Before we can move further into this study, we must have a clear understanding of the device by which the dangerous power of Big Government was solved in the United States. I stress once more the proposition that the young men and women of America under the age of 40 have never, in their adult years, lived under the American Republic in its original form as it existed from 1789 to 1937. Our first care, therefore, must be to recapture for them a realistic picture of our traditional form of government.
I have emphasized the fact that government is an apparatus of power. That apparatus consists of several instruments of power. There is the apparatus of legislation by which the rules for the regulation of the society are made. There is the apparatus of taxation by which the government can reach into every man’s pocket for a part of his income. There is the apparatus of justice through which the State imposes on the people the benefit of order and the administration of law. There is the formidable instrument of police power and of military power. Tyranny may be justly described as the concentration of all these powers in one set of hands—one Administration. The Administration, be it remembered, is the organized human group of officials who hold and operate the great powers of the State residing in the Government.
One great device for guarding the citizens from the powers of the Administration is the suffrage. The ultimate power remains with the citizens. The laws are made and administered and interpreted by officials elected by the people. These officials must return at intervals to the electorate for a renewal of their commissions. When this system was established on a limited scale in England, there is no doubt that the people of England began to enjoy a degree of freedom hitherto unknown. Not only had they established their power to name their officials but they managed, in a long series of struggles against the crown and the nobles, to set up with the force of institutional law a whole series of guarantees generally enumerated in our Bill of Rights.
But this did not go far enough. In England there was but one government—the central government. That government possessed the power of making the laws and policy not merely for the nation as a whole, but for every division and sector, for every community of the nation. In fact the Parliament, with the cabinet, now has in its hands total authority over every sector of British life, subject of course to the right of the electorate to change the personnel of Parliament. In other words, in spite of Britain’s long and ever-widening interest in human rights and liberty, the ultimate apparatus of power is centered in one spot—the national Parliament—one huge central apparatus of government, which is insufficient to protect the liberties of the people. Under this arrangement Britain for many generations prospered, grew in wealth and power and in the freedoms of its people. But this system in the end proved inadequate to defend her citizens against a disease that would infect the generation which came along at the turn of this century.
The problem of free government is not achieved by merely committing the enactment and administration of laws to a body of officials elected by the people. A means must be found of controlling the Administration after it has been elected to power. Once it is in office, those vast powers of the State are in the possession of the Administration and can be used to purchase or intimidate the electorate. The greater the power it has, the greater will be its ability to control the electorate—buying one group, silencing another. Popular decisions are not made by some mythical coherent force called “the people.” The people is made up of good, bad, honest, dishonest, intelligent and ignorant individuals, all with a wide variety of interests. Even the wise and good may be divided by religious, political or economic interests. The people are always split into numerous minorities which nurse a variety of special appetites, prejudices, hopes and opinions. The problem of the politician seeking power is to cultivate the support of these many minorities by promises to satisfy their several and oftimes conflicting hopes. Politicians in a democratic society understand that there is no such thing as a compact majority. Majorities are made up of a number of affiliated minorities—often affiliated only for the moment.
Government is set up to preserve orderly social intercourse and to protect the people. But having set up a government endowed with vast powers which can be abused, the people must find the means of protecting themselves from that government.
The obvious device is not to commit all the powers of government into one set of hands, but to divide government into several groupings, each group entrusted with a separate set of functions. In Britain there is one administration—the Parliament to which the executive ministers are responsible. Over the Parliament there is no power save the people as a whole. But in the United States the “division of power” as a principle of government is carried to great lengths. The government in Washington is not the government of the United States. It is legally empowered to administer only a very small group of functions.
In America the government consists of a number of republics—49, to be exact. There are the 48 states and the central government. The individual state is a recognized republic endowed with all the authority of government save such faculties as it has deliberately delegated to the central government. Its powers are great, but limited in their territorial extent. The federal republic, on the other hand, is equipped with severely limited powers, but extending over the entire nation. It must never be forgotten that the individual state is a republic and that one of the commitments of the federal government in Article IV, Section 4 of the Constitution is that the “United States shall guarantee to every state in this Union a republican form of government.” And this government of the state republic under this Constitution retains in its hands the great mass of political power inherent in the people. To state the principle differently:
The federal government has no powers save those specifically granted to it by the states.
The individual states have all the powers of government save those specifically denied them by the Constitution.
The states have the powers they exercise by virtue of their own inherent sovereignty. The federal government has no powers except those delegated to it in the Constitution by the states. The whole structure of the federal government is clearly described in the Constitution as being under the authority of the states. The form of government by which the states may rule themselves is not defined—save that it must be a republican government. Every state is ruled by a form of republican government clearly set out in its own constitution and getting its authority from the people of the state itself, and not from the federal government.
The federal government is limited in its jurisdiction to only a few areas of administration and legislation. It maintains a national armed service, is supreme in our relations with foreign governments, protects the nation from invasion of the natural rights of citizens enumerated in the Bill of Rights, and it can legislate on matters which are clearly interstate in character. The states, on the other hand, are supreme in all that concerns their internal affairs. The federal government has absolutely no authority to intervene in these.
When we speak of the United States government, we must envision a federal republic operated from Washington and touching the lives and conduct of the people in the states very lightly; and 48 republics exercising all the well-understood functions of government within their own boundaries. In addition to political and social arrangements by law, the state has the authority to provide for its citizens, directly or through its county or municipal governments, whatever services its citizens desire from government and are willing to pay for—through laws governing their personal, family, economic and other relationships, and the services of schools, police, parks, hospitals, playgrounds, fire protection, medical aid, health protection, roads, refuse collection, water systems, etc.
To understand this clearly we have but to look at these two republics—the federal and the state republic—functioning, let us say, in a single state. In 1910 you might have traveled from one end of the state to the other without encountering a single federal official or employee save the postman, or ever feeling the immediate effect of a single federal law. But the government of the state you would meet every hour of the day and night—laws, regulations, services and agents of every description; laws governing business, the roads and streets, and all the relationships of the people of the state with one another; laws governing personal and family relations, property, wills, inheritances, voting rights, election methods and machinery, school buildings, libraries, agricultural schools and stations, police centers, fire houses, hospitals and clinics, courts of law, parks, health protection, recreation centers, charitable institutions, jails, water systems, garbage collections, sewage and drainage—all under the authority of the state directly or through its subdivisions, the counties and municipalities.
Here was all the government a free society needed. Yet, limited as were the powers of the federal government, the leaders in the states, even before the Constitution was adopted by the states, began to fear that these powers exceeded the boundaries of safety. Shortly after the first Congress convened, the first ten amendments were therefore submitted to the states. They defined the boundaries of authority across which neither state nor federal government could step. This was the Bill of Rights. The tenth of this group reads:
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the states respectively, or to the people.” (Italics added.)
Here was a conscious use of the device I have described for erecting a strong government—strong enough to protect but not strong enough to oppress. I have labored this subject at length because unless this principle is clearly understood it is not possible to understand our Republic or the assaults which have been made on it. The principle, I trust, must now be clear to the reader. The possession of great powers by government is essential to society. However, these powers must be entrusted to officials—known as the Administration. But vast powers in the hands of officials are fraught with danger. They can be used to remain in power and to exploit rather than protect. The only means by which the people can protect themselves is to hold in their hands the right to elect the Administration for a limited period, and force it to return to the people for a renewal of power. But if the powers entrusted to the Administration are very extensive, the Administration can use them to intimidate or buy the electorate and capture a renewal of power.
To be quite certain that this great experiment is clearly understood, let us repeat the description of it in other terms. The apparatus of government was divided into two great sectors. One part of that apparatus of power was confided to the federal government. The remaining part was left in the hands of the states—each state possessing and operating its own government within its boundaries. That part of the engine of power delegated to the federal government was severely limited. That part left with the states was very extensive.
We see at once the striking distinction between this system and the English system. In England all the powers of government are deposited with the national government under king and Parliament. Whatever local machinery is set up gets its existence from the central Parliament. In other words, Parliament, subject to the national electorate, is the supreme sovereign power of the nation. As a matter of necessity it delegates sections of its power to county and local bodies all of whom operate under the supreme authority of the Parliament.
In the United States there are 49 separate and distinct sovereign powers—that is, the 48 states and the federal government. The states are sovereign within their own borders. And the powers exercised by the states are committed to administrations—collections of officials—named by the people of the states. Thus the sovereign powers of the people of the United States are not deposited with a single huge apparatus of government. There are 48 state engines of power each manned by officials chosen in the states. The authority delegated to the central government is lodged in another apparatus of power created and blueprinted by the Constitution and limited severely by that instrument. Then there are a long list of rights inherent in the people and delegated to no one—rights the people have retained in their own hands. But there remained one serious problem. The people who are citizens of the states had to have some agency that would act as a defender of their fundamental rights—those rights embedded in the first ten amendments to the Constitution. They include freedom of speech, press and religion, freedom from unwarranted searches and arrest without warrant, the right to speedy trial, to trial by jury and so forth. The federal government is charged by the Constitution to protect the people in the enjoyment of these great rights as against individuals, state governments and federal officials.
Thus there are 49 separate administrations operating 49 separate and sovereign governmental machines. But the arrangement does not stop there. The federal government, while sovereign, does not have all of its own sovereign authority entrusted to one set of hands. The Constitution sets up the Congress to make the laws. But these laws are administered, not by a parliamentary ministry subject to the Parliament as in England, but by an independent executive getting his power directly from the Constitution. The Congress itself is submitted to a still further restraint. The House of Representatives is named to represent small constituencies within the states, each state having a number of congressmen based on population. But there is the Senate, which represents the sovereign state, each having an equal number of senators. Then, to ensure that neither Senate, House nor Executive oversteps the boundaries of its constitutional powers, there is provided a system of courts, again wholly independent, with power to keep Executive, Senate, House and citizens each severely within the limits of their prescribed powers. Thus the American government is a set of independent governmental machines, operated by separate administrations, with far the greatest portion of governmental power left with the states—each in its own territory—and with still other powers remaining in the hands of the people.
To ensure that the federal government would remain within its narrowly defined boundaries, it was armed originally with only a limited power to tax—that authority of spoliation by which governments exploit and oppress their peoples. The federal government could impose an income tax, but not a graduated tax and, more important, the tax had to be apportioned among the several states, thus greatly limiting its fruitfulness.
Throughout our history the limited role of the federal administration in government was clearly recognized by all parties. And this is evidenced by the manner in which the federal government remained within the circumscribed area. It is further illustrated by the relative costs of federal and state governments, not just in the early days of the Republic, but after 100 years of history. In 189o, the total cost of state and local government in the United States was $1,163,000,000. The total cost of federal government was only $318,000,000. However, most of the money spent by the federal government was on the Army, Navy, veterans’ pensions, the postal system and interest on the national debt. For the ordinary civil and economic activities of the nation the federal government spent only $101,800,000 as compared with $1,163,000,000 spent by the state and local governments.
One may insist that this conception of government is no longer applicable to the more highly complex civilization in which we live. This is a point for debate at least. But whether it is or not, there is only one way in which it can be changed. That is by amending the Constitution.
It cannot be said that this conception of the nature of the national government has disappeared through the corrosive processes of time and circumstance. There is no such thing as altering the essential, fundamental principles of our constitutional system by “the corrosive effect of time and circumstance.” This can and has happened to the British system on a great scale. This is precisely one of the essential differences between our system and the British. Our Constitution is written and cannot be legally altered either by custom or by changing circumstance or by judicial re-interpretation. It can be done only by going back to the only source of power, and that is to the states and their electorate by constitutional amendment—by means specifically stated in the Constitution.
And, indeed, from 1789 to 1937 no essential change was made (save in the case of the 16th, or Income Tax, Amendment which we shall consider later). The Founders and a long line of political leaders after them, from Washington, Jefferson, Madison, Marshall and Hamilton right down to Franklin D. Roosevelt recognized and affirmed these principles. During the public debate on the Constitution, James Madison wrote:
“The powers delegated … to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce … The powers which are reserved to the several states will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement and prosperity of the state.” (Italics added.)
Madison and his great contemporaries were not dilettantes in the philosophy of government. They had studied the writings of the British and French students of social order. Nearly 30 years before the Constitutional Convention met, the Baron de Montesquieu, the famous French jurist, had actually outlined his conception of the perfect republic—corresponding precisely to the model adopted by the men who framed our Constitution. Montesquieu wrote in 1748:
“This form of government is a convention by which several small states agree to become members of a large one, which they intend to form. It is a kind of assemblage of societies that constitute a new one, capable of increasing by means of new associations till they arrive to such a degree of power as to be able to provide for the security of the united body …
“As this government is composed of small republics, it enjoys the internal happiness of each; and with respect to its external situation, it is possessed, by means of the association, of all the advantages of large monarchies.”
Alexander Hamilton, the chief exponent of strong government, merely recognized the facts when he said that the definition of a “confederated republic” seems to be “an assemblage of societies or an association of two or more states into one state.” In another paper he said the state governments are invested with complete sovereignty. Whole papers by Madison and Jay were devoted to allaying the apprehensions of those who feared a too powerful central government. There was little difference among the men of that day in their conviction that there should be no submergence of the sovereignty of the states in that of the national government.
In 1835—46 years after Washington’s inauguration—de Tocqueville, the French student of our young republic, wrote:
“The Constitution of the United States consists of two distinct social structures, connected, and, as it were, encased one within the other; two governments completely separate and almost independent, the one fulfilling the ordinary duties, and responding to the daily and indefinite calls of the community, the other circumscribed within certain limits and only exercising an exceptional authority over the general interests of the country. In short there are 24 small sovereign nations, whose agglomeration constitutes the body of the Union.” (Italics added.)
This idea of government fascinated European students because there was nothing remotely resembling it anywhere in history. In every country, while there were provincial and local governments to administer the laws, these governments derived their powers wholly from a central authority.
There is a notion that our structure of government was changed by our Civil War, which is erroneously supposed to have ended the principle of states’ rights. The war settled one question—and one only—namely that the Union was indissoluble. It did not pretend to invade any of the rights of the states. In the platform of 1860 on which Lincoln was elected there appeared this plank:
“The maintenance inviolate of the rights of the states, and especially the right of each state to order and control its own domestic institutions according to its own judgment exclusively, is essential to that balance of power on which the perfection and endurance of our political fabric depends; and we denounce the lawless invasion by armed force of the soil of any state or territory, no matter under what pretext, as among the gravest of crimes.”
Lincoln reasserted this great principle in his inaugural address. He said: “I have no purpose directly or indirectly, to interfere with the institution of slavery in the states where it exists. I believe I have no lawful right to do so.” Lincoln merely insisted that slavery had no right to move into the territories—not yet states—where it did not exist. During the war Lincoln emancipated the slaves then in durance, but wholly as a war measure. But when the war ended, Republican statesmen correctly concluded something more was needed. Two constitutional amendments—the 13th and 14th—were adopted putting the matter beyond dispute.
Inevitably this question had to be finally resolved and this was done by the Supreme Court in 1873. The Louisiana legislature passed a law controlling the slaughtering of animals. Local butchers claimed that under the 14th Amendment they had privileges that were abrogated by the state law. Justice Miller wrote that it was argued that the 14th Amendment was in some way intended “to fetter and degrade the state governments by subjecting them to the control of Congress, in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character.” He held the amendment did not alter the relations of state and federal governments save on the matter of slavery. He wrote:
“This Court … has always held with a steady and an even hand the balance between state and federal power, and we trust that such may continue to be the history of its relation to that subject so long as it shall have duties to perform which demand a construction of the Constitution, or of any of its parts.” 7
It must be remembered that it was the liberals who insisted on this principle. It was the conservative who was insistent upon expanding the power of the central government. As recently as 1944, the late Charles Beard wrote a lucid and definitive statement of these ideas:
“Powerful as was the structure of the new government … it was so formed that, in operation, checks could be placed on the accumulation of despotic power in any hands, even in the hands of the people who had the right to vote in elections. How to set up a government strong enough to serve the purposes of the Union and still not too strong for the maintenance of the liberties of the people? That was a prime issue in the convention. It had been in all previous history, and was to be in centuries to come, the central problem in the science and art of government.
“This question the framers of the Constitution sought to settle by establishing what is known as the ‘system of checks and balances.’ First of all they founded each great branch of the government on a separate basis of political power. They provided that members of the House of Representatives should be elected for a term of two years by persons entitled to vote under certain laws of the respective states; that the senators should be elected for terms of six years by the legislatures of the states; and that the President should be elected for four years by electors chosen as the state legislatures might decide … Members of the federal judiciary were to be selected by the President and the senate, both one degree removed from direct popular vote …
“… under the methods provided for the choice of representatives, senators, President and federal judges, no political party or faction could get possession of the whole government at a single election. In the long run, through a period of years, the persistent will of the popular majority might prevail. Yet at no moment could the ‘snap judgment’ of a popular majority prevail in all departments of the federal government.
“Moreover, within the very structure of the government, power was so distributed that no branch could seize all of it, unless the others deliberately abdicated.” (Italics added.)8
To complete this thesis, there should have been little left to question when the man who was later to defy this settled principle gave his testimony on the subject. On July 16, 1929, Franklin D. Roosevelt, then governor of New York, addressing a conference of governors, said:
“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 dangerous 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.9 (Italics added.)
On another occasion in a radio address, March 2, 1930, when he was an avowed candidate for the presidency, Mr. Roosevelt said:
“As a matter of fact and law, the governing rights of the states are all of those which have not been surrendered to the national government by the Constitution or its amendments. Wisely or unwisely, people know that under the 18th Amendment Congress has been given the right to legislate on this particular subject [liquor], but this is not the case in the matter of a great number of other vital problems of government, such as the conduct of public utilities, of banks, of insurance, of business, of agriculture, of education, of social welfare and of a dozen other important features. In these, Washington must not be encouraged to interfere.
“The proper relations between the government of the United States and the governments of the separate states thereof depend entirely, in their legal aspects, on what powers have been voluntarily ceded to the central government by the states themselves.” (Italics added.)
Then he added:
“The preservation of this ‘Home Rule’ by the states is not a cry of jealous Commonwealths seeking their own aggrandizement at the expense of sister states. It is a fundamental necessity if we are to remain a truly united country. The whole success of our democracy has not been that it is a democracy wherein the will of a bare majority of the total inhabitants is imposed upon the minority, but that it has been a democracy where through a division of government into units called the states the rights and interests of the minority have been respected and have always been given a voice in the control of our affairs. This is the principle on which the little state of Rhode Island is given just as large a voice in our national Senate as the great state of New York.”
Thus this principle stood recognized and championed by Mr. Roosevelt 141 years after it was first enunciated by the framers of the Constitution.
If, in the presence of new and modern conditions, this system was no longer suited to our 20th Century society, the way of altering the Constitution is laid down in that instrument—namely by constitutional amendment. This, of course, is difficult, but it is not impossible. The Constitution has been subjected to 22 amendments. It is a fact of the profoundest significance, however, that in every case but two, the amendments were designed to restrict still further the power of the federal government. One exception was the Income Tax Amendment. The other was the Prohibition Amendment which gave the federal government jurisdiction over the subject of liquor, and this was repealed 13 years after its passage.
Our system of government is based upon certain great fundamental principles which transcend in importance the year-to-year policies of administration. At the bottom of it all is the recognition of the age-old fact that government itself is one of the dangers most to be feared, and that while society must have government, society must also be protected from its powers. Our political leaders from Washington to Franklin D. Roosevelt have given complete acquiescence to this principle. And as late as 1935, Chief Justice Hughes—an advocate of strong government—said in a famous decision:
“The Constitution established a national government with powers deemed to be adequate, as they have proved to be both in war and peace, but these powers of the national government are limited by the constitutional grants … ‘The powers not delegated to the United States by the Constitution nor prohibited by it to the states, are reserved to the states respectively, or to the people.’”
To complete the significance of the decision in the case from which these sentences are taken—the famous Sick Chicken case of the NRA—the decision was unanimous, concurred in by Justices Brandeis, Cardozo and Holmes, the three most eminent liberals on the bench at the time.
Let us now see if we can recapture a faithful picture of the great American system—the culminating chapter in man’s war against the enemy of freedom, the all-powerful State. In a remote period, power in England was deposited in a monarch. In time an aristocracy shared it with the crown and, after endless struggles, that power was deposited with the king, nobles and Commons. Little by little the king’s authority would vanish and the aristocracy would be reduced to a severely limited share. Finally the franchise would be extended to all the people. But the total power of the central State would be immense. The central government of Britain can do anything for which it can get a majority in the Commons and a vote of the majority of the people. This is not true of America. The vast powers of government are deposited in the hands of 48 separate states and one central republic. In each of these states, the Administration is split into three sectors—legislative, executive and judicial—all operating on specifically blueprinted powers, and all chosen by separate electorates. In short the vast and dangerous apparatus of power—the government—is split up into a large number of separate parts, each entrusted to a separate administration and subjected to many enumerated limitations.
Only in America was this solution reached. There were, indeed, other federal governments. The German empire, the Italian monarchy, the French government—all these were nations formed out of a federation of smaller kingdoms, dukedoms or principalities. But they were in no sense a federation of separate republics. When brought together into a monarchy or empire or even a republic (as in the case of France) their individual identity was wholly submerged in the central State into which they were combined. They presented a spectacle in no way resembling our own assemblage of individual republics which derived their existence and their authority not from the central republic but from their own inherent sovereignty. That sovereign entity we call the State, namely that total of sovereign power which was deposited in the central government and the separate local governments, lost the power to oppress. Since its complete authority was in the hands of neither king, lords nor Commons, this new State was a dismantled one. Parts of the functions of government were abolished, and what remained derived its authority from a variety of constituencies. This carefully guarded government had all the power necessary to protect the people, without having enough to oppress and exploit them. All the essential energies of governmental power were around, but could be used by no one class or faction. This was the American Republic—an association of small republics, each retaining its power over its own people, while surrendering to a central republic only such powers as were essential to the liberties and rights of all as defined in a written charter.
This was the supreme work of the ages in the sphere of human government; the crowning effort of man to make the State his servant rather than his master. I do not contend that this great work was all done in America. Leaders had preached and died on the block through centuries. The long struggle had been going on in England and later in America for over a thousand years. The first settlers to land upon these shores brought with them an accumulation of principles and institutions of free government. Placed happily in a favorable environment, their descendants completed the task—or nearly so. They reared finally the American Republic, which has provided for its citizens the greatest degree of security and well-being with the greatest degree of freedom ever known in this world.
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