                              Undermining the
                                Constitution 

                      A HISTORY OF LAWLESS GOVERNMENT

                           By Thomas James Norton 

Member of the Bars of the Supreme Court of the United States, the United 
States Circuit Courts of Appeals for the 7th, 8th, and 9th Circuits, and the 
Supreme Courts of Illinois, Kansas, New Mexico, Arizona, and California.

                             New York -- 1950

                          THE DEVIN-ADAIR COMPANY



                   Copyright, 1951, by the Devin-Adair Co. 

All rights reserved. No part of this book may be quoted without permission 
in writing from the publisher.

                     [Copyright apparently not renewed]

               To the Memory of My Sisters SARA and KATHERINE

                MANUFACTURED IN THE UNITED STATES OF AMERICA



Author of:

The Constitution of the United States: Its Sources and Its Application -- 
1922; revised in 1941.

Losing Liberty Judicially: Prohibitory and Kindred Laws Examined -- 1928.



Page

PREFACE xi

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 ...... 3

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 
...... 14

III IN FAVOR TO POLITICIANS AND TO LABOR UNIONS, CONGRESS PURSUED ANOTHER 
METHOD OF ATTACK ON THE COORDINATE JUDICIAL DEPARTMENT ...... 40

IV THE SIXTEENTH OR INCOME-TAX AMENDMENT, HAVING OPERATED IN VIOLENCE TO 
AMERICAN PRINCIPLES RESPECTING PROPERTY AND JUSTICE, SHOULD BE REPEALED 
...... 51

V FOLLOWING THE INCOME-TAX AMENDMENT IN 1913, THE NEXT VIOLENCE TO 
CONSTITUTIONAL PRINCIPLE WAS UNDERTAKEN IN 1916 BY A SOCIALIST-MINDED GROUP 
SEEKING TO BREAK DOWN THE TENTH AMENDMENT AND HAVE WASHINGTON ASSUME POLICE 
POWER IN THE STATES OVER PERSONS UNDER THE AGE OF 18 YEARS ...... 83

VI THE LONG-PURSUED PURPOSE OF CONGRESS TO CROSS THE BARRIER OF THE TENTH 
AMENDMENT AND ENTER THE POLICE FIELD OF THE STATES, OFTEN CHECKED BY THE 
COURTS AND THE PEOPLE, WAS ACCOMPLISHED BY THE PACKERS AND STOCKYARDS ACT OF 
1921 ...... 96 

VII THE RECONSTRUCTION FINANCE CORPORATION WAS CREATED BY CONGRESS WITHOUT 
AUTHORITY GRANTED TO IT BY THE CONSTITUTION, AND ITS OPERATIONS HAVE BEEN 
BEYOND THE SPHERE OF GOVERNMENT ...... 102

VIII WITHOUT A GRANT OF CAPACITY IN THE CONSTITUTION TO CREATE A 
CORPORATION, CONGRESS INCORPORATED IN MAY, 1933, THE TENNESSEE VALLEY 
AUTHORITY, WHICH MANUFACTURES, ON THE MONEY OF THE TAXPAYERS, ELECTRIC POWER 
FOB SALE IN COMPETITION WITH PRIVATE CAPITAL ...... 110

IX IN MAY, 1933, CONGRESS, BY THE AGRICULTURAL ADJUSTMENT ACT, UNLAWFULLY 
PERMUTED THE PRESIDENT TO REDUCE THE GOLD CONTENT OF THE STANDARD DOLLAR 
...... 133 

X FIVE MONTHS AFTER THE INCORPORATION OF TENNESSEE VALLEY AUTHORITY, IN 
1933, TWO MEMBERS OF THE CABINET OF THE PRESIDENT, AND THE HEAD OF THE 
FEDERAL BELIEF ADMINISTRATION PROCURED A CHARTER IN DELAWARE FOR THE FEDERAL 
SURPLUS COMMODITIES CORPORATION, CAPITALIZED BY THE MONEY OF THE TAXPAYERS 
...... 150

XI THE NATIONAL LABOR RELATIONS ACT OF 1935 WAS A VICTORY FOR CAESARISM OVER 
THE STATES AFTER A CONTINUOUS BATTLE FOB TWO DECADES ...... 161

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 ...... 181

XIII THE CONSERVATION OF SOIL IN FARMING STATES BY THE FEDERAL GOVERNMENT IS 
NOT AUTHORIZED BY THE CONSTITUTION ...... 202

XIV THE EXPANSION OF THE CONSTITUTION BEYOND ITS LETTER AND SPIRIT THROUGH 
JUDICIAL LEGISLATION BY THE SUPREME COURT OF THE UNITED STATES IS, BECAUSE 
INSIDIOUS, THE WORST THREAT TO LIBERTY AND PROPERTY ...... 207

XV THE COURSE OF PRESIDENTIAL ELECTIONS DURING THE LAST FORTY YEARS HAS MADE 
CLEAR THAT THE SAFETY OF THE REPUBLIC REQUIRES RETURN TO STRICT CONFORMITY 
WITH THE DIRECTIONS OF THE CONSTITUTION ...... 254

XVI IN CONCLUSION AND IN RETROSPECT ...... 296

TABLE OF CASES ...... 301

INDEX ...... 323


____________

Preface

The writing of this book was impelled (or compelled) by the very manifest 
indifference of the people of the United States to the constitutional 
doctrines of their country. This had been developing so rapidly that all 
ideas of constitutionalism seemed to have passed out of the American mind. 
That is, indefensible proposals and practices against the plainest 
limitations on power set in the Constitution provoked no objections even 
from the Bar. For two decades no great debate on a constitutional subject 
had been heard in either House of Congress.

The National Education Association, theoretically representing the teachers 
of the country, had for years been passing resolutions favoring whatever was 
before the public of un-American import, especially for getting the imperial 
Government at Washington, through "Federal aid," to take over the shaping in 
school of American ideas. Under the cloak of "academic freedom" men in the 
universities belittled those who wrote the Constitution and pronounced their 
work faulty and outmoded.

The schools, while neglecting to give thorough courses in our history, and 
especially in constitutional history or the history of Liberty, admitted 
objectionable textbooks and periodicals.

Laws enacted by States after the Civil War requiring the teaching of the 
Constitution in the schools became dead letters. Similar laws of more than 
forty States enacted after World War I became dead letters too. So the 
governmental chaos, as it appears to be, came not by chance. The Commission 
on Organization of the Executive Branch of Government reported in 1948 that 
in the President's Department there are 1,800 different administrative 
units, and that the proposals of the Commission would save the taxpayers 
"billions -- not millions, but billions." Plain lawlessness in taxation and 
a brutal attitude toward the taxpayer were among the conditions that 
compelled the writing of this book.

The principles of our Government are not outmoded, as some say. They are as 
immutable as those of mathematics. The first of them, so well put by 
Jefferson, is that the man to whom power is given must be chained. The 
profound historians at Philadelphia who wrote the Constitution looked back 
over the centuries and drew that principle from the recurring tyrannies and 
unfailing breakdowns of governments. So, to prevent "the very definition of 
despotism," as they termed the union of powers in one hand or body, from 
coming to the New World, they separated the Legislative, the Executive, and 
the Judicial powers, and then, by the most careful specifications, limited 
the application of each class.

The States retained sovereignty in local affairs.

During the last three decades nearly every restraint upon the man in power 
has been broken. Worse than that, lawlessness provokes no reasoning 
objection. 

In the Roman Republic there was an elaborate distribution of powers, but in 
time all were gathered into one hand. First the Republic and then the Empire 
fell. A historian tells us that "statesmen came to disregard all checks in 
the [Roman] Constitution in order to carry a point."

What John Adams praised as the "checks and balances" in our Government also 
will fail unless respect for them returns.

My book[1] explaining 196 clauses of the Constitution, showing their 
origins, their uses, and their practical values in the development of 
American "life, liberty, and property," had been received by the people to 
over half a million copies, and it seemed my duty to prepare another volume 
to explain the causes and the consequences of departures from constitutional 
principle which had been in progress for many years.

As that is done by dealing with concrete cases, the presentation of 
governmental philosophy is made the easier to understand.

The reader is admonished to approach this subject not with hesitance or with 
the idea that it is difficult or abstruse, but with earnest expectation. For 
no novel ever had a theme as engrossing as the story of "life, liberty, and 
property," which is the Constitution of the United States.

Moreover, the reader is the ruler of this land, and it is therefore his duty 
to himself and his descendants to learn and ably and righteously to execute 
the law of our national being.

As the constitutional system of the United States was the first that man 
through all the centuries was able to formulate for the one purpose of 
controlling those in power, the American should know it as he knows the 
alphabet. Its study has been recommended to him by its adoption in Canada, 
Australia, Brazil, Argentina, and in other countries more or less fully. It 
is "the last hope of the world," Daniel Webster warned us.

Communism and other alienisms can be met and overcome, not by dollars or 
arms, but only by superior doctrines, as the teaching of the kindnesses of 
Christianity overcame the ideas, the brutalities, and the power of the Roman 
Empire.

By neglecting to indoctrinate each new generation with a knowledge of the 
superior philosophy of the American system of Government, we thereby left 
the people weakened to attack. Hence so many of them are taken with the 
false promises of Communism. And so many others want the Government at 
Washington to do things beyond its power and outside its jurisdiction.

As the provisions of the Constitution dealt with in this volume are quoted 
or stated, and as they are a very small portion of the Instrument, it has 
seemed best, in order to keep down the size and price of the book, to omit 
the Fundamental Law as an Appendix.

Also for brevity, titles of cases cited are omitted and only the volume and 
page of the report are given, enough for one desiring to look further.

A thorough Index at the end of the volume and a complete Table of Cases are 
commended to the careful study of the reader and the student.

THOMAS JAMES NORTON New York City September 27, 1950



1. The Constitution of the United States: Its Sources and Its Application, 
1922; revised in 1941.


____________

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 1920s and the early 1930s.

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 stockmen 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 stockmen 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 
stockmen 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, "five men who belong to tile 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 tinkerings 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 1900s.

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 
overleap 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?

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 thereof," 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 defence 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 NLRA

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 '80s and early '90s the 
Shop Craft Unions were formed on that railroad. The Maintenance of Way 
employees, the Telegraphers, the Switchmen 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 Inter-state 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.

Propagandism 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.

In November, 1946, when the President was put in a comer 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 of the liberty and property of Americans began 
before 1933.



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.

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.

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."


____________

III

IN FAVOR TO POLITICIANS AND TO LABOR UNIONS, CONGRESS PURSUED ANOTHER METHOD 
OF ATTACK ON THE COORDINATE JUDICIAL DEPARTMENT

Another form of attack by Congress on the courts of the Constitution was in 
legislation directing them how to try cases.

In 1910 it passed an act forbidding the issue of an injunction against the 
operation of a law of a State except in a specified way.

In 1913 it passed a similar law forbidding the restraint by injunction of an 
order of the Interstate Commerce Commission except on conditions laid down.

And in 1932 Congress enacted the Norris-LaGuardia Act for denying injunctive 
relief to an employer, except under annoying conditions which might deny 
relief, where a labor question is involved.

Those invasions of the rights of litigants and the liberties of the American 
will be examined.

Constitutional Convention forbade Congressional dictation to courts

Prefatory to a discussion of the three intrusive acts of Congress mentioned, 
a quotation should be made from the record of the Constitutional Convention 
(Formation of the Union, p. 625) of August 27, 1787, only twenty-three days 
before the signing, when there was under consideration "the Judicial power":

"The following motion was disagreed to, to wit, to insert 'In all other 
cases before mentioned the Judicial power shall be exercised in such manner 
as the Legislature [The Congress] shall direct.'"

So the Constitutional Convention explicitly refused to authorize the 
Congress to "direct" the judicial power in any respect whatever. How 
Congress has lawlessly directed it, nevertheless, and how the courts have 
lawlessly submitted to the forbidden dictation, are to be seen.

The act of 1910 forbade the courts of the United States to grant an 
interlocutory injunction "restraining the enforcement ... of any statute law 
of a State," or of any order made thereunder by a board, "upon the ground of 
the unconstitutionality" of such statute, "unless the application" be "heard 
and determined by three judges, of whom at least one shall be a justice of 
the Supreme Court or a Circuit Judge, and the other two may be circuit or 
district judges, and unless a majority of the said three judges shall concur 
in granting such application."

States objected to constitutional restraints

Some of the States had felt wounds in their dignity when a citizen who 
believed a tax law, for example, was intended to effect what President 
Coolidge later termed "legalized larceny," went into a court of the United 
States asking a restraining order upon the officers executing the law until 
there could be a full hearing on evidence. In addition to that, those were 
field days for the alien minded who omitted no opportunity to "go after" the 
Judiciary, which Von Holst rightly called the keystone of the American arch.

Of course, the Fourteenth Amendment forbids the State to "deprive any person 
of life, liberty or property without due process of law." That is, he must 
have a hearing when he asks it before his property is taken by taxation or 
otherwise. It was the constitutional intent that the legislature should not 
take property by fiat. And that was imbedded in the Constitution 46 years 
before the confiscation of private property was begun by Government through 
the "graduated" income taxes of Communism.

Article III, establishing the Judiciary, "extends" the "judicial power" to 
all cases arising under the Constitution, under the laws of the United 
States, under treaties; to cases affecting ambassadors, other public 
ministers, consuls; to controversies between two or more States, between a 
State and citizens of another State, between citizens of different States, 
between a State or the citizens thereof and foreign states, citizens or 
subjects.

Thus, ample provision was made for the States to use the courts of the 
Nation. But in the foregoing recital the States are ranked as litigants on 
the level with ambassadors, consuls, and citizens. No thought was 
entertained that a State as a litigant should be regarded as any higher than 
a man. Why should the creature, the State, be above the man, who created it?

Preference of State against Man not authorized

Since the Constitution left the State as a litigant on a level with the man, 
as it clearly did, where did Congress get the power to change that 
arrangement of the Constitution and put the State above the man? Only the 
people, by amendment, could make that change. Yet the courts submitted to 
the lawless dictation. The first judge appealed to under the meddling act 
should have refused to call two other judges, should have heard the 
application, granted or denied a restraining order or injunction, and let 
the losing party make a test of the law in the Supreme Court of the United 
States, which would then be in a position to sustain the Judiciary "in all 
its dignity and vigor," as President Cleveland sustained the Executive 
Department against encroachment by the Senate, and as Hamilton said in The 
Federalist that each Department would take pride in maintaining its 
prerogatives against one or both of the others.

Act of Congress interference with procedure

The act forbade that the application for a restraining order or injunction 
"be heard or determined before at least five days' notice of the hearing has 
been given to the Governor and to the Attorney General of the State, and 
such other persons as may be defendants in the suit." But if it should 
appear that irreparable loss or damage would result unless a temporary 
restraining order be granted, then one judge should give that relief.

As Article III set up the Supreme Court and then authorized Congress to 
"ordain and establish" such "inferior courts" as might be necessary, it was 
within the competence of the Legislative Department, probably, to establish 
a three-judge court. In 1891, to take from the Supreme Court part of its 
load, Congress established nine (now eleven) Circuit Courts of Appeals of 
three judges each. But to establish courts to meet the needs of the people 
is quite another thing from trying, or partially trying, cases in them.

"The judicial power of the United States" to try and adjudge cases, the 
Constitution put in "one Supreme Court and such inferior courts" as might be 
needed. That forever fixed judicial power until the people determine that it 
should be withdrawn from the courts and vested in the Congress or elsewhere.

No judicial power possessed by Congress

Congress may prescribe the jurisdiction of a court which it establishes 
(like the Court of Claims and the Court of Customs and Patent Appeals), but 
not the power. "The judicial power," says section 2 of Article III, "shall 
extend to all cases in law and equity." This power is poured into the courts 
by the people through their Constitution. Congress has no judicial power to 
confer.

Apparently emboldened by the success -- or lack of opposition -- which 
attended the act of 1910, Congress again dictated to the Judicial 
Department, in 1913, setting up a three-judge court and laying down with the 
fullest particularity the steps which the court would be permitted to take 
in injunction proceedings arising out of orders entered against citizens by 
the Interstate Commerce Commission.

Congress unduly magnified Interstate Commerce Commission

Again, why should the Interstate Commerce Commission, a bureau of Congress, 
have a court of three judges, when a court of one judge must meet the needs 
of the American, who created all that there is in and under government? This 
question is particularly pertinent in view of the fact that during the 63 
years of the Commission no President has ever appointed to it a railroad man 
of standing in the field of transportation, finance or traffic, or a shipper 
of prominence, in the world of commerce. The body never has been what the 
President and the Senate should have made it -- what the commerce of the 
country and those engaged in it were entitled to have to serve them. Then, 
why should its decisions be made so nearly immutable by restrictions on 
judicial procedure withholding from the American his liberty to seek 
justice?

Why put Interstate Commerce Commission above American?

As a specimen of the work of the Commission which the Congress was so 
desirous of making nearly immune to attack by aggrieved citizens, the 
reorganization of the Chicago, Milwaukee, St. Paul and Pacific Railroad 
Company will be stated.

Owing to the unemployment of 9,935,000 in the United States, there was a 
great shortage of production, which means that the railroads lacked freight 
tonnage and passenger travel, which means that many of them could not pay 
their way. In 1935, the Milwaukee Company filed a petition for 
reorganization with the Interstate Commerce Commission in pursuance of an 
act of Congress. Evidence was received in the year named and in 1936 and 
1937. While the case was on trial the number of unemployed rose to 
10,932,583, as reported by the American Federation of Labor.

The plan of reorganization approved by the Commission wiped out all the 
preferred and common stock. On March 15, 1943, the Supreme Court of the 
United States upheld the finding of the Commission.

A year before that, in 1942, the net profits of the Milwaukee after interest 
and taxes were $12,174,831. In 1943 the net profits were $29,413,623.

Interstate Commerce Commission failed to see point

That shows that the railroad was in fit condition to handle traffic when the 
United States should be in condition to provide it. The United States needed 
reorganizing, not the railroads.

Shortly after the investments of the holders of preferred and common stock 
had been wiped out, the Company paid off a large volume of its old bonds. 
That is only one of many like cases of railroad reorganization in 
destruction of investments. The grossness of the injustice caused talk by 
members of Congress of impeachment.

It was decisions of that sort that Congress did not want the damaged 
American citizen to attack in court except under annoying difficulty and 
delay! 

In 1932 Congress revamped a line of legislation respecting labor and told 
the Judicial Department of the Constitution just what it could do and what 
it could not do about the issuing of injunctions in cases affecting labor.

Norris-LaGuardia Act denial of justice

The minority report of the committee of Congress on the bill said that in 
practice it would amount to a denial of the rights of the employer. He was 
virtually outlawed. To be sure, that was the intention -- that is what a 
powerful voting group demanded that Congress give it. And Congress responded 
to the demand, just as it bowed to the same group five years later and 
passed the National Labor Relations Act, to the appalling hurt of the States 
whose Congressmen enacted it.[1]

Those three acts of Congress were definitely lawless and against the liberty 
of the American. The courts were lawless when they submitted to the 
intimidations, and the organized Bar maintained a masterful inactivity while 
the undermining of constitutional government was in open progress.

Historic relief by injunction made clear

The "judicial power" which was poured into the courts by the Constitution 
was that inherent in the courts of England in 1787. It was brought to 
America by the colonists. What it was is plain.

Blackstone, whose lectures were taught in the College of William and Mary to 
Virginians who helped write the Constitution, told the youth at the 
University of Oxford a quarter of a century or more before 1787 just what 
were the inherent powers of a court of equity with respect to the 
restraining order, or the temporary injunction, and the permanent 
injunction:

"But if an injunction be wanted to stay waste, or other injuries of an 
equally urgent nature, then upon the filing of the bill [called application 
in the acts of Congress reviewed], and a proper case supported by 
affidavits, the court will grant an injunction immediately, to continue 
until the defendant has put in his answer, and till the court shall make 
some further order concerning it; and when the answer comes in, whether it 
shall then be dissolved or continued till the hearing of the case, is 
determined by the court upon argument, drawn from considering the answer and 
the affidavit together." -- 4 "Commentaries on the Laws of England," 443. 

That language defined the power of a court of equity with respect to the 
injunction when the Constitution was written. Consequently that is what the 
Convention put into the Constitution when it provided:

"The judicial power shall extend to all cases in law and equity."

Congress powerless to defeat constitutional injunction

What a court of equity could do then it can do now. That is constitutional. 
Being constitutional, it can be taken out of the Constitution only by 
amendment. Congress can no more change or control the judicial power than it 
could wipe away the Bill of Rights. Indeed, this provision extending the 
judicial power to cases in equity is one of the many bills of right written 
in the body of the Constitution.

The court of equity established by the Constitution having had the power, as 
Blackstone shows, "to grant an injunction immediately," without notice, upon 
the filing of an application with affidavits proving that, if it be not 
granted without delay, irreparable damage will be sustained by the 
applicant, that power cannot be withdrawn or modified by Congress.

Rule of Supreme Court protected all

By Equity Rule 73 of the Supreme Court of the United States, governing the 
lower courts also, long in effect, meticulous care was taken to prescribe 
procedure in injunction cases -- not alone in cases affecting the powerful 
group unconstitutionally favored by the Act of 1932, known as the 
Norris-LaGuardia Act, but in suits of all Americans.

The Rule directs (1) that no preliminary injunction issue without notice; 
(2) that no temporary restraining order be granted without notice unless it 
clearly appear from specific facts presented, under oath, that immediate and 
irreparable damage will otherwise result, and (3) that the temporary 
restraining order mentioned be brought to hearing "at the earliest possible 
time, and in no event later than 10 days."

That rule required notice to interested persons and parties -- to States and 
to the Interstate Commerce Commission. It required the oath for the 
temporary restraining order, as described by Blackstone. It required speedy 
hearing. It gave to defendants complete protection, and the acts of Congress 
were as needless as they were invalid.

Judiciary in need of protection

On the Judiciary's being the weakest of the three Departments to defend 
itself, and on the need therefore of its receiving protection, Hamilton 
wrote in No. 78 of The Federalist:

"The Judiciary, from the nature of its functions, will always be the least 
dangerous to the political rights of the Constitution, because it will be 
least in capacity to annoy or injure them. The Executive not only dispenses 
the honors, but holds the sword of the community. The Legislature [Congress] 
not only commands the purse, but prescribes the rules by which the duties 
and rights of every citizen are to be regulated. The Judiciary, on the 
contrary, has no influence over either the sword or the purse; no direction 
either of the strength or of the wealth of the society; and can take no 
active resolution whatever. It may be truly said to have neither force nor 
will, but only judgment; and must ultimately depend upon the aid of the 
Executive arm even for the efficacy of its judgments. ... It can never 
attack with success either of the other two; and all possible care is 
requisite to enable it to defend itself against their attacks."

But government by the educated is in prospect

In June, 1947, the Governor of Missouri signed a bill to require the 
teaching of the Constitution in all schools from the Seventh Grade up and in 
colleges and universities, and to forbid a degree of graduation to be given 
to any student until a rigid examination in the Constitution has been 
passed.

In the same month the dispatches reported that a similar step had been taken 
by the Legislature of California.

When the legislatures of all the other States follow those wise examples it 
will soon be impossible to draw from the population weak Congresses or 
Courts or Legislatures or Executives.



1. The Norris-LaGuardia Injunction Bill of 1932 passed the Senate by a vote 
of 75 to 5. The House passed it by 363 to 13. The employers of the country 
whose equipment for production and transportation had won the first World 
War were all but friendless in the Government which had been saved.


____________

IV

THE SIXTEENTH OR INCOME-TAX AMENDMENT, HAVING OPERATED IN VIOLENCE TO 
AMERICAN PRINCIPLES RESPECTING PROPERTY AND JUSTICE, SHOULD BE REPEALED

As the panic of 1893 and the failures of crops which contributed to the 
insolvency of railroads and the closing of banks brought upon the theatre of 
government alien-minded philosophers advocating the imported Initiative, the 
Referendum, and the Recall as panaceas for whatever it was that was ailing 
them, so, after the panic of 1907, out came another group of politicians and 
"universitaires" and demanded an income tax to cure the sickness of the 
Nation.

For a time the panic of 1907 was worse than that of 1893, as in parts of the 
country the circulating medium disappeared and cities and various bodies 
issued "scrip" to be used as money.

Communistic beliefs from panic time in full effect

The platform of 1908 of the National Socialistic Party, speaking of that 
panic, demanded a "graduated" income tax and a graduated inheritance tax as 
a means of distributing wealth.[1] 

It also called for nearly all of the "uplifts" brought into play a quarter 
of a century later and unctuously baptized as the "New Deal" -- employment by 
the United States for the unemployed, help from the Federal Treasury for the 
needy, public improvements to provide work, nationalization of utilities and 
some industries, "development" of many fields not before thought to be 
within the competence of government, insurance for health, accident, old 
age, death, and other things insurable, and practically anything else that 
anybody wanted.

The fallacies of the "New Deal" were old even when Karl Marx demanded in 
1848 "progressive," or graduated, income taxes -- together with the 
abolition of the right to pass estates at death -- to enable confiscation 
of private property and the rise thereby of the proletariat to political 
control. For they were employed by the several experimenters who tried to 
mitigate the conditions which brought on the French Revolution of 1789. And 
in the 300s the Roman Emperor Diocletian, in the interest of his soldiers, 
fixed maximum prices for provisions and other articles of commerce and set 
maximum rates of wages, with severe penalties for disregard of the edict. 
For the purposes of this regulation he issued a special copper coin of the 
value of one oyster. In 1950, the "New Deal" is operating in the United 
States without even that much for a standard of money.

After the close of the war in 1945 a new government in England undertook the 
acquisition of private property by what it termed "nationalization." 

"New Deal" a very ancient failure

The "New Deal" is a very ancient subterfuge for statecraft.

Knowing the type very well, the historians who wrote the Constitution gave 
nothing that is in the "New Deal" any recognition whatever. Life, liberty, 
and property they left with men, to whom they belong, and for whom and by 
whom the Constitution was conceived for self-protection.

The "New Deal" is thoroughly unconstitutional.

Yet the persistence through the centuries of the idea that Government can do 
the business of man better than he can, which showed up in this land of 
liberty in 1933 with the effrontery of a Stuart king or a Bourbon, is a 
fact that must keep Americans on guard.

States deposed themselves from constitutional sovereignty

The Sixteenth Amendment to the Constitution of the United States wrought an 
unintelligent relinquishment by the States of the first power of 
governmental sovereignty -- that of raising revenue for self-maintenance.

Hamilton failed to foresee that in time the States, instead of defending 
their sovereignty in local affairs, would, through their representatives in 
Congress, undermine themselves (The Federalist, No. 28):

"State governments will, in all possible contingencies, offer complete 
security against invasions of the public liberty by the National 
authority."

Plain income tax not objectionable

There is no objection to an income tax when legally laid -- when not made 
confiscatory by graduation -- but it should be levied by the States for use 
at home -- not gathered by the Nation and then redistributed as doles or 
donatives toward the weakening of the States and the enlargement of the 
central power.

It should probably not be laid on the income of manufacture or production.

Since graduation was contrary to constitutional principle, it should have 
been foreseen by statesmen that the Income Tax Amendment as applied by 
Congress would work badly. It enabled the central Government, like an 
octopus, to thrust a tentacle into the revenue supply of each State and 
drain it, leaving the State partially helpless to perform its essential 
functions and making it a beggar at the Capital for a share of its own 
money.

Nation given worst form of power

It put in the hands of the National Government a power of money -- in every 
hand the worst power there is -- never seen in the world before, in 
comparison with which that employed by the Imperial City for the plunder of 
the Roman provinces was an evil of small consequence.

Money in excess at Washington has covered the country with a thoroughly 
disreputable organization of politics -- the begging States having been to 
a degree forced to aid in carrying out, as baronies, the "objectives" of the 
superior authority from which they now hold their place on earth and to 
which they render most humble fealty.

Roosevelt totally lacking in knowledge of taxation

In the President's message to Congress and the country on April 27,1942, the 
first and most important of his seven specifics for keeping the costs of 
living from "spiraling upward" and for winning the war was "to tax heavily, 
and in that process keep personal and corporate profits at a reasonable 
rate."

"Through tax processes," he said, excess profits can be kept down, and at 
the same time "further large sums" can be raised for the financing of the 
war.

The plain import of that language is that "tax processes" may be employed -- 
as they certainly have been illegally for nearly three decades -- for other 
purposes than the raising of necessary revenue for the support of strictly 
governmental functions.

When law was scientific, care was exercised to levy no more taxes than would 
meet the needs of government economically administered. President Coolidge 
said that taxation beyond that need is "legalized larceny." President 
Cleveland denounced almost as severely the taking by taxation of revenue not 
required.

Those two understood clearly the American meaning of the word "tax," as 
applied for upwards of 300 years. Neither to them nor to those before them 
was a tax a weapon. It was not an instrument for taking from those with 
possessions and bestowing, either directly or indirectly, upon those 
without.

President Roosevelt for the confiscation of Communism

The use of "tax processes" for transferring the property of the individual 
to the Government is the fundamental doctrine in the Communist Manifesto of 
1848, promulgated by Karl Marx. By the "graduated" income tax, plus the 
abolition of the rights of inheritance, Marx would seize by government for 
the proletariat all private property.

"They [the proletariat] have nothing of their own to secure and fortify," 
wrote Marx; "their mission is to destroy all previous securities for, and 
insurance of, individual property."

The instrument to accomplish that destruction would be "a heavy progressive 
[graduated] income tax."

"The abolition of all rights of inheritance" would be used by Marx and his 
followers toward putting an end to private property.

Karl Marx elucidates his idea

Communism, belief in which has been held by many in our Government, was made 
clear by Marx as follows:

"The distinguishing feature of Communism is not the abolition of property 
generally, but of the bourgeois [capitalistic] property. But modem bourgeois 
private property is the final and most complete expression of the system of 
producing and appropriating products that is based on class antagonisms, on 
the exploitation of the many by the few.

"In this sense the theory of Communism may be summed up in the single 
sentence: Abolition of private property."

The "heavy progressive" taxes which he proposed would transfer property from 
the bourgeoisie to Government, and Government would be in the proletariat.

Marx again:

"The immediate aim of Communism is the same as that of all the other 
proletarian parties: formation of the proletariat into a class, overthrow 
of the bourgeois supremacy, and conquest of political power by the 
proletariat."[2]

And men teaching and preaching that sedition have been permitted to run for 
the Presidency of the United States!

Communism the first "American way of life"

Communism was the first -- and quickly rejected -- American way of life. The 
Communism expounded by Lenin in The Teachings of Karl Marx had been the 
earliest experiment in America in living. It was tried in Virginia and in 
the Plymouth Colony in Massachusetts. It was a failure in both places, as it 
failed in several later attempts in the United States when supported by 
abundant funds and by men and women of the highest learning.

Lenin wrote that the worker receives under Communism "a certificate from 
society" for the amount of work done. He gets in return from the public 
warehouse "a corresponding quantity of products," after there has been 
deducted "that proportion of labor which goes to the public fund." In the 
main that is the method in Soviet Russia today, according to Gen. Walter 
Bedell Smith, former ambassador to that country, in My Three Years in 
Moscow.

Governor Bradford on failure of Communism at Plymouth

In A History of Plymouth Plantation, 1606 to 1646, it is related by Governor 
Bradford (p. 147) that at first the land was tilled and other work done in 
common and that the product of toil went into general storage. From the 
warehouse those in charge of the colony made distribution according to 
service given. The undertaking failed from lack of incentive "even among the 
best settlers." After grave consideration by the officers of the colony a 
"parcell" of land was assigned to each family and the members of the family 
lived together. Immediately "corne" was much more widely planted.

"For the young men," wrote Bradford, "that were most able and fitte for 
labour and service did repine that they should spend time and streignth to 
worke for other men's wives and children without any recompence. The strong, 
or men of parts, had no more devission of victails and cloaths than he that 
was weake and not able to doe a quarter the other could. This was thought 
injuestice."

Of course, it was unjust, an affront to reason, a burden at which human 
nature rebels.

Thus the communal life was rejected at the beginning for American private 
enterprise.

American spirit called "wealth" by Hamilton

That spirit of self-reliance was regarded by Alexander Hamilton (The 
Federalist, No. 11) as a considerable proportion of the capital which would 
build the United States:

"The unequalled spirit of enterprise which signalizes the genius of 
American merchants and navigators, and which is in itself an inexhaustible 
mine of national wealth."

Government has been undermining that self-reliance until a critic has said 
that the people are more fearful of life than of death. And in 1949, so 
much had American spirit deteriorated (in places) that the Vice President 
could say in an address to an association of businessmen:

"As much as we wish for the good old simple days, the complexities of our 
lives have created an interdependence among all of our citizens. This has 
created a necessity for the guidance of the Government in the problems that 
beset our people."

Most of the worst "problems" have been created by men in Government who had 
never, before taking public office, exhibited any notable talent in the 
world of affairs. They have been incompetent "guides." Our constitutional 
system has been turned by them into a manufactory of problems and 
emergencies.

Those problems cannot be solved by Communism.

"Graduated" tax of Communism never proposed by Congress

In 1909 President Taft, who succeeded to an empty treasury, asked Congress 
to propose an amendment to the Constitution authorizing an income -- but not 
"graduated" -- tax. Congress made the proposal and it became the Sixteenth 
Amendment in 1913, just before President Taft went out. By a tax on 
corporations he had filled the Treasury, thus demonstrating that the income 
tax was not needed.

The purpose of the proposed Amendment was to take out of the Constitution, 
as it would affect an income-tax law, the provision (section 2 of Article I) 
on which the Income Tax Act of 1894 foundered, namely:

"Direct taxes shall be apportioned among the several States which may be 
included within this Union, according to their respective numbers."

That is, according to population. The Supreme Court had held (157 U. S. 429) 
the taxes stated to be direct taxes, and that as they had not been 
apportioned by Congress among the several States, the act was 
unconstitutional. Hence, the Amendment:

"Congress shall have power to lay and collect taxes on incomes, from 
whatever source derived, without apportionment among the several States, and 
without regard to any census or enumeration."

Hamilton did not dream that the provision for uniformity in taxation which 
he was extolling would be stricken out (emphasis his):

"The abuse of this power of taxation seems to have been provided against 
with guarded circumspection. In addition to the precaution just mentioned, 
there is a provision that 'all duties, imposts and excises shall be UNIFORM 
throughout the United States.'"

Sixteenth Amendment gave Congress no power to tax

That did not give Congress the power to tax incomes. It had that power 
before. All the Amendment did was to remove the need for apportionment among 
the several States.

Especially it did not authorize Congress to take leave of the rule and 
practice of uniformity and equality of treatment which had always governed 
in every field of taxation and employ a method without rule, without reason, 
for the taking of money of the Americans for other purposes than the actual 
needs of government economically administered. It did not authorize Congress 
to confiscate the income of a man until it would not be what President 
Franklin D. Roosevelt called "too high." It did not empower Congress to 
drain the States of their resources and subject them to bureaucratic 
domination. Nor did it give authority to government to enter the fields of 
production, manufacture, agriculture, world saving and others, and to spend 
money for purposes not within the only area laid out in the Constitution, 
that is, "the common Defence and general Welfare of the United States."

Lawless government caused by money in excess

But those are among the many unconstitutional activities in which Government 
has been enabled to engage by use of the limitless funds gathered by the 
confiscatory income tax. Having mismanaged agriculture, manufacture, 
medicine, charity, and other nongovernmental activities at home, it took up 
direction of the affairs of the world by the worse than lavish use of money 
produced by the erroneous application of the Sixteenth Amendment.

For if what has been taking place in our land and other lands during the 
last third of a century had been intended by President Taft when he asked 
Congress to propose an amendment, he would have made specifications to that 
effect. He would have asked for a "graduated" tax.

"Graduated" tax not proposed by Congress

The Amendment proposed and ratified carried nothing on its face but the 
common tax levied on lands, buildings, livestock, machinery, and personal 
property from the beginning. The constitution of every State commands the 
legislature to make taxes uniform, or by valuation, or in proportion to 
value, or by some other method of "equality of treatment." All property of a 
class must be taxed at the same rate. If one man in a class has ten times as 
much property as another, he will pay ten times as much tax, the levy for 
both being on one rate. He cannot be made to pay twelve times as much by the 
use of a higher rate.

Without the clearest specifications in the Sixteenth Amendment for 
"graduated" rates, showing a purpose to bring about, by radical departure 
from American method, what we have witnessed with consternation, Congress 
had no power to pass the act of October 3, 1913, and subsequent income-tax 
laws levying graduated taxes.

People had shown no enthusiasm for income tax

As it took the Socialists and Communists fourteen years after the decision 
of the Supreme Court holding the tax act of 1894 unconstitutional to get the 
proposal to amend, and four years more to secure its ratification, it is 
reasonable to assume that had the proposal plainly called for the 
"graduated" or confiscatory tax of Communism, it never would have been 
ratified. Indeed, had the people dreamed that the money of the States would 
be drained away, leaving them mendicants at Washington, the proposal as it 
was would have been defeated.

Article V of the Bill of Bights forbids that "private property be taken for 
public use without just compensation." When the United States wants the land 
of an American as the site of a post office, or for any other purpose, it 
must bring a condemnation proceeding in the exercise of its eminent domain, 
when the need for taking the property will be proved and its value 
ascertained. That value the United States must pay.

Taxpayer entitled to benefit equivalent to tax

The law or doctrine of eminent domain applies in principle, and by sound 
authority, to property "taken for public use" by taxation, as it does to 
all other takings. The American whose money is thus taken by taxation must 
receive from government an equivalent value in return. That, he gets in 
protection to his "life, liberty, and property," for which purpose he 
established his constitutional system.

That principle was laid down as to taxation in a single, clear, short 
sentence by Judge Cooley in Constitutional Limitations, 2d edition, p. 495 
(italics inserted):

"As all are alike protected, so all should share the burden, in proportion 
to the interest secured."

A man with an income of $100,000 should pay ten times more in taxes than the 
one worth $10,000, because he has ten times as much value needing the 
protection of the government which he established. But he should not, at the 
caprice of the spirit of Communism, pay fifteen or twenty times as much. Nor 
does he so pay in any field of taxation except in that where taxes on 
incomes, and on estates passing at death, are levied.

"Graduated" tax not applied to other property

In every other field all men have paid one tax rate, which in itself is 
proof that the "graduated" -- the arbitrary -- tax rate is obnoxious to the 
"due process of law" (its fair play and procedural regularity) and to "the 
equal protection of the laws," which are the gist of all American 
constitutions.

As the statement of President Roosevelt was the most absolute assertion of 
an unlimited power in government to take property by taxation for other 
purposes than revenue, a belief which has for years been expressed in 
unscholarly seats of learning, in sections of the Press, and elsewhere, it 
is plain that at last we have "entered a boundless field of power," to use 
Jefferson's warning language, "no longer susceptible of any definition."

President Roosevelt for Marxist confiscation

In his radio address on September 7, 1942, President Roosevelt expressed 
this wholly unsound theory of the governmental power of taxation, which has 
been let pass without critical examination:

"Taxation is the only practical way of preventing the incomes and profits 
of individuals and corporations from getting too high. I have told the 
Congress once more that all net individual incomes, after payment of all 
taxes, should be limited effectively by further taxation to a maximum net 
income of $25,000 a year."

That idea of the President, that he or his Government could limit the income 
of an American, is one phase of a fatuous belief which the schools have made 
common, namely, that rights to property are conferred upon him by law. 
Whereas, the Declaration of Independence says that he set up this Government 
himself "to secure these rights" which come to him from the Creator, "among 
which are life, liberty and the pursuit of happiness," that pursuit 
including the acquisition of property. Necessarily his rights and property 
preceded the Government which he set up for the purpose of protecting them.

Tax must be for revenue, not punishment

In Commentaries on the Constitution (page 329), Justice Story of the Supreme 
Court wrote that a tax for neither of the purposes stated in the 
Constitution -- "to pay the Debts and provide for the common Defence and 
general Welfare of the United States" -- would be "an excess of legislative 
authority."

When members of Congress returned to Washington from their homes after the 
election in November, 1946, and undertook to draw a tax bill to meet the 
wishes of the country for a 20-per-cent reduction of the levies on incomes, 
they were astonished to find that it is the small incomes that are 
supporting the extravagances and illegal spendings of the Government, and 
that the cut indicated would leave the Treasury without sufficient funds. 
The big boys, who were to be "soaked" when the Sixteenth Amendment was 
proposed, by levies on vast properties hitherto untaxed, are paying 
comparatively little. 

How the tax load was divided

Taxpayers receiving a net income under $2,500 (small money now), who 
numbered 35,625,683 persons, paid $4,693,000,000 in income taxes in 1946.

Those with net incomes from $2,500 to $5,000 (also small money), numbering 
15,157,265 persons, paid $5,444,000,000.

In the group from $5,000 to $10,000 net income there were only 1,314,457 
taxpayers, and they contributed $1,509,000,000.

The group having from $10,000 to $25,000 numbered only 551,267, and they 
contributed in taxes $2,181,000,000.

There were only 143,725 taxpayers with incomes from $25,000 to $100,000 and 
they paid $2,673,000,000.

In the group with incomes above $100,000 there were only 9,599 taxpayers, 
who took a burden of $1,100,000,000.

Low incomes carry big load of government

The two low-income groups paid $10,000,000,000 and the four higher-income 
groups paid $7,000,000,000.

The foregoing figures are from the United States News of February 14, 1947, 
page 30, which commented that "in trying to give the big break to the little 
taxpayer, Congress runs up against those facts," and that "taxing the rich 
is not enough," although 86 per cent is taken from the income of those in 
"the highest income levels."

The report of the Secretary of the Treasury for 1946 shows receipts of more 
than 30 billion from "income taxes," but that amount includes "profit taxes" 
on transactions in business, as distinguished from wages, salaries, and 
other forms of personal income.

Who really got "soaked" when Congress passed a "graduated" income-tax bill 
which was not authorized by the Sixteenth Amendment of 1913, and which was 
therefore unconstitutional?[3] 

The very rich forsook the risks of industry and trade, forgot the troubles 
with employees over wages and working conditions, and retired to the velvet 
comforts of that most stupendous American business, the National Debt, 
largely tax exempt.

By beginning in time of peace (1913) the borrowing of money from the people 
of the country and securing, through the enticement of exemption from 
taxation, a high price in the market for its bonds issued therefor, Congress 
gathered away from taxable enterprises millions which rose to billions and 
are in 1950 headed for trillions -- all cleared of the taxes which had 
before gone to the support of government.

Necessarily those not owning bonds had to take a larger load of taxes to 
compensate for the exemption.

How much will the depletion thus caused of this country's powers of 
production and transportation, which won both wars, imperil the future of 
the United States?

How much did the corroding debt of England, attended by widespread poverty, 
for 125 years before World War I contribute to the debilitation of industry 
resulting in its "nationalization"?

Courts of States had denounced "graduated" tax

Before the Government at Washington entered upon this coup d'tat, the 
supreme courts of several States had put legislatures right on the 
principles here under discussion.

In 1882 the Supreme Court of New Hampshire held a "graduated" tax on estates 
void for conflict with the command of the Constitution of the State, that 
taxes be proportional and reasonable."

In 1889 the Supreme Court of Minnesota held likewise.

In 1894 the Supreme Court of Ohio said:

"The rate per cent must be the same on all estates. There can be no 
discrimination in favor of the rich or poor. All stand on an equality under 
the provisions of the Constitution, and it is this equality that is the 
pride and safeguard of us all."

In 1898 the Supreme Court of Missouri, eighteen years before the Supreme 
Court of the United States sanctioned the graduated or confiscatory tax, 
expressed (143 Mo. 287) the like view, saying that it was "without rhyme or 
reason."

The next year the Supreme Court of Pennsylvania held (191 Pa. 1) that 
classification of different amounts of money as different kinds of 
property, and therefore subject to different rates of tax, is a fallacy and 
"necessarily unjust, arbitrary and illegal."

In short, the graduated tax is Communistic.

Congress quickly repealed Civil War Income Tax

While in the income-tax laws of the Civil War there had been both 
graduations and exemptions, the levies were so light and the graduations so 
undiscriminative that the legislation could not be taken as a precedent to 
support what the people have been bearing since the Act of 1913 in violation 
of the Income Tax Amendment.

The Act of 1861 levied 5 per cent flat on incomes over $800.

The Act of 1862 levied 3 per cent on $600 to $10,000; 5 per cent above 
$10,000.

The Act of 1864 levied 5 per cent on $600 to $5,000; 7 per cent on $5,000 
to $10,000; 10 per cent on more than $10,000.

The Act of 1867 levied 5 per cent flat on more than $10,000.

The Act of 1870 levied 2 per cent flat for 1870 and 1871, "and no longer," 
quoting the words of the law.

Of the five levies, two were "graduated" and three were flat.

Congress recognized that such taxes could be justified only by the peril of 
war and through the exertion of the war powers, and it wiped them away as 
soon as it could. It never returned to nonuniform taxes until the doctrine 
of Communism had been taken up by our "intellectuals."

In 1864 Congress called for the prayers of the country "to implore Him as 
the Supreme Ruler of the world not to destroy us as a people, nor suffer us 
to be destroyed by the hostility or connivance of other nations" -- 
referring to the unneutral conduct in our Civil War of England and France. 
In such circumstances of national alarm no American would question in a 
lawsuit the validity of taxes of whatsoever sort.

Income tax thus adjudged war measure

Congress itself, by repealing the Civil War taxes, declared in effect such 
levies to be unjustifiable in time of peace.

The most striking example of the fatuous condition of affairs in our 
country is in the call of States for an amendment to prevent their 
representatives in Congress from weakening them by the income tax and the 
estate tax of more than 25 per cent. Article V authorizes the States to 
apply to Congress "to call a Convention for proposing Amendments," and 
during 1949 many States made the application.

First, as a practical matter, the action is objectionable, because if 
Congress should get authority to take 25 per cent of incomes and estates, it 
will do so forever -- whereas, our history for 130 years demonstrated that 
Congress can get along without either of those taxes.

Second, the needed amendment -- if the States fear (as they may have reason 
to) that their representatives in Congress will not refrain from exhausting 
them by taxation -- is one forbidding income and estate taxes by Congress 
except in time of war. As elsewhere shown herein, the Civil War income tax 
was promptly rejected by Congress as a tax justifiable in time of peace. 

That definition of the tax should stand forever.

But the spectacle of citizens petitioning for protection from the men they 
elect to Congress! Can you believe it?

Exemptions as unconstitutional as graduation

And the exemptions granted in connection with the income tax and bonds, and 
in other relations, are just as obnoxious to the Constitution as is the 
graduation. The Supreme Courts of the States just cited condemned exemptions 
along with graduations.

During a housing and building shortage caused by World War I the legislature 
of New Jersey, to encourage construction, enacted a law exempting from 
taxation for five years all new structures. It was held (116 Atlantic 328) 
void for disregard of the command of the Constitution of the State for 
uniformity of taxation upon all.

Cooley, the great authority of his time, said in his work Taxation (2d ed., 
p. 215) that "it is difficult to conceive of a justifiable exemption law 
which would select single individuals or corporations, or single articles of 
property, and, taking them out of the class to which they belong, make them 
the subject of capricious legislative favor. . . . It would lack the 
semblance of legitimate legislation."[4]

Exemptions prime cause of French Revolution

When Louis XVI convoked (1789) the States General it appeared that the 
troubles of the country which resulted finally in the Revolution sprang 
from exempting government officials and the favored classes from taxation.

The Income Tax Law of 1894 exempted all incomes below $4,000. Although the 
law was held void for failing to "apportion" the burden among the States 
according to population, as directed by the Constitution, Justice Field took 
occasion to denounce the exemption of all incomes below $4,000. "The present 
assault upon capital is but the beginning," he wrote. "Unless the rule of 
the Constitution governs, a majority may fix the limitation at such a rate 
as will not include any of their number."

American officials like exemptions

Yet Congress, being ignorant of or indifferent to these fundamentals, has 
been tossing tax-free salaries to favored persons with unrestrained 
prodigality. In 1947 it so favored officers of the World Bank, making the 
$22,500 salary of the vice president equal to $38,000, the salary of the 
executive director of $17,500 equal to $26,000; and two employees of the 
State Department who had been working for $10,000 were given exempt salaries 
of $17,500, equal to $26,000. Frequently since then the dispatches from 
Washington have told of similar favors to those specially beloved.[5]

Colossal properties illegally exempted from taxation

In 1931, before the saving of mankind from want and fear by Government 
became known to Government as the first of its expanding duties, there were 
outstanding $22,536,000,000 of bonds wholly exempt from (1) the property 
tax, from (2) the normal tax, and from (3) the surtax of the United States, 
as shown by the Report of the Secretary of the Treasury for 1932, page 439.

That property, paying no taxes as property and not taxable on its income, 
was greater than the aggregate value of Class I railroads in the United 
States (95 per cent of mileage and 97 per cent of total earnings) as found 
by the Interstate Commerce Commission in 1945, namely, $19,571,000,000. The 
railroads paid over a billion in taxes that year.

Enormity of prejudice to overburdened taxpayers

What would the average man say if word were to be given out that Government 
(National and State) had determined to exempt the railroads from that burden 
and put the billion load on other taxpayers!

While at first the common man was to be very kindly treated under income-tax 
laws as Government would proceed with the new weapon to "soak the rich," it 
has come to pass that a person with an income of $600 a year (which takes in 
practically all wage earners) must report his earnings. Yet banks, many of 
them living largely on the Public (National and State) Debt, trust companies 
holding vast estates resting on exempt bonds, universities and other 
institutions with exempt bonds a considerable part of their endowments, are 
released from support of Government to the extent of their property in bonds 
and on the income of some of them.

Wrong should be righted by guilty States

The States, by proposal in Congress or by action of their legislatures 
under Article V, should amend the Constitution again by repealing the 
Sixteenth Amendment and resuming police Jurisdiction of the wealth of their 
people, as they repealed the Eighteenth Amendment after becoming convinced 
that they had made a mistake in giving to the Nation a burden of police 
which it was not -- and could not be -- organized to carry.

Congress would then still have power to tax incomes, as it had before the 
Amendment, but it would be obliged to do so Justly -- for revenue only, not 
for the distribution of property, for leveling down possessions, for 
punitive purposes, or for stripping Americans for the help of Europeans who 
are antagonistic to our Government and our beliefs.

And it would be unable to bleed the States to financial helplessness, where 
the Supreme Court thought them to be when it gave sanction to the Social 
Security Law chiefly on that error. For if the representatives of the 
people of the States in Congress at that critical juncture had repealed the 
Income Tax Law, as they should have done, the States would have the money 
properly belonging to them and far more than enough to meet the needs of the 
people.

Washington preferred to treat the States as bankrupt, and execute a coup 
d'tat. The police power thus exercised by Congress over the "health, 
safety, morals, education and general well-being of the people" was withheld 
from it by the Constitution and -- for double security -- denied to it by 
the Tenth Amendment. Its conduct was twice wrongful.

The States must return to the Constitution and resume control of their 
Union, their property, and their prerogatives.

The fallacious idea of the Supreme Court

The fallacy on which "graduated" (or what Karl Marx named "progressive") or 
discriminative -- and therefore unconstitutional -- taxes are based was 
expressed by the Supreme Court of the United States in 1898 in a case (170 
U. S. 283) arising under a law of Illinois and involving estate or 
inheritance taxes.

Probably the success of that litigation for the tax gatherer induced 
Congress -- which had failed with its Income Tax Law of 1894 -- to step in 
and enact (1898) a Federal Estate Tax Law with a "graduated" scale and 
thereby get some funds of a new sort. In 1900 that Act of Congress was 
upheld (178 U. S. 41) on the "principle" laid down in the case from 
Illinois, to be quoted presently.

Then came the Income Tax Amendment of 1913, which made no mention of 
"graduation." Congress immediately enacted, in October of that year, a 
"graduated" tax levy, which was upheld (240 U. S. 1) by the Supreme Court in 
1916 on the "principle" of the two preceding decisions respecting estates 
passing at death.

Justice Brewer dissented from the doctrine established because "equality in 
right, equality in protection, and equality in burden is the thought which 
runs through the life of this Nation and its constitutional enactments from 
the Declaration of Independence to the present hour."

State Supreme Courts understood subject clearly

Before those decisions, half a dozen of the Supreme Courts of the States had 
held, as previously shown, graduation to be repugnant to protective clauses 
in all American constitutions, and especially to the clause commanding 
"equal protection." The Supreme Court of the United States made no reference 
to those decisions.

The "philosophy" enunciated by the Supreme Court in 1898 and repeated in 
1900 and 1916 was in this language, practically a copy of the erroneous 
holding of the Supreme Court of Illinois:

"The right to take property by devise [will] or descent [by statute in 
absence of will] is the creature of the law, and not a natural right -- a 
privilege, and, therefore, the authority which confers it may impose 
conditions upon it."

That is, the law may say to the transmitter or the taker (or to both as it 
has come to pass) that this property will not descend unless you accept a 
graduated scale of taxation on the "privilege" which a gracious government 
extends to you.

Some history on property rights

That is at once historically erroneous and contrary to the first 
fundamental of American Government, as stated by Justice Brewer. The 
Americans set up Government "to secure" (the Declaration of Independence 
says) preexisting rights to life, liberty, and the pursuit of happiness -- 
the pursuit being largely the pursuit of property and the comforts and 
cultures which it brings. And as his Constitution twice puts property in the 
class with liberty and life, how can it be contended that law (which he 
writes himself) gives to him his property any more than it gives him his 
life?

In the earliest of English charters (1101) we find recognition by King Henry 
I of the preexisting right of a subject to dispose of property at death. By 
that charter, which Henry was compelled to sign as a condition of being 
crowned, he was restoring to the people rights which had been usurped by 
William the Conqueror (1066) and his son, William II. Section 7 of the 
charter reads:

"If any of my barons or feudal dependents shall fall sick, according as he 
shall give away his money, I concede that it shall be given. But if, 
prevented by unlikely chance of physical infirmities, he shall not give 
away his money or arrange to give it, his wife and children or relations and 
lawful heirs shall divide it up for the good of his soul as shall seem best 
to them."

Government not to take property at death

That is, in no circumstances could the King any longer take the property of 
a subject at his death. When an Englishman "arranged" to give away his 
money, that was a will (which need not have been in writing); when he failed 
to arrange, his property went by custom (now in the United States by his own 
Statute of Descent) to his widow and other heirs.

Of that right, which did not come from the King of England (and does not 
come from Government or "law" in the United States), Blackstone wrote in 2 
Commentaries, page 491:

"With us in England this power of bequeathing is coeval with the first 
rudiments of the law: for we have no trace or memorials of a time when it 
did not exist."

That is, the right to distribute property at death is a natural right. 
Feudalism in England denied it for a time. A recent English writer on the 
law says that the estate tax is a recrudescence of Feudalism.[6] 

Hallam, the constitutional historian, tells us (Middle Ages, p. 445) that, 
in early England, man passed lands and other property at death by his own 
right, not by governmental permission, but by the custom of which he was, of 
course, the maker:

"The descent of lands before the Conquest [1066] was according to the custom 
of gavilkind, or equal partition among the children."

Thus, the history of the law is that the English-speaking man does not get 
from government the "privilege" of transmitting property at death, or of 
taking it by bequest or inheritance upon the death of another.

Supreme Court decision rested on sand

The foundation of the decision of the Supreme Court of the United States 
upholding the "graduated" -- capricious and confiscatory -- tax of Communism 
was laid in sand.

From that developed the most cruel fleecing by taxation of a great people by 
the Government which they established to protect them and their property 
that the world has known.

From the money, almost beyond measurement, came the intoxication of 
Government with power.

The theory applied by the Supreme Court in the case of the "graduated" 
inheritance law of Illinois, namely, that as transmission of property is by 
permission of government, conditions can be added, should not have been 
employed to justify "graduated" taxes on incomes. For certainly the living 
man does not require permission of government to engage in income-yielding 
activities!

Historically and legally untenable as the first decision was, the last was 
worse.

Where are we "at" with this money?

Where have we been brought with the money yielded by the unconstitutional 
application of the Income Tax Amendment?

In 1949, the National Government spent $6 for every $5 collected. For 15 
weeks of the fiscal year beginning July 1, expenditures were 12 billion and 
collections were 10 billion. That proportion for the full year would bring 
a deficit of more than 7 billion.

The Truman administration spends yearly 45 billion The Roosevelt 
administration spent (including War) 81 The Hoover administration spent 3.8 
The Coolidge Administration spent 3 The Harding administration spent 3.8 The 
Wilson administration spent (including War) 5.8 (Figures from Washington 
Bureau, Chicago Tribune)

And at the close of the first session of the 81st Congress in October, 1949, 
it was announced that higher taxes would be levied at the next session!

Where the point of peril is

As remarked elsewhere in another relation, and as has been learned by the 
dwellers along the rivers of the country, it is the first trickle of the 
water over the levee that must be prevented. The Constitution is a levee to 
prevent power in Government from breaking into a boundless field "no longer 
susceptible of any definition."

It is the obligation of the schools, colleges, and universities to make the 
American competent to see what is coming before it strikes him down.

The Americans who founded the Republic had such education. In a speech in 
the House of Commons in 1775 defending them, Edmund Burke remarked on this, 
saying that "they anticipate the evil, and judge of the pressure of the 
grievance by the badness of the principle."

That is where latter-day education has failed the American.



1. Socialists have been charged with disagreement as to what they really 
stand for. From the platform of the National Socialist Party of 1908, 
following the very severe panic of the year before, a definition may be 
drawn. The writers of the platform betrayed a most comprehensive 
misunderstanding of the powers and obligations of our National Government. 
They called for:

     1. Relief works through building schools and canals, by reforesting, by 
reclamation, and by extending all other public works;

     2. Loans of money by the United States to States, municipalities, and 
for public works;

     3. Ownership by the United States of railroads, telegraph and telephone 
lines, steamships, all land, and all industries;

     4. Extension of the public domain to take over mines, quarries, oil 
wells, forests, and water power;

     5. Extension of the graduated income tax and inheritance tax;

     6. Abolition of the power of the Supreme Court to hold an act of 
Congress unconstitutional;

     7. Creation of a Department of Health and a Department of Education;

     8. Insurance against unemployment, illness, accident, invalidism, old 
age, and death;

     9. Funds for the unemployed.

Some of those matters are within the police power of the States, but none 
lies within the jurisdiction of the Nation. The proposed taking over of 
property by taxation and by seizure is Communistic.

The reader should be profited by considering carefully how far we have 
already gone into that unconstitutionalism. How much of the "New Deal" and 
the "Fair Deal" comes from that -- from the junk piles of futile expedients 
with which wretched governments have strewn the highway of history?

2. Social and Political Doctrines of Contemporary Europe, Oakeshaft, pp. 88 
to 101.

Perhaps the best way to define Communism is to present an abstract of the 
Communist Manifesto of 1848:

     1. Abolition of property in land, and application of all rents of land 
to public purposes;

     2. A heavy progressive income tax;

     3. Abolition of all rights of inheritance;

     4. Confiscation of property of all emigrants and rebels;

     5. Centralization of credit in the hands of the state by means of a 
national bank with state capital and exclusive monopoly;

     6. Centralization in the hands of the state of the means of 
communication and transport;

     7. Extension of factories and instruments of production owned by the 
state; the bringing into cultivation of waste lands, and the improvement of 
the soil generally in accordance with a common plan;

     8. Equal obligation of all to work. Establishment of industrial units, 
especially for agriculture;

     9. Combination of agriculture with manufacturing industries, and 
gradual abolition of the distinction between town and country by a more 
equable distribution of the population;

     10. Free education of all children in public schools, abolition of 
children's factory labor in its present form, and the combination of 
education with industrial production.

3. Whatever talk there may have been in the streets about "soaking the rich" 
by a graduated tax, or whatever may have been said by some in Congress on 
that point, the rule of interpretation is that the enactment must be taken 
at its face value. A radical change in the existing order -- like the 
introduction of a form of taxation not used against any other kind of 
property -- can be accepted only on a purpose most clearly expressed. The 
amendment proposed by Congress and ratified by the legislatures did not use 
"graduated" to describe the tax. Therefore, a graduated tax was not 
proposed.

"Where the language of an enactment is clear," said the Supreme Court of the 
United States (278 U.S. 269) ". . . . the words employed are to be taken as 
the final expression of the meaning intended. And in such cases legislative 
history may not be used to support a construction that adds to or takes from 
the significance of the words employed."

That is to say, authority "to lay and collect taxes on incomes" was 
authority to lay taxes as they are laid on all other kinds of property -- 
one rate on all property of the same kind, money in the case of incomes. In 
going beyond that, Congress violated the Constitution.

The talk about soaking the rich might have related to the fact that the big 
incomes (along with the little) never had paid any tax at all. It was quite 
proper to tax them -- but only constitutionally.

4. The constitutions of the States generally authorize the exemption from 
taxation of church property, of school property, of public property and 
buildings, and of other property not used for profit. Such properties are 
not in competition with those employed in providing a livelihood for men, 
who secure through taxes the protection of government in their endeavors. 
Further, by teaching and other work they give service to society equal to or 
above a yield in taxes. They are not really "properties" within the class 
for taxation.

5. Section 1 of Article II of the Constitution commands that the 
"compensation" of the President "shall neither be encreased nor diminished 
during the Period for which he shall have been elected." In January, 1949, 
just before the President entered upon the term for which he was elected in 
November, 1948, Congress increased his salary from $75,000 a year to 
$100,000.

In January, 1949, Congress granted to the President $50,000 a year to cover 
his expenses, which theretofore had been carried in the budget in support of 
me White House. This grant was made exempt from the income tax. If it was 
for expenses, it was not taxable as salary, and the exemption was 
superfluous. If it was in truth salary -- for the usual report on expenses 
was waived -- then it could not be legally exempted. And, more important 
still, it could not be enjoyed by a President before the next term, 
beginning in January, 1953.

It may interest the taxpayer to study those cards as played.

The whole White House force of 225 (53 under Roosevelt and 87 under Hoover) 
received increases from the taxpayers.

Special counsel was advanced from $12,000 to $20,000 a year. President's 
aide (labor) from $15,000 to $20,000 a year. 3 secretaries, each from 
$10,830 to $18,000 a year. 5 administrative assistants from $10,330 to 
$15,000 a year. 10 Cabinet members from $15,000 to $22,000 a year.

A number of lesser functionaries were favored with increases of pay, 900,000 
classified workers receiving advances aggregating $130,000,000 yearly.

6. On December 23, 1949, the Associated Press reported that a 9-million 
dollar oil company in Pennsylvania had sold its property to a larger company 
because "the higher and higher inheritance taxes, as well as income taxes, 
have meant that a business developed by an individual, or by a small group 
of individuals, cannot be passed on to a second generation." 

William the Conqueror (1066), who rooted Feudalism in England, and his sons 
took the estate at death until stopped by the Charter of 1101.

So many properties in this country had been unable to marshal the cash to 
meet the estate tax levied upon the death of an owner or part owner that the 
practice became common to carry life insurance on the members and thereby 
with ready money prevent the destruction of the company.

In reporting to 1,000 employees the sale of the property first mentioned, 
the two men owning most of the stock said:

"In the event of the death of one of our principals, a sale of the company 
would be almost inevitable."

The history of tyrannical governments does not disclose many cases to beat 
that, of a common sort in our land of supposedly independent men.


____________

V

FOLLOWING THE INCOME-TAX AMENDMENT IN 1918, THE NEXT VIOLENCE TO 
CONSTITUTIONAL PRINCIPLE WAS UNDERTAKEN IN 1916 BY A SOCIALIST-MINDED GROUP 
SEEKING TO BREAK DOWN THE TENTH AMENDMENT AND HAVE WASHINGTON ASSUME POLICE 
POWER IN THE STATES OVER PERSONS UNDER THE AGE OF 18 YEARS

As late as 1916, when the attempt at undermining the States by transgressing 
the Tenth Amendment was undertaken by a very formidable and persistent 
aggregation of forces, the assailants were three times hurled back in a 
battle which lasted twelve years. But the contest was close.

The Judiciary in defense of the Constitution

Congress passed two unconstitutional bills and the President, presumably 
advised by the Attorney General, signed them. Constitutional government, and 
the Tenth Amendment particularly, were saved by the Supreme Court.

Under the direction of the American translator of the writings of the 
patriarchs of Communism, Karl Marx and Friedrich Engels, there was begun in 
1916 an extraordinary attempt to break down the constitutional structure of 
the United States and thereby curtail the liberties of the American.

This woman pushed a bill through Congress which would forbid the moving in 
interstate commerce of manufactured articles into the making of which the 
work of persons under the age of 18 years had entered. The ostensible idea 
was to protect the young from oppression by ruthless employers and 
uncivilized fathers and mothers who were taking wages from the servitude of 
their children. From the strident propaganda that was organized and turned 
loose, a stranger just arriving on the planet would conclude that parenthood 
on the Earth was covetous wickedness itself.

Strategy of Communism in 1916

According to the "Woman Patriot," a paper then published in the City of 
Washington, the promoter of the Child Labor Law had boasted that in her 
legislative drives she never let appear on the front of the movement the 
real intent of the propagandists. That is the basic strategy of Communism. 
The Child Labor Act had no relation to child labor, because there was in 
objectionable volume no such thing. After the census of 1920 the Department 
of Labor made a boastful report to the effect that since the taking of the 
last decennial census so many laws of States had lengthened the months of 
school required; had set such severe conditions for a youth to qualify for 
work during vacation, had so completely forbidden work by minors in theatres 
and like places and prohibited working with dangerous machinery, that the 
so-called child-labor evil had been all but wiped out.

But even had the States been delinquent in the exercise of their police 
power to guard the health, education and welfare of childhood, that could 
not have conferred power on Congress to assume jurisdiction. It had no place 
in the field of the States. It has been shown from authorities that the 
States cannot abdicate their police powers and that Congress cannot take 
them over.

Had there been a child-labor evil -- and there was none of magnitude -- it 
was for the people at home to make their legislatures take police action.

But, as before said, the "ballyhoo" was so overwhelming and ceaseless that 
many good but uninformed people were taken off their feet, and they gave way 
to tears for the American child so victimized by his greedy and heartless 
parents.

No child-labor problem in 1916

There being no child-labor problem to solve, it is manifest that the 
undertaking was to remove the youth of the land away from the police control 
of the States -- as the National Labor Relations Act, 19 years later, 
removed all workers -- children and adults -- of the country out of local 
jurisdiction -- and transfer authority over them to the central Government 
at Washington. Making the central Government top-heavy would cause it in 
time to collapse of its own weight, and the collapse of the finest specimen 
of Government securing liberty and property has been the object of Communism 
for many years.

Governor Roosevelt denounced misuse of Commerce Clause

The use of the Commerce Clanse of the Constitution to bolster the act of 
Congress was one of those lawlessnesses which Governor Franklin D. Roosevelt 
of New York denounced in the strongest terms. And when he became President 
he broke all records in promoting this sort of legislative malpractice!

Why did men representing the people of the States in Congress vote for a 
bill by which the Nation would usurp power not granted to it by the 
Constitution, and the States would lose by abandonment powers inherent in 
them for the care and protection of youth?

Why did a President with an Attorney General to advise him sign such a bill? 
What is an Attorney General for?

Congress could not by its act gather to itself police power over "the 
health, morals, safety, education and general well-being of the people." Nor 
could the States surrender their local police sovereignty to Washington. 
That was decided (219 U. S. 270) in 1911 by the Supreme Court of the United 
States.

Of course, when an employer and a father both attacked the act as against 
liberty, the Supreme Court in 1918 held (247 V. S. 251) that, although it 
pretended to be a regulation of commerce between the States, it was in 
reality a seizure from the States of their police power, in violation of the 
Tenth Amendment, and therefore unconstitutional.

Did that stop the constitutional illiterates representing the States in the 
Congress in their push to degrade their commonwealths?

No.

Congress shifted from Commerce Clause to Taxing Clause

In 1919 Congress passed a Child Labor Tax Act and the President signed it, 
presumably with the approval of the Attorney General By that enactment a 
destructive tax was placed on the product of child labor, so heavy that the 
manufacturer could not sell the goods in competition with other makers. The 
Commerce Clause having failed to support the other act, Congress resorted to 
the Taxing Clause.

But when a citizen affected by the legislation attacked it, the Supreme 
Court in 1922 held (259 U. S. 20) that as the tax imposed was intended to 
prevent the manufacture by youth, it would also put an end thereby to the 
revenue, for which reason it could not be treated as a revenue act It was 
palpably another lawless attempt by Congress to take from under the police 
power of the States the supervision and protection of youth.[1] 

Neither did that decision stop the constitutional illiterates of the States 
in Congress in their determination -- or in the determination of the 
Communist-minded and unschooled sentimentalists who were lashing them -- to 
weaken their commonwealths and enlarge the central Government.

The energy and fury behind this movement of Communism, supported by weeping 
women and educators, was frightening.

Members of Congress make third effort to degrade their States

Having failed twice in "dashing itself against the imprisoning walls of the 
Constitution," as Bryce described our legislative body, Congress proposed in 
1924 an amendment to the Fundamental Law which would empower it to prohibit 
labor throughout the United States of persons under the age of 18 years.

It was immediately rejected by enough legislative bodies in the States to 
defeat it, but every time new legislatures were elected the promoters again 
urged adoption.

During the pendency of the proposal before the legislatures of the States, 
20 of them repeatedly rejected it, in Massachusetts 8 times, in New York 7 
times, in Texas and South Dakota 6 times, and in 3 other States 5 times.

In 23 instances attempts were made in Congress to modify the resolution so 
as to draw in some of its reckless implications, but they were voted down -- 
sometimes howled down without a record vote.

When President Roosevelt took office he immediately urged legislatures to 
adopt it, which course was an illegal interference by the Executive with the 
functions of the States. It was also contrary to his declarations as 
Governor of New York. Some States acted as he requested; but when he 
telegraphed "my native State" to ratify the proposal, the legislature of New 
York promptly rejected it.

The rejection of the proposal by the legislatures shows that many 
Congressmen were as badly informed of the wishes of their constituents as 
they were on the Constitution.

Peril from uneducated public opinion

What insidious and unseen power could maintain for more than a dozen years 
that assault on the constitutional integrity of the United States? Why was 
there not force enough in public opinion to check Congress in its wayward 
course?

It may be that the defeat which Congress suffered in 1918 in the first 
decision of the Supreme Court respecting Child Labor was the cause of its 
classing in the Revenue Act of 1919 the compensation of the judges as income 
subject to taxation and thereby reducing their compensation, which the 
Constitution forbids.

The way to cure the weakness is by requiring the schools, colleges, and 
universities to make everyone graduating a sound constitutional scholar.

About forty of our States have laws requiring the teaching of the 
Constitution of the United States in public and private schools, but in not 
one State is our Great Charter thoroughly taught as a separate study to the 
youth who are to govern the land and hold the destinies of the Republic.

Could you believe this?

To show that references herein to constitutional illiteracy are not 
extravagant or unjust, it is mentioned that in March, 1947, a dispatch from 
Washington said that a member of the House of Representatives from the great 
State of Illinois and a member from the great State of Louisiana introduced 
bills making it a felony to try to bribe an athlete. There had recently been 
much in print about crookedness in baseball and other sports. The boy or 
girl leaving school before reaching High, as over 16 per cent of them do 
(while half of the 1,700,000 leave before the end of the second year), to 
govern the United States and direct its destiny, should know better than 
that. It is an indictment of schools, colleges, and universities that 
members of Congress should introduce such bills. Felonies fall within the 
police power of the States.

The man power of Congress has undergone change

Congress has no Sumner, no Conkling, no Cameron, no Hoar, no Ingalls, no 
duplicates of the many old worthies -- chosen for the Senate by legislatures 
instead of popular vote -- with experience in taking the President by the 
sleeve and showing him back to his place.

When the States take back their Union they should tolerate no more weak 
Congresses. It is discreditable to them as governmental entities and to 
their people entrusted with the present and the future of the Republic that 
there should have been Congresses deserving of the epithet of "rubber 
stamp."

General and thorough constitutional education only hope

They should require that every man and woman appearing to register as a 
voter present a card showing membership in One Great Union, a certificate 
from the County Superintendent of Schools that the bearer has passed a 
thorough examination in writing on both the History and the Constitution of 
the United States. The requirement of an examination in writing would 
disqualify, properly, the illiterates who control the great cities which 
drag down the States. The predicament of the State with an unclean city is 
likened in the memoirs of Senator Hoar of Massachusetts to the eagle in 
Tennyson, "caught by his talons in carrion and unable to rise and soar."

It would also repair the damage done by the delinquent States which 
frustrated the Australian ballot[2] and gave to the political bosses in the 
cities for the use of their illiterates the "straight ticket" -- and too 
often the control of the Presidential election.

The rescue of the Union by the States and the preservation of it perpetually 
is that easy.

Spinsters worry about Maternity and Infancy

While the proponents of the Child Labor Acts and the proposed Child Labor 
Amendment drove their measures through Congress, like-minded groups "put 
over" in 1921 An Act for the Promotion of the Welfare and Hygiene of 
Maternity and Infancy, and for Other Purposes.

In a strong argument against the power of Congress to pass such a bill under 
the Constitution, Senator Reed of Missouri read the catalogue of the names 
of the women throughout the land leading the move toward centralism -- and 
not one of them was married!

The law expired by limitation in 1929 after costing the taxpayers 
$11,000,000. The American Medical Association reported that not one new idea 
was developed by the expensive experiment. It is the only legislation of the 
socialistic sort from which Congress eventually backed away. A 
constitutional amendment may some day wipe out the others.

Had the Supreme Court accepted jurisdiction of two cases brought to test the 
validity of this Maternity Act, instead of questioning the right of the 
plaintiffs (262 U. S. 447), and had it shown for permanency, after the 
manner of John Marshall, the line between the power of the Nation and that 
of the States respecting such subjects, then 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, along with other kindred measures of the "New Deal," might never 
have been attempted.

A Judiciary without statesmanship to foresee the consequences to the 
Republic of a decision is not what the writers of the Constitution designed. 

Where the States might have been constructively busy

While the representatives of the States in Congress were passing 
unconstitutional bills to deprive their commonwealths of police power over 
youth, maternity, and infancy, and proposing an amendment which the 
legislatures of the States rejected, many times by some of the States, the 
members of the legislatures were, seemingly, so occupied at home with 
building debt that they, also, were at fault regarding the constitutional 
position and the obligations of their States.

A notable illustration of this is in their failure to take hold of the 
matter of divorce, a subject of police which our "centralists" have for a 
long time been asking Washington to regulate. It has been before the public 
for a quarter of a century or more, and in January, 1950, it was discussed 
in a meeting of workers for improved social conditions. The Committee on 
Uniform State Laws of the American Bar Association, which framed bills on 
many subjects acceptable to all the legislatures for enactment, gave this 
problem up.

Of course, it is a subject for the States. Massachusetts long ago settled 
the question for itself, and all the other States need to do is to copy the 
statute of Massachusetts, which was upheld (188 U. S. 14) by the Supreme 
Court of the United States in 1903.

How Massachusetts laid down the law

The General Court (legislature) of Massachusetts declared that a decree of 
divorce granted to a citizen of that State by a court of another State would 
be valid in Massachusetts when the foreign court should have had 
jurisdiction of both parties; but that when an inhabitant of Massachusetts 
should go to another jurisdiction for a divorce for a cause arising in 
Massachusetts when both parties are domiciled there, or for a cause which 
would not authorize a divorce in Massachusetts, a decree in such a case 
would have no effect in that commonwealth.

The Supreme Court of the United States held that law not repugnant to the 
Full Faith and Credit Clause of the Constitution, requiring the judicial 
proceedings and public acts of one State to be given effect in all others. 
Massachusetts was not obliged to give credit to a decree to one of its 
citizens when obtained against its public policy.

Wherein the decree was void

An inhabitant of Massachusetts went to South Dakota and obtained a decree of 
divorce in a suit in which his wife did not appear. Because the court had no 
jurisdiction of her the decree was of no force against her in Massachusetts. 
The husband returned to Massachusetts and remarried. Upon his death his 
first wife brought proceedings to be adjudged his widowed spouse and to be 
entitled to administer his estate and take his property. She won.

A similar statute of North Carolina, requiring a spouse domiciled in that 
State and desiring a decree of divorce, to apply to a court of North 
Carolina, was upheld by the Supreme Court (325 U. S. 226) in 1945, 
respecting decrees granted in Nevada when the applicants were not in law 
domiciled there. The domicile is the place where a person resides and 
intends to stay. Marrying in Nevada immediately after receiving decrees, the 
two spouses returned to North Carolina, They were arrested on the charge of 
bigamous cohabitation, the former spouse of each being resident in the 
State.

Plain cure tor laxity in divorces

So it would be a very simple undertaking for the legislatures of the States 
to copy the law of Massachusetts or that of North Carolina, both held 
constitutional.

That would bring down to earth the whole flock or those "birds of passage," 
as one court described them, who are pictured day by day at the airports 
taking flight for Nevada, Florida, or Mexico to get quick releases from the 
first, second, third, or fourth bondage.

Neglect of this subject has been one of the most censurable delinquencies of 
the States.



1. This decision by Chief Justice Taft, that a pretended tax law which is 
not for revenue is unconstitutional and fraudulent, disposes of the 
preposterous proposition of President Franklin D. Roosevelt to Congress, 
namely, that taxes be made so heavy as to permit no income above $25,000 a 
year, and that all incomes be prevented from being "too high."

It also disposes of several poorly considered dicta of "progressive" judges, 
that taxes may be levied for regulatory and punitive purposes.

2. The Australian ballot groups the names of all the candidates for one 
office in one block, all the names of candidates for another office in 
another block, and so on. There can be no "straight ticket." If the voter is 
too illiterate to find the names of those for whom he would vote, that is to 
the advantage of the country.

Penalties are visited upon the citizens who do not vote unless they present 
valid excuses. The Australian Embassy said that in 1943 the vote in the 
Federal election was 96.3 per cent of the electors. All the States in 
Australia have compulsory voting laws.

In our election in 1948 only 47,500,000 persons voted, although, according 
to the Bureau of the Census, there were 95,000,000 eligible to vote.

Ohio adopted in 1949 a form of ballot to put an end to the "straight 
ticket." That looks like sunrise.


____________

VI

THE LONG-PURSUED PURPOSE OF CONGRESS TO CROSS THE BARRIER OF THE TENTH 
AMENDMENT AND ENTER THE POLICE FIELD OF THE STATES, OFTEN CHECKED BY THE 
COURTS AND THE PEOPLE, WAS ACCOMPLISHED BY THE PACKERS AND STOCKYARDS ACT OF 
1921

In enacting the Packers and Stockyards Act of August 15, 1921, Congress did 
not move in obedience to powerful voting groups, as it did when it passed An 
Act for the Promotion of the Welfare and Hygiene of Maternity and Infancy, 
and for Other Purposes, and as it did in passing the bills on Child Labor.

It had no apparent reason for disregarding the Tenth Amendment and meddling 
in the duties of the States. There may have been complaints about the 
charges or services to the public of the stockyards at Chicago. If there had 
been dissatisfaction in that respect, the complaints should have been lodged 
with the commission of Illinois having authority. No default in the service 
of a corporation of a State could have given jurisdiction to Congress.

A belief of many dangerous to constitutionalism

While the opinion has often been expressed by persons otherwise well 
educated that if a State will not perform its duty, then let the Nation do 
it, the Constitution is not changeable that way: an amendment is necessary 
to a change. The idea, however, is startlingly prevalent. Multitudes believe 
that the National Government should take over more often than it has done.

Whatever the urge, Congress stepped into Illinois and took the control of 
the stockyards at Chicago away from the State. The sanction in 1922 by the 
Supreme Court (258 U. S. 495) of the action of Congress made the law 
effective as to stockyards on railroads in other States, and managing 
bureaus moved in. 

The action by Congress was under the Commerce Clause of the Constitution, 
which empowers it "to regulate commerce among the several States." This 
clause and the General Welfare Clause are the two stand-bys for Congress 
when it finds the Tenth Amendment in its way.

Governor Roosevelt condemned congressional invasion of States

The Packers and Stockyards case was undoubtedly in the mind of Governor 
Franklin D. Roosevelt of New York when, in 1929, addressing a meeting of 
governors, he condemned unsparingly the "stretching" of the Commerce Clause 
by Congress to cover its intrusions into the States.

The stockyards at Chicago were being regulated by the State of Illinois. 
Livestock coming from other States was unloaded at the yards, fed and 
sheltered. Dealers in livestock had offices in or near the yards and made 
purchases there. Most of the animals received at the stockyards were taken 
by the large packing companies and manufactured into beef, pork, and other 
meats and foods. Those manufactured products were in part shipped out of 
Illinois to other States.

Someone in Congress or elsewhere conceived the idea that the transportation 
of freight was continuous, from the feeding lots where the livestock was 
fattened to the States in which the meats were consumed, and that therefore 
Illinois should have no control of such "interstate" commerce.

Stockyards Act superfluous as well as illegal

In the statement of facts preceding the opinion by Chief Justice Taft, it 
was said that "the act seeks to regulate the business of packers done in 
interstate commerce." But that could have been done without usurping the 
police power of the State of Illinois over a local industry. For the Sherman 
Anti-Trust Law had been enacted in 1891, thirty years before, to prevent or 
remove the conspiracies and combinations in restraint of trade and 
competition which were in this case charged against the packers.[1] The 
Chief Justice said that the Packers and Stockyards Act "forbids unfair, 
discriminatory and deceptive practices in such commerce" -- precisely what 
the Sherman Law had long forbidden. Except that the Sherman Law was not an 
invasion of the State in disregard of the Tenth Amendment. The Packers and 
Stockyards Act was. 

The Act made the Secretary of Agriculture a tribunal to hear complaints of 
unfair and monopolistic practices and to make desist orders. That was 
unnecessary, for courts of equity had been giving such remedies under the 
Sherman Law.

Sherman Law had proved its complete adequacy

Indeed, as far back as 1905 a decree in a suit under the Sherman Law ordered 
(196 U.S. 875) the packers to desist from monopolistic practices in their 
trade in interstate commerce. And following the report of the Federal Trade 
Commission, and before the passage of the Packers and Stockyards Act, a bill 
was filed in a Federal Court of the District of Columbia to enjoin the Big 
Five packers from monopolistic practices in the purchase of livestock and 
the sale and distribution of meats. To a decree stopping the monopolistic 
practices complained of, the packers consented.

In 1912 these same packers had been indicted for monopolistic practices in 
violation of the Sherman Anti-Trust Law and upon trial were acquitted.

The Sherman Law also proved adequate to break up Standard Oil, Northern 
Securities, and many other powerful monopolies.

As has been shown, the courts had many times, under the Sherman Anti-Trust 
Law, made such combinations give up their controlling shares of stock and 
desist from the other practices complained of. There was no need for further 
legislation. The Interstate Commerce Commission had been, under the Commerce 
Clause, regulating transportation of commerce for more than a third of a 
century, and the Federal Trade Commission, under the Act of 1914, under the 
same clause, had for several years been making orders respecting fair 
practices in trade and commerce.

Long line of holdings submerged by Stockyards decisions

The decision in the Stockyards case was contrary to a long line of holdings 
by the Interstate Commerce Commission and the courts that interstate 
commerce begins upon the delivery of a shipment to a carrier consigned 
(addressed) to a point in another State, and that it ends upon delivery to 
the consignee. It was held, for illustration, in another case, that a 
shipment of property so delivered became taxable by the State where it was 
received. By many similar decisions the difference between interstate 
commerce and intrastate commerce had been clearly defined. By the definition 
so worked out the stockyards company in Chicago, chartered to provide for 
profit yardage, feed, and care for livestock, was no more engaged in 
interstate commerce subject to Congressional regulation than was a grocer in 
a nearby street receiving goods from another State. That the animals were 
later to go to other States in the form of foods did not make a through 
interstate shipment of the animals part of the way and the foods at another 
time the remainder of the distance.

Theory of decision of Supreme Court

The Supreme Court said that the Act treated all stockyards "as great 
national public utilities." But to call companies operating local yards for 
feeding and otherwise caring for livestock consigned to them and for 
facilitating local transactions between sellers and buyers, "great national 
public utilities," could not change the facts or confer jurisdiction on 
Congress to regulate their business to the ousting of the constitutional 
jurisdiction of the States.

However, the Supreme Court held (258 U. S. 495) otherwise, Justice 
McReynolds dissenting and Justice Day not sitting.

This decision is to be used later to support the extravagancies of the 
National Labor Relations Act as being, not what its title calls it, but a 
law regulating commerce among the States in accordance with the Commerce 
Clause of the Constitution!

Fond hope of Madison dashed

Madison fondly believed that the States would rise unanimously against any 
aggression by the National Government upon their local authority (The 
Federalist, No. 46):

"But ambitious encroachments of the Federal Government on the authority of 
the State governments would not excite the opposition of a single State or 
of a few States only. They would be signals of general alarm. Every 
government would espouse the common cause. A correspondence would be opened. 
Plans of resistance would be concerted. One spirit would animate and conduct 
the whole."

Those revolutionary worthies could not conceive of the pusillanimity of a 
century and a half thereafter! The representatives of the people of the 
States in Government have originated most of the invasions of the States.



1. The Sherman Law was supplemented in 1914 by the Clayton Act. In the same 
year the Federal Trade Commission Law was enacted to prevent "unfair methods 
in competition in interstate commerce."

In suits under the Sherman Law combinations like Standard Oil and Northern 
Securities were broken apart. But each of the leading parties charges the 
other with failure during its time in office to enforce the anti-trust laws. 
Senator Borah said in a speech to his colleagues that each party is 
enthusiastic for regulation of too-big business only in campaign time. It is 
a question whether the magnitude of many industrial and commercial 
organizations may affect people toward a belief in Socialism or Communism.


____________

VII

THE RECONSTRUCTION FINANCE CORPORATION WAS CREATED BY CONGRESS WITHOUT 
AUTHORITY GRANTED TO IT BY THE CONSTITUTION, AND ITS OPERATIONS HAVE. BEEN 
BEYOND THE SPHERE OF GOVERNMENT

Following the Packers and Stockyards Act of 1921, the next important venture 
of Congress way in creating (June 22, 1932) the Reconstruction Finance 
Corporation, after the panic of 1929.

It was fashioned after the War Finance Corporation of the Wilson 
administration. But the War Finance Corporation had been founded on the 
principle laid down in 1819 (4 Wheaton, 316) by Chief Justice Marshall with 
regard to a banking corporation. That is, to meet its own necessities: -- 
collecting taxes, transmitting money, issuing bonds -- the United States can 
create a corporation. Maryland, which was taxing the issues of the United 
States Bank, contended that as neither bank nor corporation is mentioned in 
the Constitution, it was beyond the power of Congress, to set up either.

Bank Act under Sweeping Clause sustained

The last clause in the grants of power to Congress authorizes it to make all 
laws which shall be "necessary and proper for carrying into execution the 
foregoing powers, and all other powers vested" in any department or officer 
of the Government. Under that language the Court held that it was for 
Congress to determine whether it needed the assistance of a bank in 
performing its governmental functions.

So it was for Congress daring World War I to determine whether a War Finance 
Corporation was "necessary and proper" to the war effort under the war 
powers.[1]

Operations of Corporation not governmental

But the Reconstruction Finance Corporation does not in any sense come within 
the requirements stated. It was un constitutionally created and it has 
pursued an unconstitutional course.

The first and most important activities of the Corporation were in 
reconstructing the financial status of banks, railroads, and other 
corporations threatened with collapse. Loans of the money of the taxpayees 
to banks, railroads and other big concerns ran into the billions. But 
thousands of individuals and businesses of small class had to suffer unaided 
the consequences of the panic. Whether that distinction or discrimination 
was warranted by a consideration of the relative importance to national 
stability of the applicants for loans is not known. It probably was, for 
money enough did not exist to "bail out" all that thus became involved in 
the catastrophe, for which the practices of many banks were much blamable.

A dispatch from Washington in April, 1949, said that the Committee on 
Organization of the Executive Branch of the Government, headed by 
ex-President Hoover, had asked Congress "to put the Government out of the 
money-lending business and eliminate 30 Federal agencies engaged in lending, 
including the Reconstruction Finance Corporation." Some months later another 
dispatch said that the proposal had been attacked by the Corporation as an 
"excursion into the controversial field of political economy." Of course, no 
bureau will "consent to death."

Reconstruction Finance Corporation departed from purpose

After the Corporation had enabled many forms of big money to recover their 
financial balance, it went out through the wide world scattering the savings 
of the people. Loans were made in South American countries and others for 
the construction of highways, railroads, and public utilities.

Under the National Defense Clause it lies in the judgment of Congress, the 
General Manager of the United States, as to whether the preservation of 
small nations friendly to us and favoring the governmental philosophy for 
which we stand, warrants the expenditure of American money for the 
protection of them from subjugation by Communism, the openly avowed and 
aggressive enemy of capitalism.

But the use of money for the uplift of lowly countries, and for the other 
purposes mentioned, is without constitutional authority.

From time to time it was reported that a bank or a railroad or some other 
borrower had paid its loan, but there were many that never settled. In the 
report of the Corporation for 1948, the 17th year of operation, it is shown 
that $85,000,000 was held to meet "estimated losses in collection." If that 
estimate was calculated on the record of previous years, then its losses of 
the money of the taxpayers have been colossal.

The spender going stronger than ever

The United States News of October 7, 1949, reported from Washington that, 
instead of going out of action, as the Hoover Committee believed it should 
do, the Corporation disclosed that "its loans to business have reached an 
all-time high, and applications still are being received in increasing 
number." It reported, on October 21, loans to business -- not to aid 
Government in its functioning -- as $416,000,000 to 5,400 borrowers, with 
1,200 new applications a month.

"The trend is sharply upward," says the report, because the commercial banks 
are becoming "choosey." That is, they are backing out of the field which 
they should have fought from the beginning to hold, and leaving it to the 
unconstitutional occupancy of Government.

The Associated Press reported on November 9, 1949, that Senator Fulbright of 
Arkansas, chairman of a subcommittee of the Senate on Banking, investigating 
policies of the Reconstruction Finance Corporation, said in a conference 
with the applicant for a loan of $44,000,000 that such a transaction would 
not be "in accord with RFC objectives." To newsmen after the conference he 
said that he did not think it "proper to hand out public money to private 
industry." He named three companies which had borrowed of the Reconstruction 
Finance Corporation and "now are being run by the Government."

That is what the corporation of Fascism is for -- to take over private 
business.

Another press report said that the applicant had already borrowed from the 
Corporation $197,000,000.

In May, 1950, the Associated Press reported from Houston, Texas, that Jesse 
Jones, who had for many years managed the Reconstruction Finance 
Corporation, said in his newspaper:

"If you have any old loans that you would like to get rid of, you may sell 
them to the RFC -- that is, if they are big enough and not sound enough."

And in the next month a corporation to which RFC had loaned $37,500,000 
defaulted, was put in receivership by a Federal court in Columbus, Ohio, and 
at the receiver's sale the RFC made a bid of $6,000,000 more of the money of 
the taxpayers to get control of the assets of the borrower.

At the same time a committee of the Senate was looking into the loan record 
of the RFC, basing its action on reports of lendings "to new ventures 
speculative in character." It is for banks, not government, to lend money. 
Every youth coming out of school, and every graduate from the assembly lines 
of the universities, must be made to comprehend that the grant of power to 
Congress by the Constitution "to lay and collect taxes ... to pay the Debts 
and provide for the common Defence and general Welfare of the United States" 
does not authorize (1) the creation of a corporation or ( 2) the lending of 
the money of the taxpayer.

Government out of bounds will not return

Thus, when Government has once fixed its foot in the door, it does not 
withdraw. That is a fact to cause grief in the mind of the constitutionalist 
But greater grief comes from beholding the complete lack of understanding in 
the man of business of what is being done to him and to his country! The 
Government at Washington, having multiplied by bureaus the number of its 
feet until it is a centipede, now has a foot in the door of many commercial 
and industrial concerns; of agriculture, of banking, of building, of 
housing, of relief, of the schools, and of many other interests not within 
its constitutional field.

Will their ignorance entitle men of business to pardon for having 
contributed to the wreck of the Republic?

The 80th Congress, after lopping off some of the activities of the 
Reconstruction Finance Corporation, continued it "to aid in financing 
agriculture, commerce, and industry" -- which are not of any constitutional 
concern of the National Government.

How one Bank grew to thousands

It has been a long progress -- or descent -- from that first bank for the 
needs of Government to all sorts of commercial banks in competition with 
citizens in the banking fields -- to 7,000 National Banks, to the Farm Loan 
Banks, the Home Loan Banks, the twelve Federal Reserve Banks, the 
Export-Import Bank, the World Bank, and others.

From what has been shown, it is dear that the Reconstruction Finance 
Corporation has not been engaged in helping to carry "into execution the 
foregoing powers" of the Government, as the bank was held to be doing in the 
case decided by Marshall.

As statesmen and scholars and citizens long ago ceased to question whether 
any act of Government is "in pursuance" of the Constitution, the validity of 
the Act of 1932 creating this Corporation never was tested.

Irrigation by money of the taxpayers

In 1946 Federal aid was poured out in a flood to States and individuals; 50 
million for milk and luncheons to schools; over 10 million for vocational 
rehabilitation; 57 million for soil conservation (the cover of aid to 
agriculture); 20 million for cooperative agricultural extension; over 10 
million for general public health; over 9 million to control venereal 
diseases; and 5 million to control tuberculosis.

Those subjects are under the police power of the States, no part of which 
they yielded to the National Government, as they gave over coinage, treaty 
making, and some other nonlocal subjects by section 10 of Article I. As 
elsewhere shown by authority, the police power cannot be abdicated by the 
States nor usurped by the Nation. In the instances just before given, the 
course taken by Washington was usurpation and therefore unconstitutional.

Following the Reconstruction Finance Corporation came the Tennessee Valley 
Authority, the first step in "the electrification of America," a string of 
loan banks and credit corporations, and many other corporations having not 
the remotest relation to the constitutional functioning of the Government of 
the United States.

How invalid legislation infects the courts

"For the purposes of this case," said Justice Stone, writing the decision of 
the Supreme Court (306 U. S. 466) on a question whether the salaries of 
employees of the Home Owners Loan Corporation were taxable by the State of 
New York, "we may assume [italics inserted] that the creation of the Home 
Owners Loan Corporation was a constitutional exercise of the powers of the 
Federal Government." A text writer has already taken that decision as 
settling the proposition that all those corporations were constitutionally 
set up!

In creating the Home Owners Loan Corporation, Congress declared that it 
"shall be an instrumentality of the United States." But it could not be made 
so by a declaration if its functions were not to be governmental, as the 
functions of the banking corporation were in the case arising in Maryland. 
Congress gets power, not from its own declarations, but from the 
Constitution only. Nor can its proclamation of an "emergency," like that in 
the National Labor Relations Act, endow it with power not specified in the 
Constitution.

This brief account of the origin and works of the Reconstruction Finance 
Corporation shows the great danger of any break in the levee of the 
Constitution. The flood will go beyond control. The damage to taxpayers and 
the Republic by that Corporation is beyond estimate.



1. The argument of counsel for Maryland against the constitutionality of the 
act creating the Bank of the United States was very learned. The question 
was discussed pro and con by able men long after the decision, In Jackson's 
administration a recharter was refused and the validly of the decision by 
Marshall rejected. Senator Benton of Missouri leading the opposition. In the 
light of the history of banking by the National Government, with its 
failures, with its inflations and deflations, and with its operating as the 
machine for manufacturing debt, one is justified in lamenting that it did 
not from the first do its fiscal business with bankers, restricting its 
activity in the field of finance closely to its granted power, "to coin 
money and regulate the value thereof."


____________

VIII

WITHOUT A GRANT OF CAPACITY IN THE CONSTITUTION TO CREATE A CORPORATION, 
CONGRESS INCORPORATED IN MAY, 1933, THE TENNESSEE VALLEY AUTHORITY, WHICH 
MANUFACTURES, ON THE MONEY OF THE TAXPAYERS, ELECTRIC POWER FOR SALE IN 
COMPETITION WITH PRIVATE CAPITAL

It might be argued that, under the coefficient or Sweeping Clause of the 
Constitution, quoted in the preceding chapter, as applied by the Supreme 
Court respecting a banking corporation for the needs of the Government, 
Congress could create a corporation deemed "necessary and proper" to aid its 
lawful activity in the control of floods of an interstate river and the 
promotion of navigation thereon.

But it certainly has no authority to create a corporation for the 
manufacture and sale of electric power in competition with private industry. 

Making electric power not for United States Government

That was conceded by counsel for the United States before the Supreme Court 
in the case to be examined, and was pointed out by Chief Justice Hughes.

However, the Tennessee Valley Authority is manufacturing and selling 
electric power in large volume, and many persons and newspapers passing as 
among the thinking classes are charmed with the results.

Of course, the schools, colleges, and universities left those classes 
without understanding of what is more important than any valley made lovely 
with other people's money, namely, that "departure from the lines there laid 
down," as President Cleveland said of the Constitution, "is failure."

People easily misled by easy getting

Thus, what seems to some a great success in the development of a valley may 
be in reality a failure in government, tending to destroy free enterprise, 
property rights, and the liberty which the Constitution was designed to 
protect and promote.

There has been great rejoicing in the Northwest also and among Socialists 
throughout the country over the construction by the Government of the 
Bonneville and the Grand Coulee dams in the Columbia River, about 400 miles 
apart. But the question raised regarding the achievements in the Tennessee 
Valley presents itself as to those projects: can "departure from the lines" 
laid down in the Constitution be compensated for by all such developments 
imaginable?

As valleys from the Atlantic to the Pacific, and the wide plains between, 
have been developed without breach of the Constitution, why should disregard 
of the limitations which it prescribes be advocated and practiced now? In 
the development of the United States, unprecedented in the activities of 
men, prosperity in each valley and each region has been achieved by the 
brains, labor, and money of the dwellers. The residents of no area have 
thought of asking the people of the rest of the country to provide the money 
for bringing development to their locality!

Development of valleys not function of Government

Neither did the people of the Tennessee Valley ask for this project. The 
idea originated in the minds of Socialists, Fascists, and political 
adventurers far away. The idea was not so much to develop this particular 
valley, industrially, as it was to "grab off" this promising location as a 
means of demonstrating in the United States the beauty and utility of an 
alien belief at variance with our constitutional system. And, as before 
said, many who should know better think the demonstration has been a 
charmer.

It is the money of the people in all the States that paid for and is 
continuing to support "the wonderful works" in Tennessee. The doings are 
unfair as well as unconstitutional.

The propagandizing activity of the Tennessee Valley Authority in carrying 
the beauties of this Socialism and Fascism to the public has been so 
persistent (and expensive) as to draw criticism in Congress. It has had its 
effect on many.

Did General Eisenhower speak of power projects of T.V.A.?

It may be that those unconstitutional power projects were in the mind of 
General Dwight D. Eisenhower when, as President of Columbia University, he 
spoke on February 10, 1949, to a group of students about "a creeping 
paralysis of thought" which leads to dictatorship. Addressing 130 leaders of 
students in preparatory and high schools, the General, who had opportunity 
to learn all about the way things go in Washington, said:

"There is a kind of dictatorship which can come about through a creeping 
paralysis of thought, readiness to accept paternalistic measures of 
Government, and along with those paternalistic measures coming a surrender 
of our own responsibilities and, therefore, a surrender of our own thought 
over our own lives and our own right to exercise our vote indicating the 
policies of our country."

Revelations respecting extraordinary growth of bureaus

General Eisenhower may have had in mind too the report of the Committee on 
Organization of the Executive Branch of the Government, headed by former 
President Hoover, that "billions -- not millions -- but billions" could be 
saved by reshaping and reducing the 1,800 bureaus running at large and 
employing 2,200,000 civilian workers, increased from 580,000 twenty years 
ago. The pay of those employees increased from $1,000,000,000 to 
$6,500,000,000 a year. They, with the voting members of their families, can 
control the election of the President.

On May 13, 1933, Congress created the Tennessee Valley Authority as a body 
corporate "for the purpose of maintaining and operating the properties now 
owned by the United States in the vicinity of Muscle Shoals, Alabama, in the 
interest of national defense and for agricultural and industrial 
development, and to improve navigation in the Tennessee River and to control 
the destructive flood waters in the Tennessee River and Mississippi River 
Basins."

Agricultural and industrial development by Congress not authorized

What clause of the Constitution authorizes Congress to concern itself with 
"agricultural and industrial development"? None. That part of the Act is 
lawless.

By implication, the Commerce Clause empowers Congress "to improve 
navigation" of waters carrying interstate commerce and to control 
"destructive floods" in such streams.

But it receives from the Constitution no authority respecting "agricultural 
and industrial development." Then, why were those words employed by the 
nonelected persons who drafted the Act? Were they ignorant of the 
Constitution, or contemptuous of it?

"The properties now owned by the United States in the vicinity of Muscle 
Shoals" referred to the Wilson Dam, which was begun in 1917 and completed in 
1926 under authority of the National Defense Act of June 31, 1916, which 
empowered the President to have investigation made as to "the best, cheapest 
and most available means for the production of nitrates and other products 
for munitions of war." That provided also for the designation of exclusive 
sites upon navigable or nonnavigable rivers or the public lands for carrying 
out the purposes of the Act; and it authorized the President "to construct, 
maintain, and operate" on any such sites "dams, locks, improvements to 
navigation, power houses and other plants and equipment ... for the 
generation of electrical or other power and for the production of nitrates 
or other products needed for munitions of war and useful in the manufacture 
of fertilizers and other useful products." (The foregoing italics are 
inserted.)

The National Defense Act of 1916 was passed in expectation of the war which 
we declared on Germany ten months later.

But why did the draftsmen of that act bring in with "munitions" of war "the 
manufacture of fertilizers and other useful products"?

Fascist corporation planned before election of 1932

That the Act creating the Tennessee Valley Authority, which is long enough 
to fill ten columns of a newspaper, and which is of almost infinite and 
very difficult detail, could have been put through Congress two months after 
inauguration, means that it had been worked out long before the election of 
November, 1932. It had been kept in the dark from the writers of the 
platform and it never was revealed from the stump to the people. 
Alien-minded persons outside Government had probably prepared the Fascist 
creature for the incoming group.

In 1946 the Tennessee Valley Authority, besides producing electric power, 
was engaged in the manufacture of agricultural implements, of fertilizer for 
agriculture, and of the instruments of sanitation. It was engaged in mineral 
development, in providing means of recreation, in the care and promotion of 
wild life, in demonstrations, in farm management assistance, and in many 
other activities. On these, it lost for the year the money of the taxpayers 
to the amount of $3,600,000.

Heavy losses to taxpayers maintaining T.V.A.

Its losses on the manufacture of power and all other activities amount to 
$8,041,000 for the year 1946. From its beginning in 1934 it has cost the 
taxpayers almost $100,000,000. These figures are from an analysis of the 
financial statements of the corporation by the Edison Electric Institute -- 
a trade association representing about 75 per cent of the private electric 
light and power industry.

An analysis of the records of Tennessee Valley Authority for the United 
States Chamber of Commerce was made by C. J. Green, formerly accountant for 
the Federal Power Commission, and given to the Press in October, 1948. He 
found that from May, 1933, to June, 1946, funds of the Treasury -- of the 
taxpayers -- invested in all Tennessee Valley Authority activities totaled 
$742,386,524. From that he subtracted $74,525,261 in Treasury investments 
not connected with river power, and added $44,394,436 for power investments 
"omitted" by Tennessee Valley Authority in its accounting system, arriving 
at a net power investment of public funds of $712,255,699.

T.V.A. has advantages over private investors

He found that if Tennessee Valley Authority had paid taxes on the basis on 
which private power companies paid, it would have returned to governments 
$155,237,363 for their support.

Had Tennessee Valley Authority been obliged to pay interest on the funds 
which the Treasury provided from the pockets of the taxpayers, the money 
would have cost it $78,309,109.

How can private investors in electric power companies compete with a set-up 
like that?

And yet many commentators and propagandists have severely condemned the 
"selfish" and "anti-social" spirit of private investors who have complained 
of and offered opposition to such competition from the corporations of 
Fascism! Thus, we have almost reached in our Republic the equivalent of lese 
majesty. It may be with us tomorrow.

Congress apparently tiring of no returns

The Appropriations Committee of the House of Representatives has proposed 
that the Tennessee Valley Authority be required to repay within forty years 
the funds of the Treasury establishing and enlarging it.

But how can that be done unless the Authority has income? And how can it 
derive income from dams and reservoirs merely controlling floods?

"Flood control" is the disguise in which the Fascists wrapped themselves 
when they "put across" within two months after inauguration in 1933 a 
complicated bill of more than 10,000 words which must have been in 
preparation long before the election in November. The constitutional enemy 
from Europe was waiting to come in.

President Roosevelt's argumentation for Fascism

When the Government's entry into this business was under discussion, 
President Roosevelt argued that it was necessary to provide a "yardstick" 
for the prices which the manufacturers of electricity should charge the 
public, the contention being that those prices were then out of all reason.

Still, if that were true -- and it was not, for the States had power to 
prescribe and regulate rates and were doing so -- that was none of the 
business of the United States.

As private power companies pay Federal, State, and local taxes, it was 
determined that the Authority (probably to appear "fair") should not be 
entirely tax free, so it and its distributors contributed as a donative 
about 4.5 per cent of their combined gross power income to State and local 
treasuries. The Georgia Power, a competitor, contributed 5.5 per cent of its 
gross intake to State and local taxes.

Private investors support government

But the Authority paid (1946) no Federal taxes, while the Georgia Power paid 
17.5 per cent of its gross to the United States. To Federal, State, and 
local taxation combined, the private owner thus paid 23 per cent of its 
gross income, while the Authority paid 4.5 per cent of the gross of itself 
and its distributors.

That is a mathematical demonstration of the purpose of the Government of the 
United States to drive private power companies out of business and become to 
that extent a corporative state of Fascism. In a dissenting opinion in the 
case arising out of this Tennessee Valley activity on the part of the native 
aliens in Washington, Justice McReynolds showed from the record that the 
purpose was to drive private investors out.

Competition by government destructive to private investors

And in March, 1947, a press dispatch from Boston said that the President of 
the Puget Sound Power and Light Company recommended the sale of the 
properties of the company "to public power agencies, the Grand Coulee Dam, 
the Bonneville Dam, and others, as the only way to protect the stockholders' 
interest." In a speech at a meeting of stockholders he "charged unfair 
competition from government-owned utilities" which "makes it impossible for 
public and private power distributors to operate side by side." A power 
company of the Government would, he said, "escape about $2,600,000 annually 
in Federal taxes and 1 million in State and local taxes paid by this 
company." He said, further, that "Government-subsidized competition has cut 
rates and earnings to the point where the company cannot expect to attract 
private investment capital." 

All that sort of advantage to the monopoly of Government was shown of record 
in the case of the Tennessee Valley Authority, which case (297 U. S. 288) 
arose out of the attempt of the common stockholders of a private power 
company to sell part of its property to the Tennessee Valley Authority in 
order to save themselves from a competition which they knew would finish 
them. The preferred stockholders resisted, and lost in the Supreme Court.

The President's "yardstick" becomes a bludgeon

The Federal power companies are using as a bludgeon the "yardstick" of which 
President Roosevelt talked so much as a means of doing "justice." The Tenth 
Amendment forbids the United States to interfere thus in the field of local 
law. And, precedent to that, the Constitution forbids -- by not authorizing 
-- Congress to create a corporation for manufacturing and selling electric 
power, or doing any other business.

In the dissenting opinion in the case now to be examined, Justice McReynolds 
stated the purpose of the Socialists and Fascists who had "put over" the 
Tennessee Valley Authority:

"Public service corporations were to be brought to terms or put out of 
business."

It is manifest from the foregoing figures that they could not compete with 
a corporation which pays comparatively no taxes, and which operates on 
taxpayers' money, for which it pays no interest yearly. The Annual Report of 
the Secretary of the Treasury for 1945 shows that the United States 
(taxpayers) pays that interest for the money which it furnishes to the 
Authority.

When competing private power companies borrow money, they must pay interest 
at current rates, as they pay full taxes.

T.V.A. for power, not flood control

The analysis by the Edison Electric Institute of the reports of the 
Tennessee Valley Authority for 1946 shows these expenses for production:

for Electric Power $6,198,023 for Navigation 2,309,548 for Flood Control 
2,020,740 

Those figures show that this corporation was created chiefly to manufacture 
and sell electric power. The pretense that it was primarily to control 
floods and develop navigation in an interstate river was pretense only.

On January 4, 1934, the Tennessee Valley Authority entered into an agreement 
with the Alabama Power Company for the purchase at more than $1,000,000 of 
some of its transmission lines and substations, for the purchase of some of 
its real estate, for the sale to the Power Company of "surplus power" of the 
Authority, and for (what used to be reprehensible) the division of territory 
between them.

Stockholders resisted entry of T.V.A.

Holders of preferred stock in the Alabama Power Company, believing the 
contract to be injurious to the company and also invalid, because beyond the 
power of the Federal Government, brought suit to have the performance of the 
contract enjoined, and thus save their property.

The United States District Court which heard the case granted an injunction 
on the ground that Congress had no constitutional power to engage in a 
permanent utility system.

The Circuit Court of Appeals reversed that decision. On appeal by the 
stockholders to the Supreme Court of the United States the latter decision 
was affirmed (297 U. S. 288) on February 17, 1936, Justice McReynolds 
writing a vigorous dissent.

Very pertinent to the holding of the trial court that the action of 
Congress was unconstitutional is this language of the opinion of the Supreme 
Court, written by Chief Justice Hughes:

"And the Government rightly conceded at the bar, in substance, that it was 
without constitutional authority to acquire or dispose of such energy 
except as it comes into being in the operation of works constructed in the 
exercise of some power delegated to the United States."

Case against T.V.A. perfectly clear

That is, it could not, independently of flood control or improvement of 
navigation in the interstate river, use the dam and the machinery connected 
with it for the sole purpose of manufacturing electric power for sale. In 
the control of floods and in improving navigation, the machinery might 
generate more power than was needed for the purposes stated. It would be 
unreasonable to let that go to waste. It could be legally sold, as the 
general purpose of the operations was not to manufacture power for 
commercial sale.

But the act of 1916, the beginning of the Wilson Dam, contemplated not only 
the manufacture of nitrates for war, a constitutional activity, but also the 
production of things "useful in the manufacture of fertilizers and other 
useful products," an unconstitutional activity. And the act of 1933, 
creating the Authority to take over the Wilson Dam, said that it was for 
"national defense," a constitutional activity, and also "for agricultural 
and industrial development," an unconstitutional activity. 

The Supreme Court viewed the case through a narrow slit and treated it as 
though it stood alone, whereas the record, as exhibited by Justice 
McReynolds, quoting from the pronouncements of the promoters, showed "no 
less a goal than the electrification of America," Since then the "goal" has 
been considerably attained.

In a dissenting opinion Justice McReynolds said that on the record the Court 
should have considered the truth of petitioner's charge that, while 
pretending to act within its powers to improve navigation, the United 
States, through corporate agencies, was really seeking to accomplish what it 
had no right to undertake -- "the business of developing, distributing and 
selling electric power."

Justice McReynolds saw through the fraud

Justice McReynolds said, "Public service corporations were to be brought to 
terms or put out of business."

The Justice quoted from the report of the Authority for 1934:

"'When we carry this program into every town and city and village, and every 
farm throughout the country, we will have written the greatest chapter in 
the economic, industrial, and social development of America.'"

That made plain how little were flood control and navigation involved in 
the adventure. Of course, that development was not the business of the 
United States, any more than the development of the country in the past has 
been.

On the findings of fact made by the trial court, which Justice McReynolds 
said were not controverted, he called the act of the Government "a 
deliberate step into a forbidden field, taken with definite purpose to 
continue the trespass."

President Roosevelt later confirmed view of Justice McReynolds

Precisely what Justice McReynolds stated of the purpose to continue a 
trespass in a forbidden field was admitted by President Roosevelt in a Press 
conference on November 14, 1944, shortly after he had been elected for the 
fourth time. This came in the dispatches from Washington (italics inserted): 

"Of his seven water shed developments, Mr. Roosevelt said that the areas 
would center about a basic stream for each district. Water control would be 
a minor phase of activity compared to power development."

The need for secrecy and deception having passed, seemingly, the President 
let the cat out of the bag.

But there had been no cat in a bag except to the majority of the justices 
of the Supreme Court.[1]

And on May 11, 1948, the House of Representatives of the 80th Congress 
killed by a vote of 192 to 152 a bill of the bureau for the construction of 
a steam power plant in the Tennessee Valley to cost ultimately 84 million 
dollars.

Flood control and navigation superseded by steam

Those facts go even further than President Roosevelt did when he admitted 
that the whole scheme was from the beginning for the manufacture of power by 
Fascist corporations aided by the money of the taxpayers. Of course, a steam 
plant manufacturing electric power is absolutely unrelated to flood control 
and the promotion of interstate navigation.

And the Supreme Court, notwithstanding what Justice McReynolds disclosed 
from the record, permitted itself to be taken in by the fraudulent pretenses 
of the promoters of Fascism!

In addition to that stupendous nongovernmental project, which has cost the 
taxpayers heavily every year -- $41,839,062 in 1939, for instance -- there 
are the Grand Coulee Dam Project of August 30, 1935, the Bonneville Project 
of August 20, 1937, on the Columbia River; the Fort Peck Project of May 
18,1938, on the Missouri River, and numerous other projects covering the map 
-- all illegal power projects.

We were suffering from what General Eisenhower called "creeping paralysis" 
when those projects were pushed through!

Flood control fraudulent pretense of Fascism

The Federal Power Act of August 26, 1935, for the acquisition of power 
sites, plainly evidenced a comprehensive purpose of Government to 
manufacture and sell electric power, through Fascist corporations and with 
the money of the taxpayers, in competition with private investors and 
manufacturers and in violation of the Constitution.

The record raising the question whether the Government of the United States 
was bent on controlling floods in navigable rivers and promoting navigation 
in them, or whether it was in reality on an adventure in Socialism should 
have given pause to the Supreme Court.

Question should not have been decided by the Supreme Court

The question was for the Ultimate Court. It was for the Constituent 
Assembly, the people acting in their capacity as constitution makers, to 
say whether that business, stopped by the sound injunctive order of the 
United States District Court, should go further. It was the right of the 
people, passing on a proposal to amend the Constitution, to say whether they 
wanted their Government in the business of manufacturing and selling 
electric power, or in any other business. The departure from the law 
respecting the carrying on of business since the time of Magna Carta, 721 
years before, was so radical that it was the duty of the Judiciary to stop 
it, as the trial court did, until the question could be carried to the 
people for decision.

That is what the court of Chief Justice Fuller did in 1895 with an 
income-tax law in disregard of a limitation stated in the Constitution. It 
told the proponents of the income-tax idea to take it to the people, as the 
Court would not try to rewrite the Fundamental Law.

In later case Chief Justice stated principle correctly

And in a concurring opinion holding (298 U. S. 238) the Bituminous Coal Act 
of 1935 in conflict with the Constitution, this was said by Chief Justice 
Hughes:

"If the people desire to give Congress the power to regulate industries 
within the State, and the relation of employers and employees in those 
industries, they are at liberty to declare their will in the appropriate 
manner; but it is not for the Court to amend the Constitution by judicial 
decision."

It is lamentable that that principle was not applied by the Supreme Court 
respecting the Tennessee Valley Authority. For the time must come when the 
people will refuse to submit to taxation for money to be used in such ways. 
And it is fully as important that the tremendous and malign influences of 
such bureaus in the Government as propagandists be brought to an end.

With such forces pouring out "information" to the public all the time in 
torrents, it is, of course, impossible for the public to be rightly 
informed.

T.V.A. persistent danger to public opinion

The Tennessee Valley Authority has been a powerful and dangerous 
propagandist. The United States Government Printing Office put out "Progress 
in the Valley: T V A, 1947" -- an 82-page book printed on heavy paper, with 
7 costly pictures of the wonders accomplished for man, woman, and child in 
the Valley, and for invention, manufacture, and recreation. 

On page 74 the book says that the average rate paid by "large industrial 
consumers" during the past year was 0.64 cents per kilowatt hour, in 
comparison with "0.93 paid by industrial consumers throughout the United 
States."

First, why should "large industrial consumers" be cared for by the American 
taxpayers?

Promptly upon the turning of machinery by the Tennessee Valley Authority, 
the Aluminum Company of America and the Monsanto Chemical Company, two of 
the largest manufacturers in the country, went down from the North and began 
business in the Valley under long-time contracts for cheap power at the cost 
of the taxpayers! They recognized a golden "yardstick" when it appeared.[2]

Mathematics proves private capital cannot meet taxpayers' money

Second, it is manifest that a rate by Government of 0.64 must drive out of 
business companies charging 0.93. Justice McReynolds found that to be the 
grand purpose.

On page 79 the book reveals that through the fiscal year 1945 the Authority 
purchased "facilities totaling $125,000,000." Those acquisitions brought in 
"some 345,000 consumers, or about half of those now served."

If that is not swallowing competitors alive, what expression would describe 
it?

The Supreme Court held that as the Constitution provides (Art. IV, Sec. 3) 
that "the Congress shall have power to dispose of ... the territory or other 
property belonging to the United States," it could convert the water of the 
River into power and sell it as it disposes of coal or other minerals in the 
lands which it owns. But it does not own the water in the river. Besides, it 
sells from the public lands the coal or other mineral in its natural state. 
It does not, in competition with other manufacturers, convert potential into 
actual power. On that, Justice McReynolds said that the ownership of an iron 
mine by the United States would not "permit the construction of smelting 
works followed by entry into the business of manufacturing and selling 
hardware, albeit the ore could be thus disposed of, private dealers 
discomfited, and artificial prices publicized."

A great prophetic lawyer foresaw these cases

This decision upholding the Act of Congress creating the Tennessee Valley 
Authority, and the decision sustaining the National Labor Relations Act, and 
the decision sanctioning the Packers and Stockyards Act, bring to mind a 
passage from one of the lectures fifty years ago to the law students at Yale 
by John F. Dillon, who had sat on the Supreme Court of Iowa and on a Federal 
Bench, a great figure of that day. Dealing with the barriers set in the 
Constitution to keep Congress in its place -- to keep it out of "a boundless 
field of power no longer susceptible of any definition" -- with the barriers 
to keep a vaulting Chief Executive in his place, that great 
constitutionalist said:

"The value, however, of these constitutional guarantees wholly depends upon 
whether they are fairly interpreted, and justly and with even hand fully and 
fearlessly enforced by the courts. . . .

"If there is any problem which can be said to be yet unsettled, it is 
whether the Bench of this country, State and Federal, is able to bear the 
burden of supporting under all circumstances the Fundamental Law against 
popular, or supposed popular, demands for enactments in conflict with it." 

The Judiciary, respecting which Judge Dillon had misgivings half a century 
ago, has certainly not grown stronger.

Whence authority to destroy productive land?

What overpowering necessity called for the drowning of 500,000 acres of 
cultivated land which the Farm Bureau of Tennessee found in 1941 to be 
producing each year crops valued at $14,415,300? Could the furnishing of 
cheap electric power by the President's new "yardstick" to powerful patrons 
of the Tennessee Valley Authority justify the destruction of this natural 
value of the Earth? When the Salt River Valley had recently been reclaimed 
by irrigation from the desert and made immensely fertile and productive, and 
when other reclamation projects had been carried out and more were in 
prospect, by what line of reasoning could any "planner" have concluded that 
it was desirable to submerge forever more than half a million acres of the 
rich bottom lands along the Tennessee River?

But that destruction of fertile lands displaced 13,433 families, or 56,000 
persons, and sent them adrift, as the war in Europe displaced persons and 
sent them wandering. For those in Europe we have expressed much compassion 
and to them we have given much help; but there has been no sorrowing over 
the displaced persons in the Tennessee Valley. True, those who were 
displaced in that Valley were paid for their lands, so far as money can 
compensate for the loss of homes sanctified by long living and clustered 
with the memories of generations.

Irreplaceable loss of production from land

Yet, even if the compensation had been sufficient to cover every element of 
value entering into the worth of a long-established home, there still 
remained, and will forever remain, unpaid for, the yearly production of 
$14,415,300 of foodstuffs and other products given by the land and needed 
and consumed by the American people. And even if the displaced persons found 
employment in the electric power plants which the Government set up without 
authority from the Constitution, who on earth had authority to determine 
that it was better for those persons to exchange the independence and 
security of life on their lands for the uncertainty of subsistence from a 
pay roll which is liable to be suspended at any time without any explanation 
to them?

Fascism thrust upon Tennessee Valley

As previously indicated, the people of the Tennessee Valley did not ask for 
the submergence of their lands.

Those adventures by means of Fascist corporations are probably the worst 
aggressions by Congress and the President upon the liberty and the property 
rights of the Americans.

All who have become enthusiastic over the "success" of the Tennessee Valley 
Authority, and of the other projects of Government for manufacturing 
electric power for the commercial market by using the money of the taxpayers 
without asking their permission, should think again and carefully consider 
the warning given centuries ago by Authority, namely, that men may gain the 
whole world and still be heavy losers.



1. An advertisement by the Electric Light and Power Companies in United 
States News and World Report of March 3, 1950, shows a map of the United 
States in which are stuck 209 pins with white heads and 491 with black 
heads, over 44 of the 48 States. The white heads show where electric power 
plants are now operated or financed by the Federal Government, and the black 
pins mark the places where electric plants are under construction with 
taxpayers' money. The map presents a frightening picture. It goes to prove 
what Justice McReynolds said the record in this case established, that the 
Fascists had "no less a goal than the electrification of America." The 
United States is becoming Socialistic at top speed.

2. A dispatch from Washington on April 5, 1949, showed that "big business" 
has taken over heavily the benefits of the cheap power provided by the 
taxpayers. In the Tennessee Valley are the Aluminum Company of America, the 
Monsanto Chemical Company, the Reynolds Metals Company, the Electro 
Metallurgical Company, the Victor Chemical Company, the Tennessee Copper 
Company, and the Reynolds Alloys, taking over 28 per cent of the total 
output.

In the Northwest the power generated at the Bonneville and Grand Coulee dams 
on the Columbia River by the taxpayers was taken by the Aluminum Company of 
America, the Pemamente Metals Corporation, the Reynolds Company, the Electro 
Metallurgical Co., the Pacific Carbide Company, and the Pennsylvania Salt 
Manufacturing Company, among others.

The "yardstick" which the President was so desirous of providing to show 
what rates to the consumer should be charged was evidently of the highest 
satisfaction to large corporations. Now the complaint at Washington is that 
the consumers in the homes and other small users are threatened with a 
shortage unless Congress will authorize the construction of steam plants -- 
thus casting off altogether the cloak of navigation and flood control which 
Congress wore when it entered on this stage!


____________

IX

IN MAY, 1933, CONGRESS, BY THE AGRICULTURAL ADJUSTMENT ACT, UNLAWFULLY 
PERMITTED THE PRESIDENT TO REDUCE THE GOLD CONTENT OF THE STANDARD DOLLAR

It was well settled law (293 U. S. 388) that the power conferred on Congress 
by the Constitution cannot be delegated to another Department. That 
principle of the law of Agency was found by Bryce to be the best conception 
of the Constitutional Convention.

Yet the Legislative Department authorized the President, by a Senate 
amendment to the House Agricultural Adjustment bill, to reduce the content 
of the gold dollar, but not below 50 per cent. In 1936 the Agricultural 
Adjustment Act was held (297 U. S. 1) unconstitutional for taking money from 
one class for the benefit of another. But in the meantime the President had 
acted on the Senate amendment and cut the gold dollar.

Among the powers conferred on Congress by the Constitution is that "to coin 
Money, regulate the Value thereof, and of foreign Coin." At the time the 
Constitution was written there was much coin of other nations in circulation 
in America. The Spanish silver dollar was the coin of first importance. By 
the language quoted, recognition was given to the fact that governments had 
found it necessary to change the content of their standard coins, a course 
which conditions might make necessary in the New World.

President given no authority over money

But all the authority given by the Constitution was conferred, as the 
language quoted puts beyond question, on Congress alone. Neither in Article 
I, creating the Legislative Department, nor in Article II, establishing the 
Executive Department, is there even an intimation that the President should 
have anything to do with regulating the value of money. That is to say, the 
power was withheld from him. For another elementary rule of interpretation 
is that what is not granted is prohibited.

With the authority to regulate the value of coin limited by the 
Constitution to Congress, the President was, nevertheless, directed (or, 
what is more probable, allowed) by Congress to perform its task of fixing 
the value of the dollar. It was for Congress to determine whether the 
content of the dollar should be changed and, if so, to change it.

Constitutional power cannot be delegated

Delegation of administrative powers to fact-finding bodies which are guided, 
not by their own will or judgment, but by the specifications and limitations 
in the Acts of Congress creating them, has been common. The Federal Trade 
Commission, the Board of Tax Appeals, and many other agencies have been set 
up to relieve Congress of details not legislative.

But "the Congress, manifestly, is not permitted to abdicate, or transfer to 
others, the essential legislative functions with which it is invested," 
said the Supreme Court (293 U. S. 388) in 1934. (Italics inserted.) It 
pointed out the settled practice that Congress, in the act of delegating 
administrative powers, must declare a policy, establish a standard, and lay 
down a rule for its agent to follow in executing the Congressional (not its 
own) will.

In passing to the President an "essential legislative function," not a 
merely administrative function, second to none conferred by the Constitution 
on it, Congress did not itself, so far as the Act and the Joint Resolution 
show, determine anything -- except that the Chief Executive might use his 
own judgment within a very wide range.

Here began the course of unconstitutional conduct by Congress which brought 
upon it and its successors the epithet of "rubber stamp."

The beginning of "directives" by the President

So, on January 31, 1934, the President "directed" that the standard gold 
dollar be reduced from 25.8 grains to 15-5/21 (15.238) grains. 

On March 9, 1933, Congress had passed the Emergency Banking Relief Bill, 
which authorized the Secretary of the Treasury to require all persons to 
deliver to the Treasurer of the United States "any and all gold coin, gold 
bullion, and gold certificates" owned by them, and to accept therefor "an 
equivalent amount of any other form of coin or currency."

Here began the practice of the President and his rubber-stamp Congress of 
declaring an "emergency" when it seemed desirable to seize power not granted 
by the Constitution.

But "emergency does not create power," wrote Chief Justice Hughes (1934) in 
an opinion (290 U. S. 398) sustaining a law of Minnesota (1933) which 
extended the time for an owner of property to redeem it after sale under 
foreclosure of mortgage.

Congress repudiated its contract with the people

By a Joint Resolution of June 5, 1933, Congress proclaimed that the promises 
of the United States in the law under which the Second, Third, and Fourth 
Liberty Bonds were issued "are hereby repealed" so far as they pledged any 
payment except "dollar for dollar in any coin or currency which at the time 
is legal tender." The United States had borrowed money of the people for 
carrying on World War I and had issued bonds therefor payable as to both 
principal and interest "in the United States gold coin of the present [1918] 
standard of value." That is, in dollars containing 25.8 grains of gold 
nine-tenths fine.

The vastness of the debt repudiated

Just before this legislation, in 1932, the interest-bearing debt of the 
Nation was $19,161,273,540.[1]

At that time the States had submerged themselves in an interest-bearing debt 
of $17,589,515,000.[2]

Thus, the two governments of the American had loaded him in a time of peace 
with a burden of $36,750,788,540.

On the National Debt he was paying a yearly interest of $599,276,631, and 
the debt of his States cost him yearly in interest $527,685,450.

His interest load for the two debts was $1,126,962,081 per year, or 
$155,399,491 more than the National Debt the year before we entered World 
War I.

National and State governments had agreed with those who lent to them 
$36,750,788,540 to pay in dollars containing 25.8 grains gold. They had 
likewise promised to pay in such dollars yearly in interest $1,126,962,081.

But the governments would henceforward measure their debt to those who had 
lent money to them in time of need by a dollar containing 15-5/21 grains of 
gold instead of the promised dollar of 25.8 grains. Nor, as before said, 
would their creditors, under the decision of the Supreme Court, to be 
noticed presently, get the lesser gold dollar. They would be obliged to 
take paper money. Neither would they, the Supreme Court held, be entitled to 
enough additional paper money to compensate for the difference between the 
dollar lent and the dollar paid back.

The "profits" to governments from repudiation

The measure of value by which debtor and creditor had contracted was cut 
down not quite 41 per cent. If the debts of the Nation and the States just 
before given were to be cut down 40 per cent the debtor governments would 
gain over 15.7 billion dollars; and, of course, the people from whom they 
borrowed would be out of pocket that much, only a little less than the 
National Debt amounted to in 1931 after Secretary Mellon, by wise 
management, had reduced it almost 9 billion from the World War I peak of 25 
billion, 234 million.

In like manner, all the other debtors in the United States, those not 
holding bonds or other obligations of Government, would receive in the 
depleted dollar from their creditors a forced forgiveness of 40 per cent of 
their debts. 

That this was the effect of the performance was admitted of record by the 
Secretary of the Treasury in the report for the fiscal year ending June 30, 
1946, where (p. 364), under receipts of money, there was entered "increment 
resulting from devaluation of gold dollar, $2,811,375,756." Whether that 
amount was allocated to 1946, or to all the years up to that time, does not 
appear; but the "clip" on all the bonds of the United States outstanding was 
$7,760,315,773.

Chief Justice Marshall on honor in government

On the action of the Government in favoring debtors -- and most of all 
itself and the States -- by clipping the dollar 40 per cent, in one of the 
opinions of Chief Justice Marshall this is to be found:

"It may well be doubted whether the nature of society and of Government does 
not prescribe some limits to the legislative power; and, if any be 
prescribed, where are they to be found if the property of an individual, 
fairly and honestly acquired, may be seized without compensation."[3] 

Hamilton on inviolability of governmental contracts

Long before that, Alexander Hamilton, who was Secretary of the Treasury in 
the Cabinet of Washington, stated with his characteristic clarity and force 
the position of a contracting Government, as ours was a contracting 
Government when it borrowed money from the people and promised to pay in 
dollars containing 25.8 grains of gold:

"When a government enters into a contract with an individual, it deposes, as 
to the matter of the contract, its constitutional authority, and exchanges 
the character of legislator for that of a moral agent, with the same rights 
and obligations as an individual. Its promises may justly be considered as 
excepted out of its power to legislate, unless in aid of them. It is in 
theory impossible to reconcile the idea of a promise which obliges with a 
power to make a law which can vary the effect of it."[4]

Hamilton was a member of the Constitutional Convention, which "told the 
world" that the new Government would pay the creditors of the old.

Constitutional Convention for payment of all debts

Among the final words of the Constitution are these:

"All debts contracted and engagements entered into before the adoption of 
this Constitution shall be as valid against the United States under this 
Constitution as under the Confederation."

That provision gave the United States high standing and credit among the 
nations.

On the morality of government respecting its debt, Madison made this 
interesting observation (The Federalist, No. 43):

"This can only be considered a declaratory proposition; and may have been 
inserted, among other reasons, for the satisfaction of the foreign creditors 
of the United States, who cannot be strangers to the pretended doctrine that 
a change in the political form of civil society has the magical effect of 
dissolving its moral obligations."

The fine example set to the nations by the Constitutional Convention has not 
been accepted by them.

Once we upbraided governments of Europe for repudiating the obligations to 
us which they had incurred for World War I. But we can do that no longer.

Insolence attended repudiation of gold contracts

From the review which has been made of opinion on both sides of this 
subject, it is manifest that the Government of the United States, without 
adequate explanation to the people, took a step respecting their property of 
tremendous importance to them. The only pretense of explanation by the 
Government, as a Government, was in the authority given by a rider on the 
Agricultural Adjustment Act to the President to "fix the weight of the gold 
dollar ... as he finds necessary ... to stabilize domestic prices or to 
protect foreign commerce against the adverse effect of depreciated foreign 
currencies"; and in the Joint Resolution of Congress (June 5,1933) declaring 
that "the holding or dealing in gold" had been disclosed by "the existing 
emergency" to "obstruct the power of Congress to regulate the value of 
money," for which reason "any obligation" purporting to give to the lender 
of money "a right to require payment in gold" was "declared to be against 
public policy."

But just how the cut by the President of 40 per cent from the gold dollar 
would stabilize domestic prices or protect foreign commerce, or how the 
repudiation by Congress of its promises to pay its bonded debts in gold, 
with the release of all other debtors from such promises, would help it "to 
regulate the value of money," was left without explanation beyond the bare 
recitals just quoted from the acts.

The opinions of some writers on finance

Some writers on finance had contended that the value of the gold in a dollar 
had increased in the market, and that therefore the creditor (the holder of 
bonds, the depositor of money, and some others) were receiving value above 
that intended by their contracts, for which reason a reduction of the 
content of the gold dollar was called for. But, as before indicated, the 
representatives of the Government said that the purpose was to increase the 
price of agricultural commodities, to stabilize American money against 
foreign currencies, and to make a profit for the Treasury of the United 
States.

While the depletion of the dollar quickly lifted the prices of wheat and 
other products in demand in foreign markets, it less quickly, but just as 
surely, increased the costs at home -- of food, of clothing, of housing, of 
living. If the writers on finance were right, then the wearying burden of 
living costs carried by the American for fifteen years is in considerable 
part attributable to the devaluation of the gold dollar.

Supreme Court expounded repudiation

In one of the three Gold Clause Cases the Supreme Court held, on February 
18, 1935, in an opinion by Chief Justice Hughes, that the Fourth Liberty 
Bonds of the United States, promising to pay the buyer (the lender of money 
to the Government) "in the United States gold coin of the present [1918] 
standard of value," could not be repudiated as to the form of payment. The 
bonds having been issued under the clause of section 8 of Article I of the 
Constitution authorizing Congress "to borrow money on the credit of the 
United States," and being affected by the provision of the Fourteenth 
Amendment that "the validity of the Public Debt of the United States 
authorized by law . . . shall not be questioned," those quoted expressions 
stating the sovereign will of the people, it was not within the power of 
Congress, a servant of the people with inferior authority, "to override 
their will thus declared," and by the joint resolution of June 5, 1933, to 
proclaim that the promises in the law under which the bonds were issued "are 
hereby repealed" so far as they pledged any payment except "dollar for 
dollar in any coin or currency which at the time is legal tender."[5]

Yet the bondholder won a Pyrrhic victory. He got nothing but a favorable 
judicial declaration that he should be paid in gold when the gold of the 
country had been seized and withdrawn from circulation.

The holder of Government bonds thoroughly "frisked"

Nor did he get in paper money the additional sum to equate the difference 
between the two gold dollars for the reason that "the plaintiff," the Court 
said, "has not shown, or attempted to show, that in relation to buying power 
he has sustained any loss whatever." Congress having withdrawn gold from 
circulation, it was unascertained what the new gold dollar would be worth to 
plaintiff in the "domestic and restricted market." He had not proved that, 
and as he had sued for damages for violation of contract, he failed for want 
of proof.

Dissenting Justices found the milk in the cocoanut

In the dissenting opinion in the Gold Clause Cases by Justices McReynolds, 
Van Devanter, Sutherland, and Butler, this was said (italics inserted):

"The Agricultural Adjustment Act of May 12,1933, discloses a fixed purpose 
to raise the nominal values of farm products[6] by depleting the standard 
dollar. It authorized the President to reduce the gold in the standard, and 
further provided that all forms of currency shall be legal tender. The 
result expected to follow was increase in nominal values of commodities and 
depreciation of contractual obligations. The purpose of section 43, 
incorporated by the Senate as an amendment to the House bill, was clearly 
stated by the Senator who presented it. It was the destruction of lawfully 
acquired rights."

Congress recognized damage by repudiation

That destructive result was admitted by the Government, for by an act of 
Congress of June 14, 1934, a credit of $25,862,750 was established on the 
books of the Treasury in favor of the Philippine Islands, that amount 
compensating for the cut in its gold-standard fund held by the banks in 
this country.

The fact deserves special emphasis that it was by an act of Congress taking 
a course of avowed favor to agriculture, as the dissenting justices stated 
in the foregoing quotation, that the President was empowered to reduce the 
gold content of the dollar. In the act the purpose of stabilizing "domestic 
prices or to protect foreign commerce against the adverse effect of 
depreciated foreign currencies" is recited. It is not clear why a dollar 
supported by the resources and productive power of this country could not 
stand up against foreign money. No explanation was vouchsafed by the 
prestidigitators of finance who drafted and put through the bill.

A senator clearly explained the trick

But this from the senator who incorporated section 43 as an amendment to the 
House bill, referred to in the foregoing quotation from the dissenting 
justices, is to a high degree lucid (italics inserted):

"The amendment has for its purpose the bringing down or cheapening of the 
dollar, that being necessary in order to raise agricultural and commodity 
prices. . . . The first part of the amendment has to do with conditions 
precedent to action being taken later.

"It will be my task to show that if the amendment shall prevail it has 
possibilities as follows: it may transfer from one class to another class 
in these United States value to the extent of almost $200,000,000,000. This 
volume will be transferred, first from those who own the bank deposits. 
Secondly, this value will be transferred from those who own bonds and fixed 
investments."[7]

There is nothing in that about cutting the value of the dollar over 40 per 
cent to protect it against "depreciated foreign currencies," which Congress 
gave as one of its reasons, without saying how that would help against what.

Secretary of Treasury not concerned about foreign moneys

Justice McReynolds quoted from a radio address of the Secretary of the 
Treasury to the American people on August 28, 1934, the following 
unctuousness: 

"But we have another cash drawer in the Treasury, in addition to the drawer 
which carries our working balance. This second drawer I will call the 'gold' 
drawer. In it is the very large sum of $2,800,000,000, representing 'profit' 
resulting from the change in the gold content of the dollar. Practically all 
of this 'profit' the Treasury holds in the form of gold and silver. The rest 
is in other assets.

"I do not propose here to subtract this $2,800,000,000 from the net increase 
of $4,400,000,000 in the National Debt, thereby reducing the figure to 
$1,600,000,000. And the reason why I do not subtract it is this: for the 
present this $2,800,000,000 is under lock and key. Most of it, by authority 
of Congress, is segregated in the so-called stabilization fund, and for the 
present we propose to keep it there. But I call your attention to the fact 
that ultimately we expect this 'profit' to flow back into the stream of our 
other revenues and thereby reduce the National Debt."

Usefulness of gold clause in American life stated

The dissenting justices pointed out that the gold clause in any agreement, 
employed by Americans for more than 100 years, "secures protection, one 
against decrease in the value of the currency, the other against an 
increase." Such clauses, they said, "have rendered possible our great 
undertakings -- public works, railroads, buildings. . . . Furthermore," the 
dissenters wrote, "they furnish means for computing the sum payable in 
currency if gold should become unobtainable." Then the borrower pays "for 
each dollar loaned the currency value of that number of grains." He would 
thereby get, what was denied by the Supreme Court, enough additional 
currency to make up the difference between the value of the money lent by 
him and that paid back.

The whole case, as seen by the dissenting justices, was stated as follows: 

"The fundamental problem now presented is whether recent statutes passed by 
Congress in respect of money and credits were designed to attain a 
legitimate end. Or whether, under the guise of pursuing a monetary policy, 
Congress has really inaugurated a plan primarily designed to destroy private 
obligations, repudiate National debts, and drive into the Treasury all gold 
within the country in exchange for inconvertible promises to pay, of much 
less value."

The President did not guard against foreign currencies

It was reported in the dispatches on March 15, 1941, that President 
Roosevelt told his conferees of the Press, whom he used as boosters of his 
exploits, that "the Treasury's $2,000,000,000 stabilization fund had made a 
profit of $22,000,000," which, he said, was "not such a bad record for what 
he called facetiously a bunch of rank amateurs in finance." The 
stabilization fund was established in 1934, the dispatch said, "from 
profits obtained from the devaluation of the dollar." It was the opinion of 
the President that he had given "a pretty good illustration of the fact that 
the American Government was not wholly amateurish in the financial part it 
plays in the country."

What the Government accomplished proceeded, not from its financial ability, 
but from an illegal and ruthless exertion of power.

Did predatory wealth or economic royalty ever "put over" anything comparable 
to that? Did either, even in its dreams, ever see such easy money picked 
from the gullible?

On "just compensation" for private property taken

Were Congress to authorize the Secretary of the Treasury to order all of the 
farmers in the country to drive in their herds and accept the pay offered by 
the Government, "just compensation" would be given for them under the 
command of Article V of the Bill of Rights. On whether gold could thus be 
called in and appropriated by the Government without paying grain for grain, 
the dissenting justices said:

"Congress has power to coin money, but this cannot be exercised without the 
possession of metal. Can Congress authorize appropriation without 
compensation of the necessary gold? Congress has power to regulate commerce, 
to establish post roads, etc. Some approved plan may involve the use or 
destruction of A's land or a private way. May Congress authorize the 
appropriation or destruction of these things without adequate payment? Of 
course not. The limitations prescribed by the Constitution restrict the 
exercise of all power."

On the point in the opinion of the majority of the Court, that as the 
holders of the bonds were forbidden to possess gold, it would do them no 
good to get payment in coin which they would be obliged to surrender 
immediately, and that consequently they were without damage, the dissenting 
justices said: 

"Congress brought about the condition in respect of gold which existed when 
the obligation matured. Having made payment in this metal impossible, the 
Government cannot defend by saying that if the obligation had been met the 
creditor could not have retained the gold; consequently he suffered no 
damage because of the non-delivery.

Had an individual done such a thing

"Obligations cannot be legally avoided by prohibiting the creditor from 
receiving the thing promised. . . .

"If an individual should undertake to annul or lessen his obligation by 
secreting or manipulating his assets with the intent to place them beyond 
the reach of creditors, the attempt would be denounced as fraudulent."

The dissenting opinion concluded:

"Under the challenged statute it is said the United States have realized 
profits amounting to $2,800,000,000. But this assumes that gain may be 
generated by legislative fiat. To such counterfeit profits there would be 
no limit; with each new debasement of the dollar they would expand. Two 
billions might be ballooned indefinitely -- to twenty, thirty, or what you 
will.

"Loss of reputation for honorable dealing will bring us unending 
humiliation; the impending legal and moral chaos is appalling."



1. Report Secretary of Treasury, p. 405.

2. Financial Statistics States, pp. 52, 64.

3. Fletcher v. Peck, 6 Cranch. 87, 135.

4. Hamilton's Works, 518.

5. Perry v. United States, 294 U. S. 330.

6. Where did Congress get authority "to raise the nominal value of farm 
products"?

This is one more support of the statement frequently made herein, namely, 
that those in places in Government have generally ceased to ask or raise the 
question: Does the Constitution warrant this action? Or, does the 
Constitution forbid it?

7. Congressional Record, April, 1933, pp. 2004, 2216-7, 2219.


____________

X

FIVE MONTHS AFTER THE INCORPORATION OF TENNESSEE VALLEY AUTHORITY, IN 1933, 
TWO MEMBERS OF THE CABINET OF THE PRESIDENT, AND THE HEAD OF THE FEDERAL 
RELIEF ADMINISTRATION PROCURED A CHARTER IN DELAWARE FOR THE FEDERAL SURPLUS 
COMMODITIES CORPORATION, CAPITALIZED BY THE MONEY OF THE TAXPAYERS

The next excursion of government beyond its constitutional domain was in 
October, 1933, after the Tennessee Valley Authority had been incorporated, 
and its aims were as general as human affairs. 

Secretary of Agriculture Henry A. Wallace, Secretary of the Interior Harold 
L. Ickes, and Harry Hopkins, Head of the Federal Relief Administration, took 
out a charter under the ultraliberal law of Delaware for the Federal Surplus 
Commodities Corporation. The corporation, the charter recited, would have 
"perpetual existence."

Up to that time the "undesirable citizens," the persons of "predatory 
wealth," the "economic royalists," and others who became incorporators never 
thought of asking for their creatures more than half a century of life or, 
at most, 99 years. And if they organized under the laws of Delaware, they 
were, in the eyes of many, immediately suspect. But here the anointed in 
Government went to Delaware and took out a charter to last forever, until 
"the wreck of matter and the crush of worlds."

The tip-top corporation of Fascism

In part, the purposes of the charter were as follows (italics added):

1. "To relieve the existing economic emergency by the expansion of markets."

2. To "purchase, store, handle and process surplus agricultural and other 
commodities."

3. To perform "all functions" that may be "delegated to it under acts of 
Congress."

(By not authorizing Congress to delegate any functions to any person or 
group, the Constitution thereby forbids delegation. Yet delegation was 
done.) 

4. "To accept grants ... of monies, commodities, lands or other property of 
any class, nature or description."

5. To "carry on any or all of its operations and business without 
restriction or limit."

6. To "hold, own, mortgage, sell, convey" property of "every class."

7. To borrow money on the commodities in its possession.

8. "To encourage the farmers to co-operate in any plan which calls for the 
reduction of acreage."

9. To engage in warehousing and exporting.

To incur debt in every conceivable way

10. "To borrow money," issue bonds and "all other kinds of obligations . . . 
without limit."

11. "To loan money, to buy, discount, sell or rediscount or otherwise deal 
in notes" and every sort of paper.

12. "To take and hold ... by bequest, devise, gift, purchase, lease or 
otherwise" anything.

13. "To guarantee" or otherwise deal in shares of "any other corporation."

And so on for six more paragraphs of specifications and powers.

No engineers of high finance ever piled a pyramid of corporations with 
powers to match those in scope or absoluteness.

And, of course, none of those activities is any constitutional business of 
the United States.[1]

Some of the Fascist activities exhibited

Yet the corporation has been acting with devilish diligence. It has had a 
part of several grain crops deteriorating in storage, and it has released 
wheat -- the prime food of man -- to feed the pigs.

In July, 1944, the Associated Press reported the War Food Administration as 
saying that it had purchased 10,500 carloads of eggs "for price support 
between January 1 and July 15."

No clause of the Constitution authorizes the support of prices by the 
Government of the United States for the benefit of farmers at the expense of 
the taxpayers. That point was passed upon by the Supreme Court when it held 
violative of constitutional limitations the original Agricultural Adjustment 
Act as an attempt to gather money for one class by taxing another.

In August, 1944, the dispatches told of the purchase in the Northwest by the 
War Food Administration of eggs at $9 a case of 30 dozen each, which it was 
obliged to sell at 20 to 50 a case. It dumped 14 railroad carloads of 
spoiled eggs. It was offering 14 more carloads to the trade. It had sold 26 
carloads, about 16,000 cases, for hog feed at 5 a case. As stated above, 
the Government had paid $9 a case for them.

A consignment of 6 carloads was held in Chicago for orders from Washington 
to destroy them, until freight charges had accumulated to $4,200. But it was 
the money of the taxpayers!

The egg in its relation to great Government

The Associated Press reported in 1944 that a deputy director of War Food 
Administration testified before a committee of Congress that he "wished he 
knew" what could be done "with between $100,000,000 and $150,000,000 worth 
of eggs bought this year."

"Do you mean to say that the American taxpayers have invested between 100 
and 150 million dollars in eggs we have no use for?" demanded the Chairman 
of the Committee.

"That's right," answered the witness.

Losses of taxpayers' money on ventures of the kind described were reported 
as to nearly every agricultural commodity. The Federal Surplus Commodities 
Corporation and its subsidiaries became possessed, by using the money of the 
taxpayers, of many surpluses of enormous -- almost fabulous -- cost, which 
they had to dump. The "ever-normal granary" of Henry A. Wallace, one of the 
incorporators of the Federal Surplus Commodities Corporation, turned out 
upon trial to be an instrumentality for feeding wheat to pigs. And Harry L. 
Hopkins, another of the incorporators, never made any apologies, probably 
because of the belief which he once expressed that "the people are too 
damned dumb to understand."

A potato famine resulting from abundance

On December 31, 1946, the Associated Press reported from Washington that 
"millions of bushels of frozen and rotten potatoes will be dumped under 
Government instructions." The Department of Agriculture had underwritten the 
1946 crop up to 90 per cent of parity. The crop turned out to be 100,000,000 
bushels larger than the "planners" had expected. Then prices tumbled. The 
Department loaned money to the growers at the guaranteed price and asked 
them to store the potatoes until the price should rise. It did not rise. The 
great loss came from those loan-stored potatoes. The dispatch carefully did 
not tell what price the Government guaranteed. Here is an illustration of 
the worst feature of centralized authority -- its deceit, its adroit 
concealment of facts, its purposeful misleading of the public.

The loss from damp, vermin, and deterioration of wheat and other grains 
which the Corporation ordered held in storage for better rates, the while 
paying out of the pocket of the taxpayers unjustifiable prices to the 
farmer, was enormous, and the true extent of it will probably never be 
known.

One of the great "plungers" in debt

The Federal Surplus Commodities Corporation had a capitalization of 
$100,000,000, and all the stock was owned by the United States -- which has 
no authority from the Constitution to own stock in any corporation. By the 
acts of 1938 and 1945 it was empowered to borrow up to $4,750,000,000 on 
obligations guaranteed by the United States, which has no authority from the 
Constitution to guarantee the borrowings of any corporation.

The Associated Press reported from Washington on May 23, 1949, that the 
total of subsidies provided for favored classes by the taxpayers without 
their permission for 17 years amounted to $15,571,060,000, of which 
$10,300,000,000 went to farmers. No clause in the Constitution authorizes 
Congress to appropriate money for such purposes.

Unquestionably the farmer has been put in a very serious predicament by the 
high costs of help on the land, and the high costs of labor going into farm 
implements, machinery, fertilizer, and all the other things that he has to 
buy. Those costs were increased out of all reason by the aid of the 
administration at Washington to the monopoly of organized labor, now so 
powerful at the polls that it holds the President captive.

Rejection of external government needed

But the cure for the grievances of the farmer, and of every other citizen 
weighted down by the operation of indefensibly high wages, is not the 
bestowal of subsidies from the taxpayers of the country, but the removal of 
the cause -- the rejection for the future of the external government of the 
United States, and the exclusion of the President from the field of low 
politics.

And the Federal Surplus Commodities Corporation is only one of a number, the 
magnitude of the spending of which nobody certainly knows. At least, that is 
what is gathered from the reports of Senator Byrd on his efforts to find out 
what is doing by the spenders and wasters.

Congress, by setting up such activities in competition with man, assailed 
his liberty to live, unhampered and unannoyed, which it was its duty to 
safeguard.

No such corporation in Jackson's administration

On the proper and only place of Government in the affairs of men, President 
Andrew Jackson said more than a century and a decade ago:

"The duty of Government is to leave Commerce to its own capital and credit, 
as well as other branches of business, protecting all in their legal rights, 
giving exclusive privilege to none."

That cogent statement contains the American philosophy laid down in the 
Declaration of Independence, that Government is limited strictly to giving 
protection to men from men and to men from Government, and it is entirely 
without grant from the Constitution of any paternal authority.

The idea of President Jackson and other right-thinking Americans, that 
Government has no place in business, is sustained by the report of the 
Commodity Credit Corporation for the last fiscal year. A dispatch from 
Washington dated September 26, 1949, and sent by the United Press, said that 
the fund for the support of prices of farm commodities for the year had been 
set at $500,000,000. That was altogether wiped out, and an additional "red" 
expenditure was made of $170,000,000.

The "planner" and the bagatelle

The loss of cash in price support was $254,000,000 Inventory losses were 
416,000,000 Losses on potatoes were 203,886,000 Losses on peanuts were 
23,000,000 Losses on corn were 99,000,000 Losses on cotton were 36,000,000

On wheat there was written off as lost $56,000,000, of $529,000,000 
invested.

Of $81,000,000 in eggs, $38,000,000 was written off.

Of $191,000,000 in linseed and other oils, $73,000,000 was written off.

The dispatch stated, without figures, that the report showed inventory 
losses on wool, peas, beans, barley, resin, turpentine, prunes, raisins, 
grains, sorghums, and tobacco.

Wires of the bureaus crossed

Under a multilateral agreement at Geneva in 1947, large imports of potatoes 
at half tariff rates came to the United States in 1949. That action of the 
Department of State was negatived by the Department of Agriculture in buying 
90 million bushels of domestic potatoes in 1948 to make prices higher -- 
keeping them out of consumption.

In like manner, 60 million pounds of butter imported from Denmark in 1949 
was checkmated through the purchase by the Department of Agriculture, for 
price support, of 93 million, 305 pounds of domestic butter!

A recent dispatch from Washington quoted a member of the Government as 
saying that its business has become so large that it is next to impossible 
to handle it. But if the Government would abandon nongovernmental activities 
and consider the Constitution before taking up something new, its work would 
be cut by three fourths or more.

Former Secretary Morgenthau considers the situation

Contemplating the enormous volume of foodstuffs kept back from consumers in 
the United States by the "planning" of the Federal Surplus Commodities 
Corporation and other bureaus, Henry Morgenthau Jr., former Secretary of the 
Treasury, wrote an article in October, 1949, advocating the outright gift of 
the great quantities in storage to the needy in the Far East and the Near 
East. He gave a "partial listing" of the stocks of goods in possession of 
the Federal Surplus Commodities Corporation, which, after taking over all 
the available storage room in the country, must now "finance the building of 
much new storage capacity." He wrote that "the quantities of farm products 
which have been bought and paid for with the taxpayers' money, and which 
continue to be stored in warehouses at the taxpayers' expense, are so 
tremendous as to be almost beyond belief."

"It costs the United States Government," he added, "$237,000 a day just for 
storage and carrying charges on these commodities." Those charges now 
aggregate, he said, $76,281,725.

A table showing unconstitutional prodigality

The following are "partial listings" by Mr. Morgenthau of commodities in 
storage, which will be increased, he thinks, from the harvests of 1949 and 
1950:


The Vice President summarizes those figures

Speaking at Chicago on August 18,1949, Vice President Barkley said that "the 
Democrats have done more in 17 years for the farmers than ever was done 
before by any party."

In his campaign speeches in 1948 President Truman appealed directly to 
agriculturists to remember what had been done for them by his 
administration. They did.

Government of that sort must be put at end through a return by the States to 
the exercise of their police power and to the constitutional appointment of 
presidential electors.



1. In October, 1949, the Fairbanks Daily News-Miner published the secret 
draft of a charter for a Fascist company to be named The Alaska Development 
Corporation, which was in the main a copy of the Delaware charter of The 
Federal Commodities Surplus Corporation. The copy was taken to Alaska by an 
assistant secretary of the Interior and shown confidentially to a few 
persons, probably for consultative purposes.

The document went "all out" for everything -- construction of electric power 
systems; loans of money of the taxpayers for any purpose; construction of 
railroads; operation of ships, docks, and all the equipment of the sea; aid 
to agriculture and to culture -- nothing in the way of uplift is to be 
without provision. And, of course, the capital of the corporation (like that 
of the Commodities Corporation) will be taken by the United States out of 
the pockets of its taxpayers.

The plan for "the electrification of America" and the superseding of the 
Constitution by the Fascist corporations of Socialism is being driven with a 
vigor which the believers in the Republic lack.


____________

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 intrusted 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.)

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.

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]

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]

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 nonaction 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.

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."

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  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!

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]

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.

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 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.



1. For the six years from 1940 to 1945, inclusive, covering the whole time 
of World War II, strikes took place as follows:


                           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.

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.


____________

XII

BY THE SOCIAL SECURITY ACT OF AUGUST, 1933, 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."

Most complete abandonment 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]

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."

Abdication of constitutional duties by Congress

Congress permitted the President and his nonelected 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.

Most important of original 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.

The first and most important 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?" 

Limitation on power of 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.

First appearance of the "Subsidy"

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."

Article I, Section 8 sets boundaries 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 legal scholar of 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."

General Welfare brilliantly 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."

That early interpretation should 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?"

Jefferson's reasoning applied 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:


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.

Did President Cleveland foresee 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!

Supreme Court ignored history and 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.

Two fundamental errors in 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'tat, 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.

Rapid spread of the evil of subsidies

"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]

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.

Constitutionality of Social Security 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.

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.

Where authority over welfare resides

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.

An admirable view of history

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."



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.

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."

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.

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.


____________

XIII

THE CONSERVATION OF SOIL IN FARMING STATES BY THE FEDERAL GOVERNMENT IS NOT 
AUTHORIZED BY THE CONSTITUTION

With the trickiness in the use of language which characterized the National 
Industrial Recovery Act, the Agricultural Adjustment Act, and the Bituminous 
Coal Act (all three held unconstitutional), to make believe that they were 
not what they were, Congress passed the second AAA and called it an act for 
"Soil Conservation," proceeding thereunder to irrigate the farming land with 
money of the taxpayers which it had been prevented by the decision of the 
Supreme Court from distributing under the first act. The second AAA was as 
lawless as the first.

For more than a decade Congress has been sending money to the farmers 
ostensibly to help them conserve their soil, an obligation resting upon them 
in the first instance, and upon the State when the erosion (or whatever is 
the matter) is so widespread as to call for the exertion of the police 
power, of which power the United States has none.

Illegal subsidies to agriculture of appalling magnitude

The magnitude of this drain upon the taxpayers of the country may be 
understood from the fact that in 1946 Washington gave to the farmers for 
"soil conservation" $57,000,000.

The total of subsidies to agriculture in 1947, as reported (1948) by the 
Secretary of the Treasury (p. 429), was $2,299,000,000. Yet in the 
Presidential campaign of 1948 the candidates of all parties promised the 
farmer more! The returns indicated that he voted for the party that had 
delivered.

And that misuse of money favored a powerful voting class who were marketing 
wheat at $3 a bushel, corn at about the same price, oats at a similar price, 
and livestock at rates so high that restaurants were charging their patrons 
$4 for a sirloin steak!

Through the years, $1 a bushel for wheat, 75 for corn, and the same price 
for oats were regarded on the land as good prices.

Of course, as before said, the conservation of soil is none of the business 
of the United States. It is the obligation of the landowner to take care of 
his land. He had done that from the time the Pilgrims cleared away the 
timber in the Massachusetts Colonies. He mastered rivers without knowing 
that he should have the help of a Big or Little T.V.A., and he opened roads 
wherever they were needed without a Federal Highway Act.

Why Constitution for independent individual

The men who wrote the Constitution being of that kind, they never gave 
authority to Congress to take the money of one class by taxation and pass it 
along with a bow and a smile to another group of great voting power. By 
Magna Carta their forebears made the King promise to keep hands off industry 
and trade, except under the necessity of war. Hence, the Constitution 
contains no grant of power to Congress to pass anything of even the remotest 
resemblance to the National Industrial Recovery Act. And as they extracted a 
pledge from King John to let trade alone, the Constitution authorizes 
Congress only to "regulate" commerce carried on by men, not to engage in 
commerce by any branch of government, or by a Fascist corporation set up by 
it. The early American tilled his land without expecting any help from 
anybody, and he had no idea that Government could by either punitive or 
predatory taxation place any limit on the fruits of his industry. 
Accordingly, no grant for paternalism or imperialism was given by the 
Constitution to Congress.

Soil conservation important, but not to Washington

To be sure, the conservation of the soil of the farmer may become in some 
localities of so burdensome a nature that it ceases to be the obligation of 
the individual. Where erosion or some other peril is so widely extended and 
affects so many owners and so much property that it cannot be dealt with 
successfully by individuals or by a group of them, then it becomes the duty 
of the State, either to assist in the task of prevention or take it over 
altogether. But the United States has no police power. And the Tenth 
Amendment was designed to prevent it forever from usurping any.

"Soil conservation" is a deceiving term, like "commerce" in the National 
Labor Relations Act. It is a cover for subsidies from the pockets of the 
country to those on the land, a transfer of money from one class to another 
which the Supreme Court held could not be made when it pronounced the first 
Agricultural Adjustment Act unconstitutional.

As mentioned in a preceding chapter, the farmer has been put in a bad 
situation by the mismanagement in Government which ballooned his costs and 
those of everybody else beyond all endurance. But that must be mended by 
removal of the cause, not by subsidies, which the taxpayers cannot carry 
indefinitely, even if they were legal.

Procedure provided by Constitution adequate for conservation

In a condition of erosion, or of a "dust bowl," involving several States, 
they have open to them the "Agreement or Compact with another State" 
authorized by the closing words of Article I of the Constitution, with "the 
Consent of Congress." The seven States in the basin of the Colorado River 
made use of this provision to work out an agreement for a fair division of 
the valuable water of that stream. So when the erosion or other trouble is 
beyond the ability of the landowner, it becomes the duty of the State to 
take hold. And when the difficulty belongs to more than one State, there is 
a constitutional way to solve the problem.

But the subject is as far beyond the constitutional field of Congress as are 
the sands of the Sahara.

On July 22,1947, the Associated Press reported that the House of 
Representatives "had voted twice to eliminate the benefit-payment program 
for 1948 and sharply cut back payments on this year's crops." The 
Senate-House conference group agreed "to continue the main farm program into 
1948." In addition to that, it agreed to a fund of $265,000,000 "to make the 
benefit payments and meet other costs of the farm crop program on the 1947 
crop."

The "other costs" were $24,000,000 to pay the bureaucrats "for expenses of 
farmer committeemen who plan and check the programs"!

The farm bill compromise would provide $960,000,000 "for agricultural 
purposes during the fiscal year 1948 in comparison with last year's 
expenditures of $2,275,000,000" President Truman asked for $1,188,000,000. 

National government without feeling for taxpayers

The disrespect for the rights and property of the people in general, in 
order to favor highly organized voting groups, is, in addition to being 
unconstitutional, morally wrong. In the Congress for the last decade and a 
half, in the White House, in the legislatures, in the city councils, 
everywhere in public office where there is authority to spend, there has 
developed, through indifference or incompetence of those who should have 
been on guard, the grossest unconcern for the taxpayer. As a capital 
illustration of this, there is cited the veto by the President of a 
tax-reduction bill passed by the new Congress in 1947 which had been voted 
into power on a platform promising relief from exorbitant taxation.[1]

In the concluding chapter of this work it is shown that we must take the 
President out of this kind of politics by returning to the strictest 
observance of the method of election prescribed by the Constitution.



1. The ruthless course of the Government at Washington respecting the 
taxpayers brings to mind the denunciation by Saint Simon of the Bourbon 
monarchy, which brought on by taxes the French Revolution, that it "has 
scourged, rather than governed, the state."


____________

XIV

THE EXPANSION OF THE CONSTITUTION BEYOND ITS LETTER AND SPIRIT THROUGH 
JUDICIAL LEGISLATION BY THE SUPREME COURT OF THE UNITED STATES IS, BECAUSE 
INSIDIOUS THE WORST THREAT TO LIBERTY AND PROPERTY

This chapter deals with the attempts of the Supreme Court of the United 
States to "construe" into the Fourteenth Amendment -- restraining the States 
-- what was not written in it, what the writers of it did not have in mind 
that is, "freedom" of religion, freedom of speech, and freedom of the Press.

The writers of the Amendment had under consideration (1866) the recently 
(1865) liberated Negro, to whom the Amendment would give citizenship in both 
his State and the United States; and it forbade the States to "abridge the 
privileges or immunities of citizens of the United States," or to deprive 
any person in a State of "life, liberty or property without due process of 
law," or to deny to him "the equal protection of the laws" of his State.

Freedom of religion, freedom of speech, and freedom of the Press were 
safeguarded (1789) against denial by the National Government 77 years before 
by the First Amendment, the first article of what we call the Bill of 
Rights, in protection of the States and the people against interference by 
the National Government.

The search for the unperceivable

The Supreme Court has held in recent years that the word "liberty," 
italicised in the foregoing quotation from the Fourteenth Amendment, against 
the States, is the equivalent of, or connotes, or contains, the "freedoms" 
of religion, speech, and Press, written against Congress in the First 
Amendment.

That reading ignores two cardinal rules of interpretation: (1) that the 
plain language must be followed, without addition or subtraction; and (2) 
that there must be kept in mind the evil which the writing was being made to 
cure. 

First, the Fourteenth Amendment makes no mention of religion, speech, or 
Press. They cannot be drawn into it and be made a part of it by an expansive 
"construction" of the word "liberty."

Second, the writers of the Amendment were dealing only with the Negro and 
his "liberty" and prospective rights, which were to be protected. Religion, 
speech, and Press were as far away from their thoughts as the poles are 
apart.

Judicial deviation from Constitution most serious

When Congress, cloaking itself with the Commerce Clause of the Constitution, 
makes an enactment like the National Labor Relations Law, which shows by its 
name that it is not an act to regulate commerce among the States, the 
educated American is alerted. He should immediately do something about it. 
Rut at that time he didn't. He should have driven out of Congress every man 
that voted for the degradation of his State from its place in the Union of 
States.

But when, by specious reasoning, or no reasoning at all, by "assumptions," 
the Supreme Court makes application of constitutional provisions where they 
do not belong, the departure from principles is less likely to be noticed.

For a good many years the Supreme Court has had trouble with "due process of 
law" in the Fifth Amendment to the Constitution, restraining the Nation, and 
in the Fourteenth, curbing the State. It has been perplexed about the 
application of "the privileges and immunities of citizens of the United 
States" in the Fourteenth.

Chief Justice Marshall on following the text

That has been owing to its failure to adhere to the text. On adhering to 
the text the great Chief Justice Marshall, in a dissenting opinion, gave 
these directions in 1827 (12 Wheaton, 213):

"To say that the intention of the Instrument must prevail; that the 
intention must be collected from its words; that its words are to be 
understood in that sense in which they are generally used by those for whom 
the Instrument was intended; that its provisions are neither to be 
restricted into insignificance, nor extended to objects not comprehended in 
them, nor contemplated by its powers, is to repeat what has been already 
said more at large, and is all that is necessary."

The tragic effort of the Supreme Court has been in trying to make the 
Fourteenth Amendment bring down against the States prohibitions in the Bill 
of Rights written against National power only.

Of course, if the people should want the First Amendment, for example, 
applied against State power, they can say so by action under their amending 
Article V. But it is not for the Judiciary to do the amending.

Could the States have intended to restrain themselves?

When, upon the submission by the Constitutional Convention to the States of 
the proposed new form of government, they complained that it did not contain 
restrictions enough on power, did they mean that they themselves would not 
be sufficiently curbed? Certainly not. The question is self-answering.

If the States could not have intended by the First Amendment to curb 
themselves, why should the Supreme Court take authority to bring against 
them that Article of their Bill of Rights?

The question with the States was: would the over-all government eventually 
become absolutely over-all? They were determined that it should not. They 
got protection through ten amendments, the Bill of Rights, not one 
prohibition in which restrains the States in any way.

From the beginning both the States and the Nation proceeded on that fact. 
Many of the States abandoned the grand jury which the Nation is required 
(Amendment V) to employ and dispensed with the indictment. In some States if 
the accused does not take the witness stand to explain, that may be used 
against him before the jury, a practice forbidden in the Federal courts. 
Some States permit the trial of criminal cases without a jury, a practice 
forbidden to the Nation. Others employ a jury of fewer than twelve. The 
unanimous verdict has been succeeded by the majority verdict of the jury in 
some States. The jury in suits for money (Amendment VII) is not called in 
many States.

States provide protection for their people

Most if not all of the constitutions of the States have their own 
provisions, like those in the Bill of Rights (Amendment VIII) against 
excessive bail, excessive fines, and cruel and unusual punishment.

But the Bill of Rights is strictly a barricade against the exertion of 
National power. It was so treated down to about the time (1926) that an 
inquiry by the American Bar Association revealed that out of 25 leading 
university law schools only 8 required a course in the Constitution as a 
condition to a degree! That may have been the origin of scrambled brains in 
the law of the Constitution.

Since the States demanding the Bill of Rights did not intend it to be 
operative against themselves, and since the States and the Nation so 
accepted it for near a century and a half, how in reason can a court now 
make an unintended application of any provision of it and act as pedagogue 
to a State? 

States are Republics, independent in most respects

It is to be kept in mind that by section 4 of Article IV of the 
Constitution "the United States shall guarantee to every State in this Union 
a Republican form of Government." Every one of the forty-eight States is a 
Republic, has a Constitution of its own, with an Executive Department, a 
Legislative Department, and a Judicial Department, fully equipped to manage 
its own internal affairs. Fear that the National Government would not let 
those republics alone, made the original States add to the Constitution the 
Bill of Rights against it.

The first sentence of the Fourteenth Amendment is this:

"All persons born or naturalized in the United States, and subject to the 
jurisdiction thereof, are citizens of the United States and of the State 
wherein they reside."

That dual citizenship had always existed except as to those in slavery. In 
the Constitutional Convention that was expressed by James Wilson of 
Pennsylvania, the leading lawyer of the body, afterward a justice of the 
Supreme Court of the United States:

"A citizen of America is a citizen of the general government, and is a 
citizen of the particular State in which he may reside."

Citizenship intended by Civil War Amendment

The Fourteenth Amendment was intended to give to the liberated Negro both 
citizenships, but the language is broad enough to include others, and it has 
been so applied.

The second sentence of the Fourteenth Amendment, which has become a 
Pandora's Box of evils, is this, with insertions in brackets to show how it 
had been read by the Supreme Court down to recent times:

"No State shall make or enforce any law which shall abridge the privileges 
or immunities of citizens of the United States [springing from National 
citizenship]; nor shall any State deprive any person of life, liberty or 
property without due process of law [of the State]; nor deny to any person 
within its jurisdiction the equal protection of the laws [of the State]." 

The meaning of "liberty" considered

In the Fifth Amendment that language precisely as to "liberty" had been 
written against the Nation -- "nor be deprived of life, liberty or property 
without due process of law." The writers of the Fourteenth Amendment, 
against the States, 76 years later, copied that language from the Fifth. The 
rule is that language thus borrowed carries into the later position the 
meaning that it expressed in the earlier position.

As the First Amendment deals openly and specifically with the "freedom" of 
religion, speech, and Press, those subjects are certainly not contained 
again in the Fifth concealed in the word "liberty." The writers of that 
time were given to clarity, rather than redundancy and confusion.

The set-up in 1789 of the First and Fifth Amendments in the Bill of Rights 
refutes the theory that "liberty" in the Fifth carries again the freedoms 
(of religion, speech, and Press) of the First. If, therefore, "liberty" in 
the Fifth does not connote or contain freedom of religion, speech, and 
Press, then those subjects are not embraced in the "liberty" borrowed from 
the Fifth and inserted in the Fourteenth.

Accordingly, to read into "liberty" in the Fourteenth what was not in the 
"liberty" which the writers of it borrowed from the Fifth is to be guilty 
of "latitudinarian construction."

The purpose of the Fourteenth Amendment

The language of the Fourteenth Amendment is so clear that it does not need 
the interpretation just given to it. The meaning is that the Nation cannot 
enter a State except to enforce a right of National citizenship, as, for 
example, the right to travel at will throughout this land, which California 
was prevented (314 U. S. 160) from abridging by a law (1941) excluding from 
ingress indigent persons.

Second, it means that the Nation cannot enter a State in protection of 
"life, liberty or property" unless the State (not individuals) denies its 
due process in protection of a right springing from National citizenship, as 
the right of the Negro to possess property and exercise suffrage.

Third, it means that the Nation cannot enter a State to secure "the equal 
protection of the laws" of that State unless those laws are being 
administered to deny a right of National (not State) citizenship, as a law 
denying suffrage to the Negro, while others enjoy it.

What Fourteenth Amendment did not contemplate

Nothing in the language of the Fourteenth Amendment just quoted indicates an 
intention of the writers in 1866 to recast or rewrite the First Amendment 
(1789) by inserting after "Congress shall make no law" the words "nor shall 
any State," making the Amendment since 1868 read thus:

"Congress shall make no law [nor shall any State] respecting an 
establishment of religion, or prohibiting the free exercise thereof; or 
abridging the freedom of speech, or of the press; or the right of the 
people peaceably to assemble, and to petition the Government for a redress 
of grievances."

Nothing in the Fourteenth Amendment just quoted imports an intention that we 
should take the word "liberty" (written after Emancipation) to mean the 
"free" exercise of religion, or the "freedom of speech, or of the Press," 
dealt with by the writers of the First Amendment seventy-seven years before.

When it comes to blending thus the First Amendment in the Fourteenth, or 
mingling the provisions of the two, that can be done, not by assertions of 
the Supreme Court, nor by the authority of Congress, even, but only by the 
Constituent Assembly, the people exerting sovereign power as constitution 
makers.

In all the years of litigation and argument respecting this matter no one 
has ever dared to propose to the States an amendment for their ratification 
which would emasculate them as they have been broken by decisions of the 
Supreme Court.

Non-National subjects occupying Supreme Court

It is with matters which are of no constitutional concern to the Nation 
that the Supreme Court has been overbusy of recent years, to the great 
confusion of thought respecting our Fundamental Law.

It may be well to illustrate the manner and extent of this before taking up 
the constitutional and judicial history which is to be the service of this 
chapter. Parents of different religious denominations in Illinois arranged 
with the board of education to have their children receive in the school 
building, but out of class, from special teachers, religious instruction 
for half an hour once or twice a week. The regulation was attacked as a 
violation by the State of this clause of the First Amendment:

"Congress shall make no law respecting an establishment of religion, or 
prohibiting the free exercise thereof; or abridging the freedom of speech, 
or of the Press."

To be sure, Congress never passed any such law. But it was assumed, without 
any attempt at demonstrating, a practice which the Supreme Court had been 
employing for many years, that the Fourteenth Amendment, just before quoted 
in pertinent part, brought down against the States the First Amendment, 
originally written, with all its companion articles in the Bill of Rights, 
against action by the Nation only.

Illinois passed no law respecting religion

Accepting for the moment (but no longer) the assumption of the Court that 
the First Amendment had been brought down to block action by Illinois, the 
answer is that neither did Illinois pass any "law respecting an 
establishment of religion, or prohibiting the free exercise thereof."

Consequently, no constitutional question could exist under the First 
Amendment. And the Supreme Court of Illinois so decided.

On the simple facts given before on the use of the schoolrooms the Supreme 
Court of the United States, speaking (1948) through Justice Black (333 U. S. 
203), said:

"This is beyond all question a utilization of the tax-established and 
tax-supported public school system to aid religious groups to spread their 
faiths. It falls squarely under the ban of the First Amendment (made 
applicable to the States by the Fourteenth) as we interpreted it in Everson 
v. Board of Education, 330 U. S. 1."

In the Everson case it was said:

"No tax in any amount, large or small, can be levied to support any 
religious activities or institutions, whatever they may be called, or 
whatever form they may adopt to teach or practice religion."

How the law should have been stated

What the Supreme Court should have said in the Everson case (after taking 
jurisdiction of it when without authority to do so) is that Congress gets no 
authority from the Constitution to spend money in the States for any school 
purpose. And that schools, being within the inherent police jurisdiction of 
the States, are entitled to support by the States -- public schools, private 
schools, and religious schools -- provided only that a State constitution 
does not speak in some respect to the contrary.

First, the Fourteenth Amendment did not make the First applicable to any 
conditions in Illinois.

Second, no tax was levied for religious purposes. The use of rooms apart 
from school classes could be no more objectionable than the use of them for 
a meeting of a club or other local organization, a use very commonly enjoyed 
in every town and city. It is too bad if the people cannot use their own 
buildings for what they deem to be their own advantage -- and that in an 
educational way.

The Supreme Court "mystified" the subject

The inaccuracy of the language of the Court, and its inapplicability to any 
constitutional provision, brings to mind what was said in an opinion (100 U. 
S. 393) by Justice Bradley, a judicial stalwart, seventy years ago:

"We may mystify anything. But if we take a plain view of the words of the 
Constitution, and give to them a fair and obvious interpretation, we cannot 
fail in most cases in coming to a clear understanding of its meaning. We 
shall not have far to seek. We shall find it on the surface, and not in the 
profound depths of speculation."

That is to say, all that the Supreme Court had to do in the Illinois case, 
assuming that the First Amendment had any bearing on it, was to examine the 
record and find whether Illinois had passed a "law respecting an 
establishment of religion, or prohibiting the free exercise thereof." That, 
and that only, was forbidden. As shown in the quotation hereinbefore made 
from Chief Justice Marshall, the Court had no right to extend the language 
of the Amendment to something else.

When Judge Thomas M. Cooley was recognized as the constitutional authority 
of this country he stated the rule that the court should keep in view the 
conditions which caused the language to be written, else it will be made to 
say something that the writers never thought of, and thereby may work great 
harm. 

How to get meaning of First Amendment

The conditions which caused the First Amendment to be written in its brief 
and clear language were those of law and practice in England which drove the 
Pilgrims to Holland and thence to America, which made the Puritans set sail 
for Massachusetts, which made William Penn take his fellow Quakers to 
Pennsylvania, which caused Lord Baltimore to settle Maryland with his 
coreligionists; and the conditions in America which drove Roger Williams and 
Anne Hutchinson from Massachusetts to Rhode Island, and the law of Virginia 
which set up a State Church supported by taxation, a law which Jefferson and 
Madison caused to be repealed.

Cooley told us in effect that when we consider the First Amendment we must, 
in the words of St. Paul, "think on these things." Were any of those things 
in Illinois? If not, then neither was the First Amendment operative there, 
even though we "assume," as the Supreme Court did, that the Fourteenth 
Amendment brought it down against the State.

Justice Reed, adhering to the text, dissented on the ground that the 
question was on "an establishment of religion," forbidden by the First 
Amendment, although he erroneously thought "the First Amendment . . . made 
effective as to the States by the Fourteenth." But he was right that "an 
establishment of religion" by Illinois must necessarily appear to work a 
violation by it of the Constitution, admitting for the moment the 
"assumption" of the Supreme Court.

The wide effect of the decision

The record in the case disclosed that in all but two of the States about 
2,000 communities provided, by the use of school buildings or rooms, 
religious instruction to more than 1,500,000 pupils. That work was upset 
without reason -- and contrary to law. The Republic of Illinois, one of the 
oldest, was highly competent to manage constitutionally its own affairs, 
and the Republic of the United States should have kept out of its 
jurisdiction.

In 1931, seventeen years before the decision in the case from Illinois, the 
Supreme Court (283 U. S. 697) made a similar misapplication of the provision 
in the First Amendment for the "freedom of the Press," Chief Justice Hughes 
writing the opinion, and Justices Butler, Van Devanter, McReynolds, and 
Sutherland dissenting. As that decision may have given some parentage to the 
one in the school case, promulgated by younger and less experienced 
Justices, it, too, will be examined preceding the Judicial history to be 
made.

The first definite trespass on State autonomy

The Republic of Minnesota, with a provision in its Constitution for the 
freedom of the Press (as every other State has in its basic law), enacted 
that the continued publication of libelous and scandalous matter would be 
regarded as a nuisance and might be stopped by the writ of injunction. The 
law was a valid exercise of police power by the State, and the Supreme Court 
of Minnesota so held. The case was taken by appeal to the Supreme Court of 
the United States, without jurisdiction to receive it, and the decision of 
the court of last resort in Minnesota was reversed. The law provided for the 
suspension of the libels only, not the periodical.

At the opening of the opinion the Chief Justice begged the main question, as 
follows (brackets and italics inserted):

"It is no longer open to doubt that the liberty [a word not in the First 
Amendment] of the Press, and of speech [in the First Amendment], is within 
the liberty safeguarded by the Due-Process Clause of the Fourteenth 
Amendment [nor shall any State deprive any person of life, liberty, or 
property, without due process of law] from invasion by State action."

That is, the Fourteenth Amendment makes applicable against the States the 
prohibitions of the First against the Nation.

In support of his proposition the Chief Justice cited:

     Gitlow v. New York (1925), 268 U. S. 652 (666), by Justice Sanford 
Whitney v. California (1927), 274 U. S. 357, by Justice Sanford Fiske v. 
Kansas (1927), 274 U. S. 380, by Justice Sanford Stromberg v. California 
(1931), 283 U. S. 359, by Chief Justice Hughes. 

Not one of those citations supports by reason the proposition stated.

The "authorities" of the Court examined

In the Gitlow case, sustaining a conviction by a jury for violation of the 
Statute of New York against criminal anarchy, Justice Sanford began (italics 
inserted):

"For the present purposes we may and do assume that freedom of speech and of 
the Press -- which are protected by the First Amendment from abridgement by 
Congress -- are among the fundamental personal rights and 'liberties' 
protected by the due process clause of the Fourteenth Amendment from 
impairment by the States."

An assumption contrary to a demonstrable historic fact cannot stand as the 
foundation of a departure from a long-settled reading of a constitutional 
provision.

In the Whitney case, under the Syndicalism Act of California, the main 
contention was that the legislation was directed against a class and that 
therefore "equal protection" was denied. The Supreme Court of California was 
reversed. The opinion contained no attempt to show that free speech or Press 
is protected against the State by the Fourteenth Amendment.

The Fiske case, reversed, dealt with due process under the Syndicalism Act 
of Kansas, not free Press. There was no showing as to how due process, 
protected from the beginning in all the constitutions of the States, had 
been converted into a right dependent upon National citizenship to be 
protected by the Fourteenth Amendment.

The Stromberg case arose under the criminal statute of California forbidding 
the display of the red flag. The judgment of conviction was reversed on the 
ground that the law was too vague in its prohibition for a criminal statute. 

Thus, not one of the four cases cited by the Chief Justice in support of 
the interference by the United States with the Constitution and laws of the 
Republic of Minnesota showed how that could be constitutionally done. The 
Constitution of Minnesota gives protection to a free Press, and the free 
Press guaranteed by the First Amendment against National (not State) 
interference was absolutely alien to the case, which the Supreme Court of 
Minnesota had correctly disposed of.

Every one of the four cases was a bald invasion of a sovereign State.

Even had each of the three States named denied freedom of speech, of Press, 
and of religion, that would not have been violative of the First Amendment, 
which says only that "Congress shall make no law," and which is not, 
therefore, a command to the States. It was so taken at its plain words by 
both Nation and States during the 79 years that the Fourteenth Amendment did 
not exist. This Amendment did not purport to make the First applicable to 
the States. It was the liberty, the property, and the general rights of the 
Negro that were under consideration when the Fourteenth Amendment was 
written -- not speech, not Press, not religion.

The legislation of Minnesota was sound

The law of Minnesota granting relief by injunction from continuous libels 
was sound. It was not at variance with the provision in the Constitution of 
the State for the protection of a free Press. The first ground of equity 
jurisdiction is that the complainant has no speedy and complete remedy at 
law. That is, if he were to recover judgment for damages in an action at 
law, the defendant might not be financially able to respond; and if he were 
financially able, the injured party would be obliged to bring an action for 
each libel. That is the second ground of equity jurisdiction, to prevent a 
"multiplicity of suits." The court of equity or chancery simply stops by 
its writ of injunction what the legislature properly denounced as a 
nuisance. The law does not suppress the periodical -- it stops the libeling.

In the dissent by Justice Butler and three associates -- Justices Van 
Devanter, McReynolds, and Sutherland -- it was said:

"Confessedly, the Federal Constitution prior to 1868, when the Fourteenth 
Amendment was adopted, did not protect the right of free speech or Press 
against State action. Up to that time the right was safeguarded solely by 
the constitutions and laws of the States and, it may be added, they operated 
adequately to protect it."

That being so, why should the National Government attempt to take over after 
three quarters of a century?

Chief Justice Marshall on relation of State and Nation

In support of their appeal to history, the dissenting justices cited a case 
(7 Pet. 243) decided in 1833 by Chief Justice Marshall, which involved a 
claim for damage to property done by the City of Baltimore in improving the 
harbor. The claim was made under the Fifth Amendment, which requires "just 
compensation" from the Nation for property taken for public use. That case 
of 116 years ago may be the first in which the principle under discussion 
here came up. The language of the Chief Justice suggests that it was new. He 
laid out the whole subject with the clarity and completeness that marked his 
work (italics inserted):

"The question thus presented is, we think, of great importance, but not of 
much difficulty.

"The Constitution was ordained and established by the people of the United 
States for themselves, for their own government, and not for the government 
of the individual States. Each State established a constitution for itself, 
and, in that constitution, provided such limitations and restrictions on the 
powers of its particular government as its judgment dictated.

"The people of the United States formed such a government for the United 
States as they supposed best adapted to their situation and best calculated 
to promote their interests. The powers they conferred on this government 
were to be exercised by itself; and the limitations on power, if expressed 
in general terms, are naturally and, we think, necessarily applicable to 
the government created by the Instrument. They are limitations of power 
granted by the Instrument itself; not of distinct [State] governments, 
formed by different persons and for different purposes. If these 
propositions be correct, the Fifth Amendment must be understood as 
restraining the power of the general government, and not as applicable to 
the States."

State not commanded by Bill of Rights

In brief, a disregard by a State of any prohibition in the Bill of Rights, 
from the First Amendment down, is not remediable in a proceeding against the 
State, for the State is not commanded to obey it.

In the Minnesota case Chief Justice Marshall would rule that the First 
Amendment on the freedom of the Press could not be applied against the 
Constitution and laws of Minnesota. And he would make like ruling in the 
Illinois school case, namely, that the "establishment of religion" 
forbidden by the First Amendment was not forbidden to Illinois. And, anyway, 
Illinois made no law respecting an establishment.

The dissenting justices cited some other decisions to similar effect, but 
there is nothing to be said after Marshall.

In 1936 the decision in the case in Minnesota was cited and followed where a 
law of Louisiana imposed an excise tax on the proceeds of advertising in 
newspapers "for the privilege of engaging in such business." Collection of 
the tax was enjoined by the United District Court. Appellant contended, 
correctly, that the Fourteenth Amendment does not prohibit States from 
infringing freedom of the Press, citing Cooley to the point that the 
Amendment is to prevent hostile legislation by States against the 
"privileges and immunities" of citizens of the United States as 
distinguished from those of citizens of the States. The Supreme Court held 
(297 U. S. 333) the act "unconstitutional under the Due Process-of-law 
Clause [of the Fourteenth Amendment] because it abridges the freedom of the 
Press." There, again, it was assumed that the Fourteenth Amendment brings 
down the First against the States.

In 1883 the Supreme Court held (110 U. S. 516,535) that due process in the 
Fourteenth Amendment "refers to the law of the land in each State," not to 
the law of the United States. The State does not have to afford due process 
under National law -- under the Fourteenth Amendment in case of the Press or 
of religion.

Cases examined respecting Bill of Rights

Now for "the strange, eventful history."

In 1867, the year before the Fourteenth Amendment became a part of the 
Constitution, the Supreme Court of the United States passed on a law of 
Nevada levying a tax of $1 on every person leaving the State by railroad or 
other vehicle. It was held in an opinion by Justice Miller, the lion of the 
Judiciary of that day, that the levy was invalid (6 Wallace, 35) as a 
restraint by a State upon a right of National citizenship, the right to go 
at will throughout the country, to Washington on business with the 
Government, to the land office of the United States, to go abroad, and so 
on.

The decision followed one by Chief Justice Marshall (12 Wheaton, 419) in 
1827, that when the importer paid the duty levied by the United States he 
received from the United States a right to sell the imported packages, for 
which reason the license law of Maryland on importers was unconstitutional, 
a levy on a National right.

In 1872, four years after the Fourteenth Amendment became a part of the 
Constitution, the most memorable decision that has been written respecting 
it was rendered (6 Wallace, 36) by the Supreme Court of the United States in 
a group of cases heard together and known as the Slaughter-House cases. A 
law of Louisiana authorizing the centralizing of livestock handling and 
butchering at a designated place outside of New Orleans was attacked by a 
number of butchers as abridging their "privileges and immunities" under the 
Fourteenth Amendment, and as denying the "due process" and "equal 
protection" guaranteed by that Amendment. Equal protection was not denied 
because the law required that the slaughter-house be open to all butchers.

The two American citizenships made plain

In the opinion of the Court, by Justice Miller, he returned to the 
discussion of the dual citizenship which he had considered in the Nevada 
case, previously examined:

"It is quite clear, then, that there is a citizenship of the United States, 
and a citizenship of a State, which are distinct from each other, and which 
depend upon different characteristics or circumstances in the individual."

On the meaning of "the privileges and immunities of citizens of the several 
States," Justice Washington was quoted:

"They may all, however, be comprehended under the following general heads: 
protection by the [State] government, with the right to acquire and possess 
property of every kind, and to pursue and obtain happiness and safety, 
subject, nevertheless, to such restrictions as the government may provide 
for the general good of the whole."

Up to the time of the three Civil War Amendments (Thirteenth, Fourteenth, 
and Fifteenth) no claim or pretense was made that these rights depended upon 
the Federal Government for their existence or protection, beyond the very 
few express limitations imposed by the original Constitution on the States 
-- against ex post facto laws, bills of attainder, and laws impairing the 
obligation of contracts.

"But with the exception of those and a few other restrictions," said the 
Court, "the entire domain of the privileges and immunities of the citizens 
of the States, as above defined, lay within the constitutional and 
legislative power of the States, and without that of the Federal Government" 
(italics inserted).

Some privileges of National citizenship named

Thus, holding that the privileges and immunities asserted by the plaintiffs 
in the cases with respect to slaughtering belong to citizens of the States 
and are to be protected, not by National but by State government, Justice 
Miller enumerated some privileges and immunities proceeding from National 
citizenship: to go from place to place throughout the land, to assert any 
claim against government, to share in its offices and affairs, to free 
access to seaports, to the land offices and courts of justice, to demand 
care and protection on the high seas and abroad, to have the privilege of 
the writ of habeas corpus, the right to use navigable waters, to have the 
benefit of treaties and of the War Amendments.

The holding was that the rights and privileges claimed by plaintiffs were 
not those of citizens of the United States within the Fourteenth 
Amendment.[1]

The theory which the Court rejected

A dissent was written by Justice Field and joined in by Chief Justice Chase, 
and Justices Swayne and Bradley, chiefly on the ground that an unlawful 
monopoly had been granted. The dissenters sought to bring within National 
cognizance every right of man -- whereas the majority opinion by Miller was 
that the right to slaughter or to pursue any other occupation existed before 
the Fourteenth Amendment, and therefore did not spring from it -- a right 
under State, not National, citizenship.

It was the belief of some that the writers of the Fourteenth Amendment 
intended to enfeeble all the States for what the Confederate States had 
done. But the opinion just reviewed came from master minds in statesmanship 
as well as in law.[2] They knew that it would be fatal to liberty to take 
from the supreme court of a State the final word respecting rights emanating 
from or existing under State citizenship. What that would mean -- what they 
divined -- we have seen in the Minnesota Press case and in the Illinois 
School case.

The very next case (16 Wallace, 130) was decided by Justice Miller and it 
was held that Mrs. Myra Bradwell, who had been denied a license to practice 
law in Illinois, had not been deprived of a right of National citizenship:

"The right to control and regulate the granting of a license to practice 
law in the courts of a State is one of those powers which are not 
transferred for its protection to the Federal Government and its exercise is 
in no manner governed or controlled by citizenship in the United States in 
the party seeking such license."

Chief Justice Chase dissented.

Next great case of applicability of amendments

In 1908 the case next to the Slaughter-House cases in importance in 
distinguishing between State citizenship and National citizenship was 
decided (211 U. S. 78), Justice Moody writing the opinion. Twining was on 
trial in New Jersey on a criminal charge. By the practice in that State 
comment was permitted before the jury on the fact that a defendant did not 
take the witness stand to clear up the accusations. He claimed that the 
Fifth Amendment, forbidding that a person "be compelled in any criminal case 
to be a witness against himself," was violated by New Jersey, as his right 
to be silent had been turned against him. It was held that the Amendment is 
not applicable to State citizenship -- that the first eight amendments[3] 
affect the United States Government only. For 79 years before the Fourteenth 
Amendment immunity from self-incrimination was afforded by the constitution 
of the State, if it was enjoyed at all in State tribunals.

Counsel for Twining made frequent reference to "fundamental rights," but he 
drew no distinction between fundamental rights of State citizenship and 
rights fundamental to National citizenship.

Marshall on power of people in States

The decision in the Twining case was in conformity with what Chief Justice 
Marshall had explained (4 Wheaton, 122) 89 years before:

"When the American people created the National Legislature, with certain 
enumerated powers, it was neither necessary nor proper to define the powers 
retained by the States. These powers proceed, not from the people of 
America, but from the people of the several States; and remain, after the 
adoption of the Constitution, where they were before, except so far as they 
may be abridged by the Instrument."

That goes to what has been before mentioned, that there is a National 
Republic and a State Republic, each operating "on its own." The State 
Republics existed before the National Republic -- they created it, not to 
manage their affairs, but to do certain duties which they carefully 
assigned to it; later, in fear, more clearly circumscribing its activities 
by a Bill of Rights.

Supreme Court avoided applying First Amendment

In 1906, the year before the Twining case, the Supreme Court passed by the 
question, in a Denver newspaper case (205 U. S. 454), whether in the 
Fourteenth Amendment is to be found "prohibition similar to that in the 
First."[4] It had left the question open in 1902 (187 U. S. 71), Justice 
Harlan dissenting in both cases.

But in 1937 a law of Georgia against insurrection, or inducing others to 
join in resistance to government, was held (301 U. S. 242) repugnant to the 
Fourteenth Amendment in an opinion by Justice Roberts, who assumed that the 
Amendment let the United States into the Republic of Georgia for managerial 
purposes. Justices Van Devanter, McReynolds, Sutherland, and Butler 
dissented. 

Supreme Court followed Slaughter-House cases

In the same year (1937) it was stated (302 U. S. 319) in a case of murder 
done in Connecticut that "there is no such general rule" that "whatever 
would be a violation of the original Bill of Bights (Amendments I to VIII) 
if done by the Federal Government is now equally unlawful, by force of the 
Fourteenth Amendment, if done by the State." Justice Cardozo said that "the 
conviction of appellant was not in derogation of any privileges or 
immunities that belong to him as a citizen of the United States." 
Citizenship of the United States could not have been involved unless 
Connecticut had denied to him the "due process" of its laws or the "equal 
protection" of its laws. If it thus disfavored him by denying the practice 
due and given to others under its system, then the 
"no-State-shall-make-or-enforce-any-law" of the Fourteenth Amendment would 
be in control. As a citizen of the United States he was guaranteed the due 
process and equal protection of the law of his State. If it did not appear 
at the opening of the record in the Supreme Court that he charged denial of 
the law and procedure available to all others in his State, there was no 
"Federal question," and the appeal should have been dismissed, leaving the 
case where Connecticut closed it.

Where the Fourteenth Amendment was applicable

In 1940 the Supreme Court reversed (310 U. S. 573) the United States 
District Court and the Circuit Court of Appeals, which had held that the 
method established by Texas for regulating the production of oil made the 
owners of large areas diminish pumping while small adjoining owners drained 
the large holdings. That presented a proper question of the denial of "equal 
protection" by a State to a citizen of the United States, which the 
Fourteenth Amendment forbids as to the white man as well as the black.

In 1947 the Twining case was followed and it was held that the law and 
practice of California permitting comment before a jury upon the fact that 
the defendant in a criminal case did not take the witness stand to explain 
accusations denied no constitutional right. The opinion, by Justice Reed, 
said (332 U. S. 46) that "the Due Process Clause of the Fourteenth 
Amendment, however, does not draw all the rights in the Federal Bill of 
Rights under its protection." Justices Black, Douglas, Murphy, and Rutledge 
dissented, showing the radical difference of opinion on this point.

The question that embarrasses the Justices

If the Fourteenth Amendment "does not draw all the rights," which ones does 
it draw? And if it draws any at all, why and how? That is what troubled 
Justice Frankfurter, who wrote a concurring opinion and said that if the 
Fourteenth Amendment makes the Fifth operative against the States, then it 
must so effectuate all the others of the Bill of Rights. To be sure, that is 
the only logical conclusion.

An authority on constitutional construction

Thus, for 150 years the States -- and for most of the time the Nation -- had 
in their daily lives construed the first ten amendments to the Constitution, 
the Bill of Rights, as having no application to local governments. The 
States have established legal and procedural systems strikingly at variance 
with the requirements of the amendments. In striving for the meaning of a 
constitutional provision or a law, a court always inquires: How was it 
construed from the beginning by those whose duty it was to apply it in 
government?

By that rule the First Amendment, respecting religion, press, and speech, 
is in no way binding on any State. It was misapplied in the Minnesota Press 
case and in the Illinois School case.

Due process of law is enjoined by the Fifth Amendment on the Nation and by 
the Fourteenth on the States. That is, there is due process of law in each 
of the Republics, each enforcing its process.

"Due process of law," wrote Chief Justice Chase (92 U. S. 90) in 1875, "is 
process according to the law of the land. This process in the States is 
regulated by the law of the States." It was there held that "trial by jury 
[Seventh Amendment] in suits at common law pending in the State courts is 
not, therefore, a privilege or immunity of National citizenship which the 
State is forbidden by the Fourteenth Amendment to abridge."

Due process of law made clear

Justice Moody explained in the Twining case the meaning of due process:

"These principles grow out of the proposition universally accepted by 
American courts on the authority of Coke, that the words 'due process of 
law' are equivalent in meaning to the words 'law of the land,' contained in 
that chapter of Magna Carta which provides that 'no person shall be taken, 
or imprisoned, or disseized, or outlawed, or exiled, or in any wise 
destroyed; nor shall we go upon him, nor send upon him, but by the lawful 
judgment of his peers or by the law of the land.'"

A denial of any of those rights guaranteed by King John at Runnymede is a 
denial of due process, a denial of the law of the land.

Another explanation of Due process of Law

A better definition of due process for the nonlegal scholar may be built 
upon an expression by Justice Brandeis in a dissenting opinion in which he 
said substantially that fully as important as the constitutional or 
statutory provision for protecting the right of man is "procedural 
regularity" in the adjudication of his claim.

Thus, an accused must have (1) inquiry of the charge by a Grand Jury in a 
Federal case. If a true bill be returned he must have (2) a copy of the 
indictment with a list of the witnesses who testified respecting him. He 
must have (3) adequate time to prepare his defense. He must have (4) the 
assistance of counsel, and if he cannot employ counsel the Government must 
appoint a competent attorney to defend him. He must have (5) a trial in 
public before (6) a petit jury of twelve, fairly drawn, deciding for or 
against him unanimously. He must be (7) confronted by the witnesses against 
him. Should he be convicted, he must have (8) appeal to a court of review, 
if he desire it.

States require due process of law

In civil proceedings in the courts of States involving money or realty or 
estates in probate or damages, there is like "procedural regularity" 
provided. A denial of any element of this procedure is a denial of the due 
process of law enjoined upon the Nation by the Fifth Amendment and upon the 
States by the Fourteenth.

Many cases appear in the judicial reports in which some factor in this 
process due to the defendant or the litigant was denied, and in each the 
appellate court reversed the judgment and remanded the case to the trial 
court to proceed again, and correctly.

Those are some of the safeguards to "life, liberty and property" set up by 
the profound historians in the Constitutional Convention, who knew so well 
what has been insufficiently taught to us, that, in the words of William 
Ellery Channing, "the state is too often the grave of the man."

Justice Field said in 1885 (113 U. S. 27) of the Fourteenth Amendment, of 
late being misapplied against the States:

"But neither the Amendment -- broad and comprehensive as it is -- nor any 
other amendment, was designed to interfere with the power of the State, 
sometimes termed its police power, to prescribe regulations to promote the 
health, peace, morals, education, and good order of the people."

In that case a municipal ordinance regulating the operation of laundries at 
night was upheld. The case is an example of the unimportant litigation which 
has been taking the attention of the Supreme Court in recent years, and 
about which Justice Miller wrote (96 U. S. 97) in 1877 (brackets inserted):

Justice Miller on misuse of due process clause

"It is not a little remarkable that while this provision [due process, 
Fifth Amendment] has been in the Constitution of the United States, as a 
restraint upon the authority of the Federal Government, for nearly a 
century, and while, during all that time, the manner in which the power of 
the Government has been exercised has been watched with jealousy, and 
subjected to the most rigid criticism in all its branches, this special 
limitation on its powers has rarely been invoked in the judicial forum or in 
the enlarged theater of public discussion.

"But while it has been a part of the Constitution [in Fourteenth Amendment], 
as a restraint upon the power of the States, only a very few [9] years, the 
docket of this Court is crowded with cases in which we are asked to hold 
that the State courts and the State legislatures have deprived their own 
citizens of life, liberty or property without due process of law.

"There is here abundant evidence that there exists some strange 
misconception of the scope of this provision as found in the Fourteenth 
Amendment."

In that case an assessment for the drainage of swamp lands in Louisiana was 
under attack. Unless the complainant was denied the procedure under the law 
of Louisiana which was given to everybody else, he had been deprived of no 
right under the Fourteenth Amendment.

What would that constitutionalist think could he know of the decisions in 
recent years exhibiting a "strange misconception of the scope of this 
provision as found in the Fourteenth Amendment?"

A review of some leading cases

In 1884 the Supreme Court held (110 U. S. 516) that California did not 
violate the Fifth Amendment, requiring indictment by a grand jury, by 
employing instead the "information" of the prosecuting attorney. Certainly 
not. The requirement was written against the United States Government only.

In 1897 a man spoke on Boston Common without a permit, for which he was 
apprehended. It was held (167 U. S. 43) that the regulation was not in 
conflict with any constitutional provision respecting National citizenship.

That decision should have been stare decicis, the controlling precedent, for 
a large number of late cases over turning local regulations of States or 
their municipalities for cleanliness and order.

In 1900 it was held (176 U. S. 581) that Utah, in setting up a jury of 8 in 
criminal cases, was not bound by the Sixth Amendment requiring the United 
States to have a jury of 12 deciding unanimously. To be sure, not one of the 
ten amendments touches the States.

A State law tending to disorder

In 1921 the Supreme Court held (257 U. S. 312) that a law of Arizona 
exempting strikers from civil or criminal liability while all others 
remained liable for breaches of duty (torts) denied the "equal protection of 
the laws" of the State which the Fourteenth Amendment forbids. Of course, 
the Fourteenth Amendment was written against the States, while the First to 
Tenth, inclusive, were to protect the States from the National Government, 
which is now busy taking over, notwithstanding. Judicial "liberalism" 
appeared here. Justices Holmes, Pitney, and Brandeis dissented in the belief 
that the State could leave persons injured by strikers to remedy in actions 
at law for damages.

The doctors of law in disagreement

In 1939 an ordinance of Jersey City forbidding the leasing of a hall 
without permit for a meeting to advocate the obstruction of government was 
held (307 U. S. 496) in an opinion by Justice Roberts to violate the free 
speech provision of the First Amendment. A permit was denied to an 
organization of Communists. The United States District Court had enjoined 
the City from enforcing the ordinance, the Circuit Court of Appeals affirmed 
that, and the Supreme Court gave final affirmation, all three National 
courts applying to the Republic of New Jersey the Freedom-of-Speech Clause 
of the First Amendment, written against the Nation only. Justice McReynolds 
dissented on the ground that the plaintiffs should have sought relief in 
the courts of New Jersey, which alone had jurisdiction. Justice Butler also 
dissented, saying that the Boston Commons case, previously mentioned, should 
have been the guide.

Great States toppled in groups

In the same year again Justice Roberts wrote the opinion (308 U. S. 147) 
which overturned the courts of last resort in the sovereign States of 
California, Wisconsin, Massachusetts, and New Jersey upholding municipal 
ordinances forbidding the distribution of handbills in the streets. The 
Supreme Judicial Court of Massachusetts pointed out the fundamental fact 
that there was no interference with speech or publication anywhere in the 
city except in the streets. There is probably not a municipality in the 
United States, down to the smallest, that has not some such police 
ordinance, which is for good order -- and constitutional.

In 1940 the Supreme Court of Connecticut was reversed (310 U. S. 296) for 
sustaining an ordinance requiring a permit for authority to solicit for a 
religious or other cause, Justice Roberts writing the opinion.

A large number of the cases overturning municipal ordinances prohibiting 
uses of the streets for different purposes were instituted by Jehovah's 
Witnesses under the claim that the religious freedom and the free speech 
protected by the First Amendment had been denied. They spoke in the streets 
and used sounding instruments to give recorded addresses, and they disturbed 
residents by knocking on the doors and urging the purchase of books and 
pamphlets. They were not forbidden to hire a hall and carry on there, or to 
go to some open place. But if they had been prevented by State or municipal 
law from activity anywhere, that would not have violated the First 
Amendment, a restriction on National action only.

From 1937 down, there have been more than thirty cases of the kind reviewed 
before the Supreme Court of the United States. They belonged for final 
decision in the tribunals of the States. It would be iteration and 
reiteration to go over any more of them.

Delinquency of American lawyer

The American Bar -- local, State, and National -- stood tongue-tied during 
the years that a quartet of great Justices -- Van Devanter, McReynolds, 
Sutherland, and Butler -- resisted steadily and brilliantly the pressure of 
swelling centralism against our system of widely divided powers. 

Although the hour is very late, the organized Bar of each State should make 
ready to admonish the senators from its State to refuse to confirm any 
appointment by the President to any Federal Court -- the Supreme Court, the 
eleven Circuit Courts of Appeals, and the hundred and a half District 
(trial) Courts -- if the appointee is not a seasoned jurist of repute or an 
attorney who has won distinction as a practitioner in the field of 
constitutional law. Constitutional scholars, not sociologists or 
politicians, must make up those courts.[5]

Highly experienced judicial material abundant

The courts of last resort in the forty-eight States, and the appellate 
courts below those, offer an abundance of highly competent jurists for 
appointment to the Federal courts. They are entitled to recognition by 
promotion. The Judiciary of States and of Nation would be strengthened by 
that course.

By remaining dumb and inactive for a decade and a half or more while 
judicial appointments have gone to low politics and inexperience, the 
American lawyer has discredited himself.

The Press, because the schools failed the writers, was of little use, where 
it was not a contributor to the confusion.

Long ago a European writer on our system declared the Judiciary to be the 
keystone of the American arch. The writers of The Federalist said that it is 
the least able of the three Departments to defend itself, and that it would 
be in peril from the other two. The Executive Department has not made the 
best appointments, and the Legislative Department has sanctioned such 
appointments.

A thorough-going reform as to appointments and confirmations is imperative. 

In 1949 the Court contained 8 Democrats and 1 Republican, the last mentioned 
having been a colleague in the Senate of Mr. Truman, who appointed him.

Of the 192 appointees to all Federal courts by Presidents Roosevelt and 
Truman, 184 are Democrats and 8 are Republicans. Not one of these 
appointees, from top to bottom, had gained any measurable experience as a 
jurist on any of the State supreme courts, or had achieved distinction at 
the Bar as a constitutional lawyer.

Will a packed court "deliver"?

On June 23, 1947, the Supreme Court of the United States, in a suit brought 
by the Attorney General against the State of California, held (332 U. S. 19) 
that "California is not the owner . . . and that the Federal Government, 
rather than the State, has paramount rights in and power over that belt, an 
incident to which is full dominion over the resources of the soil under that 
water area, including oil."

The "belt" is a three-mile strip of land lying under water seaward from 
low-water mark and called tideland. The belt of water is the boundary line 
between a nation and the open sea. Vessels of foreign countries entering 
those waters become affected by the maritime laws of the country. But the 
land under the waters is the property of the State.

Three decisions of the Supreme Court had held this.

California had been giving leases on this tideland to drillers for 
petroleum under an act of its Legislature of 1921. Many valuable wells have 
been found under the deep water. Similar valuable production of petroleum 
has been carried on along the Gulf Coast within the three-mile limit.

On October 27, 1947, Chief Justice Vinson entered a decree giving effect to 
the decision of the Court by Justice Black, declaring that the United States 
is now and has been "possessed of paramount rights and powers over the 
lands, minerals and other things underlying the Pacific Ocean lying seaward 
of the ordinary low-water mark on the coast of California, and outside of 
inland waters, extending seaward three nautical miles. The United States is 
entitled to injunctive relief" (italics inserted).

What the United States went after

The petition of the Government (original in the Supreme Court) asked for a 
decree of ownership and for a writ enjoining the State and persons from 
continuing the trespass complained of.

Neither the decision of the Court nor the decree deals with title to the 
land. Each is with respect to "paramount rights" of the United States, 
implying inferior rights in the State, but without any discussion as to how 
either got its rights or precisely what those rights are. In a dissenting 
opinion Justice Frankfurter asked how the United States got its "rights" -- 
by conquest, or how.

In the ordinary lawsuit a claimant of land must exhibit a deed, or a lease 
showing a right to occupy, or a will transmitting, or a line of 
inheritance, or prescription by adverse possession. Otherwise, his suit will 
be dismissed.

Baseless claim of U.S.A. to "right"

Here the United States appeared with empty hands with respect to documentary 
evidence of title. And it appeared with unclean hands, which is ground for 
dismissal in a court of equity. For California had held possession of the 
land for 100 years, since its admission under the Constitution of 1849 
laying claim to the tidelands. Thus California had documentary evidence of 
its title. But without the provision in its Constitution accepted by the 
Congress which admitted it to the Union, its adverse possession for that 
time would have ripened into title. And, by that token, the United States 
would be denied relief for laches, long sleeping on its "rights."

The decision ambiguous and far-fetched

Not only was the defense of California brushed aside as of no effect, but 
the United States made no motion, as before said, to show how it got title 
(not "paramount rights"), which Justice Frankfurter urged as necessary. The 
decision was cluttered with citations of what Justice Frankfurter called 
"the tenuous writings of publicists," to the disregard of judicial 
decisions on the subject and the constitutional provisions governing. 
Referring to a decision (262 U. S. 100) respecting rum running at sea during 
the term of the Eighteenth Amendment, the opinion said: 

"That the political agencies of this Nation both claim and exercise broad 
dominion and control over our three-mile marginal belt is now a settled 
fact."

Freedom of seas not muniment of title

But that had no bearing on the title to lands under the tidewaters. The 
opinion lugged in also "the freedom of the seas"; but as the decisions on 
the subject point out, the ownership of the land by the State is subject to 
navigation. There is no record that the ownership of tidelands by States 
ever interfered with the operations of the United States in peace or war. 
Even if there were interference, the United States would have to acquire 
title, not seize possession.

In a decision of the Court written by Chief Justice Taney in 1842 the law 
was stated (16 Peters 367) as follows, and it has remained unchanged 
(italics inserted):

"When the Revolution took place the people of each State became themselves 
sovereign; and in that character hold the absolute right to all their 
navigable waters and the soils under them for their own common use."

Law respecting tidelands long undisputed

In 1873 the Supreme Court, Justice Field writing (18 Wallace 57), followed 
the decision of Taney in stating the rights of California itself (italics 
inserted):

"Upon the admission of California into the Union upon equal footing with the 
original States, absolute property in, and dominion and sovereignty over, 
all soils under the tide-waters within her limits passed to the State," 
subject only to navigation.

The cases cited here, and others urged by California, were not overruled. 
They are still the law. Justice Black gave much attention to a case decided 
(3 Howard 212) in 1845 respecting tidelands in Mobile Bay and said that the 
principle applying to "inland waters" could not be extended seaward. The 
decree entered by the Chief Justice against California was made to deal with 
lands "outside of inland waters," which seems to show the only reason that 
the Court could find for not following the decisions by Taney and Field just 
before presented. However, the subject matter is tidelands, not waters 
inside or outside. Whether inside or outside, the land belongs to the State 
when the tide of the ocean covers it.

International law rewritten by the Court

Justice Black and those concurring were in what is known in the American 
vernacular as "a hard row of stumps." They left unexplained where the Court 
got authority to rewrite international law -- defined in the administration 
of George Washington between England and the United States -- by drawing a 
distinction between tidelands in the open and tidelands in an arm of the 
ocean.

As international law has been a build-up under practices by the executive 
departments of governments, and by treaties covering points agreed to, the 
making of it necessarily lies beyond the jurisdiction of courts.

Constitutional limitations also by-passed

The wise men at Philadelphia wrote into the Constitution their objections 
to the ownership of lands in a State by the United States except in 
instances specified. In next to the last paragraph of section 8 of Article 
I, carefully specifying and limiting the powers to Congress, the Legislative 
Department is given the right "to exercise like authority [as over the 
District of Columbia] over all Places purchased by the Consent of the 
Legislature of the State in which the Same shall be, for the Erection of 
Forts, Magazines, Arsenals, dock-Yards, and other useful Buildings."

It was undoubtedly with reference to that language that the Supreme Court 
said (3 Howard 212) in 1845 (italics inserted):

"The United States has no constitutional capacity to exercise jurisdiction, 
sovereignty, or eminent domain within the limits of a State or elsewhere, 
except in the cases in which it is expressly granted."

Tenth Amendment supported title of California

Following that forceful implication in the first article of the 
Constitution, that territory even for the governmental purposes of the 
Nation can be acquired in a State only by its consent, the Tenth Amendment, 
the last article in the Bill of Rights, added this buttress against National 
encroachment:

"The powers not delegated to the United States by the Constitution, nor 
prohibited by it to the States [as are powers of coinage, treaties, war], 
are reserved to the States respectively or to the people."

In the States is a vast reservoir of powers not surrendered, and the 
Sovereignty is withholding many more.

The official report of the decision in the case against California does not 
show that the Court was asked to explain how the National Government could 
vault those obstructions to its getting title -- or even "paramount rights" 
-- in a State. The first question that should have been elucidated -- Where 
did the United States get any "rights," and how, to tidelands in California? 
-- remains a deep mystery.

What "precipitated" this conflict of Republics?

In the opinion of the Court it is said that by giving leases to these 
lands, California "precipitated this extremely important controversy."

"Precipitate" imports sudden action. But the law of California authorizing 
the leasing was passed in 1921, a quarter of a century before the United 
States awoke to the invasion of its "paramount rights." The conflict between 
the States -- for interior as well as maritime States intervened in support 
of California and the Constitution -- and the Nation was "precipitated" in 
1936 by the introduction of a bill by a senator destitute of any conception 
of the constitutional position of the States in the Union.

Near mania of Congressmen to break States

As often pointed out herein, members of Congress have long seemed to be 
possessed of a near mania to break down their States. To be sure, the 
schools and universities gave them no constitutional education, and to a 
degree they are to be pitied rather than blamed.

The bill of the unschooled senator declared the tide-lands to be part of 
the public domain of the United States. Title by ipse dixit! It was 
remodeled into a joint resolution directing the Attorney General to assert 
and establish the title of the United States to tidelands and petroleum 
deposits. The resolution passed the Senate by unanimous consent, but the 
House took no action. The Secretary of the Navy, whose Department got a 
sniff of petroleum during the dispute about the Teapot Dome in the Harding 
and Coolidge administrations, filed a brief in the Senate in support of the 
movement. While a number of maneuvers immaterial here were in progress, this 
suit was brought, and the attorneys general of 46 States filed a brief in 
opposition to it. That was an amazing awakening of the States from 
protracted slumber.

Two Presidents encouraged the illegal scheme

A Joint resolution of Congress of July, 1946, quieting title in the States 
was vetoed by President Truman, who, as a recent senator, had been favorable 
to the action against the States.

The Secretary of the Interior testified before a congressional committee 
that in a talk with President Roosevelt in April, 1937, the Chief Executive 
raised the question of the ownership of oil in the tidelands. That was 
shortly after the senator had "precipitated" the controversy. He authorized 
the litigation. After his death in April, 1945, President Truman did 
likewise.

Thus, the whole administration, the Executive Department, the Legislative 
Department, the Navy, and the Judicial Department, all concurred in this 
attempt upon the property of the States.

The worst imaginable can happen here

The facts related show the origin and development of a plot by one Republic 
to seize illegally the lands of other Republics, such as might have been 
hatched in Moscow against Poland. Administrations calling themselves the 
"New Deal" and the "Fair Deal" did that!

Quite a change in the American governmental mind has taken place since 
England attempted to "move over" and occupy some gold-bearing lands in 
Venezuela and was stopped by the Cleveland administration.

What has been shown is a demonstration that anything may happen here.

But, of a certainty, it is within the power of the States in Congress to 
override this startling decision and clear their lands of the cloud which 
it put upon title to them.

Interpretative amendments to the Constitution suggested

Chisholm sued the State of Georgia and recovered a judgment which the 
Supreme Court sustained (2 Dallas, 419) in 1793. As it is against ancient 
principle for sovereignty to be sued without its consent (as the United 
States consents to be sued in specified instances in its Court of Claims), 
a great commotion followed the decision, and in the next year what became the 
Eleventh Amendment was proposed to the States for ratification. It provided, 
briefly, that "the Judicial power shall not be construed to extend to any 
suit in law or equity" against a State.

Again, in 1933, what became the Twenty-first Amendment, repealing the 
Eighteenth (Prohibitory) Amendment, was proposed and it was adopted in the 
short space of nine months and fifteen days. After 13 years and .10 months 
of trial and controversy, the Prohibitory Amendment went out and carried 
with it the coercive legislation and some fantastic judicial decisions which 
it had engendered. In one case it was held that a man on an interstate 
journey by railroad with a flask of liquor in his valise was "transporting" 
intoxicating drink in "interstate commerce" in violation of governmental 
command!

In like manner, curative amendments should be proposed to the States 
revoking all the acts of Congress and the judicial decisions applying the 
Taxing Clause, the Commerce Clause, and the General Welfare Clause of the 
Constitution where they were not intended to be operative. It may be asked, 
for example: How can the National Labor Relations Act and all that has been 
done under it be unscrambled? The answer is that the States can resume the 
police power which they abandoned, but of which they could not divest 
themselves constitutionally, over their labor conditions and over all the 
needs of the people. Already that sentiment has found expression in many 
States.

In December, 1949, the State of Michigan had formally "seceded" from the 
District of Columbia. Its legislature had enacted a law forbidding strikes 
until a vote of the workers has been taken in accordance with specifications 
laid down. In the month named, the Department of Justice went into the 
Supreme Court of the United States to ask that the law of Michigan be 
restrained from operation, as the National Government had "preempted" that 
field, having reference to the unconstitutional National Labor Relations Act 
of Congress. But it has been shown from the Constitution and other 
authorities that the United States cannot take over a field inherently in 
the States and not susceptible of surrender by them.

The battle of the States for taking back their Union is opening up. They can 
win it easily. The whole power respecting the subject resides in them.

The interpretative amendment or amendments might declare that the grant of 
power to Congress by section 8 of Article I "to lay and collect . . . Taxes 
to pay the Debts and provide for the common Defence and general Welfare of 
the United States" shall be strictly construed as limiting expenditures for 
the Nation, at home and abroad, as a member of the family of nations, and 
shall not be taken to authorize the Government to engage in the manufacture 
of electric power, or to provide rural electrification, or to engage in any 
kind of industry or trade, or to provide aid to any class of individuals, 
who are protected by the inherent police power of the States.

Two clauses most wrongfully used

Second, the Commerce Clause shall be strictly construed to mean regulation 
of interstate (not intrastate) commerce as commerce was understood in the 
Constitutional Convention and as the word was applied by the courts and the 
Interstate Commerce Commission down to the 1930s; and it shall not be held 
to give jurisdiction to Congress of workers throughout the country except 
those engaged in commerce across State lines and with foreign countries; and 
it shall not be construed to authorize the engaging in commerce of any kind 
by Government by any means, direct or indirect.

Third, the General Welfare Clause shall be strictly construed to mean the 
welfare of the United States as a political entity, and as specified in the 
grant of powers in section 8 of Article I; and it shall not be taken to 
mean the welfare of persons as to health, safety, morals, education, and 
general well-being, matters of which the States have inherent jurisdiction 
by virtue of their police power, no part of which they surrendered to the 
Nation when they drew the Constitution. They adopted the Bill of Rights in 
further protection of that power.

Those suggestions are merely outlines of what should be developed in 
thorough detail in Congress for amendments to restore the Union to the 
States comprising it.



1. The cases presented no Federal question and were dismissed. A Federal 
question, essential to the jurisdiction of the Supreme Court, is, briefly, 
one arising under the Constitution, under an act of Congress, under a 
treaty, or under an action by a State against a right accruing from National 
citizenship.

2. On the importance to the American people and the Republic of the able 
jurist, Senator Hoar wrote in his memoirs (vol. 2, p. 391) of the 
illustrious Chief Justice Shaw of the Supreme Judicial Court of 
Massachusetts:

"He possessed, beyond any other American judge, save Marshall, what may be 
termed the statesmanship of jurisprudence. He never undertook to make law 
upon the Bench, but he perceived with a farsighted vision what rule of law 
was likely to operate beneficially or hurtfully to the Republic. He was 
watchful to lay down no doctrine which would not stand this test. His great 
judgments stand among our great securities, like the provisions of the Bill 
of Bights." 

3. The Bill of Rights is usually spoken of as the first ten amendments, but 
sometimes as the first eight. The Ninth and Tenth are the final warnings to 
Congress to keep within its boundaries, whereas the first eight are 
protective to men. But men could not be fully guarded without the Ninth and 
Tenth.

4. However, in the case of contempt against the Denver newspaper Justice 
Holmes said that it raised "questions of local law, which are not open to 
re-examination here." No Federal question was raised and therefore an order 
of dismissal was entered.

5. When Franklin D. Roosevelt became President, the Supreme Court of the 
United States numbered 5 Republicans and 4 Democrats. The policy had been to 
have each party fairly represented, although the subject is not political. 
Yet, when Congress turned over the general management of the country to the 
President, and his "policy" was Socialism, how could the American expect to 
secure in courts under such appointment the rights of free enterprise?


____________

XV

THE COURSE OF PRESIDENTIAL ELECTIONS DURING THE LAST FORTY YEARS HAS MADE 
CLEAR THAT THE SAFETY OF THE REPUBLIC REQUIRES RETURN TO STRICT CONFORMITY 
WITH THE DIRECTIONS OF THE CONSTITUTION

In this chapter may be found the answer to the question of James Bryce (1 
The American Commonwealth, 77) as to why our Presidential Office has not 
been oftener filled by the most competent men. He wrote that Europeans ask 
and Americans do not always explain "how it happens that this great office, 
the greatest in the world, unless we except the Papacy, to which any one can 
rise by his own merits, is not more frequently filled by great and striking 
men."

That it should be so filled always, was the careful design of the 
Constitutional Convention.

Let us proceed to search out the causes of the condition which seemed 
strange to Bryce and which we have tolerated too long.

The constitutional government of the United States is scientific. Science 
is defined as classified knowledge, or the conclusions which the 
classification compels. The causes of all the breakdowns of governments in 
history were gone over in the Constitutional Convention and it was concluded 
that law making, law enforcing, and law interpreting must be definitely in 
different hands.

All national and foreign concerns were assigned to the Nation and all others 
were retained by the States or the people.

All officials, State and National, were put under oath to support the 
Constitution and observe the boundaries to power specified in it. As far as 
could be, men with power were chained.

Education in this science is indispensable. It is badly lacking.

An early prophecy respecting the President

"The Executive of our Government is not the sole -- it is scarcely the 
principal -- object of my jealousy," wrote Jefferson from Paris, urging upon 
Madison the need of amendments making a Bill of Bights additional to the 
twelve provisions already in the Constitution; "the tyranny of the 
Legislature is the most formidable dread at present, and will be for many 
years. That of the Executive will come in turn, but it will be at a remote 
period."

The tyranny of the Executive has come.

The field of the President's authority under the Constitution is very 
limited. It does not include the States, to say nothing of the external 
world. In No. 75 of The Federalist that was pointed out by Hamilton:

"The execution of the laws and the employment of the common strength, either 
for this purpose or the common defense, seems to comprise all the functions 
of the Executive Magistrate."

The guilelessness of the Press

Yet the Press, instead of dealing with the great committees of the Senate 
and the House -- on Ways and Means, on Banking, on Foreign Relations, and 
others -- unwittingly abandoned Congress as the constitutional General 
Manager of the United States and gave itself over to the President as a 
sounding board for him to proclaim his "plans" and "policies." Dispatches 
from Washington daily refer to the President as "the administration." To be 
sure, an inferiority complex in the Congresses which brought upon them the 
description of "rubber stamp" contributed to this unfortunate situation.

To illustrate what a change has come in the strength of constitutional 
Government, a quotation is made from the Autobiography of Seventy Years of 
Senator George F. Hoar of Massachusetts (vol. 2, p. 46):

"The most eminent senators -- Sumner, Conkling, Sherman, Edmunds, Carpenter, 
Frelinghuysen, Simon Cameron, Anthony, Logan -- would have received as a 
personal affront a private message from the White House expressing a desire 
that they should adopt any course in the discharge of their legislative 
duties that they did not approve. If they visited the White House, it was to 
give, not to receive, advice. Any little company or coterie who had 
undertaken to arrange public policies with the President and to report to 
their associates what the President thought would have rapidly come to 
grief." 

They ask him for guidance now.

A witness of Congressional deterioration

Maurice Francis Egan, our Minister to Denmark during World War I, noticed 
this change in the Congress when he returned home in 1918. Mentioning in 
Recollections of a Happy Life the change which he had found in the city, in 
the clubs, in the offices, and elsewhere, he added:

"The quality of our Legislature seemed to have deteriorated greatly. One had 
only to go to the Senate or the House and compare the speeches of Senators 
and Representatives with what one heard in the seventies and eighties to 
feel strongly that there was something radically wrong with the American 
people if these men were their voluntarily chosen delegates. A recent visit 
to Milwaukee and an examination of the Wisconsin legislators, as expressed 
in their speeches, has corroborated this impression.

Too much "democracy" and not enough republicanism. Those who promised to 
cure the evils of democracy by "more democracy" propagated more evils.

Jefferson wrote to Francis Hopkinson that even with a Bill of Rights added 
to the Constitution, "it would still have one fault in my eye, that of 
perpetual re-eligibility of the President."

Through absence of mind, especially on the part of the Bar, which, by reason 
of its education, should have known better than shirk the duty accepted in 
its oath, the election of the President of the United States has descended 
to what too closely resembles the popular vote for party nominees, the very 
course which the Constitutional Convention employed all its ability to 
prevent.

President has become in politics virtual chief

By force of the evil machinery which has been developed, the President, as 
it has several times been demonstrated since 1904, is able, through the use 
of patronage and other pressure, to control the National Nominating 
Convention of his party and renominate himself or pick his successor.[1]

It being in the nature of unchecked power to spread itself, conditions 
eventually enabled the President to step with impunity over the strong 
customary law of the American people against a third term. With that step, 
"new powers," as he called them, were accumulated so that nomination and 
election for a fourth term were even easier than they had been in the 
previous adventure. For the President had raised the number of nonelected 
Federal executive employees throughout the States from about 500,000 in 1932 
to 3,121,153 [2] on June 30, 1944.

On which side the bread is buttered

It is in human nature that such a body of appointees will support the 
appointing power to which they are indebted for their pay envelopes. Those 
men and women, and their children of voting age, must have cast 5,000,000 
ballots in November, 1944, when ambition achieved its fourth term. In 
addition to that, many of the big cities to which Washington had been lavish 
in the unconstitutional granting of the money of the taxpayers for "relief" 
and for "development" supported the President for the fourth term. 

From 13 Northern and Western cities he received 2,280,000 votes of his 
plurality of about 3,500,000. It is therefore manifest that, without the 
vote of those who were beholden to the President for personal favors, he 
would have been defeated.

"A power over a man's support," wrote Hamilton in No. 73 of The Federalist, 
"is a power over his will."

In 1948 the electoral conditions were so extravagantly bad that they should 
convince the most enthusiastic advocate of "democracy" that a popular 
election of the President and the Vice President would be the worst blow 
possible to our representative form of Government, and that the design of 
the Constitutional Convention, "that every practicable obstacle should be 
opposed to cabal, intrigue and corruption," has been proved by our 
experience to be sound.

History disproves need for National Nominating Convention

The first eleven Presidential elections took place without the help of the 
spectacular National Nominating Convention. There was no "campaign" 
supported by contributors expecting something.

That successful history shows that the National Nominating Convention is 
unnecessary -- we can get along without it. The record which it has made 
discredits it.

Washington (twice) was chosen without a National Nominating Convention, so 
were Adams (once), Jefferson (twice), Madison (twice), Monroe (twice), and 
Jackson the first time. The convention for the second term of Jackson was 
rather a popular gathering to ratify his course during his first term, and 
not the Nominating Convention which we know.

So the American people and the Republic had a very good line of Chief 
Executives without the aid of machinery external to Government.

And during that half century Congress enacted no Corrupt Practices Laws.

After the ratifying convention mentioned, in 1832, Van Buren was nominated 
by a Democratic Convention in 1836. But the Whigs did not hold a convention. 

For the first nine elections there was no platform and there was no popular 
vote.

And the people lived through those years in content without long platforms 
promising that Government would "give every body every thing." They were 
then so close to the Declaration of Independence that they still believed 
the Government to be a protector and not a provider.

States can resume control of Constitutional Election

Their experience proves to us that it would be very practicable for the 
States to resume control of their Union by returning to the constitutional 
election of the President and the Vice President.

And our latter-day experiences prove beyond argument that the National 
Nominating Convention will no longer do.

In "Thirty Years' View" the National Nominating Convention was condemned 
(1859) by Senator Thomas Hart Benton of Missouri thus:

"An irresponsible body (chiefly continued, and mainly dominated by 
professional office-seekers and officeholders) have usurped the election of 
the President (for the nomination is the election, so far as the party is 
concerned); and always making it with a view to their own profit in the 
monopoly of office and plunder."

In 1872 Charles Sumner spoke of the Convention as "the engine for the 
nomination of the President, allowing the people little more than to record 
its will" and becoming "the personal instrument of the President when 
elected, giving him dictatorial power, which he may employ in reducing the 
people to conformity with his purposes and promoting his re-election, all 
of which is hostile to good government, and of evil example."

Sumner favored the popular election of the President, but recent elections 
have demonstrated that the officeholders beholden to the Chief Executive 
would then control -- there would be no real "popular" choice.

Direct election of President would be governmental suicide

In the Executive Department there were more than 2,000,000 on the pay rolls 
in 1948. In 1933, when Franklin D. Roosevelt took office, there were 575,123 
on the rolls.

At his next inauguration, in 1937, there were 859,668. At his third 
inauguration, in 1941 (before World War II), there were 1,164,463 
payrollers. At the fourth inauguration of President Roosevelt, in 1945, the 
number on his pay rolls was 3,465,420 (figures from Senate Committee Print 
No. 53, May-June, 1948). His plurality at the election was 3,596,227.

Thus, the payrollers alone, with the voting members of their families, could 
give him victory.

But in the election of 1948, giving the regime of Socialism, miscalled the 
"New Deal," the embryo of Communism, its fifth term, there were receiving 
checks from Washington, in addition to the 3,000,000 pay rollers, 2,500,000 
beneficiaries of the Social Security Law, 3,500,000 farmers enjoying 
unconstitutional subsidies from the taxpayers of the country, 6,500,000 
veterans, and 1,500,000 in the armed services.

The Presidential Office must be dissevered from that situation.

Customary law, made not by legislatures or constitutional conventions, but 
by the people themselves in daily life, has always been recognized in 
England and America as the very strongest form of legislation. Yet the 
customary law against a third term for the President went down in the 
election of 1940. That levee broken, the flood of Socialism took the land. 
In 1944, and again in 1948, it was, of course, irresistible.

Elections so foreign to Republic's welfare people cease voting

It cannot be said that those elections were turned in the best interests of 
the United States by the best sections of the people. Indeed, at none of 
them was a representative poll made. In 1948 the votes for all candidates 
aggregated 47,500,000. The Bureau of the Census informs us that in the 
country there were 95,000,000 eligible to vote.

Did the half of the voters who remained away from the polls do so from 
disgust or from despair?

It may have been a feeling of discouragement that they could accomplish 
anything against the multitude that kept them away from the polls in 1948, 
as they had been staying away for many years. Bryce wrote in The American 
Commonwealth (vol. 2, p. 331) on "the fatalism of the multitude" and "the 
tyranny of the majority" as they appeared to him in our country:

"Thus, out of the mingled feelings that the multitude will prevail, and 
that the multitude, because it will prevail, must be right, there grows a 
self-distrust, a despondency, a disposition to fall into line, to acquiesce 
in the dominant opinion, to submit thought as well as action to the 
encompassing power of numbers."

There never was a stronger statement made in support of the conclusion 
reached by the Constitutional Convention, namely, that the President and the 
Vice President should be selected and elected, not by the people at large 
(democracy), but by representatives of the people "appointed" as directed by 
the Fundamental Law.

Road back to Constitution is very plain

We have only to return to the barricades which the Constitution erected and 
which delinquent States, for one reason or another, or for none, abandoned. 
When the legislatures of the States take hold of the subject as the 
Constitution directs and themselves "appoint" electors to choose the 
President and the Vice President, the Corrupt Practices Acts as to the 
Presidential election will become dead letters, and the power of the pay 
rollers and the donees will be extinguished.

Then we shall have the Government of the days of George Washington.

Greatest fear of Constitutional Convention nearly realized

It was of the direct popular vote, liable to "cabal, intrigue, and 
corruption," that the Constitutional Convention stood in most fear. Our 
election of late years has given demonstration that they were right. From 
the fourth day of the Convention, when Edmund Randolph of Virginia presented 
a plan for a Constitution under which "a National Executive" was provided 
for, "to be chosen by the National Legislature," until the last day of the 
sessions, the subject of a Chief Executive was under almost continuous 
discussion. To no part of the Constitution did the Convention of able men at 
Philadelphia give so much patient care as they bestowed upon the plan to 
keep the choice of the first two officers protected from possibility of 
corruption, and also from domination by Congress.

The members of the Convention intended that the States would choose the 
chief officers of the United States, or, as someone has well put it, "the 
States united." This is a Government of States resulting from a Union of 
States which had won their independence as States by the prosecution of a 
Revolutionary War. The conception was that the States should pick and choose 
the Chief Executive of their Union.

On July 31, 1787, "the questions not yet settled" were referred to a 
Committee of Eleven, which brought back on September 4 substantially what 
went into the Constitution for the choice of President. The Committee 
introduced to the Convention the idea of a Vice President. Its report was 
worked over from day to day until this second paragraph of Article II 
finally resulted (italics inserted):

States put imperative duty on themselves

"Each State shall appoint, in such manner as the legislature thereof may 
direct, a number of electors, equal to the whole number of Senators and 
Representatives to which the State may be entitled in the Congress: but no 
Senator or Representative, or person holding an office of trust or profit 
under the United States, shall be appointed an elector."

It is an erroneous idea that whatever the Legislature of a State may do, or 
permit, with respect to the appointment of electors is valid.

Clearly, the language quoted commands that the electors be agents of the 
State as an entity of the Union which they, as States, established. For the 
plan of the Constitutional Convention, as extensively shown later herein by 
Hamilton, was that the States should themselves select and elect the two 
chief officers of their Union.

"Although the spirit of an instrument, especially of a Constitution, is to 
be respected not less than the letter," said Chief Justice Marshall for the 
Supreme Court (4 Wheaton, 122) in 1819, "yet the spirit is to be collected 
chiefly from the words."

It was the spirit of the Constitutional Convention, acting as States, that 
the States should, as governmental entities, select and elect the President 
and the Vice President. Then that spirit was expressed in the plainest 
words, emphasized by the imperative shall -- "Each State shall appoint."

If the Legislature does not wish to make the appointment itself, as 
legislatures did from the beginning down through many years, Colorado so 
appointing them when it came into the Union in 1876, then any other mode 
that it may establish must operate as an organ of the State so that the 
result will be the appointment by the State. Any other reading is 
disregardful of both the spirit and the letter of the provision of the 
Constitution quoted.

In view of the importance given to Statehood from the Declaration of 
Independence -- "that these United Colonies are, and of Right ought to be, 
Free and Independent States" -- down through the Articles of Confederation 
-- "each State retains its sovereignty and independence" -- and the closing 
words of the Constitutional Convention -- "Done in Convention by the 
Unanimous Consent of the States present" -- ending with "Each State shall 
appoint" electors to select and elect the President, the idea is wholly 
untenable that the legislatures of the States can turn over the choice by 
States of the Chief Executive to political groups or parties.

No roving commission to legislatures

In the provision just before quoted there is no roving commission to 
legislatures to have their will in the choice of electors of the President, 
or to abandon to political parties, or to conventions of parties, or to 
Presidential primaries, their constitutional duty. Electors appointed for a 
State by a committee of a political party, or by a convention of the party 
in the State to send delegates to a National Convention to nominate a 
Presidential ticket, or by primaries designed to express a choice of 
President, are not constitutional electors. They are not constitutional 
electors even where their names have been put on the national ballot of the 
party, as the practice was long ago, now largely abandoned through the 
"short ballot," and the people vote for them at the polls. For the voters 
are powerless to validate, as an appointment by the State, an appointment by 
a political committee or party, or by any other political machinery.

The mess for which legislatures are responsible

According to Beard's American Government and Politics, a number of States -- 
not half -- allow voters at primaries for choosing delegates to the National 
Nominating Convention of the party to express preference for Presidential 
nomination. That tends toward selection and election by the people directly, 
who were excluded by the States in the Constitutional Convention from such a 
direct participation in the choice of President. Their direct action was to 
be at the polls choosing legislators to appoint electors. An expression at 
the primaries is an introduction of "more democracy" against the 
representative structure.

In some States a list of the Presidential aspirants is printed on the 
primary ballot of each party and the voter may indicate at the polls his 
choice for President. That, also, tends toward the prohibited popular 
choice, and against the constitutional action of the people in voting for 
legislators to appoint electors.

In other States, candidates as delegates to the National Nominating 
Convention of the party may specify on the ballot whom they will favor in 
the convention for President.

"Thus," wrote Beard, "the voters may disclose their will indirectly." But 
the will of the voters cannot be legally so expressed. The constitutional 
expression of the will of the voters is given in their ballots for the 
members of the Legislature which is to choose the electors. At that election 
the people participate (or were intended to) in the election of the 
President. Their will so expressed constitutionally cannot be expressed 
again along the way to introduce "democracy" or "populism" against the 
representative system.

The effect of the short ballot

The early appointive system of the States, by which only the Governor and 
other top officers were elected by the vote of the people, gave way to 
"democracy," until all persons in public service, down to the least 
important, were named on the ballot. In one Congressional district in 
Chicago the voter was perplexed by the names of 334 nominees on the ticket. 
The evil had become so great and general that an agitation was begun for 
return to the appointive method, and the short ballot resulted. It struck 
from the ticket all the names of the Presidential electors, leaving the 
voter to cast a ballot directly for the President and Vice President named 
at the head of the ticket, which the Constitution plainly does not permit.

The short ballot was adopted by States with 350 of the 531 electoral votes. 
"The Book of States" for 1948-1949 says that 70 per cent of the voters 
ballot for the two candidates named at the head of the ticket. This, it 
should be repeated, they have no right to do. And so electors not appointed 
by the Legislature, or by any constitutional organ set up by it, and not 
voted for in most of the States, meet and vote for the nominees of the party 
and report the result to the President of the Senate!

Here is the most censurable default of the States in constitutional 
obligation. They can easily get right, and reduce the President from 
Imperator to constitutional Executive with limited powers.

Officeholders prevented from participating in Presidential elections

Members of Congress and all holders of office or trust were carefully 
prevented by the provision just before quoted from participating in 
election of the President. The Constitutional Convention seemed to have fear 
of the time when it would become to the interest of members of the Senate 
and the House, and of Federal officeholders generally, to control the choice 
of the President. With the introduction of the unconstitutional National 
Nominating Convention, at times overrun by members of Congress, members of 
the Cabinet, postmasters, and other Federal payrollers executing the will of 
the President by renominating him or nominating his pick for a successor, 
the very evil feared was brought to pass.

Although section 1 of Article II sternly commands that "no Senator or 
Representative, or Person holding an Office of Trust or Profit under the 
United States, shall be appointed an Elector," the spirit of that has many 
times been disregarded by National Nominating Conventions controlled in 
whole or in part by members of Congress and other Federal officeholders.

Convention's fear of Government in politics becomes fact

The Constitutional Convention foresaw that the separation of powers which it 
designed would be undone if the Executive Department should become the 
creature of the Legislative Department and the officeholders. Both Madison 
and Jefferson expressed fear of the combining of powers in one hand or in 
one group.

In Henry L. Stoddard's It Costs to Be President, published by Harper & 
Brothers in 1938, it is shown that in the Republican National Convention of 
1920 there were 18 Senators who had themselves chosen as delegates from nine 
States, and 4 more who were chosen singly from different States.

The Senators represented, or assumed to represent, 400 of 984 delegates.

Senator Lodge of Massachusetts was Chairman of the Convention.

Senator Watson of Indiana headed the Committee on Resolutions.

Senator Harding of Ohio was nominated for President.

Senator Lenroot of Wisconsin was almost nominated for the Vice Presidency, 
but the best heads thought that that would be going too far. So Governor 
Coolidge of Massachusetts was given second place.

While those Senators were not acting as the electors of the Constitution, 
they influenced the naming of, if they did not name, the two men for whom, 
under our degenerated system, the electors would be obliged to vote. 
Virtually they were acting as the forbidden electors. In 1948 a Member of 
Congress was chairman of the National Committee of each party.

The Legislatures of the States must take over their duty.

Unsound argument against election according to Constitution

The assumption in this relation of the unschooled commentators, as in 
several other instances, that the electoral system prevents the people from 
exercising their prerogatives, is wholly unsound. For the legislature of 
the State is elected by the direct vote of the people, and what the 
legislature does as the agent of the people who choose it is an expression 
of the will of the people. All that the legislature does from year to year 
in the management and support of the Government of the State is an 
expression of the will of the people through the agent which they choose for 
that purpose. No worry has ever been manifested that the legislature cannot 
be trusted to do the will of the people who elected it in framing and 
enacting laws, in raising, by taxation, money for the essential needs of 
Government, in providing means of education, in exerting its power of police 
for "the health, morals, safety, education and general well-being of the 
people," and in performing all the other obligations inherent in the State, 
of which it is the General Manager.

Why, then, should anyone have fear that in appointing electors of a 
President and a Vice President, as commanded by the Constitution, the 
legislature of the State is likely to be faithless to the people? As 
officers of the State, the legislators are put under oath by the 
Constitution of the United States to support the Fundamental Law of the 
Nation. Trusted in all other relations, why should anyone question their 
fidelity here?

Convention for government by representatives instead of crowd

Besides, as profound historians the members of the Constitutional Convention 
knew that eventually the crowd becomes unmanageable, even in its own 
interest. 

Much historical learning, legal scholarship, and sound thinking underlay 
that system, which Washington hoped would influence nations (as it has), 
which Webster called "the last hope of the world," and which Bryce and other 
foreign scholars declared to be the greatest expression of genius in the 
field of government.

Precise problem solved by Constitutional Convention

Let Alexander Hamilton tell just what the Constitutional Convention, of 
which he was a member, had in mind respecting the choice of a President. 
Discussing in The Federalist (No. 68) the electoral plan, and especially 
referring to "cabal, intrigue, and corruption," he wrote "to the people of 
the State of New York" that the most plausible of the opponents of the 
Constitution who had appeared in print admitted "that the election of the 
President is pretty well guarded." Hamilton proceeded (italics inserted):

"I venture somewhat further and hesitate not to affirm that if the manner 
of it be not perfect, it is at least excellent. It unites in an eminent 
degree all the advantages the union of which was to be wished for.

"It was desirable that the sense of the people should operate in the choice 
of the person to whom so important a trust was to be confided. This end will 
be answered by committing the right of making it, not to any pre-established 
body, but to men chosen by the people for the special purpose, and at the 
particular conjuncture.

"It was equally desirable that the immediate election should be made by men 
most capable of analyzing the qualities adapted to the station, and acting 
under circumstances favorable to deliberation, and to a judicious 
combination of all the reasons and inducements which were proper to govern 
their choice. A small number of persons, selected by their fellow citizens 
from the general mass, will be most likely to possess the information and 
discernment requisite to such complicated investigations.

"It was also peculiarly desirable to afford as little opportunity as 
possible to tumult and disorder."

If Hamilton and his coworkers in the Constitutional Convention could have 
foreseen the "tumult and disorder" of our National Nominating Convention, 
what might they have done to prevent its coming!

"This evil," he went on, "was not least to be dreaded in the election of a 
magistrate who was to have so important an agency in the administration of 
the Government as the President of the United States. But the precautions 
which have been so happily concerted in the system under consideration 
promise an effectual security against this mischief."

Speed desired to prevent cabal and intrigue

On the need for prompt action and security from interference and what we 
call "pressure," Hamilton wrote:

"And as the electors chosen in each State are to assemble and vote in the 
State in which they are chosen, this detached and divided situation will 
expose them much less to heats and ferments which might be communicated to 
them from the people than if they were all to be convened at one time in one 
place."

That is to say, any such aggregation as the National Nominating Convention 
would be abhorrent to Hamilton and his coworkers.

Addressing himself to what in time brought about the Corrupt Practices Acts 
of Congress, Hamilton said:

"Nothing was more desirable than that every practicable obstacle should be 
opposed to cabal, intrigue, and corruption....

"But the Convention have guarded against all danger of this sort with the 
most provident and judicious attention. They have not made the appointment 
of the President to depend on any pre-existing bodies of men who might be 
tampered with beforehand to prostitute their votes; but they have referred 
it in the first instance to an immediate act of the people of America, to be 
exerted in the choice of persons for the temporary and sole purpose of 
making the appointment.

Convention sought to prevent officials from controlling election

"And they have excluded from eligibility to this trust all those who from 
situation might be suspected of too great devotion to the President in 
office."

Pointing out that members of Congress and others holding office cannot be 
electors, Hamilton continued:

"Thus, without corrupting the body of the people, the immediate agents in 
the election will at least enter upon the task free from any sinister bias. 
Their transient existence and their detached situation, already taken 
notice of, afford a satisfactory prospect of their continuing so to the 
conclusion of it. The business of corruption, when it is to embrace so 
considerable a number of men, requires time as well as means... .

"Another and no less important desideratum was that the Executive should be 
independent for his continuance in office on all but the people themselves. 
He might otherwise be tempted to sacrifice his duty to his complaisance for 
those whose favor was necessary to the duration of his official 
consequence."

About the second term, Hamilton said:

"This advantage will also be secured by making his re-election to depend on 
a special body of representatives deputed by society for the single purpose 
of making the important choice."

That would prevent him from renominating himself, as he does now.

Convention saw statesmen, not politicians, in Presidential office

Passing over some details as to the casting and counting of the votes of 
the electors, we come to this:

"The process of election affords a moral certainty that the office of 
President will never fall to the lot of any man who is not in an eminent 
degree endowed with the requisite qualifications. ... It will not be too 
strong to say that there will be a constant probability of seeing the 
station filled by characters pre-eminent for ability and virtue."

Quotation has been made at some length to show with what care the 
Constitutional Convention considered the choice of the two Chief Officers of 
the Republic, a subject which was under discussion from the opening of the 
Convention until near its close. The electors spring from the people. 
Recently elected legislators take immediate steps to carry out the will of 
the voters under the direction of the Constitution.

Evil foreseen by Convention has broken down barrier

The growth of the evil which the Constitutional Convention endeavored so 
faithfully to forestall has long been watched with apprehension by capable 
men. Thirty years before the election of 1944, when the Federal payrollers 
through the land (3,121,153), with the vote of the big cities which were 
supporting the administration at Washington in its quest for a fourth term, 
were larger in number than the plurality (3,596,278) which the President 
received, Senator George W. Norris of Nebraska said this:

"When this influence [patronage] is combined and used for the perpetuation 
in office of the head of our Government, it is a danger to free institutions 
and strikes at the very root of democracy. Such a danger leads directly 
toward a monarchy and takes away from the people themselves the right to 
select their own Chief Magistrate....

"It exists now to a greater extent than it did, because Federal offices 
have been multiplied manyfold and partisan political machines ... are now 
enthroned in power greater than ever in our history."

In 1914, when Senator Norris made that statement, there were 482,721 Federal 
payrollers living on the taxpayers and "doing politics" throughout the 
country for the administration in power. As previously seen from a report of 
a committee of the Senate, there were 3,596,278 of them in 1944 within the 
Executive Department of the President.

Direct election would not give popular control

Even had an amendment to the Constitution made legal the direct vote of the 
people for a President, as some persons have advocated, the free will of the 
people would have been frustrated in 1940, 1944, and 1948 by that controlled 
vote and the vote of like inclination which went with it. The constitutional 
vote is needed.

Since 1907 Congress has been striving unsuccessfully to keep suppressed the 
corruption and the peril to Government necessarily latent in this burlesque 
on constitutional procedure which we call the Presidential campaign. Corrupt 
Practices Laws have been enacted, amended, and rewritten, but to no effect. 
A revision in 1925 of the Corrupt Practices Law made it unlawful for any 
corporation "to make a contribution in connection with any election" for the 
choice of Federal officers, including a President and a Vice President.

A series of futile acts against corruption

In 1939 an Act to Prevent Pernicious Political Activities forbade persons to 
contribute, directly or indirectly, in excess of $5,000 a year in connection 
with a Federal election. That would allow a person to put up $20,000 during 
a Presidential term. It also prohibited intimidation of Federal employees, 
the promise of employment, the use of relief funds, and some other 
activities respecting such an election. Then it forbade those in the 
Executive branch "to take any part in political management or political 
campaign." The present-day extraordinary campaigning activity of the 
President is seemingly covered by that prohibition, as it should be.

In 1940 the foregoing act was amended by an act retaining in effect the act 
of 1925 and prohibiting a political committee from collecting and spending 
over $3,000,000 a year in relation to a Federal election. That would permit 
the gathering of $12,000,000 by a political committee during the term of the 
President! It also prohibited the purchase of advertising or any commodity 
in connection with a Federal election.

In 1943 an act relating to the use and operation by the United States of 
plants, mines, and facilities for the promotion of war amended the act of 
1925 by writing "labor organization" along with "corporation," which was the 
first contributor to be checked by Congress. It forbade contributions 
respecting a Presidential or other Federal election and fixed a penalty of 
$5,000. Every officer was made liable to a fine of $1,000, or imprisonment 
for one year, or both. This law did not come until seven years after a 
reported contribution by a labor union of $60,000 to the support of 
President Roosevelt in the campaign of 1936. It is stated in Beard's 
American Government and Politics that "labor organizations contributed 
$770,218 to the Democratic National Committee in 1936."

Thus the corporation, the person, the political committee, and the labor 
organization have been successively brought under the Corrupt Practices 
Laws. But with the extension of the laws the collecting and spending of 
money in Presidential campaigns have grown larger in amounts and more 
offensive in methods.

The only way to prevent "cabal, intrigue, and corruption" in relation to 
the election of the President was thought out in the Constitutional 
Convention with an imperative direction that it be followed.

The President as a gatherer of party funds

The act of 1940 undertook also to cure a sore which appeared in the 
Democratic campaign of 1936, when the party was in debt $400,000. In 
addition to Jackson Day Dinners at $100 a plate in Washington, and at lower 
prices throughout the country, which were addressed by the President by 
radio, and which yielded $315,000, the "Book of the Democratic Committee" 
was prepared and autographed by the President -- the autographed copies 
selling for $100 each. They were taken in large numbers by the heads of 
corporations. Of course, the general manager of a great company had to 
consider what might happen if he should decline to buy a dozen or two of the 
books. While the money was gathered to meet the debt of a campaign gone by, 
and the Corrupt Practices Act relates to an election "to be held," the 
spirit, if not the letter, of the law was violated by the transactions. The 
Attorney General ruled that the law was not violated, but Congress expressed 
its dissent from that ruling by providing in the Act of 1940 that it would 
be unlawful for any corporation or person "to purchase goods, commodities, 
advertising, or articles of any kind or description" where the proceeds 
would benefit candidates for Federal elective offices (italics added).

From advertisements and sales the book brought in $860,000. As before 
stated, the Jackson Day Dinners yielded $315,000, making the two devices for 
avoiding the Corrupt Practices Act a total of $1,175,000.

Almost another million was raised and spent by organizations outside of the 
political party -- the Good Neighbor League, the Progressive National 
Committee, Labor's Non-Partisan League, Young Democratic Clubs, and many 
others.

In the campaign of 1940 the Democratic Committee prepared to repeat the use 
of the book autographed by the President, but the Second Hatch Act, of July 
19, 1940, dashed the plan. Already contracts for advertisements in the book 
had been made up to $340,000.

President Roosevelt by-passed Corrupt Practices Act

In the campaign of 1944, the use of the money-coining book autographed by 
the President in 1936 having been prevented by an act of Congress, which 
made the transaction illegal, President Roosevelt proposed the formation of 
a Thousand-Dollar Club of at least a thousand members. A million or more was 
raised almost on the instant. It was promised that each person contributing 
$1,000 would be taken into the councils of the Government and that he would 
be treated with special favor during the services of inauguration. The 
dispatches from Washington on January 20, the day of the fourth inauguration 
of the President, told of the presence of the contributors and of "a 
full-scale program of Inauguration Day social events" which had been 
prepared for them.

What activities to occupy the mind and time of the President of the United 
States![3]

And what will the authorities in Moral Philosophy say (leaving to one side 
the question of constitutional observance) of the offer of the 
administration to take into the councils of the United States nonelected and 
nonchosen persons in consideration of money! And what should the people say?

As long as there are so many persons and "interests" seeking advantage or 
pecuniary gain from the party in control of Government, and as long as the 
party must look to them for funds with which to function, corruption will 
necessarily underlie the nomination and election of a President by the 
present unconstitutional method.

In the good days that may be ahead

When the States resume their constitutional function in the choice of a 
President and a Vice President, then the members of the legislatures chosen 
at the ballot box by the people will "appoint" electors of a President and a 
Vice President who will look over the country and vote for the two men 
standing highest in their opinion or in public esteem. That will produce 
nonpartisan and highly competent Executives. We shall have a President of 
the United States instead of a political party. That is to say, for 
illustration, a President so chosen would not appoint to the courts of the 
United States 185 Democrats and only 3 Republicans, most of them neophytes 
in law; ignoring in his selections seasoned jurists on the Supreme Courts of 
the 48 States. Nor would he name to the Supreme Court of the United States 9 
of his political supporters, because he would not be in debt for the help of 
a party.[4] Nor would he be interested in caring for persons rejected by the 
people at the polls, affronting their former constituents by giving to "lame 
ducks" offices, in some instances for life, with good salaries.

President would not be embarrassed by political bargains

He would not be forced by political considerations "a very difficult letter 
to write," asking one of the ablest men in the service to resign to make 
place for one who "deserves almost any service which he believes he can 
satisfactorily perform: I told him this at the end of the campaign, in 
which he displayed the utmost devotion to our cause." The President should 
not become involved in a debt like that, nor should the people be given 
service measured by such a standard.

In short, we should have in every instance a nonpartisan President.

Men of capability would have chance to serve Republic

The electors will be able to consider governors who have won public approval 
by wise and economical administration. They will weigh in the balance 
members of Congress who have exhibited in service true American vision of 
the proper place of this Republic in the family of nations, and who have 
been guided in all their actions by the provisions of the Constitution.

Those two classes are mentioned because, generally speaking, no one without 
the training of experience in the field of government or law should be 
thought of for the Presidency.

How many Presidents of this century would have been kept out of the White 
House had the constitutional method of choosing been employed! And how much 
of the disastrous to constitutional Government would have been prevented!

Political parties as at present could be maintained

The party organizations could be maintained in the States as usual. They 
could send Republican or Democratic believers to Congress as they are doing 
now. Congress could then resume its constitutional function as General 
Manager of the United States, which would have administration according to 
the tenets of the party in control. The President would withdraw from 
determining policy and new laws and confine his industry to the 
comparatively few duties assigned to him by the Constitution.

There is just one way to put the President in his constitutional place. 
That is to elect him by electors "appointed" by each State "in such manner 
as the legislature thereof may direct,"[5] the members of the legislature 
having just come from the people at the ballot box. They act quickly in 
voting for a President and a Vice President. It was this which made the 
members of the Constitutional Convention feel that they had, by shortening 
the time and quickening the action, removed the subject from the 
opportunities for the cabal, intrigue, and corruption to which Hamilton 
referred in The Federalist and which have been among the most striking 
features of the National Nominating Convention and its "campaign."

The tyranny of the Executive which Jefferson said would come "at a remote 
period" is here. By the power of patronage, chiefly, and money he has 
overcome the Legislative Department and reduced the Judicial Department 
below respect. The craven Senate enabled him to set up a Judiciary to his 
liking. The farcical vote for "electors" of a President is controlled by his 
appointees on the rapidly enlarging pay rolls of the Executive Department.

Illegal Presidential power responsible for departures from Constitution 

No other practice in Government has gone so far from the Constitution, and 
that transgression has been attended by correspondingly bad results.

Most of the evils in National Government of which people complain will 
disappear when the States take back their Union. The third term and the 
fourth have told what to the observing and educated American was not in need 
of telling. "A conclave of anthropophagi" has ousted the Government of the 
Constitution.

In support of the proposition of this chapter, that the present method of 
selecting and electing the President and the Vice President is a disgrace 
to our constitutional system, another quotation from Henry L. Stoddard's It 
Costs to Be President is made.

Roosevelt not choice of his own State in 1932

In the Democratic National Nominating Convention of 1932 Franklin D. 
Roosevelt could not muster the number of delegates required by the 
two-thirds rule of the party established by Andrew Jackson to prevent the 
choice of a man not in the very highest favor. Stoddard wrote:

"Roosevelt realized that he must make a drastic move. He had to have aid.

"There was just one man who could supply enough votes in a bunch to insure 
success. That man was William Randolph Hearst. He was sponsor for the John 
Nance Gamer boom. He had persuaded the Texas Congressman into the race and 
had aided him to carry the Texas delegation. He was solely responsible for 
defeating Roosevelt in the California primaries, and for instructing the 
Golden Gate delegates, headed by William Gibbs McAdoo, for Gamer.

"Roosevelt knew that there was no need to open negotiations with Gamer and 
his lieutenants; the real decision was with Hearst -- the others could be 
talked with later. Farley was given the job of telephoning Hearst at his San 
Simeon ranch in California. He did it. Straight to Hearst went the Roosevelt 
argument that 'if you don't take me you will get Smith or Baker.' That was 
no news to Hearst; he had foreseen that possibility. He preferred Roosevelt 
to either of the other two.

"Two hours later Paul Block, the well-known publisher, and I sat in his room 
for a good-night exchange of opinion. He then said that he had been talking 
over the telephone with 'W. R.' and that a deal had been arranged by which 
the 69 Texas and California delegates, after complimenting Garner on two or 
three ballots, would swing to Roosevelt. He added that Gamer would go on the 
ticket as Vice President and McAdoo was to have no opposition in California 
for the Democratic nomination for V. S. Senator.

An outsider controlled convention nominating Roosevelt

"The news was in confidence, however, for Hearst, of course, had no power to 
release delegates pledged to any candidate. That was for Garner and McAdoo 
to do. Hearst, however, undertook to talk with both of them and with Mayor 
Cermak of Chicago, who controlled the Illinois delegation. He persuaded all 
three that after a few ballots they should turn to Roosevelt, and they did. 

"It all happened that way, as the convention records attest, but it also 
happened that 190 delegates, including a majority from Roosevelt's home 
State of New York, stubbornly refused to make the nomination unanimous.

"When Roosevelt airplaned from Albany to Chicago to accept '100 per cent' 
the tendered leadership and party platform he faced the only National 
Convention that had ever failed to give its entire vote finally to its 
nominee -- except the Republican National Convention of 1912, when Taft had 
his battle with Theodore Roosevelt.

"So turns the wheel of fortune in politics."

But what the Constitutional Convention strove from first to last to exclude 
from the choice of the President and the Vice President was "politics" -- 
what Hamilton described as cabal, intrigue, and corruption.

Badly reasoned proposal to amend Constitution

A resolution to amend the Constitution is pending in Congress by which, 
instead of letting all the electoral votes of a State go to the candidate 
carrying the popular vote, the electoral votes would be apportioned between 
or among the candidates according to the shares of their parties in the 
popular poll.

In case of failure of choice by that method, the proposal would send the 
election to Congress in joint session, where the vote would be by members, 
not by States. That would give the large States control. Equality among the 
States is the first idea of the Constitution.

And the emphatic design of the Constitution (Twelfth Amendment) is that when 
the electors appointed by the States fail to choose a President and the 
election thus goes to the House of Representatives, "the votes shall be 
taken by States, the representation from each State having one vote; a 
quorum for this purpose shall consist of a member or members from two-thirds 
of the States, and a majority of all the States shall be necessary to a 
choice."

Therefore, the new resolution, which passed the Senate on February 1, 1950, 
by a vote of 64 to 27, is at war with the paramount idea of American 
constitutional government as repeatedly expressed from the Declaration of 
Independence down -- the equal position of the States in the Union. Indeed, 
the only amendment forbidden by Article V is one by which a State, "without 
its Consent, shall be deprived of its equal Suffrage in the Senate."

In the Farewell Address, Washington cautioned that we resist "the spirit of 
innovation" upon the principles of the Constitution, "however specious the 
pretext." What is the pretext for the resolution? That the Presidential 
election should be determined by an approximation of the direct popular vote 
for candidates named by the parties. 

First step in electing President taken by people

But the idea is quite erroneous that the electoral system of the 
Constitution denies to the people a voice in the election of the President. 
In The Federalist (No. 68) Hamilton wrote (italics inserted):

"It was desirable that the sense of the people should operate in the choice 
of the person to whom so important a trust was to be committed."

On the same point, Jay wrote in No. 64 of The Federalist:

"They [the States in the Convention] have directed the President to be 
chosen by select bodies of electors, to be deputed by the people for that 
express purpose."

That is where begins the choice of the President and the Vice President by 
the people at the polls.

No voting at primaries, or for the head of the ticket, or otherwise, has 
any constitutional relation to the election.

The manacles which the Constitutional Convention put on the Chief Executive 
to prevent him from becoming Caesar -- manacles which he has slipped -- must 
be restored to place by the lawful election.

Proposed amendment would be futile anyway

But what good would such an amendment accomplish after a man over two 
thousand miles from the National Nominating Convention had named for the 
Presidential ticket the two candidates of a party to which he had not 
consistently belonged? Or, after external and presumably mercenary forces 
had nominated a Democrat for the Republican ticket? Or, after an aspirant 
reputed to be a master of organization had snuffed out other candidates in 
the Nominating Convention and taken the place on the ticket for himself? Or, 
after a President had nominated himself for a second term and then picked 
his successor? Or, after another President had nominated himself for the 
second, third, and fourth terms?

It is not a pro rata distribution of the electoral vote of a State that is 
called for. Indeed, strictly speaking, there is now no electoral vote. What 
is called the electoral vote is an amorphous creation rising from the 
delinquency of the States and the permitted, if not invited, manipulations 
of party organizations and politicians.

Proposed amendment carries unconstitutional theory of "democracy" 

The idea behind the resolution to change the Constitution for the removal of 
misunderstood factors in the problem dates back at least to 1893, over 56 
years, nearly half of the 160 years that our Fundamental Law has been in 
effect. It is the idea from which the Initiative, the Referendum, and the 
Recall came, which brought the direct primary and the "presidential 
preference" primary, and which broke down the House of States -- the idea 
that democratic or popular action should supersede the representative 
Government by which George Washington and his compatriots put the United 
States "in the forefront of nations," as the British historian Green 
expressed it.

It is an alarming fact that for more than half a century the pressure for 
"more democracy" has not been relaxed in seats of learning, so called, in 
parts of the Press, in some political groups, and in organizations of the 
social minded.

The pending proposal to amend the Constitution by introducing the popular 
vote to a dangerous degree -- never before legally involved -- in 
determining the result of the election, would be the beginning of the end 
of the representative or Republican process.

Nor would the suggestion from several quarters, that Congress (the 
taxpayers, now so comfortable financially!) put up a campaign fund of 
$3,000,000 to each of the two parties and thus keep out "contributors" in 
quest of something, help against the evil which the delinquent States have 
brought upon the country.

Governmental battle between populism and constitutional republicanism

The paramount question in this land today is whether the representative 
method of the Constitution will be restored as to the choice of the 
President and the Vice President, or whether the democratic or popular 
infiltration of the last half century and more will be extended to that.

Writing ninety years ago (2 Thirty Years' View, p. 787) in condemnation of 
the National Nominating Convention, Senator Thomas Hart Benton of Missouri 
put the choosing of the President with slavery as one of the two "trials" 
confronting the Republic. War disposed of slavery. The other "trial" remains 
before us.

The jurisdiction of the problem and the plain solution are wholly with the 
States.

In 1874 a committee of the Senate made use in a report of the following 
language:

"Whatever provisions may be made by statute, or by State constitutions, to 
choose electors by the people, there is no doubt of the right of the 
legislatures to resume the power at any time, for it can neither be taken 
away nor abdicated."

That language was quoted by the Supreme Court of the United States (146 U. 
S. 1) in an election case in 1892.

People of the States can direct legislatures to appoint electors

It is for the people of each State, who cannot be unaware of the peril of 
present conditions, to rouse themselves and direct their legislatures to 
appoint presidential electors in pursuance of the constitutional command and 
in protection of the Republic.

This vigilance has become the more imperative because correspondents in 
Washington, who scatter to the country curbstone opinions on the laws and 
the Constitution, have begun to write frequently of the "inherent powers" of 
the President and what he may do by the use of them -- perhaps in retiring 
Congress altogether! To accept that notion would be to turn him loose in "a 
boundless field of power," of the dangers in which Jefferson gave warning, 
"no longer susceptible of any definition."

The man in the White House has heritable rights and powers, like every other 
individual, "among which are life, liberty and the pursuit of happiness."

But the Chief Executive in the White House, an altogether different 
character, is Just as much a manufacture as a child's doll -- absolutely 
without any power not specifically conferred by some provision of the 
Constitution. No power can inhere in this creature apart from those given by 
the States when they created it to serve -- not to master -- them.

When State legislatures resume their duty

When the legislatures of the States return to their constitutional duty of 
appointing as electors the most able and discerning men in their respective 
commonwealths to vote for a President and a Vice President, the Chief 
Executive will be a person with adequate understanding of and respect for 
our governmental theory and practice.

When the first session of the 81st Congress ended in 1949, there were remain
ing on the calendar a score or more of demands for unconstitutional 
legislation from the "program" of the President, who is not authorized by 
the Constitution to have a program and take control of legislation. He is 
required to "recommend" measures, but Congress may accept the 
recommendations or not.

The President in disregard of the Constitution

We have learned from Madison, Hamilton, Wilson, and others of the 
Constitutional Convention; from Jefferson, President Cleveland, and other 
Presidents, that the limitations in section 8 of Article I against spending 
by Congress -- "to pay the Debts and provide for the common Defence and 
general Welfare of the United States" only -- restrict it to the enumerated 
instances following in that section, namely:

     To borrow money regulate commerce establish rules for naturalization 
establish rules for naturalization govern bankruptcies coin money fix 
standards of weights and measures punish counterfeiting establish post 
offices and post roads protect inventors and authors constitute courts 
inferior to the Supreme Court punish piracies and offenses against 
international law declare war and make rules therefor raise and support 
armies -- for two years only provide a navy make rules governing all armed 
forces provide for calling out the Militia of the States provide for 
training, arming and disciplining the Militia govern the District of 
Columbia govern places in States when permitted to own forts, etc. 

And make all laws "necessary and proper" to execute the foregoing. 

In all other relations the American makes his way untouched by the National 
Government. In 1933 that had been the settled doctrine. Legislation since 
then touching other matters has been unconstitutional.

Departures by the Chief Executive from that chart

From what has been shown, it is plain that in the message of the President 
to the second session of the 81st Congress, on January 4, 1950, on the state 
of the Union, these requests for legislation were beyond its constitutional 
powers to spend money:

     World economic recovery Expansion of world trade Improvement of living 
standards in regions of poverty Large capital from the United States to 
undeveloped regions Stabilization of agriculture by price supports 
Development by Federal money of national resources, soil, water, etc. 
Promote education by Federal grants of money Distribute property fairly Aid 
with capital independent businesses Set up Labor Extension Service Pursue 
Federal housing under Housing Act, 1949 Control rents for another year 
Countrywide development of public electric power Develop electric power in 
St. Lawrence River Set up National Science Foundation Promote health by 
Federal grants of money Provide unemployment compensation Expand hospitals 
Provide medical insurance Enact Civil Rights Law Expend for growth of 
domestic economy Work for a better life for all (in appendix) 

Those subjects that touch "the health, safety, morals, education, and 
general well-being of the people" fall within the police power of the 
States, which, we have heretofore seen, the States cannot constitutionally 
abdicate and Congress cannot constitutionally take over. The others are 
completely "out of bounds" as to any American government.

It is tragic that the failure of the educator to inculcate in the youth of 
the land American constitutional principles, together with the abandonment 
by the States of their constitutional duty to elect the President, should 
bring from the White House such a message.

It is equally tragic that a Congress of 531 members should have received 
without rebuke or protest proposals for such unconstitutional outlays of 
money, when the spending of the Government in time of peace was 45 billion a 
year as compared with 81 billion a year during World War II.

President Truman employed more than 5,500 words in urging Congress to take 
legislative action on 22 matters over which the Constitution gives it no 
jurisdiction. A character in English fiction set for him an example which 
he would have done better to imitate. Addressing the voters (as President 
Truman really was doing), Tittlebat Titmouse promised them that when elected 
to Parliament he would put through A Bill for Giving Every Body Every Thing.

The philosophy of Titmouse has superseded the constitutional principles of 
American Government.



1. This quotation from an article in a magazine in July, 1949, by one of 
the personal secretaries of President Franklin D. Roosevelt, is not so 
humorous as the writer thought it. One of the great perils of the times is 
revealed:

"Hannegan [Democratic Chairman] had a lengthy palaver with the Boss, and 
when he came out of the President's sitting room he was carrying the letter 
[of the President] naming Douglas or Truman as an acceptable running mate.

"'Grace, the President wants you to retype this letter and switch these 
names so it will read "Harry Truman or Bill Douglas."' The reason for the 
switch was obvious. By naming Truman first it implied that he was the 
preferred choice of the President The Convention took it that way and Truman 
was nominated."

So have gone the safeguards set up by the Constitutional Convention for 
selecting the two chief Officers of the Republic.

2. Report Joint Congressional Committee on Reduction Non-Essential Federal 
Expenditures.

3. From the speech of acceptance of Grover Cleveland in 1884 and one speech 
thereafter, and the address of acceptance of William McKinley from the front 
porch of his home in Ohio in 1896 and two or three others from the same 
standpoint to visiting groups, we have come a longer way than the years 
indicate to the "sound and fury" of the late Presidential campaigns, with 
the nominee racing around the country in special trains and calling at every 
stop to the people to support him. Since the special train was first 
employed, the radio has come, and both means are availed of by the candidate 
for presenting to the masses the merits of his party and himself. The 
spectacle presented is far from edifying.

Choice of the President by the electors of the Constitution will stop that 
unseemly exhibition, along with the grotesque Nominating Convention and the 
evils of the campaign fund.

4. The Lord High Chancellor of England, whose duty is to select and appoint 
the judges of the Kingdom, spoke to the American Bar Association in 1947 and 
mentioned that he had never appointed to the Bench a member of his own 
political party.

5. The legislators should themselves "appoint" from among the competent 
people of the State the number of electors to which the State is entitled. 
In view of what has resulted from allowing political parties to name 
electors to be voted upon by the people, the legislature should return to 
first principles and allow no intermediary to have anything to do with the 
great duty. It should courageously perform this function in relation to the 
choice of a President and a Vice President of the Union of States.


____________

XVI

IN CONCLUSION AND IN RETROSPECT

The Constitutional Convention took up a task such as had never before been 
performed.

It was known by the historians at Philadelphia that alliances of States, or 
confederations or confederacies, had always bred dissensions and fallen 
apart. Indeed, it was because their own Confederation had been sinking and 
was practically gone that they were in convention working for "a more 
perfect Union."

They knew also that in anything tighter than a confederation the individual 
States forming it had always lost identity through absorption in the central 
organization. Thus, the Confederacy of Delos (about 480 B. C.), which was 
formed by Aristides to consolidate Greek cities and colonies in defense 
against Persia, and which was to last until the pieces of iron thrown into 
the sea should float, was before long weakened by secessions. "The 
confederacy of equal states," says the historian Betten in Ancient World, 
"became an empire, with Athens for its 'tyrant city.'"

Against this loss of identity, in particular, they were determined to guard. 
The units in the failing Confederation had, by the Declaration of 
Independence, proclaimed themselves to be "free and independent States."

And in the Articles of Confederation, their first Constitution, they 
declared that "each State retains its sovereignty and independence." So the 
individuality of the State in this Union never should have been treated 
lightly.

The delegates from all of the States represented were of one mind for 
preserving perpetually the identity and sovereignty of their commonwealths, 
so far as that could be worked out. They organized a Union (as distinguished 
from a confederation, which they then were) which would present a front for 
them to the nations of the world in negotiations and in defense and offense. 
It would also take over the home concerns which were essentially national, 
and especially those respecting which there had been lack of harmony among 
them, as in the case of commerce across State lines.

So, by section 8 of Article I of the Constitution which they drafted, they 
gave to the Congress of the Union (what that of the Confederation lacked) 
power to raise money by taxation "to pay the Debts and provide for the 
common Defence and general Welfare." They gave Congress power to borrow 
money on the credit of the Union, and the next important grant of power was 
to regulate commerce among the States and with foreign nations. After those 
grants came authority for uniform laws for naturalization and bankruptcy, 
for coinage, weights and measures, counterfeiting, post office, declaring 
war, raising armies and navies (but for not longer than two years), and for 
laws making those grants effective.

Then, by section 10, the States surrendered to the Nation the power to make 
treaties, to coin money, and a few others.

Thus, the lines between the governments of the States and that of the Union 
had been very clearly drawn. And thus there had been blended the 
Confederation and the Nation. But both remained in their respective 
individualities. By the organization the Confederation would be prevented 
from falling apart. And the Nation would let the States of the confederation 
alone.

It was to this system, by which men attempted for the first time 
successfully to strip themselves of the features of power that tend to 
tyranny, that Senator Hoar paid this tribute:

"The most sublime thing in the Universe, except its Creator, is a great and 
free people governing itself by a law higher than its own desire."

That arrangement has, of late years, been failing.

It was to make clear to the reading American the causes of the decline of 
the constitutional system as set up, and the course which should be taken to 
stop it, that this book was written.

The three most important conclusions to be derived from this study are 
these:

1. A Government erected by deep scholarship upon a Fundamental Law must fail 
without sufficient scholarship in the people who choose its officers to 
sense instantly and resist courageously every proposal to depart from its 
principles; and to operate as inoculation against notions, foreign and 
domestic, for governmental paternalism.

2. The States, which insisted during the writing of the Constitution, and 
afterward by demanding a Bill of Rights, that their complete independence in 
all but international and strictly national affairs should be respected 
forever, must recover the constitutional position which, through the 
incompetence of their representatives in Congress, they have too much given 
over to Federal control.

3. As the Judiciary is the keystone of the American arch, only the most 
experienced and capable legal scholars should be appointed by the President 
to judicial seats; and it is the high constitutional duty of the Senate to 
refuse confirmation of appointments of any other kind.

With those three essentials brought into effect, our Republic should serve 
mankind perpetually.

Remarking that if angels were caring for us there would be no need for the 
devices which we employ "to control the abuses of government," a writer of 
The Federalist (No. 51) added:

"In framing a government which is to be administered by men, over men, the 
great difficulty lies in this: you must first enable the government to 
control the governed; and, in the next place, oblige it to control itself."

That is the surpassing task confronting the American today -- to compel his 
Government to control itself.

____________

TABLE OF CASES

(From a careful study of this Table a clear conception may be
obtained of the contradictions and incongruities which have been
brought into constitutional law by decisions of late years)

                                                    Page

AGRICULTURAL ADJUSTMENT ACT, 1933 
      held unconstitutional as taxing one class for another and
      invading police field of States. U. S. v. Butler (1936),
      297 U. S. 1
                                                   23, 133, 200

AMENDING THE CONSTITUTION 
      Supreme Court refused to do amending in case arising
      from Income Tax Law of 1894. Pollock v. Farmers'
      Loan, etc. (1895), 157 U. S. 429
                                                           61

      not to be done by Supreme Court: Chief Justice
      Hughes in Bituminous Coal Case. Carter v. Carter Coal
      Co. (1936), 298 U. S. 238
                                                       23, 127

      Eleventh Amendment adopted to overrule decision
      Supreme Court upholding money judgment against
      State. Chisholm v. Georgia (1793), 2 Dallas 419
                                                          250

"ASSUMPTIONS" by Supreme Court 
      assumed in case arising under law of New York that
      Due Process Clause of Fourteenth Amendment makes
      operative against States First Amendment as to freedom
      of speech and Press. Gitlow v. New York (1925), 268
      U.S. 652
                                                          221

      foregoing cited as authority for holding free Press of First
      Amendment likewise made applicable against States.
      Near v. Minnesota (1931), 283 U. S. 697
                                                          219

      same proposition assumed in many other decisions.
      Home Owners Loan Corporation assumed to have been
      within power of Congress. Graves v. O'Keefe (1939),
      306 U.S. 466
                                                          109

      assumed, against facts available, that States could not
      care for needy, justifying entry for police service. Justice
      Cardozo in Steward Machine v. Davis (1937), 301 U.
      S. 548
                                                          195

BANK 
      held United States, without specific grant, could
      incorporate to aid in transaction of own fiscal business.
      Chief Justice Marshall in McCulloch v. Maryland
      (1819), 4 Wheaton 316
                                                          102

BILL OF RIGHTS (First 10 Amendments) 
      written against Federal power and not made applicable to
      States by Fourteenth Amendment. Slaughter-House
      Cases (1872), 16 Wallace 36
                                                          227

      foregoing followed. Twining v. New Jersey (1908),
      211 U. S. 78
                                                          230

BITUMINOUS COAL ACT, 1935 
      held unconstitutional as invasion police field of States;
      amendment of Constitution not for Court. Carter v.
      Carter Coal Co. (1936), 298 U. S. 238
                                                       23, 127

CHILD-LABOR 
      law of Congress under Commerce Clause prohibiting
      movement interstate of product of workers under 18
      years, held not regulation commerce. Hammer v.
      Dagenhart (1918), 247 U. S. 251
                                                       86, 186

      law of Congress taxing burdensomely product of workers
      under 18 years, held police regulation, not for revenue.
      Bailey v. Drexel, etc. (1922), 259 U. S. 87
                                                             

CITIZENSHIP, National, State 
      Fourteenth Amendment recognized and defined two
      citizenships. Slaughter-House Cases (1873), 16 Wallace
      36
                                                          227

      States retain authority over fundamental civil rights, with
      certain exceptions, for security of which Government
      established. Slaughter-House cases, before cited
                                                          227

      tax by Nevada on persons leaving State held restraint
      on right National citizenship. Crandall v. Nevada
      (1880), 6 Wallace 35
                                                          226

      California could not abridge National citizenship by law
      to exclude indigent persons. Edwards v. California
      (1941), 314 U. S. 160.
                                                          214

      practice of law not right of National citizenship and may
      be denied by State. Bradwell v. Illinois (1872), 16
      Wallace 130
                                                          230

      National citizenship not involved where Connecticut
      gave defendant due process of its law. Palko v.
      Connecticut (1937), 302 U. S. 319
                                                          232

      tax by State on importers held by Marshall violative of
      right National citizenship. Brown v. Maryland (1827),
      12 Wheaton 419
                                                          226

      no right National citizenship violated by requirement of
      permit to speak on Boston Common. Davis v.
      Massachusetts (1897), 167 U. S. 43
                                                          238

      see also Bill of Rights
                                                             

COMMERCE CLAUSE 
      wrongfully employed by Congress in Child-Labor Act,
      1916. Hammer v. Dagenhart (1918), 247 U. S. 251
                                                       86, 186

      stretched against all precedents in Packers and
      Stockyards Act, 1921. Stafford v. Wallace (1922),
      258 U. S. 495
                                                       97, 101

      Sherman Law adequate in regulating packers and other
      shippers. U. S. v. Swift (1905), 196 U. S. 375
                                                           99

CONSPIRACY 
      A lawful act, when conceived by many to do damage, is
      conspiracy as denounced in Criminal Code of U. S.
      Chief Justice Fuller in Pettibone v. U. S. (1893), 148 U.
      S. 197
                                                           32

CONTRACT 
      right to denied by law of New York fixing prices for
      milk, and sustained. Nebbia v. New York (1934), 291
      U. S. 502
                                                          171

CORPORATION 
      United States can create corporation only to aid in
      discharge of governmental functions. McCulloch v. land
      (1819), 4 Wheaton 316
                                                          102

COURTS 
      when open must be used by Government instead of
      other means. Ex parte Milligan (1866), 4 Wallace 2
                                                          35n

      adequate in industrial (labor) disputes; strike stopped by
      injunction and strikers and leader fined. Held, even had
      Government not seized mines, court could issue injunction
      pending final decision upon its own jurisdiction. U. S. v.
      United Mine Workers (1947), 330 U. S. 258
                                                           36

DELEGATION OF POWER 
      Congress cannot delegate its legislative power to
      President, but it may pass administrative power under
      specified policy. Panama Oil v. Ryan (1934), 293 U. S.
      388
                                                      133, 134

DIVORCE 
      Full Faith and Credit Clause does not require a State to
      give effect to a foreign decree in conflict with its public
      policy. Andrews v. Andrews (1903), 188 U. S. 14
                                                           93

      Williams v. North Carolina (1945), 325 U. S. 226
                                                           94

      judicial power to grant divorce is founded on the
      domicile, the place where one resides and intends to stay.
      Williams v. North Carolina, before cited
                                                           94

DUE PROCESS OF LAW 
      defined in quotation from Magna Carta. Twining v.
      New Jersey (1908), 211 U. S. 78
                                                          235

      guaranteed against Nation by Fifth Amendment and
      against States by Fourteenth; "strange misconception"
      of scope in Fourteenth. Davidson v. New Orleans
      (1877), 96 U. S. 97
                                                        237-8

      "this process in the States regulated by the law of the
      States." Walker v. Sauvinet (1875), 92 U. S. 90
                                                          235

      Due Process Clause in Fourteenth Amendment "does not
      draw all the rights in Federal Bill of Rights under its
      protection," as, for example, against self-incrimination.
      Adamson v. California (1947), 332 U. S. 46
                                                          233

      due process of law in Fourteenth Amendment "refers to
      the law of the land in each state," not the law of the
      United States; due process under National law not
      required of States. Hurtado v. California (1884), 110 U.
      S. 516
                                                          226

ELECTION OF PRESIDENT 
      wholly in power of States and cannot be taken away or
      abdicated. McPherson v. Blacker (1892), 146 U. S. 1
                                                          291

EMERGENCY 
      declaring an emergency to exist does not give Congress
      expansion of power, or new power. Home Building and
      L. Ass'n v. Blaisdell (1934), 290 U. S. 398
                                                          135

EQUAL PROTECTION 
      guaranteed against States by Fourteenth Amendment
      denied by law of Arizona exempting strikers from
      liability for damage, others not being exempt. Truax v.
      Corrigan (1921), 257 U. S. 812
                                                          239

      denied by ruling of Texas unfairly draining oil lands of
      large owners by small owners. Railroad Com. v.
      Rowan (1940), 310 U. S. 573
                                                          233

      see, further, FOURTEENTH AMENDMENT
                                                             

ESTATE OR INHERITANCE TAX 
      tax by Illinois, "graduated," upheld by Supreme Court of
      United States. Magoun v. Illinois (1898), 170 U. S. 283
                                                           76

      Federal tax of Spanish War upheld, "graduated."
      Knowlton v. Moore (1900), 178 U. S. 41
                                                           76

EXEMPTIONS FROM TAXATION 
      exempting real-estate improvements for certain years held
      violative of State constitutional provision for "uniform
      assessment" and against privileges. Koch v. Essex County
      (1922), 97 New Jersey 61
                                                           72

      denounced as unconstitutional and dangerous by Justice
      Field in Pollock v. Farmers Loan, etc. (1895), 157 U. S.
      499
                                                           61

FEDERAL SURPLUS COMMODITIES CORPORATION 
      unconstitutional activity in bounty to voting groups never
      brought to test in court
                                                          150

FIRST AMENDMENT 
      against National power, held to have been brought
      down against States on freedom of Press by Due
      Process Clause of Fourteenth. Near v. Minnesota
      (1931), 283 U. S. 697
                                                          219

      theory followed as to freedom of religion where school
      buildings in Illinois used in religious instruction.
      McCollum v. Board Education (1948), 333 U. S. 203
                                                          216

      whether provision for freedom of Press brought down
      against States passed by, although case dismissed as
      involving question local law. Patterson v. Colorado
      (1906), 205 U. S. 454
                                                          232

      freedom of speech held violated by ordinance New
      Jersey requiring permit for meeting to advocate
      obstruction to Government. Hague v. C.I.O. (1939),
      307 U. S. 496
                                                          239

      ordinances four States prohibiting handbills in streets
      held violative of free Press. Schneider v. State (1939),
      308 U. S. 147
                                                          240

      held violated by tax of Louisiana on newspaper
      advertising. Grosjean v. American Press (1936), 297 U.
      S. 233
                                                          225

      assumed to let United States into Georgia for
      managerial purposes. Herndon v. Lowry, Sheriff
      (1937), 301 U. S. 242
                                                          232

      Supreme Court Connecticut reversed for sustaining an
      ordinance requiring permit to solicit in streets for
      religious or other cause. Cantwell v. Connecticut
      (1940), 310 U. S. 296
                                                          240

FOURTEENTH AMENDMENT, 1868 
      not intended to transfer to Nation protection of all civil
      rights. Slaughter-House Cases (1872), 16 Wallace 36
      (77)
                                                          227

      held not to impair police power of States. Barbier v.
      Connolly (1885), 113 U. S. 27
                                                          237

      held that no general rule that this Amendment brings
      against States any article of Bill of Rights. Palko v.
      Connecticut (1937), 302 U. S. 319
                                                          232

      Bill of Rights against Federal power not made applicable
      to States by this Amendment. Twining v. New Jersey
      (1908), 211 U. S. 78
                                                          230

      California not required by this Amendment to indict by
      grand jury as by Fifth Amendment in Bill of Bights.
      Hurtado v. California (1884), 110 U. S. 516
                                                          238

      held not to require Utah to employ jury of 12 instead of
      8 in criminal cases. Maxwell v. Dow (1900), 176 U. S.
      581
                                                          239

      Due Process Clause of this Amendment "does not draw
      all the rights in Federal Bill of Bights under its protection,"
      as against self-incrimination. Adamson v. California
      (1947), 332 U. S. 46
                                                          238

      does not make Seventh Amendment in Bill of Bights
      applicable to States. Walker v. Sauvinet (1875), 92 U.
      S. 90
                                                          235

      neither this Amendment, "broad and comprehensive as it
      is, nor any other amendment, was designed to interfere
      with the power of the States." Barbier v. Connolly
      (1885), 113 U. S. 27
                                                          237

      "strange misconception" of meaning and scope of due
      process in this Amendment: Justice Miller. Davidson v.
      New Orleans (1877), 96 U. S. 97
                                                          237

      held by Chief Justice Marshall that Fifth Amendment of
      Bill of Bights against taking private property for public
      use without just compensation not brought against States
      by this Amendment. Barron v. Baltimore (1833), 7
      Peters 243
                                                          224

      due process of law in this Amendment "refers to the law
      of the land in each State," not the law of the United
      States; due process under National law not required of
      State. Hurtado v. California, before cited.
                                                          225

      "equal protection of the law" required of States by this
      Amendment denied by ruling of Texas unfairly draining
      oil lands of larger owners. Railroad Com. v. Rowan,
      etc. (1940), 310 U. S. 573
                                                          233

      equal protection denied by law Arizona exempting
      strikers from liability for damage. Truax v. Corrigan
      (1921), 257 U. S. 312
                                                          239

      Due Process Clause of, held to make operative against
      States freedom of speech and Press of First
      Amendment. Hague v. C.I.O. (1939), 307 U. S. 496
                                                          239

      same holding in many cases overturning police
      regulations in four States respecting meetings, sales, and
      handbills in streets. Schneider v. State (1939), 308 U.
      S. 147
                                                          240

      whether this Amendment makes Fifth operative against
      States left open. Dreyer v. Illinois (1902), 187 U. S. 71
                                                          232

      this Amendment held to make First applicable against
      States protecting press against tax on advertising.
      Grosjean v. American Press (1936), 293 U. S. 233
                                                          226

      Fifth Amendment, protecting against self-incrimination,
      held not to have been brought down by this Amendment
      against the States. Twining v. New Jersey (1908), 211 U.
      S. 78
                                                          230

FREEDOM OF PRESS AND RELIGION See FIRST and
FOURTEENTH AMENDMENTS 
FULL FAITH AND CREDIT 
      need not be given by a State to divorce proceedings in
      another State in conflict with its public policy. Andrews
      v. Andrews (1903), 188 U. S. 14. Williams v. North
      Carolina (1945), 325 U. S. 226
                                                        93, 94

GENERAL WELFARE CLAUSE 
      interpreted to give Congress police power in the States.
      Justice Cardozo in Steward Machine v. Davis (1937),
      301 U.S. 548
                                                          195

      see also SOCIAL SECURITY
                                                             

      held not a warrant for Agricultural Adjustment Act.
      Justice Roberts in United States v. Butler (1936), 297
      U. S. 1
                                                          199

GOLD CLAUSE CASES 
      held that contract of United States in Liberty Bonds to
      pay in standard gold dollar could not be repudiated; but
      as gold had been seized, damage not measurable. Perry
      v. U. S. (1935), 294 U. S. 330
                                                          142

GOLD, Seizure of 
      Supreme Court, by Chief Justice Marshall, held that
      property cannot be seized without just compensation.
      Fletcher v. Peck (1810), 6 Cranch 87 (135)
                                                          138

"GRADUATED" or PROGRESSIVE TAX 
      graduated tax by State on property passing at death
      upheld on erroneous theory that transmission is privilege,
      not right. Magoun v. Illinois (1898), 170 U. S. 238
                                                           76

      in Missouri held to be against constitutional provisions for
      uniformity and equality and "without rhyme or reason."
      State v. Switzler (1898), 143 Missouri 387
                                                           69

      in Pennsylvania held to be "unjust, arbitrary, and illegal."
      Cope's Estate (1899), 191 Pennsylvania 1
                                                           69

      Act of Congress, 1898, taxing by graduation estates
      passing at death upheld. Knowlton v. Moore (1900),
      178 U. S. 41
                                                           76

      Act of Congress of 1913 taxing incomes by graduation
      upheld. Brushaber v. Union Pacific (1916), 240 U. S. 1
                                                           76

      denounced as unconstitutional and dangerous by Justice
      Field in Pollock v. Fanners' Loan (1895), 147 U. S. 499
                                                           61

HOUSING ACT 1937 
      declaring for "general welfare" by employing Federal
      funds and credit to assist States, relieve unemployment
      and safeguard health, sustained. Justice Roberts in City
      Cleveland v. U. S. (1945), 323 U. S. 329
                                                          185

INCOME TAX 
      law of 1894 held unconstitutional because burden not
      apportioned among States by population as directed.
      Pollock v. Farmers' Loan, etc. (1895), 157 U. S. 429
                                                           61

      law of 1913 (after Sixteenth Amendment) held
      constitutional. Brushaber v. Union Pacific (1916), 240 U.
      S. 1
                                                           76

"INHERENT" POWER 
      General Government "can claim no powers which are not
      granted by the Constitution." Martin v. Hunter's Lessee
      (1816), 1 Wheaton 304
                                                           21

      idea of inherent power in Federal Government where
      States severally cannot deal with a subject has been
      rejected by Supreme Court from beginning. Carter v.
      Carter Coal Co. (1936), 298 U. S. 238
                                                           21

      in foreign relations United States has powers of
      sovereignty external to the Constitution. Curtiss-Wright v.
      U. S. (1936), 299 U. S. 304
                                                           20

INJUNCTIONS 
      in Labor Cases even though Clayton Act and
      Norris-LaGuardia Act practically forbid injunctions against
      strikers, held, U. S. Court can stop strike by writ pending
      final decision of its own jurisdiction. U. S. v. United Mine
      Workers (1947), 330 U. S. 258
                                                           36

      General Railroad Strike in 1894 ended at suit of
      Attorney General of United States. In re Debs (1895),
      158 U. S. 564
                                                           35

INTERPRETATION or CONSTRUCTION 
      where language of Constitution is clear, no place for
      explanation, addition, or subtraction. U. S. v. Missouri
      Pacific (1929), 278 U. S. 269
                                                          68n

      Chief Justice Marshall quoted on how to apply a
      constitutional provision. Ogden v. Saunders (1827), 12
      Wheaton 213
                                                          200

      spirit of Constitution to be respected no less than letter,
      but spirit is collected from words. Marshall in Sturges v.
      Crowninshield (1819), 4 Wheaton 122
                                                          265

      Justice Bradley quoted on "mystifying" meaning of clear
      provision of Constitution. Ex parte Siebold (1879), 100
      U. S. 393
                                                          217

INTERSTATE COMMERCE 
      United States may, by injunction, clear it of obstruction
      by strikes. In re Debs (1895), 158 U. S. 564
                                                           35

      To same effect, U. S. v. United Mine Workers (1947)
      330 U. S. 258
                                                           36

JUDICIAL "LEGISLATION" 
      Chief Justice Marshall on adhering to the text of the
      instrument, without extending or subtracting. Ogden v.
      Saunders (1827), 12 Wheaton 213
                                                          200

      Due Process Clause of Fourteenth Amendment
      expanded to embrace "freedom of Press" in First. Near
      v. Minnesota (1931), 285 U. S. 697
                                                          219

      expanded again to contain freedom of religion in First.
      McCollum v. Board Education (1948), 333 U. S. 303
                                                          216

      expanded in score of cases to subvert States in exercise
      of police power in licensing meetings and the selling and
      distributing of literature in streets. Schneider v. State
      (1939), 308 U. S. 147
                                                          240

      Hague v. C.I.O. (1939), 307 U. S. 496
                                                          239

      Cantwell v. Connecticut (1940), 310 U. S. 296
                                                          240

      Supreme Court refused to amend Constitution to
      effectuate Income Tax Law of 1894. Pollock v. Farmers'
      Loan, etc., (1895), 157 U. S. 429
                                                           61

      amending not to be done by Supreme Court: Chief
      Justice Hughes in Bituminous Coal Case. Carter v.
      Carter Coal Co. (1936), 298 U. S. 238
                                                       23, 127

      against three earlier decisions holding title to tidewater
      lands to be in the States, Supreme Court, without
      overruling, held "paramount rights" to be in United
      States. Justice Black in United States v. California
      (1947), 332 U. S. 19
                                                          243

LABOR IN THE COURTS 
      law of Utah limiting hours in mines and smelters upheld.
      Holden v. Hardy (1898), 169 U. S. 366
                                                           27

      law of Oregon limiting length of day for women upheld.
      Muller v. Oregon (1908), 208 U. S. 412
                                                           27

      law of Illinois limiting age of youthful worker upheld by
      both State and Federal courts. Sturges v. Beau-champ
      (1913), 231 U. S. 320
                                                           27

      amendment Constitution Nebraska and statute North
      Carolina providing that no person be denied opportunity
      to obtain or retain employment because not member
      labor organization, and forbidding employer to agree to
      exclude non-union workers, held valid, notwithstanding
      National Labor Relations Act of Congress. Lincoln
      Union v. Northwestern Co. (1949), 335 U. S. 525
                                                         171n

      law of Congress limiting hours railway trainmen in
      interstate commerce upheld. Wilson v. New (1917), 243
      U. S. 332
                                                           27

      law of State of Washington prescribing minimum wages
      for women upheld. West Coast Hotel v. Parrish (1937),
      300 U.S. 379
                                                           28

      law of Congress of 1926 for collective bargaining by
      interstate workers given full effect by U. S. District Court,
      by U. S. Circuit Court of Appeals, and by Supreme
      Court of United States. Texas and N. O. RR. v.
      Brotherhood, etc. (1930), 281 U. S. 548
                                                           28

      law of Kansas creating Industrial Court to hear and
      decide controversies in employment, held invalid. Wolff,
      etc. v. Court Industrial Relations (1923), 262 U. S. 522
                                                          170

      for strike in 1946 United Mine Workers fined $700,000
      and leader $10,000; as mines had been seized by
      Government, held, acts of Congress limiting issue
      injunctions not applicable. Workers, not leader, spread
      strike. United States v. United Mine Workers (1947),
      330 U. S. 258
                                                           36

      a partial list of the decisions of the Supreme Court of the
      United States, and of the lower courts, favorable to
      labor, cited
                                                        27, 28

MATERNITY LAW, 1921 
      unconstitutionality of, under General Welfare Clause,
      side-stepped by Supreme Court. Massachusetts v. Mellon
      (1923), 262 U. S. 447
                                                           92

NATION and STATE 
      their origin, relation, and functions stated clearly by
      Chief Justice Marshall. Barron v. Baltimore (1833), 7
      Peters 243
                                                          224

      why state powers not enumerated in Constitution.
      Marshall in Sturges v. Crowninshield (1819), 4 Wheaton
      122
                                                          231

NATIONAL INDUSTRIAL RECOVERY ACT, 1933 
      held unconstitutional as invasion police field of States.
      Schecter v. U. S. (1935), 295 U. S. 495
                                                           23

NATIONAL LABOR RELATIONS ACT, 1935 
      upheld as "emergency" measure to prevent obstacles to
      and "burdening" of interstate commerce by strikes. N. L.
      R. Board v. Jones & Laughlin (1937), 301 U. S. 134
                                                          163

OLEOMARGARINE 
      invasion of States by Congress to restrict manufacture
      and sale and burden with tax and regulations upheld.
      McCray v. U. S. (1904), 195 U. S. 27
                                                          175

      Act of Pennsylvania prohibiting manufacture altogether,
      upheld. Powell v. Pennsylvania (1888), 127 U. S. 678
                                                        175-6

POLICE POWER 
      over health, safety, morals, education, and general
      welfare of people States cannot surrender, nor can
      Congress take over. House v. Mays (1911), 219 U. S.
      282
                                                       86, 182

      State can exert it to control price of milk against
      contract. Nebbia v. New York (1934), 291 U. S. 502
                                                          171

      Housing Act of Congress of 1937 to assist States and
      relieve unemployment held within power of Congress.
      Justice Roberts in City Cleveland v. U. S. (1946), 323 U.
      S. 329
                                                           60

      Fair Labor Standards Act held to justify exertion of police
      power by Nation in States, contrary to but not overruling
      House v. Mays, cited above. Justice Stone in U. S. v.
      Darby (1941), 812 U. S. 100, overruling Hammer v.
      Dagenhart, cited under COMMERCE CLAUSE
                                                             

RECALL OF JUDICIAL DECISIONS 
      provision for in Constitution and laws of Colorado held
      violative of terms of admission to Union and of Federal
      Constitution. People v. Western Union (1921), 70
      Colorado 90
                                                            4

RECONSTRUCTION FINANCE CORPORATION, 1932 
      Congress not authorized by Constitution to create it;
      but, as engine of bounty, validity never tested in court.
                                                          108

SHERMAN ANTI-TRUST LAW See COMMERCE CLAUSE 
SOCIALISM 
      changing Republican form of government, in North
      Dakota, upheld. Green v. Frazier, Governor (1920), 253
      U. S. 233
                                                            5

SOCIAL SECURITY 
      Act of 1935, in an "emergency," for giving "everything to
      everybody," upheld. Steward Machine Co. v. Davis,
      Collector (1937), 301 U. S. 548
                                                          200

      not within General Welfare Clause. United States v.
      Butler (1936), 297 U. S. 1
                                                          200

STATES, Powers of 
      proceed, wrote Chief Justice Marshall, not from the
      people of America, but from the people of the States,
      except as abridged by the Constitution. Sturges v.
      Crowninshield (1819), 4 Wheaton 122
                                                          231

      within their power, notwithstanding Full Faith and Credit
      Clause, to prevent decrees of divorce to "birds of
      passage." Andrews v. Andrews (1903), 188 U. S. 14;
      Williams v. North Carolina (1945), 325 U. S. 226
                                                        93, 91

      resistance of States to the unlawful seizure of their
      oil-bearing tidelands by the United States was
      ineffectual. United States v. California (1947), 332 U.
      S. 19 (38)
                                                          243

      they extend as police, to the absolute exclusion of the
      Federal Government, over the health, safety, morals,
      education, and general well-being of the people. House
      v. Mays (1911), 219 U. S. 282
                                                   86, 182, 282

      Amendment Constitution Nebraska and statute North
      Carolina providing that no person be denied opportunity
      to obtain or retain employment because not member
      labor organization, and forbidding employer to agree to
      exclude non-union workers, held valid, notwithstanding
      National Labor Relations Act of Congress. Lincoln
      Union v. Northwestern Co. (1949), 335 U.S. 525
                                                         171n

STRIKES 
      may be prevented by injunction from obstructing
      commerce and the mails. In re Debs (1895), 158 U. S.
      564
                                                           35

      National Labor Relations Act declared "emergency" to
      prevent obstruction of commerce by strikes. N.L.R.
      Board v. Jones & Laughlin (1937), 301 U. S. 1
                                                          163

      strike in coal mines ended by decree of Federal Court.
      United States v. United Mine Workers (1947), 330 U.
      S. 258
                                                           36

      lawful act of quitting service, when conceived by many to
      do damage, is conspiracy as denounced in Criminal
      Code of U. S. Chief Justice Fuller in Pettibone v. United
      States (1893), 148 U. S. 197
                                                           32

      seizure of railroads and other property unlawful, courts
      being open. Justice Davis in Ex parte Milligan (1864),
      4 Wallace 2
                                                          35n

TAXATION BY CONGRESS 
      held by Chief Justice Marshall that power does not lie
      for purposes within province of States. Gibbons v.
      Ogden (1824), 9 Wheaton 1
                                                          182

      Taxing Clause wrongfully employed in placing destructive
      levy on product of workers under 18 years. Bailey v.
      Drexel, etc. (1922), 259 U. S. 20
                                                           87

      see also EXEMPTION FROM TAXATION;
      "GRADUATED" or PROGRESSIVE TAX; INCOME
      TAX
                                                             

TENNESSEE VALLEY AUTHORITY 
      without authority in Constitution, Congress created for
      manufacture and sale electric power, chiefly; but upheld.
      Chief Justice Hughes in Ashwander v. T.V.A. (1936),
      297 U. S. 288
                                                      119, 121

TIDE-WATER OIL LANDS 
      absolute title to soil under navigable boundary waters
      came to States by Revolution. Chief Justice Taney in
      Martin v. Waddell (1842), 16 Peters 367
                                                          245

      a like holding by the Supreme Court by Justice
      McKinley in Pollard's Lessee (1845), 3 Howard 212
                                                          246

      upon admission of California into Union absolute
      property in soils under tide-waters vested in State.
      Justice Field in Wear v. Harbor Commissioners (1873),
      18 Wallace 57
                                                          246

      United States has no constitutional capacity to exercise
      jurisdiction over such lands, 3 Howard 212
                                                          247

      United States, not California, has "paramount rights"
      over soil and oil resources. Justice Black in U. S. v.
      California (1947), 332 U. S. 19
                                                          243

UNITED STATES IN CONQUEST 
      oil-bearing tidelands belonging to States by settled law
      from the beginning seized by Federal Government. Illegal
      action sustained. United States v. California (1947), 332
      U. S. 19
                                                          243



____________

INDEX

AGRICULTURAL ADJUSTMENT ACT, 1933

used to devalue gold dollar, although held unconstitutional, 133

AMENDMENT TO CONSTITUTION 

a proposal give Congress control young workers rejected, 88 

badly reasoned proposal to amend respecting election president, 287 

for Ultimate Court, the People, not the Judiciary, 61 

Income Tax proposal quoted: "graduation" not mentioned, 60 

interpretative suggested curing governmental wanderings, 50, 251

Seventeenth proposed by Congress changed House of States, 11

Sixteenth proposed common tax with one rate, 60

Supreme Court should not amend Constitution, 23, 126, 127

Washington cautioned against innovations by amendment, 11

AMERICAN BAR ASSOCIATION 

appointed committee opposing recall successfully, 4

and other associations inactive while dissenting justices stood ground, 241 

concerted effort Bar Associations needed for better judges, 241

found Constitution required in only 8 of 25 universities, 26

ANTI-TRUST LAWS 

Sherman Law and supplements adequate against monopolies, 99 

two parties charge each other with failure to enforce, 98n

ATTORNEY GENERAL

wrote book defending attempt at court-packing, 25

BANKS

neither bank nor corporation mentioned in the Constitution, 102, 103n

creation National upheld by Marshall to aid governmental functions, 103n

how one bank grew to thousands, 107

living largely on tax-exempt Public Debt, 73

failed to defend their field against Socialism, 105

BAR ASSOCIATIONS 

failed to object sufficiently to unconstitutional proposals, 47, 241

should compel appointment seasoned jurists Federal courts, 242

tongue-tied while four dissenting justices stood ground, 241

BILL OF RIGHTS 

interpretation 160 years rejects idea States affected by, 234 

of what it consists, 231 

held no general rule applying provisions against States, 232 

not one article of lies against the States, 225 

States prepared Bill of Rights against Federal Government, 184, 210

BREWER, JUSTICE DAVID J.

dissented as to all inequalities in Taxation, 77 

BROWDER, EARL 

his statement explaining Communism, 174 

said Communism promoted by strikes, 172, 175

BRYCE, JAMES

praised principle of agency in Constitution as greatest conception, 133

quoted on "Encompassing power of numbers," 263

said Congress dashes against walls of the Constitution, 88

tribute to members Constitutional Convention quoted, 11

wondered why President's office has not big men, 254

BUREAUS

General Eisenhower quoted on extraordinary growth dangerous bureaus, 113

Hoover Committee said "billions" could be saved, xi, 104 

1800 in Executive Department under President, xi

propagandizing power has become dangerous, 127 

salaries for Soil Conservation alone 24 million a year, 206 

Secretary Morgenthau for sending to Far East foodstuffs in storage, 158 

table showing unbelievable accumulation in storage, 159 

wires crossed: importing food stuffs, in storage at home, 158

CHASE, CHIEF JUSTICE SALMON P.

explained meaning due process of law, 235

said we have "an indestructible Union, composed of indestructible States," 
201

CHILD LABOR AGITATION 

Department Labor reported 1920 no objectionable child labor, 84 

less child labor when National Labor Relations Act passed, 85 

two laws failing, Congress proposed amendment, 88 

proposals immediately rejected in legislatures 20 states, 88 

unconstitutional tax on salary Federal Judges followed labor decisions, 89 

acts to suppress under Commerce Clause invalid, 83, 87 

act taxing produce workers held not for revenue, 87 

Governor Roosevelt denounce misuse of Commerce Clause 86

President Roosevelt urged adoption proposed amendment, 88

CITIZENSHIP, NATIONAL AND STATE

Fourteenth Amendment shows citizenship in State and Nation, 212

both citizenships for Negroes conferred by Fourteenth Amendment, 212

National held violated by Nevada law taxing interstate travelers, 226

National held violated by law of Maryland taxing importer, 226

Slaughter-house Cases involved State citizenship: no Federal question, 227 

Justice Washington quoted on State citizenship, 227

before Civil War no local claim for Federal protection, 228

claims under State citizenship outside Federal Government, 228

some privileges National citizenship mentioned, 228

court rejected theory Fourteenth Amendment designed to handicap States, 229 

in Slaughter-house Cases court rejected National control States, 229

CLEVELAND, PRESIDENT GROVER

advocated strict construction of the Constitution, 13

defended against Senate "dignity and vigor" of Executive, 43

vetoed bill for "Federal Aid" to drought area, 194

on "partitions" between National and State Governments, 194

COMMERCE CLAUSE 

favorite cloak Congress for years invade States, 252

Governor Roosevelt denounced "stretching" of, 86, 97

quoted and explained, 97

"stretched" to justify Packers and Stockyards Act, 1921, 96

importance of commerce dating from Magna Carta, 1215, 164

Edmund Burke on importance American commerce, 165

design of Constitutional Convention to make commerce free, 165

COMMUNISM

abolition private property one objective, 57

aims at political control by proletariat, 57

amazing that party legally recognized, 58, 176

can be met only by superior doctrine, not arms, xiii, xiv

defined according to Karl Marx, 57n

promoted by strikes, Browder said, 172, 175

weapon of, "graduated" income taxes, 57

Karl Marx quoted and Manifesto 1948 cited, 56

quotations from writings of Karl Marx, 57

first "American way of life" in Plymouth Colony, 58

Lenin quoted on method in Russia, 58

Governor Bradford on failure Communism at Plymouth, 59

American spirit called "wealth" by Hamilton, 59

CONGRESS

legal scholar of Convention explains limitations on powers of, 190

abandoned to President authority to write laws, 183

acts must be in "pursuance" of Constitution, 20

attacks on Judiciary of the Constitution, 14

boundaries to Congressional power stated by Madison, 186, 187

by Norris-LaGuardia Law oppressed employer, 46

Constitutional Convention denied it power over Judiciary, 41

created unconstitutional Reconstruction Finance Corporation, 110

declared "emergency" for seizure gold property, 135

enacted invalid Maternity Law for children and women, 91

favored findings Interstate Commerce Commission unduly, 44

guilty of perpetrating first American coup d'tat, 135

without authority from Sixteenth Amendment to "graduate" taxes, 63 

preferred coup d'tat to constitutional procedure, 76

Hamilton said powers limited to enumerated subjects, 255

influenced too much by social theories, beyond powers, 62

its "graduated" income taxes not authorized by Amendment, 60

men of old-time stature are missing, 90

misuses Commerce and General Welfare Clauses, 252 

National Labor Relations Act disguised by Commerce Clause, 161 

persistent disregard of Tenth Amendment, 163 

possesses no judicial power, as such, 41, 44

powers limited to enumeration, sec. 8, Article I, 186, 187 

repudiated gold contract in bonds of the United States, 136 

"Rubber Stamp" title was earned by it, 183 

Social Security Act not warranted by Constitution, 195 

should have repealed income-and estate-tax laws, 76 

Tennessee Valley Authority cloak for establishing Fascism, 112 

former minister to Denmark quoted on deterioration of Congress, 257

CONSTITUTION, THE

adopted by Canada, Australia, Argentina, Brazil, and others, xiii

defines "Supreme Law of the Land," 19

first system successfully to control man in power, xiii

gives no authority for Social Security Act, 195

guarantees Republican form of government to States, 7

most important of original objections to, 185

National Labor Relations Act misuse of Commerce Clause, 161

President Cleveland advocated strict construction, 13

provides just method for soil conservation, 205

States will compel thorough teaching of eventually, 50

study of indispensable to survival of Republic, 10, 255

CONSTITUTIONAL CONVENTION 

task accomplished never at tempted in world before, 296 

tribute by Senator Hoar to unprecedented achievement, 298 

contended that large territory requires Republican system, 4 

denied authority to Congress over Judiciary, 41 

feared such legislation as Social Security Act, 185 

for government by representatives instead of crowd, 272 

Hamilton quoted on its ideas for choosing President, 272 

planned for statesmen in two chief offices, 275 

proclaimed sanctity of public debt, 139 

set up representative system in all departments, 7 

several members refused to sign instrument prepared, 185 

sought to prevent "cabal, intrigue, and corruption," 264 

theory respecting House of States given, 11, 12 

tribute of Bryce, members belonging "to history of world", 11 

members of explained fully operation of courts, 17

COOLEY, JUDGE THOMAS M. 

quoted against police power in Congress, 184 

advised courts to read and apply law by its history, 218, 219 

said exemptions from taxation not legal, 72 

tax should be "in proportion to the interest secured", 64

COOLIDGE, PRESIDENT CALVIN 

said taxes not needed in economy are "legalized larceny", 56

CORRUPT PRACTICES ACTS

Congress forbade Roosevelt's method of gathering funds, 279 

Laws of forty years have proved futile, 277, 278 

not necessary before National Nominating Convention, 260 

reveal discreditable and tragic situation, 280, 281

COUP D'ETAT, THE 

Emergency Banking Relief Bill for seizing people's gold, 135 

seizure field of relief by Social Security Act, 69, 70, 75

DEBT OF GOVERNMENT

vast repudiation by devaluation of dollar, 136, 137

"profits" to Government from repudiation, 137

Chief Justice Marshall quoted on honor in debt, 138

Hamilton said government cannot change its contract, 139

Constitutional Convention declared for payment of debts, 139

"sacking" of people done with insolence, 140

DELEGATION OF POWER

in violation of law, Congress authorized President to devalue dollar, 133, 
134

Congress must declare method and policy for administrative cases, 135 

administrative and legislative functions distinguished, 135 

DEMOCRACY

adopted after panic and several crop failures, 5

Initiative, Referendum, and Recall explained, 3

Introduced in 1893 from Switzerland, 3

not suited to large areas and populations, 4, 13

spread of un-American idea still persisting, 8

why Constitutional Convention rejected told in "The Federalist", 8 

insistence upon "more democracy" for half century alarming, 53, 290

battle is between the Republican and the Populist forms, 290

DEPARTMENT OF JUSTICE 

Demonstrated industrial disputes are for courts, 35, 36

DILLON, JUDGE JOHN F.

lectured on Constitution at Yale half century ago, 130

quoted whether Judiciary could resist popular demands, 130

denounced decision in Oleomargarine Case, 176

DIVORCE

States delinquent in not regulating, 93

principle of regulating set by Massachusetts in 1903, 93

North Carolina law regulating held valid, 94

decree void where no real domicile, 94

DUE PROCESS OF LAW

Justice Brandeis on "procedural regularity", 235

in Fourteenth Amendment relates to law of States only, 226

in States regulated by law of States, 235

Magna Carta quoted on, 235

application of illustrated, 236 

Justice Miller quoted on misapplication to Fourteenth Amendment, 237 

explained by Justice Moody in Twining case, 235 

in Fifth Amendment restraint on National law, 235

EISENHOWER, DWIGHT D.

on "a creeping paralysis of thought" bringing dictatorship, 112 

EMERGENCY

assumed to justify National Labor Relations Act, 163

Bank Act 1933 for seizure gold of American, 135

"Does not create power" -- Supreme Court, 135

receives no recognition in any provision Constitution, 135

using to seize power began with devaluation of dollar, 135

Chief Justice Hughes quoted respecting, 134

made excuses by Congress for invading States, 162

NLRA upheld, overriding decisions for half century, 163

ESTATE OR INHERITANCE TAX

"Recrudescence of Feudalism" says English authority, 79

Spanish War tax and "graduated" income effective, 76

Causes break-up or sale or sound properties, 79n

See PROPERTY

EXECUTIVE DEPARTMENT OF PRESIDENT

contains 1,800 different administrative units: Hoover Committee, xii

"billions -- not millions" unnecessarily spent, xii 

on payrolls, 3,400,000 in 1945, 262 

propagandizing aggressive and dangerous, 88, 117 

protected "in all its dignity and vigor" by Cleveland, 43 

third and fourth terms made possible by payrollers, 262

EXEMPTIONS FROM TAXATION UNCONSTITUTIONAL

held by Supreme Courts of several States Unconstitutional, 72

law in New Jersey exempting new buildings held void, 72

Judge Cooley quoted in condemnation exemption from tax, 72

President and other officials in Washington enjoying exemptions, 73

colossal properties illegally exempted from taxation, 74

enormity of prejudice to overburdened taxpayers, 74

wrong should be righted by representatives of guilty States in Congress, 75

at violence to all constitutions, 72

Justice Brewer dissented in all exemption cases, 77

Justice Field predicted (1895) present disastrous result, 73

banks, trusts, universities enjoying exemptions, 75

FAIR LABOR STANDARDS ACT, 1938 

held to warrant police control in States, 185 

FASCISM 

defined by showing 22 

corporations of Italian system, 38n

long time coming; now well "dug in", 39n

forbidden because not authorized by Constitution, 39

by Tennessee Valley Authority Fascism introduced in government, 112

did General Eisenhower see Socialism and Fascism coming? 112

thrust upon Tennessee Valley by "planners", 132

many Fascist corporations manufacturing electric power, 111

Tennessee Valley Authority planned before election 1932, 132

origin of term, a Roman recollection, 38n

corporation of Fascists to take over private business, 106

FEDERAL AID 

poured out illegally in floods to States and individuals, 108 

bill in early Congress aiding fishermen: Madison defeated, 188 

President Cleveland vetoed bill giving seed grain to fanners, 194 

press dispatch told that King of Hoboes favors, 197n

FEDERAL EMERGENCY RELIEF ACT, 1933

first American coup d'tat, revolutionizing Government, 76

instead, repeal tax incomes and estates indicated, 75

FEDERAL SURPLUS COMMODITIES CORPORATION, 1933

authorized by U. S. issue bonds 4 billion, 750 million, 155

charter for "perpetual existence", 149

dumped 14 carloads spoiled eggs in 1944, 153

"ever-normal granary" fed wheat to pigs, 154

for relief farm emergency by expanding markets, 151

one of many corporations borrowing and spending, 157

sold at heavy loss 26 carloads eggs for hog feed, 153

subsidies in 1949 over 500 million, 157

to process, store, handle surplus agricultural commodities, 151

to act "without restriction or limit", 149

War Food Administration lost $150,000 on eggs, 153, 154

incorporated in Delaware by two cabinet members and another, 150

tip-top corporation of Fascism, 151

incorporated for all time with world-wide powers, 151, 152

no activity of FSCC authorized by Constitution, 153

vast waste of grains and food-stuffs, 153, 154

capitalized for $100,000; stock owned by U. S., 155

subsidies to favored classes 15.5 billions in 17 years, 155

President Jackson quoted on leaving business to business men, 156

table showing some astonishing losses of taxpayers' money, 157

Former Secretary Morgenthau proposed sending stores to Near East, 158

he revealed an unbelievable amount and value in storage, 159

FEDERALIST, THE

by John Jay, Alexander Hamilton, and James Madison, 186

denies power for Social Security or other police action, 188

most brilliant work on philosophy of government, 186

says Senate would bar invasion States by Nation, 54, 162

FIELD, JUSTICE STEPHEN

denounced as unconstitutional exemption from taxation, 73 

said Fourteenth Amendment does not touch State police, 237

FIRST AMENDMENT (RELIGION, PRESS, SPEECH, PETITION)

correct interpretation given, 228

non-Federal questions occupying Supreme Court, 229

not rewritten or absorbed by Fourteenth Amendment, 287

erroneous theory of Court on freedom of Press, 220

decision based on irrelevant cases, 221

legislation of Minnesota was sound, 223

four justices dissent, quoting Chief Justice Marshall, 223

Supreme Court avoided applying to Press, 232

history underlying this amendment related, 218

in School Case Illinois did not violate, 218

decision in Illinois School Case affected 2,000 communities, 219

held effective against States through "liberty" in Fourteenth, 220 

Supreme Court Minnesota upholding law against libels reversed, 220

FOURTEENTH AMENDMENT, 1868 

"liberty" in does not connote religion or Press, 213 

analysis of and citation decisions, 214

written without thought of religion or press, 214 

Supreme Court employs "latitudinarian construction", 213 

Due Process in relates to processes under State, not National, law, 226 

rights of State citizenship not protected by, 227 

held not confer right National citizenship generally, 227 

held to authorize United States to manage Georgia, 232 

regulation oil production by Texas held denial Due Process, 233 

Justice Field quoted that it does not affect police power, 237 

Justice Miller quoted on misapplication Due Process, 237 

review of decisions sustaining invasion of States, 238 

cases holding State laws not controlled by Slaughterhouse, 227 

decisions under in disagreement, 239 

does not control police power of States, 229 

erroneous application in Illinois school case, 218 

First Amendment not rewritten by it, 232

Judicial assumptions cannot alter application First Amendment, 221

many police regulations of States overturned, 184, 240

misconstrued in Minnesota Press case, 219

used by courts for dealing with non-Federal questions, 229

GENERAL WELFARE CLAUSE 

Hamilton said Congress limited to enumerated powers, 189 

Supreme Court ignored history and precedent, 195 

Wilson and Baldwin, of Constitutional Convention, explained, 189 

adoption Constitution resisted: this Clause said to be unlimited, 186 

Madison explained clearly limitations of power under, 186, 187 

Jefferson's brilliant elucidation of General Welfare, 191 

early interpretation of should be respected, 192 

acts of New Deal listed which Jefferson would condemn, 193 

Senator Benton of Missouri condemned "latitudinarian construction", 193 

President Cleveland vetoed bill for aiding farmers, 194 

Social Security Act erroneously sustained under General Welfare Clause, 195 

held not to support Agricultural Adjustment Act, 200 

this Clause and Commerce Clause cloaks for Congressional marauding, 252

GOLD DOLLAR "CLIPPED," 1934

authority to President in Agricultural Act, held unconstitutional, 133

bondholders thoroughly "frisked" by Government, 142

by "directive" President cut 25.8 grains to 15-5/21, 135

Congress abdicated to President power over coinage, 134

Congress declared "emergency" required seizure of gold, 135

Congress recognized damage done by repudiation, 143

Constitutional Convention proclaimed debt would be paid, 139

Hamilton on promises of a borrowing government, 138

Madison on morality in relation to public debt, 139

Marshall, Chief Justice, on seizing property individual, 138

President given by Constitution no authority over coinage, 134

"profits" gained by United States and States, 137

Secretary Treasury boasted on radio of "profit" made, 145

Senator boasted of wealth to be "transferred" from holders, 144 

all gold and gold certificates seized from Americans, 135

Congress repudiated gold contract in its bonds, 136

vastness of debt repudiated, 136,137

Supreme Court held contract inviolable; but no remedy, 141, 142

four dissenting justices found aid to farmer the purpose, 143

usefulness of Gold Clause stated by dissenting justices, 145

dissenting justices said "legal and moral chaos appalling", 149 

GOVERNMENT, PRINCIPLES OF

are not outmoded; first to chain man in power, xii

Constitution written to limit powers, 20

conflicting decisions of "inherent powers" cited, 20, 21

purpose of Constitution to exclude "inherent powers," 21

most "problems" in United States caused by Government, 60

"new thought" is bringing forward "inherent power," 20, 291

no power that is not granted by Constitution exists, 21

scientific, or based on classified knowledge, 254

GOVERNORS OF STATES

complained in convention that President ignored them, 177n

had failed to stand for sovereignty of commonwealths, 178

yet their hands are out for "federal aid," 178

GRADUATED TAXES UNCONSTITUTIONAL

equality of treatment removed by Income Tax Amendment, 61

fallacious belief in property expressed by Supreme Court, 76

instrument of Communism for confiscation, 56

not called for in Sixteenth Amendment, 60

President Roosevelt advocated confiscation incomes by, 65

in 1908 Socialists demanded "graduated" income tax income tax not graduated 
is desirable, 54

first act Congress employed graduation: not in amendment, 54

States drained of needed revenue by graduated tax, 55

graduation not applied to any other property, 64

cases cited showing graduation wrongfully adopted by Congress, 67n

condemned by Supreme Courts of several States, 69

very slight in Civil War laws, 70

graduated income tax adjudged war measure by Congress, 71

fallacy of Supreme Court in sustaining, 76

dissent by Justice Brewer to all graduations, 77

State Supreme Courts understood subject clearly, 77

decisions Supreme Court upholding on incomes and estates unsound, 80

lawless government resulting from, 80, 81

HAMILTON, ALEXANDER

said constitutional election would insure able Presidents, 275

stated limits on power of President, 255

believed "abuse of power taxation" guarded against, 61

Congress must "pursue" lines of Constitution, 20

explains Constitutional Convention's ideas on choosing President, 272

had great hope in House of States, 11, 12

Judicial powers expounded, 17

quoted on making government "control itself," 299

quoted respecting Gold-Clause repudiation, 138

said Judiciary, without initiative, needs protection, 49

thought States would resist National encroachment, 54, 162

quoted against unlimited national power, 189

HOAR, SENATOR GEORGE F.

beautiful tribute to spirit of our Constitution, 298

corrupt cities drag States to corruption, 91

heard Webster tell Supreme Court he had voted against each, 12

quoted on need of statesmen jurists on the Bench, 229n

said old-time members of Congress told White House what, 256

ILLITERATE WRITERS

attack Judiciary of the Constitution, 16

INCOME-TAX AMENDMENT

Sixteenth Amendment did not propose "graduation," 60

gave Nation most corrupting form of power, 54, 55

money from took Congress beyond its constitutional field, 62

President Taft asked for plain income tax in 1909, not graduated, 50, 60

panic 1907 made "scrip" necessary for money, 50

in 1908 Socialists demanded "graduated" income tax, 50

"progressive" income tax advocated by Karl Marx, 53, 57

brought unintelligent relinquishment by States of their power, 54

income tax not "graduated" is desirable, 54

first act Congress employed "graduation": not in Amendment, 54

States drained by "graduated" tax of needed revenues, 55

intended only to meet decision on tax 1894, 61

gave Congress no new power to tax, 61

money in excess caused lawless government, 62

people showed no enthusiasm for, 63

men and money retired to enjoy tax exemptions, 68

cases cited showing "graduation" wrongfully adopted by Congress, 67n

States should repeal and resume control of their treasury, 75

INITIATIVE, REFERENDUM, AND RECALL

ideas borrowed by North Dakota from Switzerland, 3

recall judicial decisions rejected by Colorado, 4

Kansas limited recall to appointed officials, 4

initiative never extensively used and now seldom heard of, 4

introduced after bank panic and crop failures, 5

where language of Constitution clear, no place for explanation, 68n

imported from Switzerland in 1893, 3

spread of the evil idea of "Democracy," 8

idea behind, threatening constitutional Presidency in 1950, 289

INJUNCTIONS 

American's right to crippled by Norris-LaGuardia Law, 46 

Blackstone quoted on right to and how obtained, 47, 49 

labor organizations often benefit by writ of injunction, 27, 28 

long line decisions deny charge courts disfavor labor, 27, 171n 

long-standing Rule Supreme Court gives all full protection, 49

INTERPRETING CONSTITUTION

Senator Benton of Missouri denounced "latitudinarian construction," 193

INTERSTATE COMMERCE COMMISSION

findings partially immunized by invalid Act Congress, 44

needlessly wiped out property railroad stockholders, 45, 46

threats in Congress of impeachment, 46

President never appointed big men of commerce or industry, 45

JACKSON, PRESIDENT ANDREW 

quoted on government keeping out of business, 156

JEFFERSON, THOMAS 

predicted formidable power in the President, 255, 257

said Tenth Amendment real body of the Constitution, 192

wrote brilliant exposition General Welfare Clause, 191

feared "perpetual re-eligibility of the President," 257

JUDICIAL "LEGISLATION"

expansion or diminution Constitution our greatest peril, 207

Supreme Court struggles to put First Amendment in Fourteenth, 207

search for the unperceivable, 208

"Liberty" in Fourteenth Amendment not "religion" from First, 213

people, not courts, must blend the two Amendments, 215

misconstruction of Fourteenth Amendment has overloaded Supreme Court, 215 

State Republics invaded by National through judicial interpretation, 215

using school buildings for religious instruction held unconstitutional, 215 

Supreme Court Illinois held such use lawful, 216

decision overruling Supreme Court Illinois absolutely untenable, 216

analysis of decision and constitutional provision, 217

history of Fourteenth Amendment ignored in decision, 218

religious persecution underlying First Amendment shown, 218

decision in Illinois school case affected 2,000 communities, 219

held First effective against States through "liberty" in Fourteenth, 220

appointees to Federal courts should be seasoned jurists, 242 

Chief Justice Marshall showed how to avoid danger, 209 

disagreements among justices of Supreme Court, 209 

distinction between National and State citizenship, 212

each State a Republic, supreme locally, 6, 7

First Amendment not rewritten or absorbed by Fourteenth, 214, 215, 216

Fourteenth Amendment quoted and explained, 212, 214

for Ultimate Power to change Bill of Rights, 210

frequent assertions become accepted law, 109, 219, 221

interpretative amendments suggested, 249

most dangerous to Constitution because insidious, 207

no amendment ever proposed to change application First Amendment, 215

Slaughter-house cases, New Orleans, leading authority, 227

State sovereignty not reduced by Fourteenth Amendment, 237

States upset by interference local affairs, 239

the question that has embarrassed the Justices, 234

Twining case followed Slaughter-house decision, 230

Justice Bradley on "mystifying" constitutional language, 217

Congress without authority to aid schools in States, 217

Cooley on history of words in law to be interpreted, 218, 219

fallacy in Supreme Court decision shown, 218 

history of religion found in First Amendment, 218 

Illinois case examined and law stated, 215, 216 

Republic of Illinois competent to manage its affairs, 219 

Supreme Court Illinois decided no violation Constitution, 216 

theory decision rejected by 140

years practical application, 219 

what Supreme Court should have said in Illinois case, 217 

wide effect of erroneous decision of Supreme Court, 219

JUDICIARY OF THE CONSTITUTION 

Constitutional Convention intended statesmen foreseeing consequences of 
errors, 92 

Constitutional Convention denied Congress authority regulate courts, 41

Congress has no judicial power to confer, 44

Federal courts should be replenished from State courts, 242

"The Federalist" said judiciary weakest Department and needs defense, 242

indefensible appointments by President and Senate shown, 241n

accepted dictation from Congress; acts reviewed, 183

acted in defense of the Constitution in former days, 83

adequate in labor case when Government in comer, 169

attacked by President when war impending, 14, 38

attacks on by Congress, 39, 40, 43

attacks on by labor leaders, 19

attempt at court-packing in 1937, 23

Attorney General wrote book against, 25

bar should compel appointment experienced judges, 242

Congress taxed salaries judges since 1919: violating Constitution, 89

Congress taxed unconstitutionally salaries Federal judges, 89

equity power for injunction given by Constitution, 47

failed to resist attacks by Congress, 41, 43, 47

favorable decisions for labor, 27

industrial disputes justiciable, for courts, 171

injunctive power inherent, 47

"Keystone of American Arch," said Von Holst, 18, 242

power extends to litigation by States, 42

powers clearly set out by Hamilton, 17

recall of decisions of, by voters advocated, 4

salaries taxed after Child Labor decision, 89

will it maintain constitutional limitations? Judge Dillon, 130

JURY, THE 

the Court of Last Resort for liberty -- "the Country," 87

LABOR AND COURTS 

decisions of half century for labor cited, 27, 28 

"labor's gain" under President Roosevelt built on closed shop, 30 

workers have right to quit but not conspire for damage, 82

strikes during war gave "aid and comfort" to enemy, 33 

strikes destructive of private enterprise, 33 

courts can prevent destruction of property, 34 

Debs Strike 1894 ended by injunction Federal Court, 35 

seizure railroads and other property illegal with courts open, 35n

ability courts to protect public shown in Communist cases, 36, 37

importance of "the country" to Americans in court, 37

Norris-LaGuardia Act denial of justice, 46

Blackstone quoted on principle governing issue of injunctions, 47, 49

ancient rule Supreme Court covered all requirements of justice, 49

United States forced to get injunction against strikers, 169

paramount interest public makes labor controversies for courts, 31, 170

Industrial Court of Kansas held unconstitutional, 170

labor controversy has ceased to be personal to parties, 171

industrial controversy handled at Washington with eye on elections, 172

Washington friendly to sit down strikes, 173

workers asked for injunction, bringing great illustrative case, 28

"collective bargaining" long before "New Deal," 29

favored by many judicial decisions, 27

National Labor Relations Act oppressive to industry, 175 

organized attacks on Judiciary of the Constitution by labor, 19 

questions solved by court when Government in corner, 36

LAW SCHOOLS 

only 8 of 25 universities required study Constitution, 26

MADISON, JAMES 

believed States would resist National aggression, 101 

denied General Welfare Clause authority over States, 186, 187 

on morality and the National Debt, 139

quoted on line dividing National and State powers 182, 186, 187 

set forth advantages Republican form of Government, 7 

stated limited powers of the new Government, 7 

assembled protests of States into Bill of Rights, 187, 188 

fought and defeated "Federal aid" in first Congress, 188

MARSHALL, CHIEF JUSTICE JOHN

creation National Bank upheld by Marshall to aid Government, 103n

quoted on honor in debt of Government, 138

said Congress cannot tax for purposes within States, 182

quoted on adhering to text of Constitution, 209, 265

quoted by dissenting justices in Minnesota Press Case, 224

held tax of Maryland on importer violation National citizenship, 226

quoted on power of people in States, 231

quoted on relation of Nation and State, 224

quoted on seizure gold by United States, 138

MARX, KARL 

advocated abolition of estates passing at death, 56 

"graduated" income taxes for confiscating property, 56 

stated theories and purposes of Communism, 56

MATERNITY ACT, 1931

authority over women sought by unmarried, 91

cost 11 million and accomplished nothing, 92

police field of States invaded by Congress, 91

Supreme Court avoided passing on Constitutionality of, 92

McREYNOLDS, JUSTICE JAMES C.

exposed fraudulent pretenses Tennessee Valley case, 123

"moral and legal chaos appalling," in Gold Clause cases, 149

MINNESOTA PRESS CASE

Act Minnesota stopping libelous publications valid, 220

"assumption" of predicate too often employed, 221

"authorities" relied on by Supreme Court examined, 221

case in Illinois preceded by case in Minnesota, 219

decision against 70 years application First Amendment, 223

each decision cited by Court invasion of State, 221

fallacy in reasoning Supreme Court, 224, 225

first definite trespass on State authority, 220

local government Minnesota overturned, 220

Chief Justice Marshall on relation State and Nation, 224

statement by dissenting justices, 223

Supreme Court held State violated First Amendment, 220

MONEY

Constitution quoted respecting power given to Congress, 22

dangerous power in hands of Government, 22, 81

Congress can spend only for specified purposes, 22

Constitution gives President no authority over, 134

opinion financial writers on content gold dollar, 141

Congress should have returned value for gold seized, 147

MUSSOLINI

Fascism by Italian structure now in United States, 39

set up 22 corporations for management of government, 39n

NATIONAL DEBT

Madison on morality connected with, 139

"profits" on gained by Government stated, 137, 145

United States repudiated part of its obligations, 136

vast increase in time of peace, 136

NATIONAL EDUCATION ASSOCIATION 

favored "Federal aid" to schools; and centralism, xi

NATIONAL LABOR RELATIONS ACT, 1935

passed under cloak of Commerce Clause, 161

made a Nation of Union of States, 161

Hamilton could not see that representatives would diminish States, 162

"emergency" excuse for invading police field of States, 162

after Act strikes tripled in number, 167, 168

table showing number strikes by years, 167n

government of Wisconsin on lawlessness of strikers, 168

Department of Justice inactive respecting strikes, 169

four Justices Supreme Court dissented, 163

Government driven to comer by strikers, 169

Governor New York protested use Commerce Clause such cases, 164

Supreme Court, supporting, overrode long line decisions, 163

title denies law for regulation under Commerce Clause, 163

NATIONAL NOMINATING CONVENTION

long platforms promising everybody everything then unknown, 260

an author describes a saddening spectacle, 285

appalling consequences of Convention 1932, 284

Charles Sumner quoted against its methods, 261

dominated (1920) by senators and other officials, 270

evil instrumentality from delinquency of States, 267

first 11 elections without Convention or Platform, 259

instrumentality of "cabal, intrigue, and corruption," 286

non-delegate 2000 miles distant nominated F. D. Roosevelt, 286

no Corrupt Practices Acts before Nominating Convention, 260

Senator Benton, Missouri, denounced it in 1859, 261

States can abolish unconstitutional peril, 291

through "cabal" Roosevelt nominated in 1932, 286

NEW DEAL

all of its remedies were ancient failures, 53

unconstitutional in all its features, 53

put in effect platform National Socialist Party 1908, 52

a historic subterfuge for statecraft, 53

NORRIS-LAGUARDIA ACT, 1932 

denied in practice employer's legal rights, 46 

industry, winner of war, near friendless in Government, 47n

OLEOMARGARINE

act of Congress restricting and overtaxing upheld, 175

law of Pennsylvania forbidding manufacture absolutely sustained, 176

decision in Pennsylvania case condemned by Judge Dillon, 176

act Congress repealed after 64

years (1950) legislative folly, 176

PACKER AND STOCKYARDS ACT, 1921 

entirely needless; Illinois was in control of situation, 97 

Governor Roosevelt condemned such use Commerce Clause, 97

legislation superfluous and illegal; Sherman law adequate, 98 

decision sustaining submerged long line of cases, 100 

became precedent for National Labor Relations Act, 101 

Madison believed States would resist such encroachment, 101

PAYROLLERS, EXECUTIVE

astonishing and steady increase of: 1800 bureaus, 113

numerous enough to turn Presidential Election, 113

trampled on customary law against third term, 259, 262

POLICE POWER IN STATES

Marshall held Congress cannot tax for State purposes, 182

power inheres in States and cannot be surrendered, 182

Judge Cooley quoted on inhering in States, 184

illegal Housing Act Congress aiding States upheld, 185

last word in Bill of Rights protecting police power, 185

Congress exercises under Fair Labor Standards Act, 185

not affected by Fourteenth Amendment: Justice Field, 237

POWERS OF GOVERNMENT 

union of "very definition of despotism," xii 

division of powers failed in Rome, xii 

those granted to Congress by the Constitution enumerated, 293 

"inherent" powers now coming to the fore, 20, 21, 29

PRESIDENT, THE

method of Convention would insure choice of big men, 275

appointments by governed by political considerations, 36

Constitutional election will clean out stables, 284, 285

peril in patronage shown by Senator Norris long ago, 276

President F. D. Roosevelt devised Thousand Dollar Clubs, 280

given no authority by Constitution over money, 134

Madison quoted on his limited field of authority, 255, 195n

Jefferson predicted formidable power of President, 255, 257

Third term, fourth, and fifth owing to payrollers, 262

the "perpetual re-eligibility of" was frightening to Jefferson, 257

Press, by conferences, enabled President to reach dictatorship, 256

Senator Hoar quoted on time when President was shown the way, 256

political chief, nominating himself and his successors, 258

quotation from his secretary showing handling of nomination, 258n

payrollers in President's Department and families control election, 259, 262 

popular election would be destructive of Republic, 259, 261

first eleven elections without farcical Nominating Convention, 259

Congress forbade one of his fund-raising schemes, 279

President Roosevelt by-passed Corrupt Practices Acts, 280

illegal power brings disregard of Constitutional restraint, 284

asked Congress for 22 enactments beyond Federal power, 293, 294

extraordinary call for unconstitutional acts provoked no criticism, 294, 
295

Constitutional Convention intended and directed States elect President, 264, 
265

PRESIDENTIAL ELECTION, THE

a careful plan against popular vote frustrated by States, 263

author quoted on senators controlling National Convention, 270

bargains by President should be unnecessary, 282

controlled by 3 million employees Executive Department, 113, 259

Corrupt Practices Acts consequence Nominating Convention, 260

Charles Sumner denounced (1872) Nominating Convention, 261

choice of executives greatest achievement at Philadelphia, 289, 290

clause for appointing electors quoted, 265

Constitutional Convention for Representatives, not crowd, 272 

Congress forbade President's money-gathering method, 279 

Convention 1932 and before what Philadelphia feared, 264 

election 1948 proved popular vote real danger, 261, 262 

evil consequences election 1932, 258 

Roosevelt did not have full New York delegation, 1932, 286 

Governors accused White House of ignoring them, 177n 

great learning underlay at Philadelphia electoral plan, 264, 272 

half electorate did not vote in 1948, 263 

Hamilton quoted fully on idea Constitutional Convention, 272 

"interests" providing funds will remain interested, 281 

in the promising future, 263, 264 

issue is between Populism and constitutional Republic, 277 

Jefferson on tyranny of the executive, 255 

managed vote of corrupt cities sought, 259 

members Thousand Dollar Clubs feted, inauguration 1945, 280 

men of highest capacity could be selected constitutionally, 275 

office-holders excluded from participation in election, 269 

present political party system can be maintained, 283 

"Populism" danger in Presidential elections, 277 

slavery and Presidential election two "trials" Republic, 290, 291 

unsound ideas commentators on constitutional method, 287

when Legislatures again themselves appoint electors, 252

certificate education in Constitution should be requisite to voting, 90

Senator Hoar quoted on conditions in States, 91

restoration of Australian ballot is imperative, 91

industrial disputes handled in view of, 172

first eleven without farcical Nominating Conventions, 259

no Corrupt Practices Laws necessary then, 260

States should resume control and follow Constitutional direction, 260

Presidential so farcical nearly half electors do not vote, 263 

Bryce quoted on "the fatalism of the multitude," 263 

corrupt election greatest fear of Constitutional Convention, 264

States put duty on themselves to elect President, 265

Marshall quoted on following letter of Constitution, 265

legislatures of States have abandoned election to politicians, 266

short ballot made bad situation worse, 268

methods of confusion in different States, 267

Federal office-holders forbidden to manage elections, 269

four senators dominated convention 1920; one became President, 270

States shown quite competent to nominate President, 271

Constitutional Convention feared "cabal, intrigue, and corruption," 274

statesmen, not politicians, sought by Constitutional Convention, 275

in 1914 Senator Norris predicted disaster from patronage, 276

in present conditions "popular" election would not be popular, 277 

Corrupt Practices Laws for 40 years ineffectual, 277, 278

President Roosevelt by-passed Corrupt Practices laws, 280

candidates' conduct today compared with Cleveland's and McKinley's, 281n

Constitutional method would remove Chief Executive from politics, 282

men of highest capacity would occupy Presidential Office, 283

illegal Presidential power causes disregard of Constitution, 284

State legislatures should themselves appoint Presidential electors, 284n

badly reasoned proposal to amend Constitution, 287

people at home intended to make choice, 288

Hamilton and Jay quoted on this point, 288

proposed amendment would be futile and "democratic," 289

Presidential election and slavery two great trials: Senator Benton, 290, 
291

removal of remaining peril lies with States, 269, 291

PRESS, THE 

guilelessly contributed to President's rise to dictatorship, 256 

PRIVATE INDUSTRY 

assailed by Fascist corporations in many places, 125, 152 

berated as for lese majesty when defending itself, 117 

propaganda TVA and other Fascist set-ups fierce, 127, 128 

selling out, fearing competition from taxpayers' money, 119

PROPERTY 

history of man's right to acquire and transmit, 77 

English Charter 1101 quoted showing right of inheritance, 78

English writer says estate tax recrudescence of Feudalism, 79

causes destruction of business at death in United States, 79n

erroneous idea Supreme Court on man's right to, 80

Hallam and Blackstone on man's inherent right to, 79

President F. D. Roosevelt would take by taxation, 56

private to be abolished by Communism, 57

scourge of unconstitutional taxation exhibited, 74, 81

stupendous volume illegally exempted from taxation, 74

Supreme Court's error root of tyrannical taxation, 80

RECALL JUDICIAL DECISIONS 

American Bar Association took issue to country, 4 

Colorado only State to adopt; held unconstitutional, 4

Theodore Roosevelt advocated; later repented, 4 

to be by voters unlearned in law, 5

RECONSTRUCTION FINANCE CORPORATION, 1931 

as not necessary to functioning Government, invalid, 110 

at large with developments in Alaska, 152n 

abolition advised by Hoover Committee in 1949, 104 

flood of Federal moneys lent beyond national field, 104 

resists proposal Hoover Committee for abolition, 104 

String of non-Governmental corporations followed it, 108 

patterned after Wilson's War Finance Corporation, 102 

not warranted by any clause of Constitution, 102 

only in aid governmental operations can corporation be created, 102, 103n 

expended money illegally serving banks, railroads, etc., 103 

now 30 Federal agencies lending money of taxpayers, 104 

departed from purpose of domestic help; loans become world-wide, 104 

in 1949 reported loans at all-time high, 105 

5400 borrowers "touched" taxpayers for 416,000,000 -- 1949, 105 

former head RFC said it would make bad loans, 106

REPUBLICAN FORM OF GOVERNMENT 

Nation and States all given representative governments, 7

Madison quoted on restriction to Republican form, 7

fully and ably discussed in Constitutional Convention, 7

belief that it would control effects of factions, 8

frustrated by direct election of senators, 9

ROOSEVELT, FRANKLIN D.

third and fourth terms given by his payrollers, 262

totally lacking in knowledge of taxation, 55

proposed by tax to keep down incomes, 65

his argument for Fascist corporation, 117

Governor condemned misuse Commerce Clause for acts like NLRA, 163, 164

as governor against Federal interference in business activities, 86, 166

in fourth election by-passed Corrupt Practices Act, 280

devised Thousand Dollar Clubs to meet campaign funds, 280

not choice of his own state in 1932, 285

nomination of described in Stoddard's book, 285

nomination whole ticket "fixed" by long distance to California, 285

nominating convention refused unanimous vote, 286

advocated bills misusing Commerce Clause, 86

attack on Federal courts not first, 14, 38

confiscation incomes by taxation urged on Congress, 56

his National Labor Relations Act misuse Commerce Clause, 163, 164

sent "must" bills to Congress, in manner of George III, 183

ROOSEVELT, THEODORE 

displeased by decisions; advocated recall by people; repented, 4

RUBBER STAMP CONGRESS 

abdicated money power to President, 183 

accepted "must" bills from President, 183 

enacted National Labor Relations Law, 161 

passed Social Security Act, 179 

passed Emergency Banking Act to seize the American's gold, 135

SCHOOLS

Congress without constitutional authority to give money to, 217

have neglected courses in Constitutional history, xi

lack of learning in Constitution dangerous, 10, 255

lack of scholarship caused Congressional attack on judiciary, 14

law schools blamable for lack of Constitutional education, 26

only 8 of 25 universities require Constitutional study, 26, 211

Missouri law requires teaching Constitution in schools and universities, 50 

have failed to make America foresee coming evil, 81, 82

laws of 40 states requiring Constitutional education dead letters, 89

erroneous belief prevalent that Washington should take over, 97

President's call for 22 unconstitutional acts provoked no criticism, 294, 
295

only way to challenge Communism and other sophisms, 12

peril of uneducated public opinion, 50, 294

SENATE, THE

capable men excluded by expenses of election, 10

illustrious examples of holders of long term, 10

"The Federalist" quoted on value House of States, 11

"The Federalist" quoted on Senate checking House, 12

broken by Seventeenth Amendment, 1913, 9, 11

campaign for seat now too costly, 10

constitutional election was by legislature, 9

theory Constitutional Convention stated, 11, 12

Webster on duty respecting President's appointments, 12

SHERMAN ANTI-TRUST LAW, 1891

Supplemented by Clayton Act and Federal Trade Commission, 98n

sufficiency of had been proved in many cases, 99

both parties for in campaign year: Senator Borah, 98n

SOCIAL SECURITY ACT, 1935 

Constitutional Convention feared such legislation, 185 

Cooley quoted on police power of the States, 184 

did President Cleveland foresee such legislation?, 194

Hamilton said Congress limited to specifications, 189 

Jefferson expounded General Welfare Clause brilliantly, 191 

most complete abandonment constitutional doctrine, 179 

Nation has no constitutional interest in the subject, 199 

no State would have ratified under other view, 192 

States must provide care for those needing it, 199 

Taxing and Spending Clause of Constitution quoted, 186 

act based on error, law and fact, 75 

comment President Roosevelt upon signing, 181 

many Presidents vetoed "Social Security" measures, 182 

subjects covered by act for police power states, 182 

Madison quoted on separation National and State powers, 182, 188 

Congress cannot tax for State purposes: Marshall, 181 

upheld in disregard history and learning on welfare, 195 

Supreme Court erred on ability states to aid, 197 

made permanent by court on "cyclical" depression, 198 

decision upholding let Congress take "boundless field of power," 201

SOCIALISM

defined by demands National Socialist Platform, 1908, 38, 52n

"New Deal" put Socialist platform in effect, 52

no authority for in the Constitution, 39

Supreme Court of the United States sustained it in North Dakota, 5 

dependence on government brings unfortunate conditions, 6

SOIL CONSERVATION AAA 

cloak of Congress to subsidize farmers, 202 

grants by Congress in 1947 were 2.2 billion, 203 

those subsidies supported prices of grain to $3, 203 

conservation important, but not to Washington, 204 

conservation deceiving term like National Labor Relations Act, 204 

Constitution affords plain method for conservation, 205 

bureaucrats administrating cost 24 million per year, 206

STATES, THE

Hamilton believed States would defend against Congress, 54

conference of governors complained of disregard by Washington, 177n

States blamable through members in Congress for conditions, 178

yet governors still want "Federal aid," 178, 179

representatives of in Congress must take back Union, 180

did not intend to restrain themselves by Bill of Rights, 210

no restraint on by any article in Bill of Rights, 225

Marshall quoted on power of people in, 231

held no general rule applying Bill of Rights to, 232

self-incrimination provision Fifth Amendment not applicable to States, 233 

toppled in groups by misapplication Fourteenth Amendment, 240

blamable for National Nominating Convention, 267

each a Republic independent in local affairs, 7, 224

education in Constitution should be made imperative by, 50

given benefit of National Judiciary, 42

House of States broken by popular election senators, 9

invaded by Stockyards Act, 97

legislatures elected senators to their House, 9

Madison said would rise against National encroachment, 101

must adhere to Republican form of government, 7

should abolish "straight ticket" in elections, 91

States alone must help the helpless, 211

when, only, Nation can enter States, 214

would not have accepted Constitution with Social Security, 192, 193

abdication of constitutional powers and duties by, 183

STRIKES

Communism active in American strikes, 174

Earl Browder quoted to that effect, 174, 175

public rights paramount where strike probable, 31

strikes during war gave "aid and comfort" to enemy, 33

strikes destructive to private enterprise, 33

Debs Strike 1894 ended by injunction Federal Court, 35 

President stopped strike 1946 by getting injunction, 36

United States forced to get injunction against strikers, 169

after National Labor Relations Act strikes trebled in number, 167, 168

table showing number strikes by years, 168

government of Wisconsin on lawlessness of strikers, 168

Department of Justice inactive respecting strikes, 169

courts have shown capacity to handle disputes right, 34, 36, 37 

no right in law to concerted strike in large employment, 171

public interest makes controversies justiciable, for court, 31

sit-down strike not disfavored in Washington, 173

SUBSIDIES

appeared in first Congress: Madison opposed and defeated, 188

between 100 and 150 million in eggs by WFA not wanted, 153, 154

"ever normal granary": fed wheat to pigs, 152

FSCC dumped in 1944 14 

carloads spoiled eggs, 152

purchased 10,500 carloads eggs to support price, 153

sold at heavy loss 26 carloads eggs for hog feed, 153

total reported for 17 years, $14,571,060,000, 155

Washington dumped millions bushels rotten potatoes, 154

almost immeasurable losses in support of agriculture, 157 

rapid spread of unconstitutional evil shown, 197

SUPREME COURT, THE

attempt by President Franklin D. Roosevelt to pack, 23, 14, 88

long continued attempt by Congress to intimidate, 14

Congress piqued by holdings acts violated Constitution, 15

decision by majority historical and Constitutional, 15

men in schools join in attack on judiciary, 15

samples of books against judiciary by supposed scholars, 16

Hamilton quoted in "The Federalist" on function courts, 17

judicial system of Constitution praised by foreign scholars, 18

organized labor demands curb on courts, 18

Canada and Australia adopted American judicial system, 18n

American Federation Labor favors amendment curbing Supreme Court, 19

Constitution, not court, "invalidates" act Congress, 19

does not "veto" act Congress when citizen brings suit, 22

acts of "New Deal" held unconstitutional cited, 23

President Roosevelt kept plan to pack from people, 24

mathematics of court packing plan exhibited, 24

Senate rejected President's attempt court packing, 25

President Roosevelt had once objected to increasing number judges, 25

book by Attorney General supported court packing, 25

attempt to pack not sudden outburst of alienism, 38

great statesmanship is exhibited in Slaughter-house decision, 230

Slaughter-house decision sensed peril appearing in Minnesota and Illinois, 
230

Slaughter-house cases followed over third of century later, 230

"assumed" frequently Fourteenth Amendment absorbs First, 221

Canada, Australia and other countries copied Court, 17

changed from Republican majority of one to 8 Democrats, 242

declined to pass on validity Maternity Act, 92

erroneous decision in Illinois school case, 216

fallacious idea on man's right to property, 76

held Income Tax Act 1894 invalid, 61

held tax on salaries judges prohibited by Constitution, 200

ignoring history, sustained Social Security Act, 200

importance of far-seeing judges: Senator Hoar, 229n

its Equity Rule protects all alike in injunction cases, 49

Jehovah's Witnesses given illegal latitude, 240

labor favored by many judicial decisions, 27

misapplied Fourteenth Amendment in Minnesota Press case, 219

overrode cases in upholding National Labor Relations Act, 163

should be replenished from Supreme Courts of States, 242

refused in 1895 to amend Constitution, 61

said "emergency" does not confer power, 135

Senator Webster voted against every Justice hearing him, 12

took narrow view of wide record Tennessee Valley Authority, 119, 121

told by Cooley consider history of a provision Constitution, 218, 219

warned against "mystifying constitutional provision, 217

SUPREME LAW OF THE LAND

specified in the Constitution, 19

words of provision quoted, 19

TAXATION

President Coolidge quoted; needless taxation "legalized larceny," 56

President Cleveland denounced avoidable taxation, 56

President Roosevelt's "tax processes" from Communist Manifesto 1848, 56

principle eminent domain applies: Government must give value for tax taken, 
64

Judge Cooley quoted tax must be proportionate to "interest secured," 64

must be for revenue, not punishment, or regulation: Justice Story, 66

Edmund Burke said Americans anticipated grievance, 81

grant of power by Constitution quoted, 186, 187

President vetoed tax reduction bill demanded at election, 206

spenders "scourge, rather than govern, the state," 206n

"abuse of this power" Hamilton thought prevented, 61

incomes and estates only property taxed by graduation, 63, 64

President F. D. Roosevelt deficient in knowledge of, 55

TENNESSEE VALLEY AUTHORITY, 1933 

electrical power corporation created with pretense regulating floods, 110 

admitted by government no grant for manufacturing power, 110, 122

selling electrical power in great volume now. 111

people misled by easy getting, 111

other unconstitutional power projects followed TVA, 111

projectors purposed to introduce corporation of Fascism, 112

took over Muscle Shoals Dam of World War I, 113, 114

National Defense Act, 1916, revealed purpose manufacture power, 115

Intention behind TVA kept secret in campaign 1932, 115

multiform activity and losses to taxpayers, 116

private investors being driven out, 119

President Roosevelt's argument for Fascism, 117

President's "yardstick" becomes a bludgeon, 120

figures show power, not flood control, purpose, 121

United States District Court held Congress without such power, 121 

reversed by Supreme Court, 121 

matter in court record prophesied "electrification of America," 123 

private corporations would be put out of business, 123 

later President Roosevelt confirmed dissent Justice McReynolds, 124 

Congress rejected application for steam plant, 124 

power projects now cover 44 of 48 states, 124n 

flood control fraudulent pretense of Fascism, 125 

question should have been left to Ultimate Court, 126 

Supreme Court should not amend Constitution, 126, 127 

TVA powerful and dangerous propagandist, 127, 128

taxpayers provide money; big business takes the power, 128n

mathematics proves private capital cannot stand such competition, 129

can court maintain Constitution against such legislation: Judge Dillon, 130 

project destroyed 500,000 acres productive land, 130

yearly production foodstuffs over 14 million gone forever, 131

Fascism thrust upon Tennessee Valley, 132

power project carried to Alaska 152n

"a deliberate step into forbidden field"; Justice McReynolds, 123 

act creating of great length and difficult detail, 115

agricultural and industrial development by Congress illegal, 114

all valleys before developed by dwellers therein, 111

apparent success will proves fundamental failure, 111

Congress becoming weary of costs, 117

Constitution authorizes only control of interstate river, 114

disadvantage suffered by private investors, 116, 119

displaced 13,433 families, 131

engaged in many non-governmental activities, 115

escapes taxes and pays no interest, 116

fallacy in reasoning Supreme Court, 129

Fascist corporation planned before 1932 election, 115

Fascist corporations overspreading the map, 152

Federal Power Act 1935 further development Fascism, 125

investors objecting denounced as "anti-social," 117

losses in 1946 8 million; from beginning 100 million, 116

McReynolds, Justice, saw private investors "put out," 120

private competitors pay taxes and interest, 116, 119

private investors selling out in fear, 119

prophetic lawyer foresaw such decisions, 130

revelation extraordinary growth power plants, on taxpayer, 125, 152n

Supreme Court took narrow view of wide record, 122

was Gen. Eisenhower's "creeping paralysis" aimed at this? 112

TENTH AMENDMENT

last word Bill of Rights protecting police power States, 185

Chief Justice Chase on importance of States in Republic, 201

disregard of leads to "boundless field of power," 65

Jefferson said body of the Constitution, 192

Maternity Act 1921 in disregard of, 91

National Labor Relations Act forbidden by, 161

persistence of Congress in violation of, 161

President Cleveland on observing boundaries, 13

Commerce Clause and General Welfare cloaks for violation of, 97

cases in pursuance of overruled, 85

quoted on California Tide-Lands Case, 248

Social Security Act contrary to, 182

Soil Conservation Act in disregard of limitation, 201

strongest objections to Constitution brought this Amendment, 185

Stockyards Act, 1921 in contravention of, 96

TIDE-WATER OIL LANDS

property of States seized by United States, 243

seizure upheld in decision of Supreme Court, 243

California had held possession 100 years, 244

Chief Justice Taney held title in States, 1842, 245 

so decided again in 1845, 246

so decided by Justice Field respecting California, 1873, 246

those cases disregarded but not overruled, 1947, 243, 246

Senator from State started movement against States, 249

two Presidents encouraged illegal seizure, 249

action United States comparable to partition of Poland, 250

States have power to overrule unwarranted decision, 252

ULTIMATE POWER, THE PEOPLE

Article V shows way change or abolish Constitution, 37, 126, 127

first Income Tax Case referred to Ultimate Power, 126

Justice Brandeis on "procedural regularity," 235

UNPRECEDENTED TASK OF CONSTITUTIONAL CONVENTION

to maintain general sovereignty of States in a Republic, 296

confederations had always disintegrated; nations had become imperial 296-297 

task was to unite and maintain individuality of each, 297

States surrendered few inherent powers and carefully guarded remainder, 297 

first successful attempt of a people to restrain themselves, 298

Senator Hoar quoted on this extraordinary restraint, 298

three lessons taught to posterity by Constitutional Convention, 298, 299

Hamilton said difficulty to make government control itself, 299

that is surpassing task of the American today, 299

VOTING

States should abolish the "straight ticket," 91, 180

should be limited to constitutional scholars, 90, 180

States should bring back strict Australian ballot, 91

eligible voters remain away from polls; above half, 263

WASHINGTON, GEORGE

cautioned against amendments by tinkers, 11

WEBSTER, DANIEL

said our government is last hope of world, xiii, 272

as Senator voted against confirmation of Justices of Supreme Court, 12

WILSON, JAMES

legal scholar of Constitutional Convention explains limitations on 
Congress, 190

pointed out in Convention two citizenships: National and State, 212


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