Undermining The Constitution
A HISTORY OF LAWLESS GOVERNMENT
XI
THE NATIONAL LABOR RELATIONS ACT OF 1935 WAS A VICTORY FOR CAESARISM OVER THE STATES AFTER A CONTINUOUS BATTLE FOR TWO DECADES
The most common disregard by Congress and the President of the Tenth Amendment, forbidding the Nation to usurp powers not granted to it, and especially to stay away from the governmental field of the States, has been in its persistent attempts, under the cloak of the Commerce Clause and of the General Welfare Clause, to invade the police field of the States -- for the protection and care of the health, safety, morals, education, and general well-being of the people -- and take jurisdiction of the liberties and living of men.
The Commerce Clause authorizes Congress "to regulate commerce with foreign nations, and among the several States" -- not within the States. The General Welfare Clause is discussed in another section.
By NLRA Congress displaced a Union of States by a Nation
After half a century of notable failures and some burrowing successes, that invasion won completely through the National Labor Relations Act of 1935. By that act Congress usurped police control of all workers in the United States.
Could Hamilton have foreseen that, he would have been dumbfounded.
"I confess," he wrote in No. 17 of The Federalist, "I am at a loss to discover what temptation the persons entrusted with the administration of the General Government could ever feel to divest the States of the authorities of that description" -- legislation "for the individual citizens of America."
Briefly, the act declared an "emergency" to exist because of the "burdening" of commerce and the "obstructing" of it by strikes arising out of labor disputes; and, to keep the "flow" of commerce -- not alone interstate commerce covered by the Commerce Clause, but all commerce -- uninterrupted, it set up a Labor Board to which disputes between workers and employers should be taken for hearing and decision. As there could be no suspension of production by any strike that would not "affect" or "obstruct" both intrastate and interstate commerce at least a little, all workers and employers were thus brought under the Commerce Clause, written respecting interstate commerce only, as its language so plainly shows.
Before that only a small part of the workers of the country were within reach of Congress by virtue of the Commerce Clause -- those employed by railroad companies, telegraph and telephone companies, and aviation companies. The great body of them lived and worked subject to the police power of the States.
Representatives of the States in Congress, by passing the act, disparaged and diminished their commonwealths.
Legislation had numerous precedents
The National Labor Relations Act had been preceded by many acts for the usurpation by Congress and the President of power over concerns of the States. The tyrannies spawned by the Labor Board in applying the National Labor Relations Act were a long time in coming.
When Franklin D. Roosevelt was Governor of New York, he protested in behalf of the States against the dishonest and lawless use of the Commerce Clause by Congress and the President to occupy forbidden ground in the States. Speaking on July 16, 1929, before a conference of governors at New London, Connecticut, he condemned the "stretching" of the Commerce Clause by Congress to cover cases not embraced by grants of power to it in the Constitution (italics inserted):
Governor Roosevelt declared
against such legislation
"Our Nation has been a successful experiment in democratic government because the individual States have waived in only a few instances their sovereign rights. . . .
"But there is a tendency, and to my mind a grievous tendency, on the part of our National Government, to encroach, on one excuse or another, more and more upon State supremacy. The elastic theory of interstate commerce, for instance, has been stretched almost to the breaking point to cover certain regulatory powers desired by Washington. But in many cases this has been due to a failure of the States, themselves, by common agreement, to pass legislation necessary to meet certain conditions."
Importance of commerce in history
The Commerce Clause, for the strict observance of which Governor Roosevelt was rightly solicitous, contains a principle dating back as far as Magna Carta (1215), when King John, faced by armed men, signed an agreement not to interfere in the right of Englishmen to go to and fro in commerce, and abroad and return, except only in an exigency of war.
Englishmen in commerce were "in pursuit of happiness," which the Declaration of Independence later denominated a right from the Creator, for the protection of which "governments are instituted among men."
The speeches and writings of Edmund Burke in behalf of the American colonists make clear that the restrictions on commerce by the government of England were far more burdensome and intolerable than was "taxation without representation," usually given as the cause of the American Revolution. All products for sale had to go to England -- in English ships. All things that they had to buy they were obliged to buy in England -- for transportation in English ships. Raw material ready for manufacture had to go to England for that purpose. This interference with commerce (only one of many hard regulations) destroyed shipbuilding, which had become of great importance, put an end to manufacture, and cut off commercial communication with other countries.
Constitution designed to make commerce free
It was obstruction by States of this right to engage in commerce that contributed much to the breakdown of the government under the Articles of Confederation. And the third grant of power to Congress in the Constitution which followed (after taxing and borrowing) is "to regulate commerce . . . among the several States."
Congress is authorized to regulate commerce so that it will not be obstructed as it was before -- that is, it is to promote commerce. It is not to obstruct it affirmatively, any more than the early States could rightly do so, by legislation like the Norris-LaGuardia Law, which cripples men in commerce in the maintenance in court of their constitutional rights -- and their inherent rights. It is not to obstruct commerce negatively by failure to guard the rights of those engaged in it, as in the toleration of costly and destructive strikes.
Commerce most important
activity of man
The history of commerce makes clear that legally it is the most important right of men, not to be trifled with by kings or others in power. Nevertheless, for a third of a century obstructions to commerce have been so nearly continuous as to condemn the Government at Washington for default of duty under the Commerce Clause.
Five years before the National Labor Relations Act of Congress, Governor Roosevelt condemned illicit ideas which he afterwards sanctioned as President. In a radio address in 1930 he again took up States' rights and home rule and said that with "a great number ... of vital problems of Government, such as the conduct of public utilities, of banks, of insurance companies, of agriculture, of education, of social welfare, and of a dozen other important features . . . Washington must not be encouraged to interfere." (Italics inserted.) [Said it before FDR was a liar and the biggest hypocrite ever to reside in the White House DC]
N.L.R.B. failed of purpose proclaimed
For the eleven years before the National Labor Relations Act, 1924 to 1934, inclusive, the work stoppages were 11,565, affecting 5,829,339 workers, about one-third of the number involved in stoppages during the 11 years following the Act.[1]
1. For the six years from 1940 to 1945, inclusive, covering the whole time of World War II, strikes took place as follows:
Even more deplorable than those losses to the workers was the brake put on production of food, clothing, housing, and other things required by a people in sore need, who had shown every willingness to do their part in the conduct of the war.
Many of those strikes were attended by the worst disorders, sometimes by bloodshed. Plants were seized by strikers and the owners excluded from them. Picketing was of the most violent sort.
Against those manifestations of lawlessness, which appeared in all parts of the country, the authorities of the States did nothing, or next to nothing. The United States looked on.
There was generally a breakdown of law.
A picture of countrywide performances
What was going on all over the country all during the war is illustrated by this official statement of the Employment Relations Board of the State of Wisconsin, issued on December 27, 1946 (italics added):
"It can no longer be assumed, as it was when the first order of this board was made in May of this year, that the leadership of the organization now on strike intends to be law-abiding citizens.
"Events transpiring since the entry of the order and its enforcement by a judgment of the Circuit Court of Milwaukee County clearly indicate that the leadership of this union entertains no respect for the law, agencies designated to administer it, or the courts, but intends to prevent by any methods, legal or illegal, the use of the company's premises by the company, or the pursuit of work by employees of the company desiring to work."
Previous orders of the Board had been disregarded. As the quotation shows, the strike at the plant of Allis-Chalmers had been on since May preceding. All the powers of unionism had been concentrated on Allis-Chalmers to compel it to establish the closed shop and thereby deny to Americans the liberty to work under conditions of their own choosing.
Was the conduct described
in Wisconsin treasonable?
The Constitution defines one of only two acts of "treason against the United States" as "adhering to their enemies, giving them aid and comfort."
Were not the unceasing strikes which were waged in essential industries from one end of the war to the other of great "aid and comfort" to Germany and Japan?
What did the Department of Justice of the United States do to protect the Government in its war endeavor and the American in his liberty?
Nothing.
Not until the head of the United Mine Workers notified the Secretary of the Interior, who was operating the coal mines under one of the many illegal seizures of property, without compensation, committed by Government during the war, that it would terminate its working agreement at midnight, November 20, 1946, did the United States show mettle befitting such an occasion. This time it had been put on the spot.
Government of great
Republic driven to corner
The United States could not say that the duty to act was on the States, or use any other of the evasions which it had employed as encouragement to strikes against private industries. So it had its Department of Justice bring a suit on November 18 for injunction in the United States Court in the District of Columbia, which immediately issued an order restraining the head of the union and the miners from carrying out the notice. Nevertheless, a gradual walkout of miners began on November 18, and by November 20 "a full-blown strike was in progress," the Supreme Court said in sustaining the action of the trial judge in fining for contempt the head of the union $10,000 and the miners as a body $3,500,000. It authorized the reduction of the fine imposed on the miners to $700,000 on condition that they permanently obey the order of the court.
Simple case pointed way to
managing labor disputes
That shows how nicely those disputes could be handled if Congress and the States (which have really fostered labor troubles) would remit them to the courts, where all other people having disputes are obliged to go. Congress does not interfere in controversies between individuals, or between corporations, or between corporations and individuals, or between States, or between associations of men. Why should it interfere in disputes between employee and employer?
The questions in dispute are justiciable (for the Judiciary) where negotiation or arbitration fails and the next step is the strike, with suspension of production for the needs of the people and the country, and disorder, sabotage, and personal peril. At that point society must assert its paramount interest, as it did in the instance just described, and require the adjudication of the dispute in its courts.
Labor decisions show
courts afford remedy
Since the decision of the Supreme Court of the United States in 1928 holding (262 U. S. 522) invalid a statute of Kansas setting up an Industrial Court to hear and decide controversies between employee and employer, including differences over wages, the interest of the public in the continuity of service has become more and more recognized.
The National Labor Relations Act of July, 1935, brought all of the employees of the country within the Commerce Clause of the Constitution under the pretense that it was necessary to prevent strikes from interrupting the free flow of commerce to the discomfiture and damage of the people. And in 1934 the Supreme Court sustained (291 U. S. 502) a law of New York setting up a Milk Control Board to fix maximum and minimum prices for milk, thus taking away the right of the parties to contract. The welfare of the public and the interest of the Nation have been so grossly disregarded during the last two decades that views on "the liberty of contract," and on "the right to strike" and plunge society into confusion and distress, have undergone change. The act of the legislature of Kansas setting up the Industrial Court would probably be sustained today.[2]
2. Long after that part of the text was written, the Supreme Court of the United States, in an opinion rendered on January 3, 1949, sustaining a law of North Carolina and a constitutional provision of Nebraska forbidding employers to enter into contracts obligating themselves to exclude persons from employment because they are or are not members of labor unions, examined the case of the Industrial Court of Kansas and said that hours and wages can be fixed by law in the public interest. That fulfills the prophecy of the text.
Labor controversy has ceased
to be personal to parties
When, for illustration, employment was on a small scale, the law was that an employee assumed the risk of injury by the carelessness of a fellow worker and he was therefore not entitled to damages from the employer. But as employment became stupendous, laws making the employer liable (as an operating cost) for injuries to a worker, whether there was negligence or not, were upheld by the courts as valid exercise of the police power of the States in the interest of society. So the controversy between employee and employer is no longer a matter exclusively personal to them.
The most common disregard by Congress and the President of the Tenth Amendment, forbidding the Nation to usurp powers not granted to it, and especially to stay away from the governmental field of the States, has been in its persistent attempts, under the cloak of the Commerce Clause and of the General Welfare Clause, to invade the police field of the States -- for the protection and care of the health, safety, morals, education, and general well-being of the people -- and take jurisdiction of the liberties and living of men.
The Commerce Clause authorizes Congress "to regulate commerce with foreign nations, and among the several States" -- not within the States. The General Welfare Clause is discussed in another section.
By NLRA Congress displaced a Union of States by a Nation
After half a century of notable failures and some burrowing successes, that invasion won completely through the National Labor Relations Act of 1935. By that act Congress usurped police control of all workers in the United States.
Could Hamilton have foreseen that, he would have been dumbfounded.
"I confess," he wrote in No. 17 of The Federalist, "I am at a loss to discover what temptation the persons entrusted with the administration of the General Government could ever feel to divest the States of the authorities of that description" -- legislation "for the individual citizens of America."
Briefly, the act declared an "emergency" to exist because of the "burdening" of commerce and the "obstructing" of it by strikes arising out of labor disputes; and, to keep the "flow" of commerce -- not alone interstate commerce covered by the Commerce Clause, but all commerce -- uninterrupted, it set up a Labor Board to which disputes between workers and employers should be taken for hearing and decision. As there could be no suspension of production by any strike that would not "affect" or "obstruct" both intrastate and interstate commerce at least a little, all workers and employers were thus brought under the Commerce Clause, written respecting interstate commerce only, as its language so plainly shows.
Before that only a small part of the workers of the country were within reach of Congress by virtue of the Commerce Clause -- those employed by railroad companies, telegraph and telephone companies, and aviation companies. The great body of them lived and worked subject to the police power of the States.
Representatives of the States in Congress, by passing the act, disparaged and diminished their commonwealths.
By a complete about-face
Supreme Court sustained Congress
Overriding its own decisions for half a century, on the powers of Congress over interstate commerce, and reversing the Judgments of four Circuit Courts of Appeals of three judges each, the Supreme Court of the United States, in an opinion by Chief Justice Hughes, Justices McReynolds, Van Devanter, Sutherland, and Butler dissenting, upheld (301 U. S. 1) on April 12, 1937, two months after the President proposed to "pack" the Court, and while the proposal was still before Congress, the National Labor Relations Act as a valid exercise of the granted power to Congress to regulate commerce "among the several States." The very title gives the lie to the strained recitations in the Act in a make-believe that it is a regulation of commerce and not a labor law. The promise was in those recitations that the operation of the Act would put an end to strikes and the disorders and losses which had attended them, which was not, of course, a subject of national jurisdiction.Legislation had numerous precedents
The National Labor Relations Act had been preceded by many acts for the usurpation by Congress and the President of power over concerns of the States. The tyrannies spawned by the Labor Board in applying the National Labor Relations Act were a long time in coming.
When Franklin D. Roosevelt was Governor of New York, he protested in behalf of the States against the dishonest and lawless use of the Commerce Clause by Congress and the President to occupy forbidden ground in the States. Speaking on July 16, 1929, before a conference of governors at New London, Connecticut, he condemned the "stretching" of the Commerce Clause by Congress to cover cases not embraced by grants of power to it in the Constitution (italics inserted):
Governor Roosevelt declared
against such legislation
"Our Nation has been a successful experiment in democratic government because the individual States have waived in only a few instances their sovereign rights. . . .
"But there is a tendency, and to my mind a grievous tendency, on the part of our National Government, to encroach, on one excuse or another, more and more upon State supremacy. The elastic theory of interstate commerce, for instance, has been stretched almost to the breaking point to cover certain regulatory powers desired by Washington. But in many cases this has been due to a failure of the States, themselves, by common agreement, to pass legislation necessary to meet certain conditions."
Importance of commerce in history
The Commerce Clause, for the strict observance of which Governor Roosevelt was rightly solicitous, contains a principle dating back as far as Magna Carta (1215), when King John, faced by armed men, signed an agreement not to interfere in the right of Englishmen to go to and fro in commerce, and abroad and return, except only in an exigency of war.
Englishmen in commerce were "in pursuit of happiness," which the Declaration of Independence later denominated a right from the Creator, for the protection of which "governments are instituted among men."
The speeches and writings of Edmund Burke in behalf of the American colonists make clear that the restrictions on commerce by the government of England were far more burdensome and intolerable than was "taxation without representation," usually given as the cause of the American Revolution. All products for sale had to go to England -- in English ships. All things that they had to buy they were obliged to buy in England -- for transportation in English ships. Raw material ready for manufacture had to go to England for that purpose. This interference with commerce (only one of many hard regulations) destroyed shipbuilding, which had become of great importance, put an end to manufacture, and cut off commercial communication with other countries.
Constitution designed to make commerce free
It was obstruction by States of this right to engage in commerce that contributed much to the breakdown of the government under the Articles of Confederation. And the third grant of power to Congress in the Constitution which followed (after taxing and borrowing) is "to regulate commerce . . . among the several States."
Congress is authorized to regulate commerce so that it will not be obstructed as it was before -- that is, it is to promote commerce. It is not to obstruct it affirmatively, any more than the early States could rightly do so, by legislation like the Norris-LaGuardia Law, which cripples men in commerce in the maintenance in court of their constitutional rights -- and their inherent rights. It is not to obstruct commerce negatively by failure to guard the rights of those engaged in it, as in the toleration of costly and destructive strikes.
Commerce most important
activity of man
The history of commerce makes clear that legally it is the most important right of men, not to be trifled with by kings or others in power. Nevertheless, for a third of a century obstructions to commerce have been so nearly continuous as to condemn the Government at Washington for default of duty under the Commerce Clause.
Five years before the National Labor Relations Act of Congress, Governor Roosevelt condemned illicit ideas which he afterwards sanctioned as President. In a radio address in 1930 he again took up States' rights and home rule and said that with "a great number ... of vital problems of Government, such as the conduct of public utilities, of banks, of insurance companies, of agriculture, of education, of social welfare, and of a dozen other important features . . . Washington must not be encouraged to interfere." (Italics inserted.) [Said it before FDR was a liar and the biggest hypocrite ever to reside in the White House DC]
But Roosevelt, like Supreme
Court, did turn-around
With every one of those "features," Congress, taking orders from President Roosevelt, did interfere, to the denial of the liberty of man to engage unhampered by his Government or by his fellows in pursuits which had never before been regarded in the United States as subjects for political meddling. Never before regarded, because no fancy had ever found in the Constitution anything even suggesting the power in Congress to engage in or control such activities.
167
Yet, during the first eleven years of the Act, from 1935 to 1945 inclusive, there were 37,383 work stoppages, involving 16,827,305 workers and the loss of wages for 175,896,235 man-days.N.L.R.B. failed of purpose proclaimed
For the eleven years before the National Labor Relations Act, 1924 to 1934, inclusive, the work stoppages were 11,565, affecting 5,829,339 workers, about one-third of the number involved in stoppages during the 11 years following the Act.[1]
1. For the six years from 1940 to 1945, inclusive, covering the whole time of World War II, strikes took place as follows:
| In 1940 | there were 2,508 | strikes |
| 1941 | 4,288 | |
| 1942 | 2,968 | |
| 1943 | 3,752 | |
| 1944 | 4,956 | |
| 1945 | 4,750 | |
| Total | 23,222 |
Even more deplorable than those losses to the workers was the brake put on production of food, clothing, housing, and other things required by a people in sore need, who had shown every willingness to do their part in the conduct of the war.
Many of those strikes were attended by the worst disorders, sometimes by bloodshed. Plants were seized by strikers and the owners excluded from them. Picketing was of the most violent sort.
Against those manifestations of lawlessness, which appeared in all parts of the country, the authorities of the States did nothing, or next to nothing. The United States looked on.
There was generally a breakdown of law.
A picture of countrywide performances
What was going on all over the country all during the war is illustrated by this official statement of the Employment Relations Board of the State of Wisconsin, issued on December 27, 1946 (italics added):
"It can no longer be assumed, as it was when the first order of this board was made in May of this year, that the leadership of the organization now on strike intends to be law-abiding citizens.
"Events transpiring since the entry of the order and its enforcement by a judgment of the Circuit Court of Milwaukee County clearly indicate that the leadership of this union entertains no respect for the law, agencies designated to administer it, or the courts, but intends to prevent by any methods, legal or illegal, the use of the company's premises by the company, or the pursuit of work by employees of the company desiring to work."
Previous orders of the Board had been disregarded. As the quotation shows, the strike at the plant of Allis-Chalmers had been on since May preceding. All the powers of unionism had been concentrated on Allis-Chalmers to compel it to establish the closed shop and thereby deny to Americans the liberty to work under conditions of their own choosing.
Was the conduct described
in Wisconsin treasonable?
The Constitution defines one of only two acts of "treason against the United States" as "adhering to their enemies, giving them aid and comfort."
What did the Department of Justice of the United States do to protect the Government in its war endeavor and the American in his liberty?
Nothing.
Not until the head of the United Mine Workers notified the Secretary of the Interior, who was operating the coal mines under one of the many illegal seizures of property, without compensation, committed by Government during the war, that it would terminate its working agreement at midnight, November 20, 1946, did the United States show mettle befitting such an occasion. This time it had been put on the spot.
Government of great
Republic driven to corner
The United States could not say that the duty to act was on the States, or use any other of the evasions which it had employed as encouragement to strikes against private industries. So it had its Department of Justice bring a suit on November 18 for injunction in the United States Court in the District of Columbia, which immediately issued an order restraining the head of the union and the miners from carrying out the notice. Nevertheless, a gradual walkout of miners began on November 18, and by November 20 "a full-blown strike was in progress," the Supreme Court said in sustaining the action of the trial judge in fining for contempt the head of the union $10,000 and the miners as a body $3,500,000. It authorized the reduction of the fine imposed on the miners to $700,000 on condition that they permanently obey the order of the court.
Simple case pointed way to
managing labor disputes
That shows how nicely those disputes could be handled if Congress and the States (which have really fostered labor troubles) would remit them to the courts, where all other people having disputes are obliged to go. Congress does not interfere in controversies between individuals, or between corporations, or between corporations and individuals, or between States, or between associations of men. Why should it interfere in disputes between employee and employer?
The questions in dispute are justiciable (for the Judiciary) where negotiation or arbitration fails and the next step is the strike, with suspension of production for the needs of the people and the country, and disorder, sabotage, and personal peril. At that point society must assert its paramount interest, as it did in the instance just described, and require the adjudication of the dispute in its courts.
Labor decisions show
courts afford remedy
Since the decision of the Supreme Court of the United States in 1928 holding (262 U. S. 522) invalid a statute of Kansas setting up an Industrial Court to hear and decide controversies between employee and employer, including differences over wages, the interest of the public in the continuity of service has become more and more recognized.
The National Labor Relations Act of July, 1935, brought all of the employees of the country within the Commerce Clause of the Constitution under the pretense that it was necessary to prevent strikes from interrupting the free flow of commerce to the discomfiture and damage of the people. And in 1934 the Supreme Court sustained (291 U. S. 502) a law of New York setting up a Milk Control Board to fix maximum and minimum prices for milk, thus taking away the right of the parties to contract. The welfare of the public and the interest of the Nation have been so grossly disregarded during the last two decades that views on "the liberty of contract," and on "the right to strike" and plunge society into confusion and distress, have undergone change. The act of the legislature of Kansas setting up the Industrial Court would probably be sustained today.[2]
2. Long after that part of the text was written, the Supreme Court of the United States, in an opinion rendered on January 3, 1949, sustaining a law of North Carolina and a constitutional provision of Nebraska forbidding employers to enter into contracts obligating themselves to exclude persons from employment because they are or are not members of labor unions, examined the case of the Industrial Court of Kansas and said that hours and wages can be fixed by law in the public interest. That fulfills the prophecy of the text.
Labor controversy has ceased
to be personal to parties
When, for illustration, employment was on a small scale, the law was that an employee assumed the risk of injury by the carelessness of a fellow worker and he was therefore not entitled to damages from the employer. But as employment became stupendous, laws making the employer liable (as an operating cost) for injuries to a worker, whether there was negligence or not, were upheld by the courts as valid exercise of the police power of the States in the interest of society. So the controversy between employee and employer is no longer a matter exclusively personal to them.
Congress should get out of labor politics, in which it has too long performed a discreditable as well as an unconstitutional part.
Government now conducted
with respect to elections
The capers that have been cut at Washington during the last three decades make one wonder whether sight has been entirely lost of the purpose of Government as laid down in the Declaration of Independence, namely, to secure man against his fellows, and more especially against those whom he has chosen for his servants in public office. The activities of administrations have been plainly to favor, in view of the next election, great voting blocs like the labor organizations, the people on the farms (who, subsidized for years, turned the Presidential election in 1948), and the political bosses who "deliver" the votes of many corrupt cities. The platforms of both parties have offered shamelessly to "give every thing to every body" in those classes.
Meanwhile, the people, who set up Government "to secure these rights" which came to them from the Creator, "among which are life, liberty and the pursuit of happiness," are stripped of their possessions with a system of ruthlessness rarely exampled in the history of tyranny.
Although the Criminal Code of the United States provides that a fine of $100 and imprisonment for six months, or both, shall be imposed upon anyone who shall "knowingly and wilfully obstruct the passage of the mail," and although the opening of mail is severely punished, the Executive Department of the Government took no action respecting the obstructing and opening in 1937 of mail addressed to Americans engaged in their work and surrounded by pickets trying unlawfully to deny to them this liberty.
The non-action by the Chief Executive, who is enjoined by the Constitution to "take care that the laws be faithfully executed," looked to the beholder like sanction of the illegalities.
Washington friendly to
the sit-down strike
While the Government at Washington assumed to legislate by the National Labor Relations Act respecting all labor, regardless of whether it might be engaged in interstate commerce (of which only it has jurisdiction), a spokesman for the White House let it be known that sit-down strikes in various parts of the country, by which owners were forcibly dispossessed of their property by their employees, were matters of concern, not to the Nation, but to the States! As before indicated, the debilitated States generally concurred in such strikes.
While the Government at Washington assumed to legislate by the National Labor Relations Act respecting all labor, regardless of whether it might be engaged in interstate commerce (of which only it has jurisdiction), a spokesman for the White House let it be known that sit-down strikes in various parts of the country, by which owners were forcibly dispossessed of their property by their employees, were matters of concern, not to the Nation, but to the States! As before indicated, the debilitated States generally concurred in such strikes.
The Secretary of Labor was reported by the Press to question at first whether the seizure and detention of plants by sit-down workers was illegal!
While employees of a steel manufactory at Canton, Ohio, were working under siege by an army of pickets, airplanes dropped leaflets to discourage the workers, saying, "Our members are well fed and happy. Relief is being arranged for their families. Four departments of the United States Government are fighting for our side."
On March 23, 1947, the Associated Press reported from Milwaukee that "the Allis-Chalmers strike, one of the most bloody and turbulent in recent history, ended today when the striking UAW-CIO Local 248 voted to return to work without a contract."
That shows that the workers themselves had tired of the long misleading by their officers.
Communism in strikes in United States
As the chief principle of the tactics of Communism is to provoke disorder and profit by it, the foregoing record, made mostly while the Republic was in the perils of war, compels the question whether Communist influences guided that disgrace to "government under law."
As the chief principle of the tactics of Communism is to provoke disorder and profit by it, the foregoing record, made mostly while the Republic was in the perils of war, compels the question whether Communist influences guided that disgrace to "government under law."
Earl Browder, for years head of the Communist Party in the United States, and twice a candidate for the Presidency of this Nation, reported to the Congress of the International Communist Party in Moscow on July 18, 1935:
"How was our party able to penetrate the masses and emerge from isolation? A great role was played by leaders in the strike movement and in the work of the party among the unemployed. In some of the most important strikes, the San Francisco general strike for one, the Communist Party had a decisive, determining influence."
And the great Government of the United States was not only unable to deport the alien who fomented and led that strike, but it also came around to issuing citizenship papers to him!
In What Is Communism? it is made clear (p. 163) by Browder, a native of the United States, that the plan of Communism is to take away liberty and property by armed force:
"The Revolution is carried out by the great masses of the toilers. The Communist Party, as the vanguard of the most conscious toilers, acts as their organizer and guide."
And again (pp. 164, 165):
"In the revolutionary situation the Communist Party . . . wins some of the armed forces to its side, and leads the effective majority of the population to the seizure of State power. . . . Above all, they need the armed forces."
An attempt to destroy an industry
Although not so wide in its reach to people as the National Labor Relations Act of 1935, the law of Congress of 1886, forty-nine years before (amended and extended in 1902), taxing oleomargarine ¼¢ a pound, and 10¢ a pound when colored, was fully as bad an invasion of the police field of the States. Agriculturists, a voting power, put the bills through Congress in protection of dairy butter. In addition to the destructive tax on the colored article (while colored butter was not taxed), the heavy license tax on manufacturers, on wholesalers, and on retailers, and the regulations regarding packing, labeling, and permits were obstructive and costly. The manufacturers abandoned coloring and left that to the consumers. Notwithstanding the handicap, oleomargarine grew steadily in favor. It was used in the navies of the world, including our own.
Although not so wide in its reach to people as the National Labor Relations Act of 1935, the law of Congress of 1886, forty-nine years before (amended and extended in 1902), taxing oleomargarine ¼¢ a pound, and 10¢ a pound when colored, was fully as bad an invasion of the police field of the States. Agriculturists, a voting power, put the bills through Congress in protection of dairy butter. In addition to the destructive tax on the colored article (while colored butter was not taxed), the heavy license tax on manufacturers, on wholesalers, and on retailers, and the regulations regarding packing, labeling, and permits were obstructive and costly. The manufacturers abandoned coloring and left that to the consumers. Notwithstanding the handicap, oleomargarine grew steadily in favor. It was used in the navies of the world, including our own.
Those laws, attacked as intended to destroy an industry, as an encroachment upon the police field, and as working a deprivation of property without due process of law, were sustained (195 U. S. 27) in 1904 by the Supreme Court of the United States in an opinion by Justice White, with dissent by Chief Justice Fuller and Justices Brown and Peckham.
In 1888 the Supreme Court had upheld (127 U. S. 678) a law of Pennsylvania (1885) which forbade the making and selling of anything to be used as butter, or in lieu of it, out of any substance "other than unadulterated milk or cream." Justice Field dissented from the opinion written by Justice Harlan chiefly on the ground that the Court had lost the distinction between regulation and prohibition. To be sure, a State may regulate the manufacture of foods so as to secure purity and prevent fraud. But Pennsylvania had no more right or power to suppress the manufacture of oleomargarine, made and sold without deception, than it had to prevent the making of marmalade. Wide as the police power is, it must be exerted with regard for rationality, liberty, and the right to property.
Of the case arising in Pennsylvania, Judge Dillon, once on the Federal Bench, wrote in Municipal Corporations and also in Law and Jurisprudence in England and America this sound and complete comment:
"The record of the conviction of Powell for selling without any deception a healthful and nutritious article of food makes one's blood tingle."
If the police power of Pennsylvania could not extend that far, how could Congress, without any police power at all, get a seat in the game of politics?
In March, 1950, a discreditable record of 64 years was ended by Congress when it repealed the legislation by a vote of 202 to 106 in the House and 59 to 20 in the Senate.
The unbelievable guilelessness
of the American
In all worlds of fabulists and fictionists no state of things is exhibited which is at once so preposterous and so potentially calamitous as that there should be tolerated a party against freedom and possessions in a land where the Constitution twice guarantees security to Liberty, Property, and Life!
In all worlds of fabulists and fictionists no state of things is exhibited which is at once so preposterous and so potentially calamitous as that there should be tolerated a party against freedom and possessions in a land where the Constitution twice guarantees security to Liberty, Property, and Life!
Why have Senators and Representatives, who have been sent by the people of the States through the years to represent them in the Congress of the Union of States, failed to maintain their States in their constitutional position in that Union? They have made the State a kind of satrapy of the central power.
What Congressmen and Governors
have done to sovereign States
The degraded position to which the States have descended in the estimation of our Government was shown by a meeting in 1944 in St. Louis of the governors of 26 States, who deplored the fact that for 11 years not a Governor had been called to the White House for consultation.[3]3. The bill of particulars drawn by the governors proposed the resumption by the States of their constitutional functions. It condemned the acquisition by the United States of the lands of the States, the usurpation by Washington of unemployment insurance and unemployment services, the derogatory "conditions' fixed by the Federal Government to grants in aid of States for public works, the attempt of the Administration "to undermine and abandon our traditional National Guard," the entry of the United States into competition with insurance companies, the plans to control from the National Capital the field of medicine, the development of water resources without any recognition of the superior rights of the States, and some other acts of total indifference to the existence of local governments, as leaving for ten years "entire regions of our country" without "representation in the Cabinet or administrative agencies of the Federal Government." The crowning insolence was the failure of the President to invite any governor to the White House for an exchange of views.
Of course, the things complained of were brought about by the incompetence or delinquency of members of Congress from the States.
Of course, the things complained of were brought about by the incompetence or delinquency of members of Congress from the States.
When President Truman took office in 1945, the Republican members of Congress proceeded to the White House to tell him that they would help him in all ways consistent with their political beliefs. On leaving the White House, the Republican leader in the Senate said to newsmen that he had not been on the premises since the party in power took office in 1933.
Well, the governors complaining at St. Louis were not heard in protest when the representatives of their States in Congress were originating or supporting bills for weakening their commonwealths and widening the authority of the National Government. And as for the treatment of members of Congress by the White House, they had let go of their constitutional reins.
At the 42nd annual convention of the governors of the States, at White Sulphur Springs, West Virginia, on June 19, 1950, there was a quite general expression of the view that "Federal aid" should be relied upon by the States to carry their projects of flood control, reclamation, irrigation, electric power, and the like.
The presiding governor sought to prevent "stump speeches on the obligation Washington has in the development of the West." But the governor of California thought it "perfectly logical to ask the Federal Government for help in irrigation, reclamation, and power projects: we repay every cent and pay interest on Federal moneys going into such projects."
No one rose to inform him that the Constitution gives no authority to Congress to lend money at interest or otherwise for any purpose. Nor was he reminded that banks, and others having the right to lend, provided the necessary money for all great projects in the building of the United States from the beginning down.
The governor of New Jersey protested the proposal for Federal aid. He could not understand how any governor could "go on record for a balanced Federal budget and at the same time have his hand out for millions for reclamation, irrigation, and public power." He said that "New Jersey would have nothing to do with Washington, that it can and does finance its own projects, and at cheaper interest rates than the Federal Government can borrow money."
It is somewhat reassuring that one governor out of 48 had been sufficiently educated to declare for constitutional procedure.
The meeting of governors revealed the great need, not so much for "Federal aid," as for a school for giving constitutional instruction to the executives of the States. Such a school might accept members of Congress.
Something must be done toward teaching those in office.
In the days of the horse and buggy
In the autobiography of Senator Hoar it is said that if any group went to the White House and brought back directions on policy, they would be made to regret it. For sixteen years or more the White House has been permitted by Congress to usurp direction of policy.
In the autobiography of Senator Hoar it is said that if any group went to the White House and brought back directions on policy, they would be made to regret it. For sixteen years or more the White House has been permitted by Congress to usurp direction of policy.
The States must back-track to where the writers of the Constitution set them -- or where they set themselves, for they made the Constitution.
And the schools must so teach the Constitution that governors of States will know better than to resign their great offices to take inferior seats in Congress.
And the President must be elected by the constitutional method.
When the States have exercised the power which they reserved to themselves by section 2 of Article I, to prescribe the qualifications of voters for members of Congress as well as for candidates for local offices, by making a certificate of graduation in the study of the principles of our constitutional system a condition of registering for voting, then we shall have a better situation in Congress and out.
And in the days ahead
And when the States have abolished the straight ticket by restoring or putting into effect the Australian ballot, which was emasculated for the aid of the illiterate followers of political leaders or bosses, then American elections will express the competence of the people for self-government.
And when the States have abolished the straight ticket by restoring or putting into effect the Australian ballot, which was emasculated for the aid of the illiterate followers of political leaders or bosses, then American elections will express the competence of the people for self-government.
And when the States have brought back the constitutional election of the President and put him in his place to stay, and thereby removed the need for Corrupt Practices Acts of Congress, our country will then be again "the land of the free."
The States, which intended when they wrote the Constitution to manage the country largely, should return to that duty.
XII
BY THE SOCIAL SECURITY ACT OF AUGUST, 1935, FOLLOWING THE NATIONAL LABOR RELATIONS ACT OF JUNE, THE REPRESENTATIVES OF THE PEOPLE IN CONGRESS STRIPPED THEIR STATES ALMOST ENTIRELY OF POLICE AUTHORITY
It is difficult to tell which of the half score of Socialistic acts of Congress of the Roosevelt Revolution was the most far-reaching in its threat to the Republic. But the competition for evil lies between the Fascist Tennessee Valley Authority of May 18, 1933, and the Social Security Act of August 14, 1935.
When President Roosevelt signed A Bill to Alleviate the Hazards of Old Age, Unemployment, Illness, and Dependency, to Establish a Social Insurance Board in the Department of Labor, to Raise Revenue, and for Other Purposes, he made this comment:
"If the Senate and House of Representatives in this long and arduous session had done nothing more than pass this bill, the session would be regarded as historic for all time."
of constitutional principle
It will certainly stand apart forever as a complete departure from the Constitution as expounded by its writers, notably Madison, afterward President, and James Wilson, later a Justice of the Supreme Court of the United States; by President Monroe in a celebrated veto message of a bill for "public improvements," the beginning of the most wasteful of all squanderings by Congress of the money of the taxpayers; by President Jackson, who vetoed every appropriation bill not clearly for national, as distinguished from personal, welfare; by Presidents Tyler, Polk, Pierce, Grant, Arthur, and Cleveland.
The "hazards of old age, unemployment, illness and dependency" are subjects (if of any government) for the police power of the States, which has been defined as having to do with "the health, morals, safety, education, and general well-being of the people."
"The Federal Constitution forms a happy combination in this respect," wrote Madison in No. 10 of The Federalist; "the great and aggregate interests being referred to the National, the local and particular to the State legislatures."
No police power was granted by the people through the Constitution to Congress.
And "Congress is not empowered," wrote Chief Justice Marshall in 1824 (9 Wheaton 1), "to tax for those purposes which are in the exclusive province of the States."[1]
1. While the Social Security Act gathers money from the employer and the employee, it provides that money so collected shall go into the funds of the United States and that bonds shall be issued against it. Of course, it is the taxpayers who must eventually redeem such bonds.
States cannot abdicate their police power
It was held by the Supreme Court (219 U. S. 270,282) as late as January, 1911, that the police power inhering in the States cannot be surrendered by them.
There is no stronger principle of American constitutional law than that forbidding the delegation of power. For a decade and a half the Newspaper has told us of powers granted by Congress to the President. It has no powers that it can grant or give away. The reports by the Newspaper were constitutionally nonsensical. Yet they affected the public mind, untaught in the Constitution, to accept as valid the abdication -- not the delegation or grant -- of powers by what came to be known as "a rubber-stamp Congress."
duties by Congress
Congress permitted the President and his non-elected advisers to write bills, as George III sent bills to Parliament against the American Colonies, and Congress passed them. But that was abdication of power by Congress, not delegation or grant.
So, too, the States cannot part with their powers or any portion of them. Their power of police, especially, over the welfare of the people they cannot surrender, as the decision of the Supreme Court just before cited shows. Therefore, the rush of the States, like children in the street to whom a handful of coins has been thrown, to enact compliant legislation in order to get "gifts" of their own money from Washington under A Bill to Alleviate the Hazards of Old Age, Unemployment, Illness, and Dependency, to Establish a Social Insurance Board in the Department of Labor, to Raise Revenue, and for Other Purposes, was an unconstitutional abdication by the States of their obligations to the people. The liberties of the people were grossly transgressed.
On the police power resident in the States, Judge Cooley, recognized half a century ago as the leading constitutionalist of his time, had this to say in volume 2 of the 8th edition of Constitutional Limitations, page 1232:
"In the American constitutional system the power to establish the ordinary regulations of police has been left to the individual States, and it cannot be taken from them, either wholly or in part, and exercised under legislation by Congress."
States and Congress join
in unconstitutional action
Yet that is exactly what was brought to pass by a usurping Congress and abdicating States when the scheme for social security through Washington was set up.
On the same page Judge Cooley said further:
"Neither can the National Government, through any of its Departments, or offices, assume any supervision of the police regulations of the States."
When, in September, 1787, the Constitutional Convention sent the new Fundamental Law to the States for ratification, only one of them was opposed to it from the start -- or before the start. New York convoked a convention headed by Governor Clinton which was three fourths against the proposed form of government. Some able men in other States were not wholly satisfied with the Constitution. The objections which they expressed in the ratifying conventions resulted in a Bill of Bights in addition to the limitations on power amounting to a Bill of Rights written in the original Instrument. Several delegates to the Constitutional Convention went home without signing the new form of Government. Alexander Hamilton was the only signer for New York.
Elbridge Gerry of Massachusetts, one of the ablest men in the Convention, did not sign. Edmund Randolph of Virginia and George Mason of Virginia, the author of The Virginia Bill of Rights, did not sign. Nor did William Houstoun of Georgia.
objections to Constitution
The commonest and strongest objection was that the identity and sovereignty of the States were not sufficiently guarded. It was this objection that brought out the Tenth Amendment, to prevent Congress from invading the States.
In the convention in New York the point here under discussion was most strongly urged, namely, that the General Welfare Clause gave to Congress powers without limit. The States would eventually be swallowed by the central Government, which properly could deal only with subjects strictly national and international.
Yet the Housing Act of 1937 declared the policy of Congress to be to provide for the general welfare of the Nation by employing its funds and credit to assist the States to relieve unemployment and to safeguard health, and for other like purposes. In 1945 the Supreme Court, in an opinion by Justice Roberts (none dissenting), held (323 U. S. 329) that legislation constitutional!
Thus the objection which chiefly evoked the Bill of Rights, and especially the Tenth Amendment, went for naught.
And in 1941 the Court, in an opinion by Chief Justice Stone (none dissenting), held (312 U. S. 100) that under the Fair Labor Standards Act of Congress of 1938 the Nation can exercise police power in the States! That overruled a great decision (247 U. S. 251), rendered in 1918, that Congress is prevented by the Tenth Amendment from regulating labor conditions in the States.
grant of power
The very first grant of power is this:
"Congress shall have power to lay and collect Taxes, Duties, Imposts and Excises to pay the Debts and provide for the common Defence and general Welfare of the United States."
In the convention in New York it was argued that the power to tax and spend for "the general Welfare of the United States" was a grant without limitation at all. That was answered by James Madison, the reporter of the Constitutional Convention, from whose notes day by day we get most of our knowledge of the course of deliberations. In the history of governments and in general fitness for his task he was second to no other man in the Convention.
Madison, along with Hamilton and Jay, was writing a series of 85 papers explanatory of the Constitution and addressed "to the people of the State of New York" to convince them that their objecting convention should ratify the new form of government. Those papers became known as The Federalist, the most brilliant work on our Constitution. They have been translated into French, German, Spanish, and Portuguese.
Objections of States cleared away by Madison
Of the argument in New York, which was made in other States too, that power in Congress for "the general Welfare" was authority to do its will throughout the land, Madison wrote, evidently in anger:
"No stronger proof could be given of the distress under which these writers labor for objections than their stooping to such a misconstruction."
By "stooping" Madison plainly meant that they knew better and were unfair in their opposition to the General Welfare Clause of the Constitution.
Then he proceeded to explain the language under the established rules of interpretation. Had no other enumeration of powers been made than for taxing and spending, he said, then there might be some color to the objection that Congress would be without restraint -- though that would be an "awkward way of describing an authority to legislate in all possible cases."
"But what color can the objection have," he asked, "when the specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semi-colon?"
Congress to spend
That is, the grant of power to tax and spend for the "common Defence and general Welfare" is followed in the same sentence by all the other grants -- to borrow money, to regulate commerce, and so on. The first grant of all -- to tax and spend -- is inseparable in the context from all the other grants.
The power to tax and spend was granted to effectuate all of the seventeen succeeding paragraphs of clauses as well as the one in which it appears.
Madison met this question again in the very first Congress of the new Government, in which he was a member of the House of Representatives, and where he assembled and formulated twelve of the leading objections to the Constitution that came in from the ratifying conventions in the States for submission as amendments, ten of which were ratified and became known as the Bill of Rights.
A bill was introduced by a member from New England to pay a bounty to cod fishermen, to subsidize a private interest, as agriculture and many more private interests have been subsidized by the "New Deal." He spoke at length with great vigor against the bill. Stating that those who wrote the Constitution and those who ratified it conceived it to be not an indefinite Government, but a limited one, "tied down to the specified powers, which explain and define the general terms," he added:
"If Congress can employ money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their own hands; they may appoint teachers in every State, county and parish and pay them out of their public treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the Union; they may assume the provision of the poor. . . . Were the power of Congress to be established in the latitude contended for, it would subvert the very foundations, and transmute the very nature of the limited Government established by the people of America."
The consequences of the misapplication by Congress of the money of the taxpayers -- a scourge of mounting debt and cumulative deficits -- establish Madison as a major prophet.
Hamilton, as well as Madison, rejected the contention strongly urged against the Constitution, that it left the National Government with unlimited power to do its will, and in No. 83 of The Federalist he said (italics his):
"The plan of the Convention declares that the power of Congress, or, in other words, of the National Legislature, shall extend to certain enumerated cases. This specification of particulars evidently excluded all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd, as well as useless, if a general authority was intended."
to constitutional power
There is no power in Congress beyond the boundaries of those eighteen paragraphs of clauses.
Certainly James Madison and Alexander Hamilton should have known what the purpose of the Constitutional Convention was. New York, by ratifying the new form of government, accepted what they said. Other States doubtless ratified on their explanation.
Abraham Baldwin of Georgia, a member of the Constitutional Convention, said in Congress in 1798 that "to provide for the common Defence and general Welfare" had "never been considered as a source of legislative power, as it is only a member introduced to limit the other parts of the sentence." That is, it limits the purposes for which Congress can "lay and collect taxes" and exert its other granted powers.
the Convention speaks
But there was another man in the Constitutional Convention, the ablest lawyer, as Madison was the ablest historian -- James Wilson, a scholar from Edinburgh and from one of the Temples in London, who explained the taxing and spending power in a course of lectures to what afterwards became the University of Pennsylvania, as Madison had done. He said in part:
"The National Government was intended to promote the 'general Welfare.' For this reason Congress have power to regulate commerce . . . and to promote the progress of science and of useful arts by securing for a time to authors and inventors an exclusive right to their compositions and discoveries."
In this way he proceeded from the Patent and Copyright Clause to explain all the other clauses in section 8 granting power. He made it very clear that Congress was to "provide for the common Defence and general Welfare" by exerting the powers granted to it in the seventeen paragraphs following the first, by which it was authorized "to lay and collect taxes."
Thus, three members of the Constitutional Convention have spoken on this point -- Madison, Baldwin, and Wilson -- and none of them thought that the General Welfare Clause, which has been construed as a limitation on the activities of Congress rather than a grant of power, authorized the Legislative Department to get into anything even remotely resembling a Quixotic adventure "To Alleviate the Hazards of Old Age, Unemployment, Illness, and Dependency, to Establish a Social Security Insurance Board in the Department of Labor, to Raise Revenue, and for Other Purposes."
defined by Jefferson
Although Jefferson was in Paris while the Constitutional Convention was sitting, he was in close communication with Madison and other delegates. He knew the Constitution. In a profoundly able letter to Albert Gallatin in 1817 he discussed the General Welfare Clause on which the Social Security Act was based (italics inserted):
"You will have learned that an act for internal improvement, after passing both Houses, was negatived by the President. The act was founded, avowedly, on the principle that the phrase in the Constitution which authorizes Congress 'to lay taxes, to pay the debts and provide for the general welfare,' was an extension of the powers specifically enumerated to whatever would promote the general welfare; and this, you know, was the Federal doctrine. Whereas our tenet ever was, and, indeed, it is almost the only landmark which now divides the Federalists and the Republicans, that Congress had not unlimited powers to provide for the general welfare, but was restrained to those specifically enumerated; and that, as it was never meant that they should provide for that welfare but by the exercise of the enumerated powers, so it could not have meant that they should raise money for purposes which the enumeration did not place under their action; consequently, that the specification of powers is a limitation on the purposes for which they may raise money.
"I think the passage and rejection of this bill a fortunate incident. Every State will certainly concede the power; and this will be a national confirmation of the grounds of appeal to them, and will settle forever the meaning of this phrase, which, by a mere grammatical quibble, has countenanced the General Government in a claim of universal power. For in the phrase 'to lay taxes, to pay the debts and provide for the general welfare,' it is a mere question of syntax, whether the two last infinitives are governed by the first, or are distinct and co-ordinate powers; a question unequivocally decided by the exact definition of powers immediately following."
have been conclusive
That exposition by Jefferson, applied to a practical case in legislation, is perhaps the most illuminating that has been made.
Six years later, Jefferson returned to the subject (italics inserted):
"I have been blamed for saying that a prevalence of the doctrine of consolidation would one day call for reformation or revolution. I answer by asking if a single State of the Union would have agreed to the Constitution had it given all powers to the General Government? If the whole opposition to it did not proceed from the jealousy and fear of every State of being subjected to the other States in matters merely its own? And if there is any reason to believe the States more disposed now than then to acquiesce in this general surrender of all their rights and powers to a consolidated government, one and undivided?"
to present-day legislation
That is to say, it was inconceivable to Jefferson that the representatives of the people in Congress could ever so far disregard our constitutional history and purpose as to strip their States of local authority by abdicating their police power through such acts as these:
The Agricultural Adjustment Act | of May 12, 1933 |
| The Tennessee Valley Authority | of May 18, 1933 |
| The National Industrial Recovery Act | of June 16, 1933 |
| The Federal Surplus Commodities Corporation | of October, 1933 |
| The Bituminous Coal Act | of May, 1935 |
| The National Labor Relations Act | of July, 1935 |
| The Social Security Act | of August, 1935 |
Not a State would have ratified the Constitution, Jefferson declared, had it thought such a "revolution" possible.
We have suffered a constitutional revolution without use of amendments in accordance with Article V. That has come about through what Senator Thomas H. Benton of Missouri used to call "latitudinarian construction." That form of construction has been applied to the Commerce Clause and the General Welfare Clause. No other clause in the Constitution, even with the gross twisting which the ardent "progressists" employ, could be used by them in the framing of a bill for flouting the Tenth Amendment, the great bulwark of the States.
present-day unconstitutionalism?
In 1888, President Cleveland, evidently noticing the tendency of representatives of the States in the Congress of the Union to favor measures for degrading their commonwealths, gave them in his fourth annual message this lesson in constitutional law:
"The preservation of the partitions between the proper subjects of Federal and local care and regulation is of such importance under the Constitution, which is the law of our very existence, that no consideration of expediency or sentiment should tempt us to enter upon doubtful ground.
"We have undertaken to discover and proclaim the richest blessings of a free Government, with the Constitution as our guide. Let us follow the way it points out -- it will not mislead us."
In the next year President Cleveland vetoed a bill appropriating money from the National Treasury for the purchase of seed wheat to relieve the farmers in a drought-stricken area. In that message he defined the meaning of the General Welfare Clause as Madison and the others hereinbefore quoted interpreted it (italics inserted):
"Under the limited and delegated authority conferred by the Constitution upon the General Government the statement of the purposes for which money may be lawfully raised by taxation in any form declares also the limits of the objects for which it may be expended. . . . This 'general welfare of the United States,' as used in the Constitution, can only justify appropriations for national objects and for purposes which have to do with the prosperity, the growth, the honor, or the peace and dignity of the Nation."
What would Mr. Cleveland think could he know that the Federal Government now subsidizes the farmer, pensions everybody, and plans to medicate and hospitalize the whole population? And no amendment to the Constitution authorized the change!
learning on General Welfare
Notwithstanding all that members of the Constitutional Convention had written in explanation of the General Welfare Clause, which they had drafted with the care that marked every line of the Constitution, the Supreme Court of the United States, on May 24, 1937, three months after the President had attacked the Judiciary as inefficient and obstructive and asked Congress to recast it to his liking, in an opinion (301 U. S. 548) by Justice Cardozo, with dissents by Justices Sutherland, Van Devanter, McReynolds, and Butler, used this language:
"It is too late today for the argument to be heard with tolerance that in a crisis so extreme the use of the moneys of the Nation to relieve the unemployed and their dependents is a use for any purpose narrower than the pro-motion of the General Welfare."
That expressed the popular notion of the party in power, that a "crisis," or an "emergency," or an "extraordinary emergency," such as the President[2] was given to declaring as difficulties unfolded, and as Congress had declared in the National Industrial Recovery Act and its companion pieces, confers on Congress powers which the Constitution did not and which it therefore withheld. The Constitution withheld more powers from Congress than it granted. Besides that precaution, the Tenth Amendment was added to warn Congress not to "grab" power in any circumstances whatsoever, especially against the States.
2. The field of the President's authority is very limited. It does not include the States, to say nothing of the external world. In No. 75 of The Federalist Madison pointed that out:"The execution of the laws and the employment of the common strength, either for this purpose or for the common defence, seems to comprise all the functions of the Executive Magistrate."decision of Supreme Court
In the opinion by Justice Cardozo it is assumed that because Washington could give relief it had the power to do so. It points out that for a given time Washington gave emergency relief to the amount of $2,929,307,366, while the States expended only $689,291,802 and local subdivisions $777,675,366.
But official figures assembled by the United States News for June 18, 1938, showed that for five years the people of the States had paid to the National Government in taxes $20,411,847,208 and received in "benefits" from their own money $18,267,527,000.
They gave to Washington more than 2 billion over what was returned to them. Those figures are absolute disproof of the statement of the Court, that "the fact developed quickly that the States were unable to give the requisite relief."
But even had the States been unable to give relief, that fact would not have conferred power on Congress to take over police jurisdiction in the States, which the Constitution had not granted.
Instead of the first American coup d'état, which was executed by the Federal Emergency Relief Act of May 12, 1933, Congress should have repealed the Income Tax Law and the Estate Tax Law, by which it had been draining the States of their resources, and let the States, in close contact with the needy, go ahead and perform their police duties of relief. It chose revolution.
"Federal aid" to States for relief, for schools, and for what you will has grown worse and worse. In a report by the floor leader of the House of Representatives on January 8,1950, to the Ways and Means Committee it was shown that for the fiscal year ending June 30,1949, the people of the States paid in Federal taxes $41,864,542,295, while they got back in "aid" from their own money $5,551,054,046.
As Just before stated, for the five years ending June 30, 1938, the States paid in Federal taxes $20,411,347,208, or less than one half of what they paid in the last one year. That is what may be described as "going some." The "grants in aid" for the five-year term averaged 3 billion, 653 million, while for the last one year they were 5 billion, 551 million -- and all unconstitutional.
Arkansas, Mississippi, and New Mexico are the only States that got back anything near to half what they had paid.[3]
3. A vigilant reporter for the United Press discovered that the king of the Hoboes was visiting a friend in Pittsburgh and he interviewed His Highness for the edification of the country. The King, who has made several trips around the world, has concluded that modern travel is attended by too many risks, and he has therefore concluded to become a lobbyist for "Federal aid" to young men possessed by the urge to wander. He believes that all such young men should have each year a vacation of two weeks at the expense of the Government. "Then they could travel safely and in style," he said.
The situation is fantastic, for it has often been shown in Congress that there is not a State in the Union that is not in a stronger financial position than the National Government. The States need no "aid" from Washington -- except for political purposes. That's what is going on, reminding of the "bread and circuses" which the politicians provided for the populace of sinking Rome.
Finally, on the decision in the Social Security case, it was based not only on the erroneous assumption of the inability of the States to perform their duties in giving relief, but also on what Justice Cardozo termed "a cyclical depression." To be sure, permanent legislation is not justified by a cyclical depression.
Act not for Supreme Court
In the light of the reading of "general Welfare of the United States" which was given by Madison and other members of the Constitutional Convention, and by Jefferson, who was in constant communication with members while the Convention was sitting, and by several Presidents, it was not for the Executive Department, the Legislative Department, or the Judicial Department, or all of them together, to give the words a different meaning.
Is that any more absurd than that the wealthy State of Kansas, which, up to an act for pensions to its sons who served in World War I, had no debt at all, should receive "Federal aid" in 1950 for the benefit of its needy in the amount of $18,000,000? The supervisor of welfare reported that fact in June.
[Kansas does not differ from the other states. Degeneracy is general. To them the Constitution is a dead letter.]
As in 1895 the Supreme Court, refusing to strike out a limitation in the Constitution on taxation, referred the proponents of the Income Tax Law of 1894 to the Ultimate Power, to the people as the only Constitution makers, to write an amendment if they should deem that expedient, so in the Social Security case the Supreme Court should have held the act of Congress unconstitutional and referred the "planners" and their project to the people for disposition. Then a proposal to let Congress "into a boundless field of power no longer susceptible of any definition" would have brought the answer from those who alone had it.
That course would have been what Justice Brandeis called "procedural regularity," which he said must always be followed in resolving constitutional problems.
It is within the police power of the State to protect the farsighted, the frugal, and the temperate from the tax burden of caring for the indifferent, the unthrifty, the profligate, and the handicapped when they become unable to care for themselves. It may require persons not voluntarily carrying insurance in standard companies to do so, if they cannot show resources making insurance unnecessary. And it can compel employers of such persons to make payroll deductions for the payment of insurance premiums through the working years of the employees.
The United States has no constitutional interest in this subject.
This discussion may well be closed by a quotation from a sound decision of the Supreme Court on January 6, 1936, holding the Agricultural Adjustment Act unconstitutional as not authorized by the General Welfare Clause. Later, on May 24, 1937, the Court, as seen, sustained the Social Security Act as within the General Welfare Clause -- on two erroneous conceptions: (1) that the States could not care for the people in need (which would not confer authority on Congress), and (2) that "a cyclical depression" gave power to Congress to take control forever.
In the Agricultural Adjustment case the Court, speaking through Justice Roberts, said:
"Until recently no suggestion of the existence of any such power in the Federal Government has been advanced. The expressions of the Framers of the Constitution, the decisions of this Court interpreting that Instrument, and the writings of great commentators will be searched in vain for any suggestion that there exists in the Clause [General Welfare] under discussion, or elsewhere in the Constitution, the authority whereby every provision and every fair implication of that Instrument may be subverted, the independence of the individual States obliterated, and the United States converted into a central Government exercising uncontrolled police powers in every State of the Union, superseding all local control or regulation of affairs or concerns of the States.
"Hamilton himself, the leading advocate of broad interpretation of the power to tax and appropriate for the general welfare, never suggested that any power granted by the Constitution could be used for the destruction of local self-government in the States, Story countenances no such doctrine. It never seems to have occurred to them, or to those who have agreed with them, that the general welfare of the United States (which has aptly been termed "an indestructible Union, composed of indestructible States") might be wrecked by obliterating the constitutional members of the Union."
Justices Stone, Brandeis, and Cardozo dissented.
That decision shows the ground we have since abandoned, with Congress "in a boundless field of power, no longer susceptible of any definition."
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THE CONSERVATION OF SOIL IN FARMING STATES BY THE FEDERAL GOVERNMENT IS NOT AUTHORIZED BY THE CONSTITUTIONand
THE EXPANSION OF THE CONSTITUTION BEYOND THE LETTER AND SPIRIT THROUGH JUDICIAL LEGISLATION BY THE SUPREME COURT OF THE UNITED STATES IS, BECAUSE INSIDIOUS, THE WORST THREAT TO LIBERTY AND PROPERTY
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