But, as we have seen, one barrier stood in the way of these socialist adventures—the Constitution of the United States. The federal government—a government of severely limited powers—had no authority to operate a socialist State. A socialist society requires a powerful central State, equipped with immense powers to own and operate or plan the activities of the whole industrial and commercial system. This is impossible under the American Constitution. To carry out this program would require the most fundamental alteration in the Constitution. It would call for a powerful central government on an almost unlimited scale and the liquidation on the same scale of the sovereignty of the states.
Article V of the Constitution provides how it may be amended. There are two methods: (1) The Congress, by a vote of two-thirds of both houses, may submit amendments of the Constitution to the sovereign states. (2) The states, through action of their own legislatures, can call a convention to submit amendments, but this must be done by two-thirds of the states, and amendments may be submitted at such a convention. But in either case the amendments must be ratified by three-fourths of the states through the action of either the legislatures or conventions called for the purpose. Nothing could be clearer than this. But our collectivist revolutionaries, realizing they could never succeed by lawful and constitutional measures, hit upon another plan. And Roosevelt happened to be precisely the man to do the job for them. As his second term began, he was in a boiling rage against the Supreme Court of the United States for wrecking his unconstitutional first New Deal.
The Supreme Court is empowered, under the Constitution, to “interpret” the meaning of the Constitution where questions of judicial differences appear. It had, according to its time-honored practice, interpreted the Constitution to mean what its framers wanted it to mean, and declared Roosevelt’s first-term acts unconstitutional—in the most important case by unanimous decision. There was, therefore, but one course open to the revolutionary cabal in Washington. It was a plan to change the Constitution, literally to wreck the whole fundamental structure of the American government, not by orderly process as laid down in the Constitution, but by judicial interpretation. The plan for accomplishing this lawless aim was welcomed by Roosevelt almost as soon as it was presented to him. This was the infamous scheme “to pack the Supreme Court.”
Roosevelt sent the plan to Congress in early February, 1937. The Supreme Court had for many years been made up of nine justices. Roosevelt’s plan provided that the President would be empowered to appoint an additional justice for every sitting judge over the age of 70, provided the total number of justices would not exceed 15. The target aimed at, of course, was to name one New Deal judge whose vote would nullify the decision of one member 70 or over. There were six judges 70 or over—Hughes, Van Devanter, McReynolds, Brandeis, Sutherland and Butler. There were three others between 60 and 70. Had this bill passed, immediately six judges would have been appointed to nullify the votes of any six justices over 70 then sitting. And there was the further proposal, which the Congress accepted, to permit justices to retire at 70 on full pay, the purpose of which was to expedite the disappearance from the Court of those judges objectionable to Roosevelt.
The purpose of the whole scheme, of course, was to get a bench that would uphold as valid Roosevelt’s fantastically unconstitutional measures. Congress refused to adopt this assault on the Court, it being defeated by an outraged coalition of Democrats and Republicans. But in the end, Roosevelt’s objective was achieved. Assured of retirement on full pay, and weary of the venomous attacks that had been made on them, the older justices began to resign. The following bowed out—Justice Van Devanter in 1937, Sutherland in 1938, Butler (died) and Brandeis in 1939, Hughes in 1941. With the appointments of Hugo Black, Stanley Reed, Felix Frankfurter, William O. Douglas and Frank Murphy, Roosevelt had a majority of the justices and a Court the radicals could count on to perform whatever surgery was needed on the Constitution to open the way for the collectivist State.
Once a Supreme Court subservient to the President and the new collectivist revolution was installed, the job was easy. It was simply necessary for the Supreme Court to give new and utterly different meanings to four words in the Constitution—meanings those words had never had in the preceding 148 years. The four words are comprised in the terms “general welfare” and “interstate commerce.”
The term “general welfare” was clearly understood for a century and a half. I have listed the specific powers conferred upon Congress. Congress was empowered to collect taxes, etc., “to provide for the common defense and general welfare of the United States.” That did not mean that Congress could tax for any project which might seem good to Congress to “promote the general welfare.” It did not refer to general welfare in the sense the word “welfare” is now used—as a system of handouts to the indigent, etc.
The Constitution declared that “to provide for the common defense and general welfare” of the United States, Congress can do certain things. It then proceeds to enumerate these powers. It could borrow money, regulate foreign and domestic commerce, punish counterfeiters, establish post roads and post offices, provide for copyrights and patents, establish courts, make laws affecting the high seas, declare war, raise armies, provide a navy and for calling out the militia. These are the powers specifically delegated to Congress to “provide for the common defense and general welfare.”
The Constitution did not leave to any vague doubts what the Congress could do for the general welfare. The section provides, in the same way in the same sentence that Congress could “provide for the common defense.” To implement this, it included in the enumeration of powers that Congress could raise armies, organize a navy and make rules for governing the land and naval forces and could call out the militia. And in the same way it could provide for the general welfare by doing the other things enumerated—borrow money, regulate foreign and domestic commerce, punish counterfeiters, etc. In short, Congress could provide for the common defense and the general welfare, and the Constitution stated specifically what it could do for these purposes. And Congress’ powers are restricted to these grants. The Constitution did not by any stretch of language mean by general welfare that system of handouts which have been in vogue during these last 20 years. It did not and does not mean that for the “general welfare” the federal government can support state schools or build roads in the states or carry on any other activity not specifically granted in the Constitution itself.
Alexander Hamilton himself, arch protagonist of powerful government, recognized sorrowfully the extent to which he had failed to win for the federal government the powers he sought. To those who complained the Constitution granted too much power, he replied:
“The power of Congress … shall extend to certain enumerated cases. This specification of particulars evidently excluded all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd, as well as useless, if a general authority was intended.” 22
Actually, the question arose in the very first Congress. A bill was introduced to pay a bounty to Cape Cod fishermen and a subsidy to farmers—two perfect New Deal projects. James Madison, one of the framers of the Constitution and a member of the Congress, spoke at length in the debate on the bill. He said:
“If Congress can employ money indefinitely to the general welfare, and are the sole judges of the general welfare, they may take the care of religion into their own hands; they may appoint teachers in every State, county and parish and pay them out of their public treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the Union; they may assume the provision of the poor … Were the power of Congress to be established in the latitude contended for, it would subvert the very foundations, and transmute the very nature of the limited government established by the people of America.”
Thomas Jefferson, who has been kidnapped as the patron saint of the radicals of today, wrote in 1817 that the grant of power to promote the general welfare did not give Congress any additional or unlimited power to legislate for the general welfare. On the contrary, he said, “it was restrained to those powers specifically enumerated.”
These views were adopted by Congress, which rejected the proposed Cape Cod fishery bill, after which Jefferson commented:
“[This] will settle forever the meaning of this phrase, which by a mere grammatical quibble, has countenanced the general government in a claim of universal power.” (Italics added.)23
This interpretation of the general welfare clause continued to be accepted by the Congress and the Courts alike for all the years of the Republic up to 1937. On January 6, 1936, Justice Owen J. Roberts, who had crept a long way with some of the so-called liberal justices, wrote what would seem to be a definitive statement of the historic meaning attached to the general welfare clause in the Constitution. The AAA sought to establish the federal government as the overlord and director of American farms. The Court held it unconstitutional. Justice Roberts wrote in his decision:
“Until recently no suggestion of the existence of any such power in the federal government has been advanced. The expressions of the framers of the Constitution, the decisions of this Court interpreting that instrument, and the writings of great commentators will be searched in vain for any suggestion that there exists in the clause [general welfare] under discussion, or elsewhere in the Constitution, the authority whereby every provision and every fair implication of that instrument may be subverted, the independence of the individual states obliterated, and the United States converted into a central government exercising uncontrolled political powers in every state of the Union, superseding all local control or regulation of affairs or concerns of states.” 24
The other two words which were conscripted to alter the meaning of the Constitution were “interstate commerce.” The Constitution gives Congress the clear right to “regulate commerce with foreign nations and among the several states.” The Constitution is based on the theory that each state will regulate commerce and industry within its own borders. But when a citizen of one state engages in commercial transactions with citizens across the border of another state, the framers of the Constitution realized that in such a case, where a question of rights or law or regulation was concerned, that was “interstate commerce” and, as such, ought not be left to either of the states concerned, but was a matter of federal control and interpretation.
The meaning of the word “commerce” was clear. It is not synonymous with the word “business.” It does not mean “manufacture.” It means “trade”—the “exchange of goods, productions or property of any kind.” Thus it is defined in dictionaries of our own day. Congress was not given the power over “commerce.” It was limited to regulation of “interstate commerce” only. When a producer manufactures goods or a farmer grows crops these products are not in commerce until the producer offers them for sale or transportation. They are not in interstate commerce until they are contracted for and actually move across state lines.
The Courts never wavered, throughout our history, in their clear understanding of the term “commerce” and of “interstate commerce.” It meant trade; and it included transportation as an inevitable function of trade. They understood precisely what the Constitution meant and why the terms were used. The states were sovereign republics, united in one great overall republic. The states retained full sovereignty to manage their own internal affairs. But a problem arose out of the process of trade between the citizens of one state and those of another. There had to be an impartial umpire and rule maker when the citizens of one state began to do business with citizens of another and to transport goods across state lines. That field of regulation and that alone was properly committed to the Congress. And that authority the federal government got, not from any inherent sovereignty of its own, but through a direct grant of power in the Constitution from the states. In 1871 an attempt was made to show that commerce included manufacture. Justice Field rejected that theory and held that interstate commerce in a commodity begins “whenever a commodity has begun to move as an article of trade from one state to another.”25 (Italics added.)
Of course, the subject became troublesome when large corporations began to spread their activities over many states, and when the growing evil of corporate monopoly began to make itself felt. Communities and smaller interests clamored for action by the federal government against the growing power of the trusts, and for every abuse there was a band of organized reformers calling for action against their own pet abuse. They all overlooked the fact that while there was the problem of curbing predatory or anti-social man on one side, there was also the continuing great adventure, attempted in America, of keeping in leash the abuses of too-powerful anti-social government.
But the Courts always, to their credit, kept foremost in mind the meaning of the Constitution and in decision after decision on questions involving “interstate commerce” kept to the true meaning of the clause. At the same time, it is not true to say that the Courts were insensible to the abuses of the corporation and of corporate monopoly. There were cases in which they tried to reach the abuses of monopoly and yet keep within the terms of the Constitution which the Court was set up to defend.26
Also, it is not true that our country was helpless against the so-called “malefactors of great wealth.” Federal and state power, between them, were adequate when wisely used. It is a fact almost forgotten that, in the end, the war upon the old Standard Oil Trust was won by a State Attorney General in a suit in a state court in Ohio, which ordered that trust dissolved. But it is important for the student of our Republic to remember that among all the social evils—many committed by unscrupulous businessmen—which aroused the concern of generous-minded people, one of the greatest evils that had plagued the world throughout history was the evil of Big Government. That problem we had solved here, so far as it can be solved.
The most persuasive fact on this point is the position of the Democratic Party itself when it nominated Mr. Roosevelt in 1932 in the midst of the depression. Calling attention to the depression then moving swiftly to its crisis, the Democratic Party announced its program. It called for a drastic reduction of government expenditures by at least 25 per cent; abolishing useless commissions and offices; a budget annually balanced; a sound currency to be preserved at all hazards; a competitive tariff; federal loans to states to aid in reemployment; expansion of the federal construction program on legitimate federal works to create work; unemployment and old-age insurance; financing of farm mortgages and development of the farm cooperative movement and enactment of every possible lawful measure to aid the farmer—but always being careful to keep within the Constitution; an impartial enforcement of the anti-trust laws; regulation of holding companies which sell securities in interstate commerce; various other reforms—but always stressing the limitation that their efforts would be applied to malefactors and abuses that appeared in interstate commerce; and of course repeal of the Prohibition Amendment. They also urged the states to adopt measures within their authority to deal with the liquor traffic. There were other planks, but always the greatest care was taken to recognize the limits of federal power and the importance of acting within the framework of the Constitution.
From all this, we can draw the rational conclusion that as of 1932, when Mr. Roosevelt was elected President, there was absolutely no serious break by either party with the great fundamental basis of our Republic as we have described it in these pages. There were differences between Republicans and Democrats on matters of policy within the framework of the Constitution. There were certain marginal areas of constitutional law in which various agitators for sundry reforms and interests sought to commit the government on questionable adventures. There were, indeed, certain differences between various groups of politicians on the true interpretation of some constitutional texts and principles. But there was no conscious repudiation anywhere, until after 1933, of the most clearly understood fundamental principles of our Constitution and the Republic it was framed to guide. And the platform on which Mr. Roosevelt was elected in 1932 is the most convincing proof of this fact.
22 Federalist No. 83.
23 Letter to Albert Gallatin, 1817.
24 U.S. v. Butler, 297 U.S. 1 (1936).
25 The Daniel Ball, 10 Wallace 557 (1871).
26 For cases showing the Court’s historic interpretation of the commerce clause, while at the same time attempting to reach the abuses of monopoly, but always within the terms of the Constitution, see particularly Chief Justice Fuller’s opinion in the “Sugar Trust” case (U.S. v. E. C. Knight & Co., 156 U.S. 1, 1895), Justice Harlan’s opinion in the Northern Securities Co. case (No. Securities Co. v. U.S., 193 U.S. 197, 1904), and Justice Day’s opinion in the Child Labor case (Hammer v. Dagenhart, 247 U.S. 251, 1918).