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James Truslow Adams
Historian, Businessman, Author
Auspices, National Committee to Uphold Constitutional Government, over Mutual Broadcasting, March 8, 1937
The question which I have to discuss tonight should be entirely non-partisan. What I have to say I would say in the same words if Mr. Landon had been elected and if he were attempting to do what Mr. Roosevelt is, because it is a question not of temporary policies but of the fundamental form of our government itself. It is a question not to be settled by President or Congress or the Democratic or Republican Parties but only by the American people. The question is of the freedom of that Court which in the last resort is the sole bulwark of our personal liberties.
These are guaranteed to us in the Constitution. A century and a half ago we thought a great deal about them because we had had to fight for them. We thought so much about them that we insisted on passing ten amendments to the original Constitution, to make sure that we should always have them. Among them were freedom of religion and worship, of the press and speech, of the right of assembly, and many others. Read, I beg of you, those first ten Amendments carefully, and then consider what might happen to your private lives if at any time an administration could pass laws taking away those liberties and if there were no independent Courts to defend you.
We take these liberties too much for granted today. We have not felt personally what it means not to have them. They are like the air we breathe. We give no thought to it, but let us not be deceived. The Europe of today tells a different story. Even under our present general form of government if we make the Executive or Congress, or both, supreme over the Constitution, with no check by the Courts, our safety and liberty are gone. We shall have placed our necks in a noose.
Why do we have a written Constitution and a Supreme Court to decide, as only one of its many functions, on the constitutionality of legislation? When states unite, as our thirteen did, to form a union, some written agreement must be made as to the relations between them and the central government. Our Constitution is practically made up of two parts, one of which settles what powers the Federal government shall have, what the individual states shall have, and the form of government in Washington with the powers delegated to each of its three sections. The other part of the Constitution details the liberties of the individual citizen already mentioned. All powers not given to the federal government or the states, including the power now in question to alter the Constitution, are reserved to us ourselves, the American people. No one can constitutionally change our fundamental law but ourselves.
But what is that law? It is the Constitution, and in any complex state there must be some body which is the umpire when the problem arises as to what is constitutional and what is not. Who will the umpire be? If a President tries to take away our freedom of speech, if a Congress takes away our property unlawfully, if a state legislature, as in the recent case of Louisiana under the dictatorship of Huey Long, takes away the freedom of the press, who is to save us except the Courts? The Anglo-Saxon race in the British Empire and the United States has been the most successful in the difficult art of self-government, and everywhere it has given this power of interpreting the constitution to a Supreme Court. Canada and Australia each has a Supreme Court which performs the same function as ours. The Judiciary Committee of the Privy Council in England acts as the same sort of Supreme Court for the Empire, and has only lately declared certain Canadian Acts unconstitutional. Our written Constitution and our Supreme Court are not peculiar to the United States. They have been found essential in every federal union. Such a government needs an umpire somewhere just as much as baseball does. It is obvious that an umpire must be impartial. What good would an umpire in a ball game be if he were to be bought by one side or the other, or physically threatened, or told that if he did not give the desired decision he would be chucked out in the middle of the game, or that two other umpires would be put in to vote with him who would give the decision as ordered?
No man in infallible and it is true that our opinions on even the most abstruse matters are to some extent colored by our general outlook but I think too much is made of the five-to-four decisions (a small minority after all of the Supreme Courts' total Constitutional decisions). Much is heard of these, but the N. R. A. decision was nine to nothing, and the A. A. A. decision was six to three. But take even the five to four decisions. I see that the Senators who have so far announced their stand on the question of packing the court are thirty-seven to thirty-eight. If the President's all-important, and in my view revolutionary Bill, should be finally passed or defeated by one vote in ninety-six is that any improvement over five to four? In running a democracy we have concluded that it is better to count ballots in boxes than bodies on a battlefield even if there is a majority of only one. In the ordinary running of government we consider that to be the least painful and most efficient method. We accept such decisions with good spirit and go about our daily work and make the best of it when defeated. But we have done so in the past because we have known that all the rights of a beaten minority cannot be trampled under foot. We have known that there were certain fundamental rights as to property, freedom of speech and press, from unwarranted searches and seizures, and so on, that were guaranteed and that, in the last resort, the Supreme Court would uphold them for us. But if the Court were to be made the puppet of an administration we could no longer have confidence that when beaten on a political issue we might not lose also some or all of our constitutional rights. The minority might then find itself without the right to organize or to express itself freely in speech or press, and without democratic weapons against the majority.
It is often said that the fathers who drew up the Constitution could not foresee all the changed conditions of today. True, but they did see that they could not foresee, and so they provided means for change by amendment by the people. They were careful not to give this power of change to the President or Congress or Court but kept it, where it belongs, in the hands of the nation at large. As Washington said in his Farewell Address; "if in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designated. But let there be no change by usurpation; for, though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed."
Why then this now attempted usurpation, this request that the Executive and Legislative departments shall control the Court by threatening to pack it? When the Bill was first sent to Congress the impression given was that it was an incidental reform in administration for the sake of efficiency. That obvious misrepresentation has since been torn to shreds. It has been shown that the Supreme Court is not behind with the cases which have come to it. If there has been delay it has been in the lower Federal Courts in which for more than a year the President has failed to fill eight vacancies. It has also been shown that a Court of fifteen would be less expeditious and efficient than a court of nine. As every Justice has to study each case there can be no division of work, but after each has done so, more time will be taken to talk it over between fifteen men than between nine, as any one knows who has served on committees. As to age, the most liberal and one of the most efficient of the justices is Mr. Brandeis who is the oldest on the Court. No one, I think, would object, as the present Justices retire, to have new ones accept office under an age retirement arrangement. But we need not go on. The President has practically admitted that the object of the Bill is to pack the Court so as to get certain decisions.
The people have had no voice in this matter. It is said that they, or the 60 per cent of them who voted for Roosevelt in November, gave him a mandate. A mandate for what? It is true that this 60 per cent was evidently for various reasons in favor of the President and his general policies. But although he apparently had this packing of the Court in mind he said nothing to the voters. On the contrary he ran on a platform which distinctly affirmed that if desired legislation (for purposes with which most of us agree in the main) could not be secured "within the Constitution" the necessary "clarifying amendment" would be sought. This is what the people voted for and this was the mandate they gave. If the President had anything else in mind, he did not take the people into his confidence though he asked them for theirs. I do not see how anyone can believe that a Bill to pack the Supreme Court is within the Constitution. It is true that Congress has the power to alter the number of Justices but that power has never been considered as having been given to it for the purpose of controlling and subordinating to itself the decisions of the Court.
On the other hand, it is claimed that the amendment which it was promised would be submitted to the people, if necessary, cannot be for two reasons. First, that it would take too long. Administration spokesmen point to the Child Labor Law. This has not passed yet after a dozen years but they say nothing of the Amendment repealing Prohibition which took only ten months from start to finish. It depends solely on the unification of public opinion. The American people overwhelmingly waited Repeal and they got it in quick order. Many want a Child Labor amendment but also many do not like the form in which the present amendment was submitted.
It is also said that an amendment which would validate all that the New Dealers want in legislation would have to be so broad in its terms that the people would not pass it. But if the people would not support these changes if they were put up to them, is it fair to bring them about without putting them up to them? To take in by the back door what the people would not let in by the front? Is this making democracy work? Have the American people sunk so low that they can no longer govern themselves or decide for themselves or be trusted but must be made to conform to what a group thinks is best for them? This is the method of dictatorship and not of democracy. I speak of the method and not of the man, and I would say the same whoever the man was. I concede the best of motives to the President and I do not believe and have never said that he personally wished to become a dictator of the European type.
But what of others? If the people yield up that power reserved to them alone to alter the Constitution, what may happen in other circumstances and under other leaders? Has not Mr. Roosevelt himself warned us? Did he not tell us months ago that already such instruments of power had been built up by the government in Washington as, in the wrong hands might shackle the liberties of the people? Think of some of the powers already conferred upon him. He can again devalue the dollar when he pleases. With the Secretary of the Treasury he can manipulate the Stabilization Fund of $2,000,000,000 "not subject to review by any other officer of the United States." He can have issued $3,000,000,000 in greenbacks; can decree free and unlimited coinage of silver overnight; can rule how gold may be acquired, held, transported, imported or exported. He can raise or lower any tariff by as much as 50 per cent. He can spend, almost at his own discretion a sum practically twice as large as the entire Federal budget in 1913. He can determine the rates of pay of about 2,000,000 people. A publicity plant for controlling public opinion such as we never saw before has been built up in the Departments. These are only some of the powers he has which no other President has had, and now we are asked to allow him and Congress to control the Supreme Court.
These are some of those powers he must have had in mind when he said that in the wrong hands they might shackle our liberties. In whose hands will these and perhaps more power be in five years, ten years? Obviously not in those of Mr. Roosevelt. It is utterly impossible for him or us to say in whose. Especially since the war American elections have been subject to wide swings. Roosevelt got just over 60 per cent of the popular vote last year but the Republicans got nearly 64 per cent in 1920 under Harding, and Coolidge got over 65 per cent in 1924. A hundred years and more ago we had what was called the Era of Good Feeling, and Monroe polled all but one of the entire Electoral Vote in 1820. But by 1824 his party had been split into four factions each with a candidate for President in the field. Who can say what the next few years may bring, and in whose hands may rest these powers the President has warned us of?
Do we want to give up any more to the unknown men of the future? Do we above all, want to give up our inherent right to have a voice in the changing of the Constitution and of our fundamental law? Remember that the Constitution as originally drawn and with all its amendments is a single instrument. The method of changing one part may be used on all. If the people are not to pass on amendments but if the Constitution is to be changed by packing the Court, then that same method might some day be used to alter those parts which guarantee us our religious and other liberties as well as those relating to commerce and other matters. The only thing which we can do now is to make ourselves heard as loudly as possible in Washington. (Would that we had with us today, on the anniversary of his ninety-sixth birthday, that great Liberal, the late Justice Oliver Wendell Holmes, who retained to the end his patriotism, his Liberalism, his broad interpretation of both life and law, and that vision which enabled him to see, like Washington, not merely what might be desirable for the moment but what would build solidly for the future.)
As an ordinary American, as a fellow citizen, I plead with you in closing not to allow the independence of the courts to be sacrificed to the changing moods of an electorate as reflected in even the best legislature, or subject to control by one man no matter how benevolent or wise.