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