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the Union, so must we perceive that the issue here challenges the integrity of the States.
Now, as then, the question is disturbed if not controlled by its association with a great moral, social, and economic problem, which arouses passion by appealing to the emotions, which divides public sentiment and diverts attention from the major issue to itself. The issue should be distinguished from the cause which has advanced it, if we are to appreciate its magnitude. The extinction of the liquor traffic is not the issue, but the incident to it. The latter involves the repudiation of a fundamental principle of the Constitution whose overthrow the States may not ultimately survive. Any other incident might as well have precipitated it. And if by observing the formulas provided for amending the Constitution, the object embraced in the eighteenth amendment may be permanently embodied in it, so may every other object be, without regard to the original division of powers, or the guaranties contained in the first 10 amendments, without the promise of which that great charter would have been rejected. For it was contemplated that the dual system of government it established should be permanent, and that amendments thereafter made should not impair, much less destroy, that system. So radical a change was inconceivable. While the power to amend was subject to but one express permanent limitation, the substance of that limitation emphasizes the assertion that the integrity of the States should be imperiled by no amendment radically affecting the original structure of the Government. "No State," declares the fifth article, "without its consent shall be deprived of its equal suffrage in the Senate."
I am aware of the contention that enumerated limitations upon a given power are exclusive, and that none others may be imposed upon the equilibrium of the units composing the Union, or their conflict with the positive declarations of the tenth amendment. If the contention be sound its logical results must be accepted. They lead to the conclusion that two-thirds of the Congress and three-fourths of the States may by amending fundamentally alter our system of government, abolish the States, rewrite the Constitution, and substitute a national Democracy for a representative Republic. But if this can be done by the crafty process of successive amendments, it can be done by the agency of a single amendment. One-fourth of the States, possibly containing half of our population and vigorously protesting, may be deprived of their sovereign autonomy by the verdict of the remaining three-fourths possibly containing the other half. The latter may, by exercising such authority, thus destroy the source of it.
The Constitution guarantees to every State a republican form of government. May three-fourths of the States by amendment deprive themselves and the other fourth of this guarantee? It shall protect each of the States against invasion; and upon request, against domestic violence. May these assurances become the sport of transient tempests of excitement and be obliterated by amendments proposed and accepted as the Constitution provides? The tenth amendment is a barrier to Federal aggression upon the States. May it be destroyed by amending or repealing the amendment? Changes such as these should come if they must only through the deliberations of a constitutional convention, representing all the people of all the States. For an amendment which transforms the governmental scheme and supplants it with another is a misnomer. It was ably contended by the first intellects of the time that the first ten amendments were unnecessary, because they merely recited a list of rights and limitations already existing; which was doubtless true. But it was answered that if that were so, there could be no valid objection to their proposal and acceptance, since the people would not otherwise rest content. The tenth amendment can not, therefore, be regarded so much as a limitation upon the powers of the Federal Government than as a positive expression, subsequently incorporated into the Constitution, of a limitation upon Article 5. The people immediately exercised the power of amendment provided in that article, by expressly reserving to themselves or to the States, respectively, every power not then delegated to the United States by the Constitution or prohibited by it to the States. If, notwithstanding this, the power to alter or abolish the amendment reposes in the article under which it was engrafted upon the organic charter, then it must be conceded that the article may be used to destroy the document of which it is a part, and the unamendable right of the States to an equal suffrage in the Senate may be degraded into a meaningless formula.
Should I be asked to define the boundary between these features of the Constitution which may and those which may not be the subject of amendment, I would confess my inability to make adequate reply. But I might answer with some degree of confidence that the States can be deprived of no element of local sovereignty essential to their efficiency and needful for the protection of the lives, liberties, and property of their citizens, either abolishing it, or transferring it to the Federal Government by constitutional amendment. One such element is the power of taxation. Another is the police power. Amendments prohibiting the exercise of these fundamentals by the
States and adding them to the other powers delegated to the nation, would result in their collapse. They might perhaps present the external form of republican government, but these would crumble into ruin before the corroding processes of time, if indeed they were not hastened by the influences accomplishing the change.
Whatever may be said in behalf of national prohibition, and I am in hearty sympathy with its purposes, and can testify to its social, moral, and economic value in the States which have accepted it, the eighteenth amendment not only changes but revolutionizes the original structure of the Government. It encroaches upon the reserved powers of the States and of the rights of the people thereof under State constitutions and laws, and equips the National Government with power to enact laws for its enforcement in every quarter of the national domain. It substitutes the national for the state constable, the Federal for the State court, the Federal for the local jury in all that pertains to the manufacture, distribution, or consumption of alcoholic beverages. It does this in States which have rejected as well as in those which have accepted the amendment. It must be conceded that the subject directly concerns the conduct and environment of the individual. It is, therefore, foreign to the supervisory power of the national authority as originally outlined.
Crime is unfortunately all pervading. But except as the outgrowth of Federal Statutes, its prevention and punishment lie beyond the province of the Central Government. Each State has its own code and its own list of penalties. The citizen's diet, his extravagances, his frugality, his apparel, his pursuits, these and other subjects of distinctly personal and local nature, should be regulated and controlled, if at all, only by the local governments. If supervision of one may be delegated to the General Government, so may all of them. To do so would relieve the local government from all responsibility, only to burden the central one with a mass of detail beyond its power to transact, and impose a bureaucracy upon the people from whose intricate processes and irritating exactions the people would revolt. The most exacting of governments can not wholly suppress undue and immoral personal tendencies, and the degree of their failure waxes as the orbit of their control is expanded. If the State can not enact and administer effective laws regulating or preventing them, we may be sure that shifting the burden to the national shoulders will greatly aggravate the evil. This amendment may be upheld. Many, perhaps a majority, of the people do not question its validity. If time shall vindicate their judgment, it may be well to note some probable consequences.
The Nation has emerged from the travail of a bloody and destructive war, which has wrecked continents, destroyed millions of lives, billions of property, overthrown governments, and torn the world from its ancient moorings. Our people confront the mighty task of reconstruction; a task less formidable for them than for those across the sea, yet demanding all their energies, their prudence, and their patriotism. But the spirit of unrest, of discontent, and of agitation is all pervading. It breeds contempt for law, defiance of authority, and resistance to the established order. It utilizes the unsettled social and economic conditions as the opportunity for political revolution, with democracy as its shibboleth. It is impatient of constitutional restraints and representative government. Time will crystallize its plans and largely moderate its intemperance, but we may be sure that the example of the eighteenth amendment and the far-reaching transformation it effectuates in American Government will not be lost upon it.
And since no measure can become a law without the affirmative vote of a majority of the States in the Senate, since the President may be chosen by the Electoral College although a majority of the popular vote be cast against him, since laws ardently demanded may be declared invalid by the judicial authority as in conflict with organic limitations, since property may not be taken but for a public purpose and then only by making due compensation, we may be sure that many new amendments, some of them already introduced and published, will be proposed for the removal or modification of such objectionable constitutional restrictions, and particularly of the tedious mechanism of Article V. These will find support in Congress and in the State legislatures in proportion to the strength of the electorate behind them. And the campaign against the dual system of the Constitution, the march against the principle of representative government, will be fairly on.
Mr. President, I have brought some exhibits supporting this statement. They compose 26 resolutions pending either in the House or in the Senate, each proposing an amendment to the Constitution of the United States. These have been introduced since the 19th of May last, when the present Congress was assembled in extra session. I will merely refer to their purpose and, when very short, briefly to their contents. The first was introduced by Mr. Sheppard in the Senate (S. J. Res. 58), requiring fixed terms for judges of the inferior United States courts. That is to say, taking away the life term and providing a fixed term of years for the internment.
The second, by Mr. Jones of Washington, proposes to amend the Constitution of the United States to authorize uniform laws on the subject of marriage and divorce, and to provide penalties for enforcement. (S. J. Res. 55.)
The third, introduced by Senator Harrison, of Mississippi, provides for ratification of proposed amendments to the Constitution by popular vote. (S. J. Res. 48.)
The fourth was introduced by Mr. Brandegee, of Connecticut. It proposed a substitute for Article V of the Constitution, the change contemplated being the limitation of six years upon all proposed amendments to the Constitution of the United States, and if not ratified in that time by the requisite number of the States it dies. (S. J. Res. 41.)
The fifth was introduced by Senator Pomerene (S. J. Res. 22), proposing an initiative and referendum amendment to the Constitution of the United States, extending the right of its citizens, when they so desire, to vote on constitutional amendments and laws.
The sixth was introduced by Senator Poindexter (S. J. Res. 5), the purpose being to limit representation to actual voters.
The seventh, by Mr. Raker, of the House, relates to the citizenship of children of foreign parentage, and provides that no child shall be eligible to citizenship in the United States unless both parents are eligible to become citizens of the United States. (H. J. Res. 255.).
The eighth is introduced by Mr. O'Connell, and is a proposed prohibition amendment by special election, evidently introduced for the purpose of modifying the terms of the eighteenth amendment. (H. J. Res. 251.)
The ninth is introduced by Mr. Juul, and is a substitute for Article V, which is the smendment article of the Constitution. It strikes out the clause concerning repreent ation by the States in the Senate. (H. J. Res. 242.)
The tenth was introduced by Mr. Hastings and is designed to give the President power to exercise the veto power over single items of appropriation bills, without thereby affecting the items not objected to. (H. J. Res. 238.)
The eleventh is proposed by Mr. Andrews of Nebraska, and it is for the apportionment of the Representatives and of direct taxes among the several States. (H. J. Res. 219.)
The twelfth is by Mr. James, proposing an amendment to the Constitution forbidding Congress to conscript armies to serve outside the United States to execute the orders of any international body or tribunal. (H. J. Res. 166.)
The thirteenth, proposed by Mr. Griffin, proposes an amendment to the Constitution taking away from the United States Senate the exclusive power to ratify treaties and vesting that power in both the Senate and the House of Representatives (H. J. Res. 164), the principle of which will appeal as much to your sense of humor as to your sense of propriety.
The fourteenth, introduced by Mr. Emerson, proposes an initiative and referendum amendment to the Constitution of the United States extending the right of its citizens, when they so desire, to vote upon constitutional amendments and laws. (H. J. Res 123.)
The fifteenth, introduced by Mr. Volstead, proposes an amendment to the Constitution of the United States to authorize the Congress to enact laws to define and limit the causes for divorce. (H. J. Res. 75.)
The sixteenth, introduced by Mr. Gillette, is an amendment regarding polygamy, which has been introduced regularly in all the Congresses of the past 25 years. (H. J. Res. 74.)
The seventeenth was introduced by Mr. Emerson, and is another initiative and referendum proposition. (H. J. Res. 60.)
The eighteenth, introduced by Mr. Mason, provides that Congress shall have power to prohibit or to regulate the employment of children under the age of 16 years. (H. J. Res. 54.)
The nineteenth (H. J. Res. 45) introduced by Mr. Husted, prohibits the discrimination of State laws against aliens, and provides that no State shall pass laws in respect to the holding of property or the enjoyment of any civil privilege or immunity.
The twentieth, introduced by Mr. Curry, of California, is aimed at the veto power, with a view of enlarging it, so as to provide that only portions of bills or items therein may be vetoed by the President. (H. J. Res. 39.)
The twenty-first is introduced by Mr. Siegel, and proposes an amendment to the Constitution providing for ratification of all amendments thereto by direct vote of the people. (H. J. Res. 36.)
The twenty-second (H. J. Res. 35), introduced by Mr. Griffin, proposes an amendment to the Constitution, providing that all amendments thereto shall be ratified by the people of three-fourths of the several States.
The twenty-third (H. J. Res. 32), introduced by Mr. Olney, proposes an amendment to the Constitution designed to give Congress the power to extend the right of suffrage to the residents of the District of Columbia.
The twenty-fourth (H. J. Res. 16), introduced by Mr. Hayden, provides that no law shall be held unconstitutional and void by the Supreme Court without the concurrence of at least all but two of the judges.
The twenty-fifth (H. J. Res. 13), introduced by Mr. Rogers, is designed to give Congress power to regulate throughout the United States the employment of women and of persons under the age of 21 years.
The twenty-sixth (H. J. Res. 12), proposed by Mr. LaGuardia, is a proposed substitute for Article V.
The number of amendments of the Constitution are significant in that they all show the tendency to secure legislation by constitutional amendment, as well as to extend the jurisdiction of the Federal Government over other matters of purely local and domestic concern.
The sovereignty of the State is declining. It may be further denuded, although loudly protesting. Its sovereignty transferred to the Nation, the State ceases to exist; the former then is no longer a union of States, but the governing instrument of all the people. Possibly such a revolution may prove a wholesome change, superior to the Federation and more in accord with the progress of mankind. But the primal sources of its power will have disappeared.
It has been an axiom with writers upon constitutional law that were the Union destroyed, the States would remain as separate and independent Commonwealths; but the Union can not survive the destruction of the States, since its existence rests wholly upon them. "This equality of sovereignty of each State, says Tucker, "is the only unchangeable principle in the whole Constitution. A State in its essential quality can never be destroyed but by its own separate will. The clause as to amendments therefore shows that while Members and States in the two Houses of Congress propose amendments, the States through their separate legislatures or conventions must ratify the proposed amendments, and each State must ratify an amendment taking away its equipollency in the Senate. From this review it is obvious that without the continuing existence of States and State governments de jure and de facto, the Federal Government itself would cease to be. If the States in their full autonomy as independent bodies politic are pulled down the Federal Samson would be destroyed amid the ruins.'
* * *
Many of us believe that the greatness, the stability, the progress, and the glory of the United States are due to, and have sprung from and depend for their permanency upon the harmonious cooperation of the dual system of sovereignty upon which the fathers founded it. Only thus could the essential principle of local selfgovernment have been maintained under the aegis of an overshadowing central authority. Not otherwise could it have effectively functioned among a hundred millions of people distributed over a continent covering dominion. Not otherwise could the domestic affairs, the local regulations, their adaptation to changing conditions, have received the care, harmonized with the progress and conformed with the ever-changing needs of Anglo-Saxon community life.
The people now seem disposed to turn from this great and successful experiment in representative Government. They would welcome democracy shorn of checks and limitations, disdaining the refinements and complications of delegated power, proclaiming its laws and executing its decrees by the voice of an impulsive and easily aroused national majority. History warns us that the first step toward fundamental change leads inexorably to another, and yet another, until the great transformation is finally realized or violently prevented.
Pure democracies have been occasionally and transiently successful. Small communities devoted to primal pursuits, disciplined to self-control or exposed to powerful neighbors, easily tempted to avail themselves of serious dissensions, have managed thus to govern themselves. But with here and there an exception they have had their brief hours upon the stage and passed away. They had little patience with minorities, and less with individual liberty. Burke, quoting Aristotle, declared their ethical character to be the same with tyranny. But America is too vast, her population too great, her resources too limitless, her pursuits too diversified, her social, economic, and political activities too immense for the successful administration of a governmental democracy.
The fact is plain to every reflecting intelligence. The mass is too huge, its manipulation too unwieldy, its interests too antagonistic. The clash of opposing fac tions, the ambitious of powerful demagogues, the pressure of majorities upon property and production, the turbulence of insurrectionary minorities, multiplying in number, increasing in magnitude and unrestrained by the organized force of the Government, will breed revolution, riot, pillage, destruction, followed by autocracy as the final refuge of a distracted continent.
Mr. Hamilton, in the last number of the Federalist, quotes with approval Hume's observation that: "To balance a large state of society whether monarchial or republican on general laws, is a work of so great difficulty that no human genius, however comprehensive, is able by the mere dint of reason and reflection to effect it. The judgments of many unite in the work; experience must guide their labor, time must bring it to perfection, and the feeling of inconvenience must correct the mistakes which they inevitably fall into in their first trials and experiments."
Mr. Jefferson perhaps unconsciously expressed the same idea to Mr. Cabell in 1816. "The way to have good and safe government, is not to trust it all to one but to divide it among the many, distributing to every one exactly the functions he is competent to. Let the National Government be entrusted with the defense of the Nation, and its foreign and Federal relations; the State government with the civil rights, laws, police, and administration of what concerns the State generally; the counties with the local concerns of the counties, and each ward direct the interests within itself. It is by dividing and subdividing these republics from the great national one down through all its subordinations until it ends in the administration of every man's farm by himself; by placing under every one what his own eye may superintend, that all will be done for the best. What has destroyed liberty and the rights of man in every government which has ever existed under the sun? The generalizing and concentrating all cares and powers into one body, no matter whether of the autocrats of Russia, or France, or of the aristocrats of a Venetian Senate."
I do not say that we shall abandon our scheme of government, or commit ourselves to the hazards of national democracy. I have too much confidence in the ultimate judgment and practical common sense of my countrymen to believe it possible. But change is a natural law of human progress, and the struggle for power is ceaseless. Once it is finally decreed that the integrity of the States may be assailed, even under the prescribed forms of constitutional amendment, the contest between nationalist and constitutionalist is begun; and only the virtue, the wisdom, and the experience of the people will safeguard the edifice our fathers reared to preserve their own and the liberties of posterity.
In this critical period of our history, the country has need for all our patience, all our strength, and all our powers of resistance. The tides of excitement are rising ever higher, men's emotions are dethroning their powers of reason, all forms of government are denounced, classes challenge the social and political organizations of the time. Anarchy brandishes the torch and the dagger in the streets of our great cities. Crimes are committed in the name of Democracy, and the world's center of gravity oscillates upon an unstable equilibrium. He is heard who shouts the loudest, and he is heeded who knows and cares the least. Rights are proclaimed and responibilities repudiated. Human sympathy and the philosophy of the golden rule have no place in the ethics of modern conduct. The Nation is again confronted with "a time that tries men's souls."
We are self-governing because we are a people of self-imposed limitations. We have preserved our rights and liberties because we have recognized and vindicated the corresponding rights of our fellow men. We have maintained our civilization and the institutions of our Government, because we have been guided by the light of long and severe experience. But too long and uninterrupted enjoyment of them has tended to make us slothful. We are prone to become unmindful of our civic obligations; indifferent to the value of our heritage. Partisanship often reaching extremes has divided our ranks and diluted the verile strength of our Americanism. Even now we are more concerned with the approaching presidential election than with the solution of these formidable problems of economic and governmental concern which the war has placed upon our shoulders, and which involves the welfare of ourselves, of posterity, and of the world. We must transmit this great Republic with its dual system to our children, as our fathers after an anguish of blood and tears transmitted it to us. We may be Democrats, Republicans, Independents, Socialists, true to party conviction, burning with party zeal, committed to the need for party supremacy. But party must not blind nor divide us. First and last we are, we must be Americans, citizens of a common country, bearers of a common responsibility, coworkers toward a common destiny. The peril tests our common strength, we must meet it together. Let us strive without ceasing to preserve our Nation, our States, our communities, each in their proper sphere, all as the chartered covenants of prosperity, of justice, and of ordered liberty. Our duty is plain, our task severe, our formula simple.
We may not hope to set aside the eighteenth amendment, but we should make it the high-water mark of the tide of modern nationalism. We can revive the convictions and repeat the warnings of those who founded the Government and guided it through the perilous years of its early career. We can resist with all our energies the modern iconoclasm which would cast aside the carefully molded and coordinated structure of representative government; undermine the constituent Commonwealths of the Republic, and discard the vital principle of local self-government. We can impress