The most common disregard by Congress and the President of the Tenth Amendment, forbidding the Nation to usurp powers not granted to it, and especially to stay away from the governmental field of the States, has been in its persistent attempts, under the cloak of the Commerce Clause and of the General Welfare Clause, to invade the police field of the States for the protection and care of the health, safety, morals, education, and general well-being of the people and take jurisdiction of the liberties and living of men.
The Commerce Clause authorizes Congress "to regulate commerce with foreign nations, and among the several States" not within the States. The General Welfare Clause is discussed in another section.
After half a century of notable failures and some burrowing successes, that invasion won completely through the National Labor Relations Act of 1935. By that act Congress usurped police control of all workers in the United States.
Could Hamilton have foreseen that, he would have been dumbfounded.
"I confess," he wrote in No. 17 of The Federalist, "I am at a loss to discover what temptation the persons intrusted with the administration of the General Government could ever feel to divest the States of the authorities of that description" legislation "for the individual citizens of America."
Briefly, the act declared an "emergency" to exist because of the "burdening" of commerce and the "obstructing" of it by strikes arising out of labor disputes; and, to keep the "flow" of commerce not alone interstate commerce covered by the Commerce Clause, but all commerce uninterrupted, it set up a Labor Board to which disputes between workers and employers should be taken for hearing and decision. As there could be no suspension of production by any strike that would not "affect" or "obstruct" both intrastate and interstate commerce at least a little, all workers and employers were thus brought under the Commerce Clause, written respecting interstate commerce only, as its language so plainly shows.
Before that only a small part of the workers of the country were within reach of Congress by virtue of the Commerce Clause those employed by railroad companies, telegraph and telephone companies, and aviation companies. The great body of them lived and worked subject to the police power of the States.
Representatives of the States in Congress, by passing the act, disparaged and diminished their commonwealths.
Overriding its own decisions for half a century, on the powers of Congress over interstate commerce, and reversing the Judgments of four Circuit Courts of Appeals of three judges each, the Supreme Court of the United States, in an opinion by Chief Justice Hughes, Justices McReynolds, Van Devanter, Sutherland, and Butler dissenting, upheld (301 U. S. 1) on April 12, 1937, two months after the President proposed to "pack" the Court, and while the proposal was still before Congress, the National Labor Relations Act as a valid exercise of the granted power to Congress to regulate commerce "among the several States." The very title gives the lie to the strained recitations in the Act in a make-believe that it is a regulation of commerce and not a labor law. The promise was in those recitations that the operation of the Act would put an end to strikes and the disorders and losses which had attended them, which was not, of course, a subject of national jurisdiction.
The National Labor Relations Act had been preceded by many acts for the usurpation by Congress and the President of power over concerns of the States. The tyrannies spawned by the Labor Board in applying the National Labor Relations Act were a long time in coming.
When Franklin D. Roosevelt was Governor of New York, he protested in behalf of the States against the dishonest and lawless use of the Commerce Clause by Congress and the President to occupy forbidden ground in the States. Speaking on July 16, 1929, before a conference of governors at New London, Connecticut, he condemned the "stretching" of the Commerce Clause by Congress to cover cases not embraced by grants of power to it in the Constitution (italics inserted):
"Our Nation has been a successful experiment in democratic government because the individual States have waived in only a few instances their sovereign rights. . . .
"But there is a tendency, and to my mind a grievous tendency, on the part of our National Government, to encroach, on one excuse or another, more and more upon State supremacy. The elastic theory of interstate commerce, for instance, has been stretched almost to the breaking point to cover certain regulatory powers desired by Washington. But in many cases this has been due to a failure of the States, themselves, by common agreement, to pass legislation necessary to meet certain conditions."
The Commerce Clause, for the strict observance of which Governor Roosevelt was rightly solicitous, contains a principle dating back as far as Magna Carta (1215), when King John, faced by armed men, signed an agreement not to interfere in the right of Englishmen to go to and fro in commerce, and abroad and return, except only in an exigency of war.
Englishmen in commerce were "in pursuit of happiness," which the Declaration of Independence later denominated a right from the Creator, for the protection of which "governments are instituted among men."
The speeches and writings of Edmund Burke in behalf of the American colonists make clear that the restrictions on commerce by the government of England were far more burdensome and intolerable than was "taxation without representation," usually given as the cause of the American Revolution. All products for sale had to go to England in English ships. All things that they had to buy they were obliged to buy in England for transportation in English ships. Raw material ready for manufacture had to go to England for that purpose. This interference with commerce (only one of many hard regulations) destroyed shipbuilding, which had become of great importance, put an end to manufacture, and cut off commercial communication with other countries.
It was obstruction by States of this right to engage in commerce that contributed much to the breakdown of the government under the Articles of Confederation. And the third grant of power to Congress in the Constitution which followed (after taxing and borrowing) is "to regulate commerce . . . among the several States."
Congress is authorized to regulate commerce so that it will not be obstructed as it was before that is, it is to promote commerce. It is not to obstruct it affirmatively, any more than the early States could rightly do so, by legislation like the Norris-LaGuardia Law, which cripples men in commerce in the maintenance in court of their constitutional rights and their inherent rights. It is not to obstruct commerce negatively by failure to guard the rights of those engaged in it, as in the toleration of costly and destructive strikes.
The history of commerce makes clear that legally it is the most important right of men, not to be trifled with by kings or others in power. Nevertheless, for a third of a century obstructions to commerce have been so nearly continuous as to condemn the Government at Washington for default of duty under the Commerce Clause.
Five years before the National Labor Relations Act of Congress, Governor Roosevelt condemned illicit ideas which he afterwards sanctioned as President. In a radio address in 1930 he again took up States' rights and home rule and said that with "a great number ... of vital problems of Government, such as the conduct of public utilities, of banks, of insurance companies, of agriculture, of education, of social welfare, and of a dozen other important features . . . Washington must not be encouraged to interfere." (Italics inserted.)
With every one of those "features," Congress, taking orders from President Roosevelt, did interfere, to the denial of the liberty of man to engage unhampered by his Government or by his fellows in pursuits which had never before been regarded in the United States as subjects for political meddling. Never before regarded, because no fancy had ever found in the Constitution anything even suggesting the power in Congress to engage in or control such activities.
Yet, during the first eleven years of the Act, from 1935 to 1945 inclusive, there were 37,383 work stoppages, involving 16,827,305 workers and the loss of wages for 175,896,235 man-days.
For the eleven years before the National Labor Relations Act, 1924 to 1934, inclusive, the work stoppages were 11,565, affecting 5,829,339 workers, about one-third of the number involved in stoppages during the 11 years following the Act.
Even more deplorable than those losses to the workers was the brake put on production of food, clothing, housing, and other things required by a people in sore need, who had shown every willingness to do their part in the conduct of the war.
Many of those strikes were attended by the worst disorders, sometimes by bloodshed. Plants were seized by strikers and the owners excluded from them. Picketing was of the most violent sort.
Against those manifestations of lawlessness, which appeared in all parts of the country, the authorities of the States did nothing, or next to nothing. The United States looked on. There was generally a breakdown of law.
What was going on all over the country all during the war is illustrated by this official statement of the Employment Relations Board of the State of Wisconsin, issued on December 27, 1946 (italics added):
"It can no longer be assumed, as it was when the first order of this board was made in May of this year, that the leadership of the organization now on strike intends to be law-abiding citizens.
"Events transpiring since the entry of the order and its enforcement by a judgment of the Circuit Court of Milwaukee County clearly indicate that the leadership of this union entertains no respect for the law, agencies designated to administer it, or the courts, but intends to prevent by any methods, legal or illegal, the use of the company's premises by the company, or the pursuit of work by employees of the company desiring to work."
Previous orders of the Board had been disregarded. As the quotation shows, the strike at the plant of Allis-Chalmers had been on since May preceding. All the powers of unionism had been concentrated on Allis-Chalmers to compel it to establish the closed shop and thereby deny to Americans the liberty to work under conditions of their own choosing.
The Constitution defines one of only two acts of "treason against the United States" as "adhering to their enemies, giving them aid and comfort."
Were not the unceasing strikes which were waged in essential industries from one end of the war to the other of great "aid and comfort" to Germany and Japan?
What did the Department of Justice of the United States do to protect the Government in its war endeavor and the American in his liberty?
Not until the head of the United Mine Workers notified the Secretary of the Interior, who was operating the coal mines under one of the many illegal seizures of property, without compensation, committed by Government during the war, that it would terminate its working agreement at midnight, November 20, 1946, did the United States show mettle befitting such an occasion. This time it had been put on the spot.
The United States could not say that the duty to act was on the States, or use any other of the evasions which it had employed as encouragement to strikes against private industries. So it had its Department of Justice bring a suit on November 18 for injunction in the United States Court in the District of Columbia, which immediately issued an order restraining the head of the union and the miners from carrying out the notice. Nevertheless, a gradual walkout of miners began on November 18, and by November 20 "a full-blown strike was in progress," the Supreme Court said in sustaining the action of the trial judge in fining for contempt the head of the union $10,000 and the miners as a body $3,500,000. It authorized the reduction of the fine imposed on the miners to $700,000 on condition that they permanently obey the order of the court.
That shows how nicely those disputes could be handled if Congress and the States (which have really fostered labor troubles) would remit them to the courts, where all other people having disputes are obliged to go. Congress does not interfere in controversies between individuals, or between corporations, or between corporations and individuals, or between States, or between associations of men. Why should it interfere in disputes between employee and employer?
The questions in dispute are justiciable (for the Judiciary) where negotiation or arbitration fails and the next step is the strike, with suspension of production for the needs of the people and the country, and disorder, sabotage, and personal peril. At that point society must assert its paramount interest, as it did in the instance just described, and require the adjudication of the dispute in its courts.
Since the decision of the Supreme Court of the United States in 1928 holding (262 U. S. 522) invalid a statute of Kansas setting up an Industrial Court to hear and decide controversies between employee and employer, including differences over wages, the interest of the public in the continuity of service has become more and more recognized. The National Labor Relations Act of July, 1935, brought all of the employees of the country within the Commerce Clause of the Constitution under the pretense that it was necessary to prevent strikes from interrupting the free flow of commerce to the discomfiture and damage of the people. And in 1934 the Supreme Court sustained (291 U. S. 502) a law of New York setting up a Milk Control Board to fix maximum and minimum prices for milk, thus taking away the right of the parties to contract. The welfare of the public and the interest of the Nation have been so grossly disregarded during the last two decades that views on "the liberty of contract," and on "the right to strike" and plunge society into confusion and distress, have undergone change. The act of the legislature of Kansas setting up the Industrial Court would probably be sustained today.
When, for illustration, employment was on a small scale, the law was that an employee assumed the risk of injury by the carelessness of a fellow worker and he was therefore not entitled to damages from the employer. But as employment became stupendous, laws making the employer liable (as an operating cost) for injuries to a worker, whether there was negligence or not, were upheld by the courts as valid exercise of the police power of the States in the interest of society. So the controversy between employee and employer is no longer a matter exclusively personal to them.
Congress should get out of labor politics, in which it has too long performed a discreditable as well as an unconstitutional part.
The capers that have been cut at Washington during the last three decades make one wonder whether sight has been entirely lost of the purpose of Government as laid down in the Declaration of Independence, namely, to secure man against his fellows, and more especially against those whom he has chosen for his servants in public office. The activities of administrations have been plainly to favor, in view of the next election, great voting blocs like the labor organizations, the people on the farms (who, subsidized for years, turned the Presidential election in 1948), and the political bosses who "deliver" the votes of many corrupt cities. The platforms of both parties have offered shamelessly to "give every thing to every body" in those classes.
Meanwhile, the people, who set up Government "to secure these rights" which came to them from the Creator, "among which are life, liberty and the pursuit of happiness," are stripped of their possessions with a system of ruthlessness rarely exampled in the history of tyranny.
Although the Criminal Code of the United States provides that a fine of $100 and imprisonment for six months, or both, shall be imposed upon anyone who shall "knowingly and wilfully obstruct the passage of the mail," and although the opening of mail is severely punished, the Executive Department of the Government took no action respecting the obstructing and opening in 1937 of mail addressed to Americans engaged in their work and surrounded by pickets trying unlawfully to deny to them this liberty.
The nonaction by the Chief Executive, who is enjoined by the Constitution to "take care that the laws be faithfully executed," looked to the beholder like sanction of the illegalities.
While the Government at Washington assumed to legislate by the National Labor Relations Act respecting all labor, regardless of whether it might be engaged in interstate commerce (of which only it has jurisdiction), a spokesman for the White House let it be known that sit-down strikes in various parts of the country, by which owners were forcibly dispossessed of their property by their employees, were matters of concern, not to the Nation, but to the States! As before indicated, the debilitated States generally concurred in such strikes.
The Secretary of Labor was reported by the Press to question at first whether the seizure and detention of plants by sit-down workers was illegal!
While employees of a steel manufactory at Canton, Ohio, were working under siege by an army of pickets, airplanes dropped leaflets to discourage the workers, saying, "Our members are well fed and happy. Relief is being arranged for their families. Four departments of the United States Government are fighting for our side."
On March 23, 1947, the Associated Press reported from Milwaukee that "the Allis-Chalmers strike, one of the most bloody and turbulent in recent history, ended today when the striking UAW-CIO Local 248 voted to return to work without a contract."
That shows that the workers themselves had tired of the long misleading by their officers.
As the chief principle of the tactics of Communism is to provoke disorder and profit by it, the foregoing record, made mostly while the Republic was in the perils of war, compels the question whether Communist influences guided that disgrace to "government under law."
Earl Browder, for years head of the Communist Party in the United States, and twice a candidate for the Presidency of this Nation, reported to the Congress of the International Communist Party in Moscow on July 18, 1935:
"How was our party able to penetrate the masses and emerge from isolation? A great role was played by leaders in the strike movement and in the work of the party among the unemployed. In some of the most important strikes, the San Francisco general strike for one, the Communist Party had a decisive, determining influence."
And the great Government of the United States was not only unable to deport the alien who fomented and led that strike, but it also came around to issuing citizenship papers to him!
In What Is Communism? it is made clear (p. 163) by Browder, a native of the United States, that the plan of Communism is to take away liberty and property by armed force:
"The Revolution is carried out by the great masses of the toilers. The Communist Party, as the vanguard of the most conscious toilers, acts as their organizer and guide."
And again (pp. 164, 165):
"In the revolutionary situation the Communist Party . . . wins some of the armed forces to its side, and leads the effective majority of the population to the seizure of State power. . . . Above all, they need the armed forces."
Although not so wide in its reach to people as the National Labor Relations Act of 1935, the law of Congress of 1886, forty-nine years before (amended and extended in 1902), taxing oleomargarine ¼¢ a pound, and 10¢ a pound when colored, was fully as bad an invasion of the police field of the States. Agriculturists, a voting power, put the bills through Congress in protection of dairy butter. In addition to the destructive tax on the colored article (while colored butter was not taxed), the heavy license tax on manufacturers, on wholesalers, and on retailers, and the regulations regarding packing, labeling, and permits were obstructive and costly. The manufacturers abandoned coloring and left that to the consumers. Notwithstanding the handicap, oleomargarine grew steadily in favor. It was used in the navies of the world, including our own.
Those laws, attacked as intended to destroy an industry, as an encroachment upon the police field, and as working a deprivation of property without due process of law, were sustained (195 U. S. 27) in 1904 by the Supreme Court of the United States in an opinion by Justice White, with dissent by Chief Justice Fuller and Justices Brown and Peckham.
In 1888 the Supreme Court had upheld (127 U. S. 678) a law of Pennsylvania (1885) which forbade the making and selling of anything to be used as butter, or in lieu of it, out of any substance "other than unadulterated milk or cream." Justice Field dissented from the opinion written by Justice Harlan chiefly on the ground that the Court had lost the distinction between regulation and prohibition. To be sure, a State may regulate the manufacture of foods so as to secure purity and prevent fraud. But Pennsylvania had no more right or power to suppress the manufacture of oleomargarine, made and sold without deception, than it had to prevent the making of marmalade. Wide as the police power is, it must be exerted with regard for rationality, liberty, and the right to property.
Of the case arising in Pennsylvania, Judge Dillon, once on the Federal Bench, wrote in Municipal Corporations and also in Law and Jurisprudence in England and America this sound and complete comment:
"The record of the conviction of Powell for selling without any deception a healthful and nutritious article of food makes one's blood tingle."
If the police power of Pennsylvania could not extend that far, how could Congress, without any police power at all, get a seat in the game of politics?
In March, 1950, a discreditable record of 64 years was ended by Congress when it repealed the legislation by a vote of 202 to 106 in the House and 59 to 20 in the Senate.
In all worlds of fabulists and fictionists no state of things is exhibited which is at once so preposterous and so potentially calamitous as that there should be tolerated a party against freedom and possessions in a land where the Constitution twice guarantees security to Liberty, Property, and Life!
Why have Senators and Representatives, who have been sent by the people of the States through the years to represent them in the Congress of the Union of States, failed to maintain their States in their constitutional position in that Union? They have made the State a kind of satrapy of the central power.
The degraded position to which the States have descended in the estimation of our Government was shown by a meeting in 1944 in St. Louis of the governors of 26 States, who deplored the fact that for 11 years not a Governor had been called to the White House for consultation.
When President Truman took office in 1945, the Republican members of Congress proceeded to the White House to tell him that they would help him in all ways consistent with their political beliefs. On leaving the White House, the Republican leader in the Senate said to newsmen that he had not been on the premises since the party in power took office in 1933.
Well, the governors complaining at St. Louis were not heard in protest when the representatives of their States in Congress were originating or supporting bills for weakening their commonwealths and widening the authority of the National Government. And as for the treatment of members of Congress by the White House, they had let go of their constitutional reins.
At the 42nd annual convention of the governors of the States, at White Sulphur Springs, West Virginia, on June 19, 1950, there was a quite general expression of the view that "Federal aid" should be relied upon by the States to carry their projects of flood control, reclamation, irrigation, electric power, and the like.
The presiding governor sought to prevent "stump speeches on the obligation Washington has in the development of the West." But the governor of California thought it "perfectly logical to ask the Federal Government for help in irrigation, reclamation, and power projects: we repay every cent and pay interest on Federal moneys going into such projects."
No one rose to inform him that the Constitution gives no authority to Congress to lend money at interest or otherwise for any purpose. Nor was he reminded that banks, and others having the right to lend, provided the necessary money for all great projects in the building of the United States from the beginning down.
The governor of New Jersey protested the proposal for Federal aid. He could not understand how any governor could "go on record for a balanced Federal budget and at the same time have his hand out for millions for reclamation, irrigation, and public power." He said that "New Jersey would have nothing to do with Washington, that it can and does finance its own projects, and at cheaper interest rates than the Federal Government can borrow money."
It is somewhat reassuring that one governor out of 48 had been sufficiently educated to declare for constitutional procedure.
The meeting of governors revealed the great need, not so much for "Federal aid," as for a school for giving constitutional instruction to the executives of the States. Such a school might accept members of Congress. Something must be done toward teaching those in office.
In the autobiography of Senator Hoar it is said that if any group went to the White House and brought back directions on policy, they would be made to regret it. For sixteen years or more the White House has been permitted by Congress to usurp direction of policy.
The States must back-track to where the writers of the Constitution set them or where they set themselves, for they made the Constitution.
And the schools must so teach the Constitution that governors of States will know better than to resign their great offices to take inferior seats in Congress.
And the President must be elected by the constitutional method.
When the States have exercised the power which they reserved to themselves by section 2 of Article I, to prescribe the qualifications of voters for members of Congress as well as for candidates for local offices, by making a certificate of graduation in the study of the principles of our constitutional system a condition of registering for voting, then we shall have a better situation in Congress and out.
And when the States have abolished the straight ticket by restoring or putting into effect the Australian ballot, which was emasculated for the aid of the illiterate followers of political leaders or bosses, then American elections will express the competence of the people for self-government.
And when the States have brought back the constitutional election of the President and put him in his place to stay, and thereby removed the need for Corrupt Practices Acts of Congress, our country will then be again "the land of the free."
The States, which intended when they wrote the Constitution to manage the country largely, should return to that duty.
1. For the six years from 1940 to 1945, inclusive, covering the whole time of World War II, strikes took place as follows:
2. Long after that part of the text was written, the Supreme Court of the United States, in an opinion rendered on January 3, 1949, sustaining a law of North Carolina and a constitutional provision of Nebraska forbidding employers to enter into contracts obligating themselves to exclude persons from employment because they are or are not members of labor unions, examined the case of the Industrial Court of Kansas and said that hours and wages can be fixed by law in the public interest That fulfills the prophecy of the text.
3. The bill of particulars drawn by the governors proposed the resumption by the States of their constitutional functions. It condemned the acquisition by the United States of the lands of the States, the usurpation by Washington of unemployment insurance and unemployment services, the derogatory "conditions' fixed by the Federal Government to grants in aid of States for public works, the attempt of the Administration "to undermine and abandon our traditional National Guard," the entry of the United States into competition with insurance companies, the plans to control from the National Capital the field of medicine, the development of water resources without any recognition of the superior rights of the States, and some other acts of total indifference to the existence of local governments, as leaving for ten years "entire regions of our country" without "representation in the Cabinet or administrative agencies of the Federal Government." The crowning insolence was the failure of the President to invite any governor to the White House for an exchange of views.
Of course, the things complained of were brought about by the incompetence or delinquency of members of Congress from the States.
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