with critical legislatures, proposed an amendment to the Constitution, first suggested in 1869, for the direct election of senators by the people of the States instead of by the legislatures. It was ratified and became effective as the Seventeenth Amendment in 1913.
The great purpose in the Congress frustrated
Thus the two Houses of Congress became alike, whereas the Constitutional Convention designed a House of People and a House of States. The House elected by the States to represent them in the Congress of their Union was destroyed. Two Houses now represent the people and none stands for the States. Does that help to explain why the States have been passing out as the controlling forces in their Union? The extent of their diminution will be fully shown later in this book.
The proponents of the Amendment supported their advocacy by saying that money had been improperly used in some legislatures by backers of candidates for the House of States. But, as we have said with respect to the Initiative, the proper remedy for the people was in electing better legislators, not in unsettling the foundations of the Republic. Besides, candidates for the Senate, in the primary to get the nomination and then in the election contest against the nominee of the other party to get the office, have spent more money than was ever reported as used in a legislature.
A very capable and upright senator from California declined to seek a second term because the expense of the primary which nominated him and of the election campaign which put him in the Senate had been so great that he said the security of his family had been endangered. He was fairly well-to-do, but this "democracy" which had been introduced in the name of "reform" he could not carry.
Some capable men excluded from Senate
Had the Seventeenth Amendment not been put in the Constitution, the legislature of California might have kept him in the service of the State by reelecting him many terms. Thus, Senator Hoar of Massachusetts, an illustrious statesman without means, who did not want to go to the Senate, was chosen by his legislature during his absence from the country and kept there to the end of his life.
Senator Morrill of Vermont and others of those times gave all or most of their working years to their country in the House of States. They did not need to "campaign." That was fortunate, because they had no money.
A poor man who seeks a seat in the Senate now must have "backers," and he may therefore cease to be the owner of himself.
The cure which was sought in haste and some anger through the Initiative and the popular election of senators might have been reached by choosing better legislators. But when the American, after long indifference, arouses himself he is prone "to do the right thing the wrong way."
Lack of learning in Constitution dangerous
It is hard to believe that an educator provided the "slogan" for those two decades: "The cure for the evils of democracy is more democracy." We have it.
In No. 62 of The Federalist the faith in the House of States was expressed (italics inserted):
"It is recommended by the double advantage of favoring a select appointment, and of giving to the State government such an agency in the formation of the Federal Government as must secure the authority of the former, and may form a convenient link between the two systems."
Thus the States would be in Congress as well as the People.
Evil results from decline of Senate
None of the transgressions of constitutional boundaries of recent years could probably have been accomplished had the House of States not been broken down.
It is a fact to be noted that the Sixteenth Amendment, under which Congress has, without specific authority, been gathering the "graduated" income tax of Communism, became effective in February, 1913, and the Seventeenth Amendment, emasculating the House of States, became a part of the Constitution in May of that year. That imports very serious dissatisfaction of a people, unschooled in the principles of their Government, with the system designed by the Constitutional Convention, which contained, Bryce pointed out, "fifty-five men who belong to the history of the world," and many others "less known in Europe who must be mentioned with respect."
Warning of Washington against constitutional innovations
General and thorough education in constitutional philosophy is essential to our safety.
A final word from The Federalist:
"The necessity of a Senate is not less indicated by the propensity of all single and numerous assemblies to yield to the impulse of sudden and violent passions, and to be seduced by factious leaders into intemperate and pernicious resolutions. Examples on this subject might be cited without number; and from proceedings within the United States, as well as from the history of other nations."
The States in their House would be a check on sudden and ill-considered action by the House of the People.
In the day of the House of States the senators accepted seriously and discharged courageously the responsibility cast upon them by the Constitution in confirming or disapproving the appointments of the President. A confirmation then did not follow as a matter of course. In Autobiography of Seventy Years it is related by Senator Hoar that he went into the Supreme Court to hear Senator Daniel Webster make an argument in a case. Webster began by referring "very impressively" to the changes which had taken place in the Tribunal since he first appeared as counsel before it:
"Not one of the judges who were here then remains. It has been my duty to pass upon the question of the confirmation of every member of the Bench; and I may say that I treated your honors with entire impartiality, for I voted against every one of you."
The alterations in the American system of representative or Republican government here reviewed were as unnecessary as they were ineffectual for the purposes intended.
"Democracy" not suitable to representative system
A review of over half a century of tinkering with constitutional representative government makes plain that "democracy" is unsuited to the United States.
The cases to be reviewed in the chapters following will serve to clarify the meaning in practice of the representative principle running everywhere through the Constitution. They will help also to an understanding of the structurally important — superior and sustaining — place of the States in the constitutional edifice.
Then it will be clear why, as President Cleveland said, "departure from the lines there laid down is failure."
II
LONG-CONTINUED ATTEMPTS BY CONGRESS TO INTIMIDATE THE SUPREME COURT, ACCOMPANIED BY HYPERCRITICAL WRITINGS OF POORLY INFORMED UNIVERSITY MEN AND OTHERS, LED UP TO THE ATTEMPT OF THE PRESIDENT AT COURT PACKING IN 1937
The next notable move in point of time against the constitutional structure of our Government was begun by Congress in the early 1900's.
For three decades before President Franklin D. Roosevelt attempted to set up a Supreme Court to suit his plans, Congress had been nagging the Judiciary from time to time with bills to "curb" it. Congress seemed to feel that it was an affront to its dignity and learning for the Supreme Court -- when an American challenged a law as invalid because it would deprive him of property "for public use without just compensation," or for the reason that it otherwise disrespected constitutional boundaries set for his protection -- to declare the act unconstitutional.
Lack of scholarship caused congressional attack on Judiciary
Members passing as constitutional scholars introduced bills to forbid that an act of Congress be held unconstitutional unless by a vote of 6 or 7 of the 9 justices, or by all of them. Fortunately, Congress had sound members enough to prevent the enactment of any bill of that kind into law. But the pendency of those bills from time to time and the discussion of them in Congress and in the Press operated to discredit the Judiciary in public estimation.
The proposition that an act of Congress should not be held invalid by (for illustration) a vote of 6 of the 9 justices of the Supreme Court means that the minority should decide the case. Our whole constitutional system operates by majority except in nine specified instances.
Majority decisions of courts constitutional
By the ancient rule of interpretation those specifications for more than a majority exclude in all other instances a higher vote. The Constitution having thus left the majority vote to the Supreme Court, it can be changed, not by Congress, but only by amendment.
"All provisions which require more than the majority of any body to its resolutions," wrote Hamilton in The Federalist, "have a direct tendency to embarrass the operations of the government, and an indirect one to subject the sense of the majority to that of the minority."
When Article III of the Constitution declared that "the judicial Power of the United States shall be vested in one Supreme Court," etc., it described the court of that day in England and in America, which decided cases by a vote of the majority; that court became the tribunal of the Constitution.
Men in schools aided in attack on Judiciary
While that exhibition of superficiality was in progress in the Congress, the professors in the universities, and in many schools of law, wrote books in assault of the Supreme Court. Just what the sons and daughters of the supporters of the institutions of learning were exposed to in the way of contagion may be best understood from a few titles of the books which they published in the season of hysteria:
Our Despotic Courts
Is the Supreme Court Too Supreme?
Appeal from the Supreme Court
Impeaching Laws of Congress
Government by Judges
Judicial Censorship of Legislation
Big Business on the Bench
Our Judicial Oligarchy
Judicial Legislation
Aggression of Federal Courts
The Great Usurpation
Those books showed the authors to be destitute of knowledge of constitutional history and principle. For example, The Great Usurpation asserted that the Supreme Court usurped power when it first held a challenged act of Congress invalid for conflict with a provision of the Constitution.
Hamilton made clear the function of constitutional courts
That the Court possessed the power was shown by Hamilton, a member of the Constitutional Convention, in No. 78 of The Federalist, written in 1788 and addressed "to the people of the State of New York," in answer to objections raised against the proposed new form of government in the convention having ratification before it:
"The interpretation of the laws is the proper and peculiar province of the courts. A Constitution is, in fact, and must be regarded by the Judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents."
Clear thinking and lucid writing, that.
Members of Constitutional Convention explained duty of courts
Before the Constitution took effect, Oliver Ellsworth of Connecticut, speaking in the ratifying convention of his State, explained the function of the courts in constitutional cases to be precisely what was later objected to by the author of The Great Usurpation. Ellsworth had been a member of the Constitutional Convention, and he should be taken as high authority:
"The Constitution defines the extent of the powers of the General Government. If the General Legislature [Congress] should at any time over leap their limits, the Judicial Department is a constitutional check. If the United States go beyond their powers, if they make a law which the Constitution does not authorize, it is void; and the judicial power, the national judges, who, to secure their impartiality, are to be made independent, will declare it to be void.
"On the other hand, if the States go beyond their limits, if they make a law which is a usurpation upon the Federal [National] Government, the law is void; and upright, independent judges will declare it to be so."
In the Ratifying Convention of Pennsylvania, James Wilson, who had been a delegate to the Convention which wrote the Constitution, who was the ablest lawyer in it and one of the most influential members, and who later became a justice of the Supreme Court, made a similar statement.
Foreign scholars saw importance of constitutional Judiciary
Bryce, Von Holst, and other foreign writers on our Government saw clearly our judicial principle.[1] Von Holst said that the Judiciary is the keystone of the American arch. Enemies of our liberty have been chipping at the keystone for a third of a century.
Moreover, in 1922, the leaders of organized labor, in concert with the critical spirit of Congress, sent a questionnaire to candidates for Congress asking whether they believed that five men on the Supreme Court "who had not been elected by the people, and who cannot be rejected by the people, should be permitted to nullify the will of the people as expressed by their representatives in Congress and the Executive in the White House." That was the jargon of the books and current magazines.
Second, would they "work and vote for a constitutional amendment restricting the power of the Supreme Court to nullify acts of Congress?"
Third, would they vote for a clear-cut statute forbidding the issuing of injunctions in industrial (meaning labor) disputes?
1. The Supreme Court of Canada, under the North America Act of the British Parliament of 1867, which followed our Constitution closely, passes on the constitutionality of an act of the Dominion Parliament and upon an act of the legislative body of the Province or State.
So, under the Constitution of Australia (1900), more closely following ours, the High Court, when the question is raised by a litigant, determines whether the law of the Commonwealth or the act of a State (not province in Australia) conforms to the Constitution.
Leaders of labor organizations supported attacks on Judiciary
On June 7, 1935, following the decision of the Supreme Court holding unconstitutional the National Industrial Recovery Act of Congress, a dispatch from Washington said that the President of the American Federation of Labor, "in a speech over an NBC network," voiced "organized labor's determination to fight for a constitutional amendment forbidding the Supreme Court to invalidate an act of Congress."
It has just been seen from Hamilton, a great lawyer who was in the Constitutional Convention, and from Oliver Ellsworth and James Wilson, also members of the Convention, that it is the Constitution, not the Court, that "invalidates" (a loose word of the unscholarly schoolmen) an act of Congress. The act is not invalidated by the Court, because it has no validity when not made "in pursuance" of the Constitution. "The Supreme Law of the Land," as defined by Article VI of the Constitution, consists of "this Constitution, and the laws of the United States [Acts of Congress] which shall be made in pursuance there of," and treaties.
What makes an Act of Congress unconstitutional?
If Congress does not pursue the lines laid down for it in the Constitution, its legislation is a nullity. The Supreme Court does not "nullify" it, as so many law-school professors and others classed as educators have taught several generations of youth, to the great damage of the mind of the Republic.
On the provision of the Constitution just before quoted, Alexander Hamilton, in No. 83 of The Federalist, made this comment (italics his):
"It will not, I presume, have escaped observation that it expressly confines the supremacy to laws made pursuant to the Constitution."
Did the United States have no Constitution, the Nation would nevertheless possess all the powers essential to its existence -- to raise an army and a navy; to appoint ambassadors; to make treaties; to issue money; to levy taxes, and to take other steps found necessary to its welfare as a Nation among nations.
But when a Constitution is written and adopted, it is for the purpose of preventing those inherent powers from being exercised at large and at will. The powers enumerated in the Constitution must be exerted as it directs.
It was said by the Supreme Court in 1936 (299 U. S. 304) that the United States has inherent powers of sovereignty in foreign relations external to the Constitution; and so it could forbid its citizens to ship arms to South American countries in conflict.
But it was unnecessary for the Court to drag in a dialectical proposition. The Commerce Clause, empowering Congress "to regulate Commerce with foreign Nations," was authority enough to control the shipment of arms.
"Inherent power" in the President or the Congress over matters with which the States severally cannot deal has always been definitely rejected by the Supreme Court, it declared (298 U. S. 238) as late as 1936. In the foregoing case an opinion by Justice Story (1 Wheaton 304), written 120 years before, was quoted to show that the General Government "can claim no powers which are not granted to it by the Constitution; and the powers actually granted must be such as are expressly given, or given by necessary implication."
The Constitution modifying inherent powers
But when, for illustration, the inherent power to make war was brought under the Constitution and transferred from the King to the Parliament -- or, so to say, given to Congress instead of the Executive -- the intention was to restrict fundamentally international practices. The declaring of war and the raising of forces and money are with the Congress. The command of the forces is with the President. The treaty of peace is with the President and the Senate. The dangerous powers are well divided.
Is it in pursuance of the Constitution for the Government at Washington to refrain for years from proclaiming World War II ended in law when it was ended in fact in 1945? And to continue spending -- carefully restricted by the Constitution to "the common defense and general welfare of the United States," not of any other nation or of the world at large -- on nations which ceased to be our allies in 1945, and on nations which never were our allies?
Only powers of Congress respecting money
The Constitution gives power to Congress (1) "to coin money" and (2) "to borrow money on the credit of the United States" -- but not to lend money, or to give it away, either at home or abroad. What is expressed in a Constitution is equivalent to a prohibition of what is not expressed. The powers over money mentioned are the only ones that the Constitutional Convention brought in from the world of inherent powers and fixed in the Fundamental Law.
Those specifications reject the theory of unlimited powers exercised by European monarchs in 1787. Not long before that, Louis XIV had kept Europe embroiled in wars by loans or grants of money to belligerent rulers. Did the Constitutional Convention, at least one member of which was born in his reign, intend to give that power to Congress? It did not say so. The power was therefore withheld by the people from their servants.
The United States is now, without authority -- under a denial of authority -- lending or granting money to Europe, and to the rest of the world. Postwar programs, 22 in number, for aiding foreign nations, in addition to the military aid program, have piled on top of the costs (330 billion) of War II $30,757,000,000, according to Senator Byrd of Virginia, speaking in September, 1949.
Thus, the limitations of the Constitution become what Madison gave warning of -- "paper barriers."
What the Supreme Court really does
Nor does the Supreme Court "veto" an act of Congress when, in a case brought by an American claiming that his constitutional protection has been written off by the Legislative Department, the Court finds the complaint well founded and forbids the enforcement of the act.
This kind of constitutional illiteracy, which is chargeable against the schools, colleges, and universities, and is therefore all pervasive, exhibited itself in the Department of Justice of the United States when, after the failure of the President in 1937 to "pack" the Supreme Court, time was taken by the Attorney General to write a book defending the President's action, The Struggle for Judicial Supremacy.
The attempt to "pack" the Federal Courts
The three major acts of Congress for the "New Deal" of President Franklin D. Roosevelt having been held repugnant to the Constitution by the Supreme Court, the President determined to remake the Judiciary of the Constitution, with special reference to the Supreme Bench.
The purpose was clothed in the suavest language, but the robe had a stiletto under it. One of the leaders of the countrywide organization which was formed to urge Congress to resist the move gave it the name which "stuck" -- a plan to "pack" the Supreme Court of the American people. That word soon became the sole designation of the President's scheme.
The National Industrial Recovery Act, to supervise and control industry, was held (295 U. S. 495) invalid in May, 1935.
The Agricultural Adjustment Act, for the support of agriculture, was held (297 U. S. 1) unconstitutional in January, 1936.
And the Bituminous Coal Act, to supervise that industry and favor miners, was held (298 U. S. 238) to be in conflict with the Fundamental Law in May, 1936.
The "plan" kept secret from the people
It was in 1936 that President Roosevelt was elected the second time. But in the campaign of that year there was no whisper of the determination to "pack" the Supreme Court and the lower Federal courts. So, when the plan was revealed on February 5 following the November election, there was an instinctive outburst of protest. For the American senses his constitutional inheritance, even though his expensive schools have taught him next to nothing about it.
On February 5, 1937, the President sent a bland message to Congress, with a bill already drawn, providing that a new justice or judge be appointed by the President when an incumbent had reached the "retirement age" of 70 and failed to retire. A concurrent bill, which took effect on the first of the following month, gave to the justices of the Supreme Court the privilege of retiring at 70 on full pay, a privilege given to judges of the lower Federal courts in 1911. Of course, Congress could not fix a "retirement age," as the Constitution gives tenure "during good behavior."
The mathematics of the packing plan
At the time of the attempt at packing, there were on the Supreme Court 6 justices of the age of 70 or over who seemed content with their situations and their interesting work. To the 9 already sitting, the bill would permit the addition of 6 more. With those 6 and the two or three more known to be favorable to the "New Deal," the President would have a majority of the 15.
In what public opinion called "a great state paper," the Judicial Committee of the Senate denounced the bill as an "utterly dangerous abandonment of constitutional principle," which "would subjugate the courts to the will of Congress and the President."
"It is a measure which should be so emphatically rejected," reported the Committee to the Senate, "that its parallel never again will be presented to the free representatives of the free people of America."
It had no chance of passage. Democrats as well as Republicans opposed it. But as the "New Deal" has held control for thirteen years since then, every justice of that time save one (who retired) has passed away, and all the justices of the Supreme Court are now appointees of Presidents Roosevelt and Truman. The majority of the Court have long been appointees of the "New Deal."
In 1933 President Roosevelt wrote Looking Forward, in which he said of somebody's suggestion for increasing the size of the courts that "such a so-called remedy [for congestion] merely aggravates the disease."
Department of Justice joined against Judiciary
Of course, there is no such thing as the "judicial supremacy" dealt with in the Attorney General's book The Struggle for Judicial Supremacy. It is the supremacy of the Constitution that the courts apply. The conception, expressed by many other book builders, that the Supreme Court has been in a "struggle" to raise itself over the Executive and the Congress would be dishonest were it not for the constitutional illiteracy from which it springs. The only "supremacy" involved is that of the Fundamental Law.
And when Congress, in taking for public use the property of a canal company, provided that nothing should be allowed to it in compensation for the franchise to collect tolls (without which none of the property would have had value to it), the Supreme Court was not promoting its own "supremacy" when it held the act of Congress void for withholding "just compensation" for property taken for public use." It was simply observing the oaths of the justices and of the members of Congress "to support this Constitution."
Later the President appointed the Attorney General to the Supreme Court.
Law schools blamable for lack of learning on Constitution
Some years ago the American Bar Association made a survey of the law schools in 25 of the leading universities and found that only 8 of them made a knowledge of the Constitution a requisite to a degree. Hence, probably, the silence of the Bar while the alien idea of Communism and the alien idea of Socialism were introduced in government in violation of the Constitution.
Men and women who will be living in later generations through children and grandchildren and their descendants owe it to their blood, if they do not feel that they owe it now to their country, to take this subject of constitutional education to heart and change existing conditions.
And why should the President of the American Federation of Labor want an amendment to the Constitution which would leave Congress with imperial powers? For, notwithstanding the repeated complaints of labor leaders and their political lackeys that the Judiciary of the Constitution is prejudiced against labor, a long line of favorable decisions is found in the reports. Both State and Federal courts have upheld laws without number in the interest of workers.
Forty years before, a man of alien birth sponsored the National Labor Relations Act of Congress for "labor's gains," an act of Michigan was upheld requiring the employer to protect the employee from machinery and other perils.
Courts of Constitution never unfriendly to labor
In 1898 the Supreme Court of the United States (169 U. S. 366) upheld a law of the Territory of Utah limiting the hours in mines and smelters. That was 39 years before President Roosevelt undertook to set up a Supreme Court of his own, which would be partial to the laborers voting for him. Numberless laws limiting the length of the day for men, women, and children have been upheld by the courts through the years.
In 1908 the Supreme Court of the United States held (208 U. S. 412) valid -- not in conflict with the National Constitution -- a law of Oregon limiting the working hours of the day for women.
In 1913 the Supreme Court of the United States sustained (231 U. S. 320) an act of Illinois (which the Supreme Court of that State had upheld) limiting the age of the worker, a measure to protect youth.
In 1917 the Supreme Court of the United States sustained (243 U. S. 332) an act of Congress limiting the hours of railway trainmen.
In 1937 the minimum wage law of Washington of 1913 for women was sustained (300 U. S. 379) by the Supreme Court of the United States.
Judicial decision completely refuting charges of labor leaders
But the case affording the most striking refutation of the charge of labor leaders and the public officials was decided (281 U. S. 548) in May, 1930, by the Supreme Court of the United States. In disobedience to the often-expressed wishes of labor leaders that labor organizations do not seek redress in the courts of wrongs which they feel that they suffer (probably because that would prevent the leaders from taking the grievances to the White House or before committees of Congress), the Brotherhood of Railway and Steamship Clerks brought a suit in the United States District Court asking an injunction to prevent the Texas and New Orleans Railroad Company from intimidating the members of the Brotherhood and coercing them into an association of clerical employees of its own.
The trial court granted an injunction to the workers.
The railway company appealed to the United States Circuit Court of Appeals. That court of three judges sustained the trial court.
The railroad company went to the Supreme Court of the United States and again, and finally, the employees were held in right to an injunction. The employer was permanently enjoined from preventing employees from "freely designating their representatives by collective action" for dealing with the employer, as required by the Railway Labor Act of 1926, seven years before the Roosevelt regime.
The employer's act of contumacy
Notwithstanding that, the employer recognized its own association of clerical employees in the designation of representatives. In contempt proceedings brought by employees, the District Court of the United States required the defendant and its officers to disestablish its association of clerical employees and to reinstate the Brotherhood as the representative of clerical workers. Further, the employer was required to restore to service and privilege certain employees who had been discharged by it during the controversy.
What would the author of Big Business on the Bench say to that record?
Was not that a better way to try "a labor case" than to rush to Washington and be photographed with the President, and have a "hearing" for weeks or months before a Congressional Committee, with flashlight pictures without end and press conferences in large number? Employees bargained collectively long before N.L.R.A
From the foregoing it appears that "collective bargaining" by employees was secured to them by act of Congress 9 years before the alien National Labor Relations Act.
As a matter of historic fact, the locomotive engineers and firemen made a collective bargaining agreement with the Atchison, Topeka and Santa Fe Railroad Company in 1885, or 58 years before the "New Deal" took over the United States for party purposes. During the late '80's and early '90's the Shop Craft Unions were formed on that railroad. The Maintenance of Way employees, the Telegraphers, the Switch men and the Clerks were organized at about the same time and dealt with their employer collectively.
Employees generally had collective bargaining
What has been said of the company mentioned is probably true of all the other important railroad companies in the United States.
Moreover, legislation favorable to the worker began about half a century before the National Labor Relations Act, which has been called "labor's Magna Carta." In 1886, the year before the Interstate Commerce Act was passed, a bill for compulsory arbitration of railway disputes passed both Houses of Congress; but it was vetoed by President Cleveland because it provided fine and imprisonment for failure to obey the award, which was to be binding on both parties, without right to appeal and review. In 1888 a law for voluntary arbitration was enacted.
A look into the history of other large employers would doubtless show the rise of collective bargaining by labor organizations similar to its growth on the railroads.
Rights of workers and employers denied by NLRA
"Labor's gains" during the administration of Franklin D. Roosevelt were built on the closed shop, a denial of the liberty of man to work at will, and the denial of free speech to the employer, who was prevented from even discussing with his employees a subject raised by them.
Propaganda has been so stiff since 1933 that the multitudes have been led to believe that there never were any "labor's gains" before.
What this subject of employment needs, is to be taken out of Government, in which it has no proper place. In view of the paramount interest of the public, which requires that production, transportation, communication and other essential services do not cease, and in view of the damages suffered by employer and employee from strikes, the legal obligations of one man or party to another present justiciable questions, which should be heard and decided by the courts of justice established by constitutions. There the "leader" will have no chance to parade and unfold his "philosophy" on compulsory membership, on the check-off, on the giving of no report even to the donors of moneys received, and on accounting to nobody for expenditures.
Courts could settle labor controversies nicely
In court the inquiry would be, not into "social science" or any other scrambled subject, nor into the right of any worker to join a union or stay out of it; the inquiry would bear on whether the property can pay what the employees demand and at the same time keep in condition to meet its obligations in service to the public now and in the future, while giving a reasonable return to those who furnish the money for the industry -- in these times $5,000 or more to keep each employee in a place to work at a machine.
Those are the "rights" involved, not the miscalled "right to strike" -- which cannot exist in any plant of any size, because a strike of any magnitude damages the public and individuals, and no person or group has a 'right' to do damage.
"The condition of any particular business and of its owner must also come into question." Pius XII, 1931.
Of course, a worker may quit employment
The mere right of a worker to leave employment -- if he is not under contract to stay with it -- is not in point. To be sure, he may leave. Many may leave. But when he leaves, not for the sole purpose of severing the relation with the employer, but to do damage to the employer and the public, that may become, when done by many in concert, a conspiracy denounced by law. The Criminal Code of the United States (Title 18, sec. 51) provides:
"If two or more persons conspire to injure, oppress, threaten or intimidate any citizen in the free exercise and enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same, . . . they shall be fined not more than $5,000 and imprisoned not more than ten years, and shall, moreover, be thereafter ineligible to any office or place of honor, profit or trust created by the Constitution or laws of the United States."
That provision was enacted on March 4, 1909. It looks as though it would be highly useful to the Attorney General in time of a riotous strike.
Concerted quitting to bring the employer to his knees and cause him to pay more whether in justice he should, is contrary to the provision of the Criminal Code quoted. Even a purpose not in itself unlawful cannot be carried out by unlawful or criminal means, wrote Chief Justice Fuller (148 U. S. 197) in 1893.
All the liberties that the American enjoys and prizes, he must use with due respect to the rights and liberties of others. The rights of the employer and the rights of the public to continued production and peace have been disregarded too long.
Strikes in war were conspiracies
Most of the strikes during World War II were prima facie conspiracies against owners of property, against the interest of the public in unceasing production, against social order, and too often against the safety of persons. As they gave "aid and comfort" to our enemies in war, they fell within the definition of treason in the Constitution.
The National Director of the Bureau of Mines reported to the President in January, 1950, that for ten months of 1949, in comparison with the like time in the preceding year, the shipments of hot air furnaces burning solid fuels dropped 47 per cent. Does that indicate damage to innocent manufacturers from strikes of miners of coal?
It is of common knowledge that for several years the use of oils for fuel has been on the increase, owing in part to convenience in transportation and to easier firing, and perhaps to lower costs. But the figures shown and those following are too abrupt to mark only the long growth of a preference of oils for fuel. They indicate clearly that manufacturers and owners of large office buildings and others are in active construction of defenses against strikes of miners of coal.
During the time mentioned, sales at factory of mechanical coal stokers dropped 60 per cent. Did the conspiracy to stop mining of coal do damage there, and to an interest in no way involved in the dispute?
In 1947 coal produced 50 per cent of the heat content in the total energy used in the United States.
In 1948 it produced 46.5 per cent, and in 1949 it fell to (estimated) 38.5 per cent. Other fuels rose in use correspondingly.
In the report of the Bureau of Mines there were other strongly probative facts showing damage to railroads, to the traveling and shipping public, and to the economy of the country in general.
Is destruction of property not preventable?
Are the owners of properties in coal to be destroyed in helplessness? Does the "Liberty under Law" which was chiseled on the front of the building of the Supreme Court at Washington mean anything substantial, or is it merely an expression of emotion?
To be sure, labor must organize and bargain collectively through its chosen agents. The notion that an individual worker can go to United States Steel or to General Motors, or to any other great employer, and make a contract of employment to his best advantage is in disregard of practices by the employer which made the union necessary. The union has been highly beneficial to both employer and employee, and it could be more so with better leadership on both sides.
It is a maxim of the law that there is no wrong without a remedy. The trouble has been that the Political Department of Government, instead of the Judicial, has been dealing with the subject. Only the courts can administer remedies for wrongs.
A dispatch from London through the United Press in October, 1949, said that the Government of England was considering the need of a court to adjudicate cases in the field of employment.
The Members of Congress and the members of the legislatures of the States (and many judges) who hasten, whenever the subject comes up, to declare for the right to strike do not look beyond the political aspects of the subject, of which it should have none. And the whole trouble is that by politicians the subject has been kept political whereas, because of the widely extended effect of strikes, the irreconcilable disputes are justiciable and are therefore for the courts.
A historic decision in point
When the American Railroad Union, an organization of trainmen, called a strike on several railroads hauling Pullman sleeping cars and announced that it would stop every railroad in the country if necessary, the Attorney General of the United States brought a suit for injunction under the Post Office Clause and the Commerce Clause to restrain the strikers from obstructing commerce and the mails. An injunction was granted and the trial court was upheld (158 U. S. 564) in May, 1895. There was no dissent from the opinion, by Justice Brewer, that "the strong arm of government may brush away all obstructions."
According to that decision, seizures from their owners by the Government of railroads, mines, and other properties in time of strikes (48 by President Roosevelt and 28 by President Truman), instead of protection of the owners and the public in the operation of the properties, were unlawful.[2] Those whose combinations or conspiracies interrupted commerce should have been brought to heel.
2. Even in a time of war, property not in a zone of combat could not be seized for use by government. Where the courts are open in this country, rights of "life, liberty, and property" are adjudicated there. That was held (4 Wallace, 2) in a great case arising out of the Civil War. A citizen of Indiana, not in the military service, was tried (1864) by court-martial and sentenced to death. The accused should have been tried in a civil court, the tribunals of both Nation and State being open, and Indiana not being in the theater of war.
The courts were open to Presidents Roosevelt and Truman to stop strikes instead of seizing property illegally.
In November, 1946, when the President was put in a corner by a threat from the head of a union that the people would have no coal for the winter, the Department of Justice demonstrated that it is perfectly easy to stop that kind of performance.
Courts can determine fair pay to workers
Since 1906 the Interstate Commerce Commission has prescribed, after hearing both sides, reasonable rates for railroads. State commissions have long heard and decided controversies over rates of gas companies, electric light companies, street-car companies, telephone companies, and others; and their work has come to be fairly satisfactory to all.
The decisions of Federal and State commissions and of courts, in cases of disputes between labor and industry, would be quite satisfactory to the parties, including the public, if the President and the Senate and the governors would earnestly strive to appoint to such positions men of the highest legal learning and experience, instead of "lame ducks" -- men put out of office by the people at the polls -- or other political derelicts. The appointing powers have not been faithful to the public interest in this relation, which is the chief interest.
But no tribunal could do so badly as the mediation boards and other political devices have done in trying "labor" cases and maintaining confusion throughout the country.
Competent men can get justice done
The proposition that the appointment of competent men to judicial and quasi-judicial posts would cure most of our flagrant evils was demonstrated in late 1949 and January, 1950, by trials in two United States District Courts, in which the defendants were charged with acts of disloyalty. Judges on the Bench competent to conduct a trial correctly, competent United States Attorneys who knew how to prepare and present evidence, and competent and courageous men and women sitting as jurors, evoked the admiration of the people.
It can be done.
The service of the juries is specially emphasized, because for three or four decades advocates of the abolition of the trial jury have appeared in the schools and the Press insisting that the institution is "outmoded" and causes a "lag" in the administration of justice, to borrow the words of those jargonists.
But it is now clear that the jury never met the needs of social order better than it can meet them today. The jury is still "the country," the field of last resort. In the old pleading of the common law the defendant answered "that he is not guilty as in manner and form it hath been complained against him: And of this he puts himself upon the country." This right to put the decision to the country, to the Ultimate Power, the people, must never be parted with.
History gives us many cases in which "the country" refused to convict when directed to do so by a judge servile to the crown. "The country" in London repeatedly refused to convict, when ordered to do so by the judge, the founder of Pennsylvania of violation of the "law" in the exercise of his religious belief.
It is too bad -- it is perilous -- that we are not taught history. The Constitution was written by historians who worked to prevent in America the follies in governments past.
Controversies between employer and employee respecting compensation fair to both parties and the public must be taken out of the White House, out of Congress, and out of politics, and submitted to existing courts or to a special tribunal, which may become expert.
Attack of President on Supreme Court a result
The attempt of the President in 1937 to pack the Supreme Court was not a sudden outburst of alienism. It had been a long time in coming. The spadework, using one of the favorite expressions of the miners and sappers, had been done by many others.
As big a thing as the great American Republic could not have been put on the skids without years of steady work. Beginning with 1933, Socialism (control by government of production, distribution, and exchange), Fascism[3](Socialism by corporations), and Communism (confiscation by government of private property through graduated taxes and by abolition of inheritance), all forbidden by the Constitution because in no way authorized, and in many ways condemned by implication, spread with the rapidity of a fire on the prairie.
But the seizure by them, the Socialists, the Fascists and the Communists, of the liberty and property of Americans began before 1933.
3. The meaning of Fascism, a word much used in our country with evidently little understanding, may best be made clear by showing the corporations of government set up by Mussolini in Italy to take over all the activities of men.
The word Fascism indicates nothing respecting the operations of the government. It comes from "fasces," the name of the bundle of rods surrounding an axe and carried by the Roman lictor before the chief magistrate as a symbol of authority. Its being brought in by Mussolini was one more of those puerile attempts mentioned by Bryce to bring back somewhat of the Roman Empire. Mussolini set up 22 corporations. The first was the Corporation for Cereals, made up of designated numbers of employers and workers, and embracing growers, threshers, millers, bakers, commission and co-operative organizations. All the corporations were similarly divided. They were the Corporation for Fruits, Vegetables and Flowers; for Viticulture and Wine; for Sugar-beet and Sugar; for Edible Oil; for Livestock and Fisheries; for Timber; for Textiles; for Metals; for Chemical Trades; for Clothing Trades; for Printing, Publishing, and Paper; for Building Tools and Housing; for Water, Gas, and Electricity; for Mining and Quarrying; for Glassware; for Arts and Professions; for Inland Transportation; for Sea and Air Transportation; for Hotel Industry; for Credit and Insurance; for Entertainments. That defines Fascism. It is Socialism carried out by governmental corporations. It is at violence to our Constitution, but it has been coming for some years, and is now pretty well "dug in."
The next notable move in point of time against the constitutional structure of our Government was begun by Congress in the early 1900's.
For three decades before President Franklin D. Roosevelt attempted to set up a Supreme Court to suit his plans, Congress had been nagging the Judiciary from time to time with bills to "curb" it. Congress seemed to feel that it was an affront to its dignity and learning for the Supreme Court -- when an American challenged a law as invalid because it would deprive him of property "for public use without just compensation," or for the reason that it otherwise disrespected constitutional boundaries set for his protection -- to declare the act unconstitutional.
Lack of scholarship caused congressional attack on Judiciary
Members passing as constitutional scholars introduced bills to forbid that an act of Congress be held unconstitutional unless by a vote of 6 or 7 of the 9 justices, or by all of them. Fortunately, Congress had sound members enough to prevent the enactment of any bill of that kind into law. But the pendency of those bills from time to time and the discussion of them in Congress and in the Press operated to discredit the Judiciary in public estimation.
The proposition that an act of Congress should not be held invalid by (for illustration) a vote of 6 of the 9 justices of the Supreme Court means that the minority should decide the case. Our whole constitutional system operates by majority except in nine specified instances.
Majority decisions of courts constitutional
By the ancient rule of interpretation those specifications for more than a majority exclude in all other instances a higher vote. The Constitution having thus left the majority vote to the Supreme Court, it can be changed, not by Congress, but only by amendment.
"All provisions which require more than the majority of any body to its resolutions," wrote Hamilton in The Federalist, "have a direct tendency to embarrass the operations of the government, and an indirect one to subject the sense of the majority to that of the minority."
When Article III of the Constitution declared that "the judicial Power of the United States shall be vested in one Supreme Court," etc., it described the court of that day in England and in America, which decided cases by a vote of the majority; that court became the tribunal of the Constitution.
Men in schools aided in attack on Judiciary
While that exhibition of superficiality was in progress in the Congress, the professors in the universities, and in many schools of law, wrote books in assault of the Supreme Court. Just what the sons and daughters of the supporters of the institutions of learning were exposed to in the way of contagion may be best understood from a few titles of the books which they published in the season of hysteria:
Our Despotic Courts
Is the Supreme Court Too Supreme?
Appeal from the Supreme Court
Impeaching Laws of Congress
Government by Judges
Judicial Censorship of Legislation
Big Business on the Bench
Our Judicial Oligarchy
Judicial Legislation
Aggression of Federal Courts
The Great Usurpation
Those books showed the authors to be destitute of knowledge of constitutional history and principle. For example, The Great Usurpation asserted that the Supreme Court usurped power when it first held a challenged act of Congress invalid for conflict with a provision of the Constitution.
Hamilton made clear the function of constitutional courts
That the Court possessed the power was shown by Hamilton, a member of the Constitutional Convention, in No. 78 of The Federalist, written in 1788 and addressed "to the people of the State of New York," in answer to objections raised against the proposed new form of government in the convention having ratification before it:
"The Constitution defines the extent of the powers of the General Government. If the General Legislature [Congress] should at any time over leap their limits, the Judicial Department is a constitutional check. If the United States go beyond their powers, if they make a law which the Constitution does not authorize, it is void; and the judicial power, the national judges, who, to secure their impartiality, are to be made independent, will declare it to be void.
"On the other hand, if the States go beyond their limits, if they make a law which is a usurpation upon the Federal [National] Government, the law is void; and upright, independent judges will declare it to be so."
Foreign scholars saw importance of constitutional Judiciary
Bryce, Von Holst, and other foreign writers on our Government saw clearly our judicial principle.[1] Von Holst said that the Judiciary is the keystone of the American arch. Enemies of our liberty have been chipping at the keystone for a third of a century.
Moreover, in 1922, the leaders of organized labor, in concert with the critical spirit of Congress, sent a questionnaire to candidates for Congress asking whether they believed that five men on the Supreme Court "who had not been elected by the people, and who cannot be rejected by the people, should be permitted to nullify the will of the people as expressed by their representatives in Congress and the Executive in the White House." That was the jargon of the books and current magazines.
Second, would they "work and vote for a constitutional amendment restricting the power of the Supreme Court to nullify acts of Congress?"
Third, would they vote for a clear-cut statute forbidding the issuing of injunctions in industrial (meaning labor) disputes?
1. The Supreme Court of Canada, under the North America Act of the British Parliament of 1867, which followed our Constitution closely, passes on the constitutionality of an act of the Dominion Parliament and upon an act of the legislative body of the Province or State.
So, under the Constitution of Australia (1900), more closely following ours, the High Court, when the question is raised by a litigant, determines whether the law of the Commonwealth or the act of a State (not province in Australia) conforms to the Constitution.
Leaders of labor organizations supported attacks on Judiciary
On June 7, 1935, following the decision of the Supreme Court holding unconstitutional the National Industrial Recovery Act of Congress, a dispatch from Washington said that the President of the American Federation of Labor, "in a speech over an NBC network," voiced "organized labor's determination to fight for a constitutional amendment forbidding the Supreme Court to invalidate an act of Congress."
It has just been seen from Hamilton, a great lawyer who was in the Constitutional Convention, and from Oliver Ellsworth and James Wilson, also members of the Convention, that it is the Constitution, not the Court, that "invalidates" (a loose word of the unscholarly schoolmen) an act of Congress. The act is not invalidated by the Court, because it has no validity when not made "in pursuance" of the Constitution. "The Supreme Law of the Land," as defined by Article VI of the Constitution, consists of "this Constitution, and the laws of the United States [Acts of Congress] which shall be made in pursuance there of," and treaties.
What makes an Act of Congress unconstitutional?
If Congress does not pursue the lines laid down for it in the Constitution, its legislation is a nullity. The Supreme Court does not "nullify" it, as so many law-school professors and others classed as educators have taught several generations of youth, to the great damage of the mind of the Republic.
On the provision of the Constitution just before quoted, Alexander Hamilton, in No. 83 of The Federalist, made this comment (italics his):
"It will not, I presume, have escaped observation that it expressly confines the supremacy to laws made pursuant to the Constitution."
Did the United States have no Constitution, the Nation would nevertheless possess all the powers essential to its existence -- to raise an army and a navy; to appoint ambassadors; to make treaties; to issue money; to levy taxes, and to take other steps found necessary to its welfare as a Nation among nations.
But when a Constitution is written and adopted, it is for the purpose of preventing those inherent powers from being exercised at large and at will. The powers enumerated in the Constitution must be exerted as it directs.
It was said by the Supreme Court in 1936 (299 U. S. 304) that the United States has inherent powers of sovereignty in foreign relations external to the Constitution; and so it could forbid its citizens to ship arms to South American countries in conflict.
But it was unnecessary for the Court to drag in a dialectical proposition. The Commerce Clause, empowering Congress "to regulate Commerce with foreign Nations," was authority enough to control the shipment of arms.
"Inherent power" in the President or the Congress over matters with which the States severally cannot deal has always been definitely rejected by the Supreme Court, it declared (298 U. S. 238) as late as 1936. In the foregoing case an opinion by Justice Story (1 Wheaton 304), written 120 years before, was quoted to show that the General Government "can claim no powers which are not granted to it by the Constitution; and the powers actually granted must be such as are expressly given, or given by necessary implication."
The Constitution modifying inherent powers
But when, for illustration, the inherent power to make war was brought under the Constitution and transferred from the King to the Parliament -- or, so to say, given to Congress instead of the Executive -- the intention was to restrict fundamentally international practices. The declaring of war and the raising of forces and money are with the Congress. The command of the forces is with the President. The treaty of peace is with the President and the Senate. The dangerous powers are well divided.
Is it in pursuance of the Constitution for the Government at Washington to refrain for years from proclaiming World War II ended in law when it was ended in fact in 1945? And to continue spending -- carefully restricted by the Constitution to "the common defense and general welfare of the United States," not of any other nation or of the world at large -- on nations which ceased to be our allies in 1945, and on nations which never were our allies?
Only powers of Congress respecting money
The Constitution gives power to Congress (1) "to coin money" and (2) "to borrow money on the credit of the United States" -- but not to lend money, or to give it away, either at home or abroad. What is expressed in a Constitution is equivalent to a prohibition of what is not expressed. The powers over money mentioned are the only ones that the Constitutional Convention brought in from the world of inherent powers and fixed in the Fundamental Law.
Those specifications reject the theory of unlimited powers exercised by European monarchs in 1787. Not long before that, Louis XIV had kept Europe embroiled in wars by loans or grants of money to belligerent rulers. Did the Constitutional Convention, at least one member of which was born in his reign, intend to give that power to Congress? It did not say so. The power was therefore withheld by the people from their servants.
The United States is now, without authority -- under a denial of authority -- lending or granting money to Europe, and to the rest of the world. Postwar programs, 22 in number, for aiding foreign nations, in addition to the military aid program, have piled on top of the costs (330 billion) of War II $30,757,000,000, according to Senator Byrd of Virginia, speaking in September, 1949.
Thus, the limitations of the Constitution become what Madison gave warning of -- "paper barriers."
What the Supreme Court really does
Nor does the Supreme Court "veto" an act of Congress when, in a case brought by an American claiming that his constitutional protection has been written off by the Legislative Department, the Court finds the complaint well founded and forbids the enforcement of the act.
This kind of constitutional illiteracy, which is chargeable against the schools, colleges, and universities, and is therefore all pervasive, exhibited itself in the Department of Justice of the United States when, after the failure of the President in 1937 to "pack" the Supreme Court, time was taken by the Attorney General to write a book defending the President's action, The Struggle for Judicial Supremacy.
The attempt to "pack" the Federal Courts
The three major acts of Congress for the "New Deal" of President Franklin D. Roosevelt having been held repugnant to the Constitution by the Supreme Court, the President determined to remake the Judiciary of the Constitution, with special reference to the Supreme Bench.
The purpose was clothed in the suavest language, but the robe had a stiletto under it. One of the leaders of the countrywide organization which was formed to urge Congress to resist the move gave it the name which "stuck" -- a plan to "pack" the Supreme Court of the American people. That word soon became the sole designation of the President's scheme.
The National Industrial Recovery Act, to supervise and control industry, was held (295 U. S. 495) invalid in May, 1935.
The Agricultural Adjustment Act, for the support of agriculture, was held (297 U. S. 1) unconstitutional in January, 1936.
And the Bituminous Coal Act, to supervise that industry and favor miners, was held (298 U. S. 238) to be in conflict with the Fundamental Law in May, 1936.
The "plan" kept secret from the people
It was in 1936 that President Roosevelt was elected the second time. But in the campaign of that year there was no whisper of the determination to "pack" the Supreme Court and the lower Federal courts. So, when the plan was revealed on February 5 following the November election, there was an instinctive outburst of protest. For the American senses his constitutional inheritance, even though his expensive schools have taught him next to nothing about it.
The mathematics of the packing plan
At the time of the attempt at packing, there were on the Supreme Court 6 justices of the age of 70 or over who seemed content with their situations and their interesting work. To the 9 already sitting, the bill would permit the addition of 6 more. With those 6 and the two or three more known to be favorable to the "New Deal," the President would have a majority of the 15.
In what public opinion called "a great state paper," the Judicial Committee of the Senate denounced the bill as an "utterly dangerous abandonment of constitutional principle," which "would subjugate the courts to the will of Congress and the President."
"It is a measure which should be so emphatically rejected," reported the Committee to the Senate, "that its parallel never again will be presented to the free representatives of the free people of America."
It had no chance of passage. Democrats as well as Republicans opposed it. But as the "New Deal" has held control for thirteen years since then, every justice of that time save one (who retired) has passed away, and all the justices of the Supreme Court are now appointees of Presidents Roosevelt and Truman. The majority of the Court have long been appointees of the "New Deal."
In 1933 President Roosevelt wrote Looking Forward, in which he said of somebody's suggestion for increasing the size of the courts that "such a so-called remedy [for congestion] merely aggravates the disease."
Department of Justice joined against Judiciary
Of course, there is no such thing as the "judicial supremacy" dealt with in the Attorney General's book The Struggle for Judicial Supremacy. It is the supremacy of the Constitution that the courts apply. The conception, expressed by many other book builders, that the Supreme Court has been in a "struggle" to raise itself over the Executive and the Congress would be dishonest were it not for the constitutional illiteracy from which it springs. The only "supremacy" involved is that of the Fundamental Law.
And when Congress, in taking for public use the property of a canal company, provided that nothing should be allowed to it in compensation for the franchise to collect tolls (without which none of the property would have had value to it), the Supreme Court was not promoting its own "supremacy" when it held the act of Congress void for withholding "just compensation" for property taken for public use." It was simply observing the oaths of the justices and of the members of Congress "to support this Constitution."
Later the President appointed the Attorney General to the Supreme Court.
Law schools blamable for lack of learning on Constitution
Some years ago the American Bar Association made a survey of the law schools in 25 of the leading universities and found that only 8 of them made a knowledge of the Constitution a requisite to a degree. Hence, probably, the silence of the Bar while the alien idea of Communism and the alien idea of Socialism were introduced in government in violation of the Constitution.
And why should the President of the American Federation of Labor want an amendment to the Constitution which would leave Congress with imperial powers? For, notwithstanding the repeated complaints of labor leaders and their political lackeys that the Judiciary of the Constitution is prejudiced against labor, a long line of favorable decisions is found in the reports. Both State and Federal courts have upheld laws without number in the interest of workers.
Forty years before, a man of alien birth sponsored the National Labor Relations Act of Congress for "labor's gains," an act of Michigan was upheld requiring the employer to protect the employee from machinery and other perils.
Courts of Constitution never unfriendly to labor
In 1898 the Supreme Court of the United States (169 U. S. 366) upheld a law of the Territory of Utah limiting the hours in mines and smelters. That was 39 years before President Roosevelt undertook to set up a Supreme Court of his own, which would be partial to the laborers voting for him. Numberless laws limiting the length of the day for men, women, and children have been upheld by the courts through the years.
In 1908 the Supreme Court of the United States held (208 U. S. 412) valid -- not in conflict with the National Constitution -- a law of Oregon limiting the working hours of the day for women.
In 1913 the Supreme Court of the United States sustained (231 U. S. 320) an act of Illinois (which the Supreme Court of that State had upheld) limiting the age of the worker, a measure to protect youth.
In 1917 the Supreme Court of the United States sustained (243 U. S. 332) an act of Congress limiting the hours of railway trainmen.
In 1937 the minimum wage law of Washington of 1913 for women was sustained (300 U. S. 379) by the Supreme Court of the United States.
Judicial decision completely refuting charges of labor leaders
But the case affording the most striking refutation of the charge of labor leaders and the public officials was decided (281 U. S. 548) in May, 1930, by the Supreme Court of the United States. In disobedience to the often-expressed wishes of labor leaders that labor organizations do not seek redress in the courts of wrongs which they feel that they suffer (probably because that would prevent the leaders from taking the grievances to the White House or before committees of Congress), the Brotherhood of Railway and Steamship Clerks brought a suit in the United States District Court asking an injunction to prevent the Texas and New Orleans Railroad Company from intimidating the members of the Brotherhood and coercing them into an association of clerical employees of its own.
The trial court granted an injunction to the workers.
The railway company appealed to the United States Circuit Court of Appeals. That court of three judges sustained the trial court.
The railroad company went to the Supreme Court of the United States and again, and finally, the employees were held in right to an injunction. The employer was permanently enjoined from preventing employees from "freely designating their representatives by collective action" for dealing with the employer, as required by the Railway Labor Act of 1926, seven years before the Roosevelt regime.
The employer's act of contumacy
Notwithstanding that, the employer recognized its own association of clerical employees in the designation of representatives. In contempt proceedings brought by employees, the District Court of the United States required the defendant and its officers to disestablish its association of clerical employees and to reinstate the Brotherhood as the representative of clerical workers. Further, the employer was required to restore to service and privilege certain employees who had been discharged by it during the controversy.
What would the author of Big Business on the Bench say to that record?
Was not that a better way to try "a labor case" than to rush to Washington and be photographed with the President, and have a "hearing" for weeks or months before a Congressional Committee, with flashlight pictures without end and press conferences in large number? Employees bargained collectively long before N.L.R.A
From the foregoing it appears that "collective bargaining" by employees was secured to them by act of Congress 9 years before the alien National Labor Relations Act.
As a matter of historic fact, the locomotive engineers and firemen made a collective bargaining agreement with the Atchison, Topeka and Santa Fe Railroad Company in 1885, or 58 years before the "New Deal" took over the United States for party purposes. During the late '80's and early '90's the Shop Craft Unions were formed on that railroad. The Maintenance of Way employees, the Telegraphers, the Switch men and the Clerks were organized at about the same time and dealt with their employer collectively.
Employees generally had collective bargaining
What has been said of the company mentioned is probably true of all the other important railroad companies in the United States.
Moreover, legislation favorable to the worker began about half a century before the National Labor Relations Act, which has been called "labor's Magna Carta." In 1886, the year before the Interstate Commerce Act was passed, a bill for compulsory arbitration of railway disputes passed both Houses of Congress; but it was vetoed by President Cleveland because it provided fine and imprisonment for failure to obey the award, which was to be binding on both parties, without right to appeal and review. In 1888 a law for voluntary arbitration was enacted.
A look into the history of other large employers would doubtless show the rise of collective bargaining by labor organizations similar to its growth on the railroads.
Rights of workers and employers denied by NLRA
"Labor's gains" during the administration of Franklin D. Roosevelt were built on the closed shop, a denial of the liberty of man to work at will, and the denial of free speech to the employer, who was prevented from even discussing with his employees a subject raised by them.
Propaganda has been so stiff since 1933 that the multitudes have been led to believe that there never were any "labor's gains" before.
What this subject of employment needs, is to be taken out of Government, in which it has no proper place. In view of the paramount interest of the public, which requires that production, transportation, communication and other essential services do not cease, and in view of the damages suffered by employer and employee from strikes, the legal obligations of one man or party to another present justiciable questions, which should be heard and decided by the courts of justice established by constitutions. There the "leader" will have no chance to parade and unfold his "philosophy" on compulsory membership, on the check-off, on the giving of no report even to the donors of moneys received, and on accounting to nobody for expenditures.
Courts could settle labor controversies nicely
In court the inquiry would be, not into "social science" or any other scrambled subject, nor into the right of any worker to join a union or stay out of it; the inquiry would bear on whether the property can pay what the employees demand and at the same time keep in condition to meet its obligations in service to the public now and in the future, while giving a reasonable return to those who furnish the money for the industry -- in these times $5,000 or more to keep each employee in a place to work at a machine.
Those are the "rights" involved, not the miscalled "right to strike" -- which cannot exist in any plant of any size, because a strike of any magnitude damages the public and individuals, and no person or group has a 'right' to do damage.
"The condition of any particular business and of its owner must also come into question." Pius XII, 1931.
Of course, a worker may quit employment
The mere right of a worker to leave employment -- if he is not under contract to stay with it -- is not in point. To be sure, he may leave. Many may leave. But when he leaves, not for the sole purpose of severing the relation with the employer, but to do damage to the employer and the public, that may become, when done by many in concert, a conspiracy denounced by law. The Criminal Code of the United States (Title 18, sec. 51) provides:
"If two or more persons conspire to injure, oppress, threaten or intimidate any citizen in the free exercise and enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same, . . . they shall be fined not more than $5,000 and imprisoned not more than ten years, and shall, moreover, be thereafter ineligible to any office or place of honor, profit or trust created by the Constitution or laws of the United States."
That provision was enacted on March 4, 1909. It looks as though it would be highly useful to the Attorney General in time of a riotous strike.
Concerted quitting to bring the employer to his knees and cause him to pay more whether in justice he should, is contrary to the provision of the Criminal Code quoted. Even a purpose not in itself unlawful cannot be carried out by unlawful or criminal means, wrote Chief Justice Fuller (148 U. S. 197) in 1893.
All the liberties that the American enjoys and prizes, he must use with due respect to the rights and liberties of others. The rights of the employer and the rights of the public to continued production and peace have been disregarded too long.
Strikes in war were conspiracies
Most of the strikes during World War II were prima facie conspiracies against owners of property, against the interest of the public in unceasing production, against social order, and too often against the safety of persons. As they gave "aid and comfort" to our enemies in war, they fell within the definition of treason in the Constitution.
The National Director of the Bureau of Mines reported to the President in January, 1950, that for ten months of 1949, in comparison with the like time in the preceding year, the shipments of hot air furnaces burning solid fuels dropped 47 per cent. Does that indicate damage to innocent manufacturers from strikes of miners of coal?
It is of common knowledge that for several years the use of oils for fuel has been on the increase, owing in part to convenience in transportation and to easier firing, and perhaps to lower costs. But the figures shown and those following are too abrupt to mark only the long growth of a preference of oils for fuel. They indicate clearly that manufacturers and owners of large office buildings and others are in active construction of defenses against strikes of miners of coal.
During the time mentioned, sales at factory of mechanical coal stokers dropped 60 per cent. Did the conspiracy to stop mining of coal do damage there, and to an interest in no way involved in the dispute?
In 1947 coal produced 50 per cent of the heat content in the total energy used in the United States.
In 1948 it produced 46.5 per cent, and in 1949 it fell to (estimated) 38.5 per cent. Other fuels rose in use correspondingly.
In the report of the Bureau of Mines there were other strongly probative facts showing damage to railroads, to the traveling and shipping public, and to the economy of the country in general.
Is destruction of property not preventable?
Are the owners of properties in coal to be destroyed in helplessness? Does the "Liberty under Law" which was chiseled on the front of the building of the Supreme Court at Washington mean anything substantial, or is it merely an expression of emotion?
To be sure, labor must organize and bargain collectively through its chosen agents. The notion that an individual worker can go to United States Steel or to General Motors, or to any other great employer, and make a contract of employment to his best advantage is in disregard of practices by the employer which made the union necessary. The union has been highly beneficial to both employer and employee, and it could be more so with better leadership on both sides.
It is a maxim of the law that there is no wrong without a remedy. The trouble has been that the Political Department of Government, instead of the Judicial, has been dealing with the subject. Only the courts can administer remedies for wrongs.
A dispatch from London through the United Press in October, 1949, said that the Government of England was considering the need of a court to adjudicate cases in the field of employment.
The Members of Congress and the members of the legislatures of the States (and many judges) who hasten, whenever the subject comes up, to declare for the right to strike do not look beyond the political aspects of the subject, of which it should have none. And the whole trouble is that by politicians the subject has been kept political whereas, because of the widely extended effect of strikes, the irreconcilable disputes are justiciable and are therefore for the courts.
A historic decision in point
When the American Railroad Union, an organization of trainmen, called a strike on several railroads hauling Pullman sleeping cars and announced that it would stop every railroad in the country if necessary, the Attorney General of the United States brought a suit for injunction under the Post Office Clause and the Commerce Clause to restrain the strikers from obstructing commerce and the mails. An injunction was granted and the trial court was upheld (158 U. S. 564) in May, 1895. There was no dissent from the opinion, by Justice Brewer, that "the strong arm of government may brush away all obstructions."
According to that decision, seizures from their owners by the Government of railroads, mines, and other properties in time of strikes (48 by President Roosevelt and 28 by President Truman), instead of protection of the owners and the public in the operation of the properties, were unlawful.[2] Those whose combinations or conspiracies interrupted commerce should have been brought to heel.
2. Even in a time of war, property not in a zone of combat could not be seized for use by government. Where the courts are open in this country, rights of "life, liberty, and property" are adjudicated there. That was held (4 Wallace, 2) in a great case arising out of the Civil War. A citizen of Indiana, not in the military service, was tried (1864) by court-martial and sentenced to death. The accused should have been tried in a civil court, the tribunals of both Nation and State being open, and Indiana not being in the theater of war.
The courts were open to Presidents Roosevelt and Truman to stop strikes instead of seizing property illegally.
Courts can determine fair pay to workers
Since 1906 the Interstate Commerce Commission has prescribed, after hearing both sides, reasonable rates for railroads. State commissions have long heard and decided controversies over rates of gas companies, electric light companies, street-car companies, telephone companies, and others; and their work has come to be fairly satisfactory to all.
But no tribunal could do so badly as the mediation boards and other political devices have done in trying "labor" cases and maintaining confusion throughout the country.
Competent men can get justice done
The proposition that the appointment of competent men to judicial and quasi-judicial posts would cure most of our flagrant evils was demonstrated in late 1949 and January, 1950, by trials in two United States District Courts, in which the defendants were charged with acts of disloyalty. Judges on the Bench competent to conduct a trial correctly, competent United States Attorneys who knew how to prepare and present evidence, and competent and courageous men and women sitting as jurors, evoked the admiration of the people.
It can be done.
The service of the juries is specially emphasized, because for three or four decades advocates of the abolition of the trial jury have appeared in the schools and the Press insisting that the institution is "outmoded" and causes a "lag" in the administration of justice, to borrow the words of those jargonists.
But it is now clear that the jury never met the needs of social order better than it can meet them today. The jury is still "the country," the field of last resort. In the old pleading of the common law the defendant answered "that he is not guilty as in manner and form it hath been complained against him: And of this he puts himself upon the country." This right to put the decision to the country, to the Ultimate Power, the people, must never be parted with.
History gives us many cases in which "the country" refused to convict when directed to do so by a judge servile to the crown. "The country" in London repeatedly refused to convict, when ordered to do so by the judge, the founder of Pennsylvania of violation of the "law" in the exercise of his religious belief.
It is too bad -- it is perilous -- that we are not taught history. The Constitution was written by historians who worked to prevent in America the follies in governments past.
Controversies between employer and employee respecting compensation fair to both parties and the public must be taken out of the White House, out of Congress, and out of politics, and submitted to existing courts or to a special tribunal, which may become expert.
Attack of President on Supreme Court a result
The attempt of the President in 1937 to pack the Supreme Court was not a sudden outburst of alienism. It had been a long time in coming. The spadework, using one of the favorite expressions of the miners and sappers, had been done by many others.
As big a thing as the great American Republic could not have been put on the skids without years of steady work. Beginning with 1933, Socialism (control by government of production, distribution, and exchange), Fascism[3](Socialism by corporations), and Communism (confiscation by government of private property through graduated taxes and by abolition of inheritance), all forbidden by the Constitution because in no way authorized, and in many ways condemned by implication, spread with the rapidity of a fire on the prairie.
But the seizure by them, the Socialists, the Fascists and the Communists, of the liberty and property of Americans began before 1933.
3. The meaning of Fascism, a word much used in our country with evidently little understanding, may best be made clear by showing the corporations of government set up by Mussolini in Italy to take over all the activities of men.
The word Fascism indicates nothing respecting the operations of the government. It comes from "fasces," the name of the bundle of rods surrounding an axe and carried by the Roman lictor before the chief magistrate as a symbol of authority. Its being brought in by Mussolini was one more of those puerile attempts mentioned by Bryce to bring back somewhat of the Roman Empire. Mussolini set up 22 corporations. The first was the Corporation for Cereals, made up of designated numbers of employers and workers, and embracing growers, threshers, millers, bakers, commission and co-operative organizations. All the corporations were similarly divided. They were the Corporation for Fruits, Vegetables and Flowers; for Viticulture and Wine; for Sugar-beet and Sugar; for Edible Oil; for Livestock and Fisheries; for Timber; for Textiles; for Metals; for Chemical Trades; for Clothing Trades; for Printing, Publishing, and Paper; for Building Tools and Housing; for Water, Gas, and Electricity; for Mining and Quarrying; for Glassware; for Arts and Professions; for Inland Transportation; for Sea and Air Transportation; for Hotel Industry; for Credit and Insurance; for Entertainments. That defines Fascism. It is Socialism carried out by governmental corporations. It is at violence to our Constitution, but it has been coming for some years, and is now pretty well "dug in."
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without law there cannot be fraud, offence, crime.
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