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
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
"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. 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
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
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
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
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
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,
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
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
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
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
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
What would the author of Big Business on the Bench say to that
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
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
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
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. 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
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 (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
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."
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