CHAPTER VIII

WHAT IS A CONSTITUTION?

The nature of the constitution and the dependence of the

minority thereon and hence the necessity for an independent

judiciary discussed and illustrated.

A constitution is little less than a firm and binding contract between

the majority and the minority, entered into for the sole protection of

the minority, with regularly constituted courts to enforce its

provisions.

The Supreme Court of the United States, from which every root of the

Judiciary Department—one of the three coordinate branches of

government—derives its vitality, is our only continuing and unchanging

bulwark of liberty.

The executive branch, from President down through all the departments,

State, Treasury, War and Navy, is liable to radical change on the

fourth day of March every four years. Either house and both houses of

Congress frequently change in partisan complexion at a single election.

The Supreme Court, the members of which hold by life tenure, remains,

theoretically, at least, unchanged.

Unless the people undermine their liberties by “effecting in the forms

of the Constitution alterations which will impair the energy of the

system,” which Washington warned against, or unless some executive

corrupts the personnel of the Supreme Court by filling vacancies with

socialists, or other revolutionary elements, Anglican liberty, the hope

of the world, is secured in America against everything except

bolshevism. With respect to the courts, Washington’s famous order is

pertinent: “Place none but Americans on guard tonight.”

WHO IS AN AMERICAN?

Who is an American, worthy to be placed on guard tonight? Is he

American born? He may be, and he may have been born beneath any flag

and under any sky. An American is one who believes in and is ready to

defend this _republic_. To be ready to defend our territory, or even

our flag, is not enough.

Though we continue our socialistic bent and either undermine or

overthrow our form of government through peaceful evolution or forceful

revolution, with sword or by ballot, the land will remain. The rains

will water it, the sun warm it, human life will exist, the Stars and

Stripes will still float, but, except from the map, America will be

gone forever.

America is more than fertile fields, more than bursting banks, more

than waving flags. The America in which one must believe, and for which

he must sacrifice, is constitutional liberty and justice according to

law, guaranteed and administered by three coordinate branches of

government. Just in proportion as we weaken the energy of the system

through changes in the Constitution—which Washington so earnestly

warned against—we undermine what thus far no one has succeeded in

overthrowing.

I repeat, three coordinate branches of government with no subordinate

branch! In the America which the world knows, and which we love, laws

must be enacted by the legislative branch, and not by the executive or

by the proletariat. Laws must be interpreted by an independent

judiciary, fearless and unrecallable except by impeachment. And these

laws, whose scope is limited by the Constitution, must be administered

by the executive and not by the legislative branch. Congress has no

more right to direct the manner of execution of its acts than the

president has to direct or coerce the nature of its acts. Let each

coordinate branch keep hands off the sacred prerogatives of the other.

That’s America! And the man who defends her traditions and her

institutions, regardless of his nativity, is an American who can safely

be placed on guard tonight.

AN ACTUAL MENACE

On February 3, 1919, an editorial writer who has testified that he has

six million or more readers, quoted Samuel Gompers, president of the

American Federation of Labor, as saying:

“I mean that the people propose to control their government and do not

intend any longer to have the governing power exercised by judges on

the bench.”

And the editor correctly adds:

“This is as near to an American revolutionary statement as has ever

come from a man as important officially as Mr. Gompers.”

Thus the issue is sharply drawn. This organization, if its president

has been correctly quoted, intends to abolish one of our coordinate

branches of government, to-wit, the courts.

What have the courts done to justify such a radical change in our form

of government? When the government was organized the Fathers thought

wise to make express provision that no class should ever become the

special favorite of legislation. The Constitution forbids class

legislation and the courts enforce it. Unless labor union people demand

special exemptions from obligations to which all others are amenable,

or special privileges denied to others, why do they officially make the

revolutionary announcement that the courts are to be abolished? Yet

this very thing has the approval of this most widely known and

best-paid editorial writer in the world. Pressed in a corner, I presume

both would claim that their only desire is to compel the courts

promptly to observe popular sentiment instead of studying legal

principles and, to that end, propose to subject judges to some kind of

recall. And they would doubtless justify all this by the hackneyed

phrase, “the people can be trusted.”

Thus they follow Rousseau and Robespierre. The former declared, “The

general will, the public will, is always right.” The latter said, “The

people is infallible.”

A case that well illustrates this “popular infallibility” as taught by

Rousseau and Robespierre, as well as by their present day disciples,

occurred in a certain county in Iowa, not fifty miles from my home. A

person charged with second degree murder sought his constitutional

right of a fair and impartial trial. He made application for a change

of venue, alleging that his case had been prejudged and that because of

the existing prejudice he could not obtain a fair trial within that

county. Five citizens, the minimum requisite number, supported his

motion by their affidavits. Promptly, two hundred most reputable

citizens filed counter affidavits alleging that there was no prejudice

whatever. The judge believed the five. It is probable that he discerned

evidence of prejudice in the eagerness with which the two hundred

sought to have the case tried in their midst. A change of venue was

granted, and that night these two hundred liberty-loving citizens

decided they would “no longer have the governing power exercised by

judges on the bench,” broke open the jail, hung the accused and would

have done violence to the judge if he had not been spirited away.

If you want the opposite view of “popular infallibility,” so you may

the better determine for yourself, listen to Colonel Henry Watterson, a

democrat of the old school and an American always, in the _Brooklyn

Eagle_ of February 1, 1919:

“The people,” says Colonel Watterson, “_en masse_ constitute what we

call the mob. Mobs have rarely been right—never, except when capably

led. It was the mob of Jerusalem that did the unoffending Jesus of

Nazareth to death. It was the mob in Paris that made the Reign of

Terror. From that day to this, mobs have seldom been tempted, even had

a chance to go wrong, that they have not gone wrong. ‘The people’ is a

fetish. It was the people misled, who precipitated the South into the

madness of secession and the ruin of a hopelessly unequal war of

sections. It was the people, backing if not compelling, the Kaiser, who

committed hari-kari for themselves and their empire in Germany. It is

the people, leaderless, who are now making havoc in Russia. Throughout

the length and breadth of Christendom in all lands and ages, the

people, when turned loose, have raised every inch of hell to the square

inch they were able to raise, often upon the slightest pretext, or no

pretext at all.”

OFFICIAL TIMIDITY AND ITS EFFECTS

In some, perhaps most of the states, candidates for either House of

Congress, knowing in advance that if, by investigation and by listening

to arguments pro and con, they arrive at conclusions based on knowledge

that differ from the impressions of their constituents based on

prejudice, they will never be returned, make more or less formal

announcement that, if elected, they will study no question but, when

ready to vote, will inquire of those who have had neither opportunity

nor desire to inform themselves, and vote as directed. We pay

congressmen and senators of this type—just the same as statesmanlike

representatives—seven thousand, five hundred dollars a year, and they

vote as they are told to vote. If I am correctly informed, in some

states men have been found who will vote as they are instructed for

considerably less money even than that.

While the bill was pending to declare war against Germany, I called

upon a Congressman who, without question, is the ablest man from his

state. He had written to lawyers, bankers, farmers and labor men in his

district, asking how he should vote on that momentous question. He

handed me a package of replies he had received. I returned them and

asked: “Do you agree with the President that Germany is already making

war upon the United States?” “Yes,” he replied, “she has waged war

against us for more than two years.” “Do you think your constituents

know better than you what should be done?” His up-to-date reply was:

“My constituents know nothing whatever about it, but I want to be

re-elected.”

But not every congressman is that subservient. A certain well-known

representative of a strongly German district in Ohio explained his

support of the declaration of war in this language:

“If I were to permit any solicitude for my political future to govern

my action, I might hesitate, but, gentlemen of the House, the only

interest to which I give heed tonight is the interest of the American

people; the only future to which I look is the future of my country.”

A few years ago a bill was pending to revise the tariff and a member of

Congress from a certain industrial district arose and informed the

House that he had written to several labor men in his district and

asked them how he should vote and that he had received a telegram

saying, “Vote for the bill.” He obeyed. This member did not profess to

vote his convictions. In fact, he did not claim to be troubled with

convictions. And I submit that if a man is to vote the sentiment of his

district, rather than his judgment, it is foolish to waste the time of

men of judgment by sending them to Congress. It would be more

appropriate and in far better taste to send men who have nothing else

to do. A thousand dollars a year ought to be enough for a man who bears

no responsibility except to listen well, especially if he be of a

caliber willing to act as a “rubber stamp” for the people at home.

Right here I want to venture an opinion, asking no one to agree with

me: The gravest danger that confronts the United States of America, or

that has confronted her in the last decade, has not been the armed

forces against which we sent our brave boys in khaki, but in the fact

that there are hundreds of representatives, and thousands of ambitious

politicians, who cannot be purchased with the wealth of Croesus, but

who will vote for anything and everything if by so doing they can

advance their political fortunes.

Bolshevism would be crushed and the red flag of anarchy would be no

longer flaunted in the face of Freedom, were it not for this timidity

inspired by those who insist that their representatives shall have no

discretion and no responsibility except as clerks for an irresponsible

populace. This is the doctrine taught in Rousseau’s “Social Contract,”

which Robespierre read every day and which furnished the inspiration

for the French Revolution. His scheme was “pure democracy, unchecked,

unlimited and undefiled by political leadership or political

organization.”

Marat declared: “In a well regulated government the people as a body is

the real sovereign; their deputies are appointed solely to execute

their orders. What right has the clay to oppose the potter?” Again, he

says: “It is a sacred right of constituents to dismiss their

representatives at will.” And again: “Reduce the number of deputies”

(corresponding to our members of Congress) “to fifty; do not let them

remain in office more than five or six weeks; compel them to transact

their business during that time in public.”

This spirit of “pure democracy” which Washington, with prophetic eye,

saw and warned against, wrought its natural and legitimate ruin in

France, is responsible for conditions now existing in Russia and

affords the greatest menace to civilization that the world has ever

seen. I do not consider Washington a pessimist when, near the close of

his “Farewell Address” with heart full of apprehension, he uttered

these words:

“In offering to you, my countrymen, these counsels of an old and

affectionate friend, I dare not hope they will make the strong and

lasting impression I could wish; that they will control the usual

current of the passions, or prevent our nation from running the course

which hitherto has marked the destiny of nations.”

Someone has declared life to be “one succession of choices.” The choice

presented today is: Heed the warnings and return to the teachings of

Washington; or go with Rousseau and Robespierre and enter the port

towards which we are unmistakably headed—the port where lie the

rotting timbers of all previous republics. Representative government

and direct government are inherently incompatible. They are absolutely

antagonistic.

PART SECOND

DANGERS FROM CHANGES IN OUR PURPOSE OF GOVERNMENT

Vanishing Landmarks: The Trend Toward Bolshevism · 第 8 / 30 章