xt7wwp9t2q46_116 https://exploreuk.uky.edu/dips/xt7wwp9t2q46/data/mets.xml https://exploreuk.uky.edu/dips/xt7wwp9t2q46/data/59m61.dao.xml American Liberty League 37 linear feet archival material English University of Kentucky This digital resource may be freely searched and displayed.  Permission must be received for subsequent distribution in print or electronically.  Physical rights are retained by the owning repository.  Copyright is retained in accordance with U. S. copyright laws.  For information about permissions to reproduce or publish, contact the Special Collections Research Center. Jouett Shouse Collection (American Liberty League Pamphlets), No. 119 "The Need For Constitutional Growth By Construction Or Amendment" Speech of Raoul E. Desvernine, Chairman of the National Lawyers Committee of the American Liberty League before the Kentucky State Bar Association, April 3, 1936 text No. 119 "The Need For Constitutional Growth By Construction Or Amendment" Speech of Raoul E. Desvernine, Chairman of the National Lawyers Committee of the American Liberty League before the Kentucky State Bar Association, April 3, 1936 2013 https://exploreuk.uky.edu/dips/xt7wwp9t2q46/data/59m61/59m61_119/Am_Lib_Leag_119_001/Am_Lib_Leag_119_001.pdf section false xt7wwp9t2q46_116 xt7wwp9t2q46 TIIE AMERICAN LIBERTY LEAGUE   * *
*  
The American Liberty League is organized to defend          
and uphold the Constitution of the United States and to Q
gather and disseminate information that (1) will teach 5    
the necessity of respect for the rights of persons and E
property as fundamental to every successful form of gov- E    
ernment and (2) will teach the duty of government to Q
encourage and protect individual and group initiative Q    
and enterprise, to foster the right to work, earn, save, §
and acquire property, and to preserve the ownership and  
lawful use of property when acquired. 3 .
The League believes in the doctrine expressed by g
George Washington in his Farewell Address that while E * * *
the people may amend the Constitution to meet condi- Q x `
tions arising in a changing world, there must "be no Q
change by usurpation; for this * * * is the customary Q
weapon by which free governments are destroyed.” §
Since the League is wholly dependent upon the con- Q Speech by
tributions of its members for financial support it hopes Q
that you will become a contributing member. However, § RAOUL E• DESVERNINE
if you cannot contribute it will welcome your support as § Chairman of the National Lawyers Com-
8 n°n`°°mributing membm" A Q mittee of the American Liberty League
' **”*-******'****‘-***** · E before the
Enrollment  ank E Kentucky State Bar Association
Q Louisville, Ky.
AMERICAN LIBERTY LEAGUE   April 3, 1936
NATIONAL PRESS BUILDING -  
WASHINGTON, D. C.  
Date............... S '
· E `,€Rlc
I desire to be enrolled as a member of the E Y. I 4.,
American Liberty League.    
E E.   f W
Signature .......................................... E spry Lep-
Name ............. . ............................. §  
E Street ............................................ E
E   AMERICAN LIBERTY LEAGUE
3 Town ............................................ : _
3 5 Natwnal Headquarters
EJ C S Q NATIONAL PRESS BUILDING
ounty ........................ . . tate. . . ........ E Q WASHINGTON, D. C.
Enclosed Hnd my contribution of $ ..........   ‘ * A *
to help support the activities of the League.  
(119) Q Document N0. 119

 2 The Need for Constitutional Growth
. by Construction or Amendment
j *
. l THIS SUBJECT has been so often selected
  for public discussion in recent months and so
  much has been said and written on both sides
2 that it is rather difficult to call your attention
  to any arguments on either side not already well
, known to you. There is, however, it seems to
  me, an attempt to frame the issue in such a way
¥ as more to conceal than reveal the true issue
°: involved. The issue is not so simple as to jus-
  tify a Hippant “Yes, or, No” answer. There
L might be, or, there might not be, a need for
y constitutional change, depending entirely on
.   what specific change is proposed. I have used
  the word “change” advisedly, because the word
  “growth” as used in the subject is unfortunate
i and it gives an inaccurate orientation to the
  actual situation and is apt to unintentionally
  HEN you have finished with this   prejudge the issue. With your indulgence,
pamphlet please Pass it on to Some therefore, I WIII try to present the m1sunder-
stood, and sometimes m1srepresented, VICW of
friend OT acquaintance who might be those incorrectly reputed to be against “Consti-
interested, calling his attention to the tutional Growth,” when in fact they are ardent
membership blank On page 24. advocates of normal and healthy growth,. but
positive opponents of fundamental political
transformation for social and economic experi-
mentation of doubtful value and soundness.
We can properly measure the future purposes
of "growth” by the record of the past efforts.
Q To do this removes much speculation and makes
  the issue more concrete. It at least exposes the
  constitutional attitude of the persons advancing
A or opposing such changes.
  I have no delusion to preserve the Constitu-
i _ tion in its pristine glory, but to protect it against
. hasty experimentation.
l OUR CONSTITUTION is the Charter of our
U national ideals. It contains within its four cor-
ners the basic and characteristic principles of
V our political philosophy, individual freedom
  and self-government; it establishes an organic
i 3
1
i
I
  `

 t 1 t r f F d 1 ' f WI
govcrnmcu a B rue um O ti C em umim 0 E MUST EXAMINE every proposed amend-
autonomous States. We believe that the ideals M ,, . . .
. . . . . ment, every growth by interpretation, 1n the
of 1nd1v1duall1berty, as reduced to written guar- , , . .
. . . . . l1ght of those fundamental 1nst1tut1ons before
antee 1n the Const1tut1on and especially 1n the We come to an decision as to their accc ta
Bill of Rights, and the structure of our govern- bint We amynot 0 Osed to ochan C,,_Pwc
ment, expertly designed to protect those rights . y° PP, ,,   °
. . . s1mply demand that any change affecting our
against the oppression which always follows the Olitical ideals of freedom be careful] cx-
concentration of unlimited power in any one P . . . Y
. . . . ammed and patiently cons1dered before we de-
polittcal unit of government, are of v1tal con-
.... part from what we have.
cern, 1f freedom IS to prevail. We believe that We do not contend that the Constitution is an
the civil rights, guaranteed by the Constitution, umouchablc Sacred document We do however
are the minimum civil rights essential to free- . . . .° . .° ’
6,, . t emphatically ma1nta1n that, 1n add1t1on to pre-
dom, and that the States must not be 0Dl1t· . . . .
,, t· scr1b1ng a popular and eiiicient mechanical
erated (to use the phrase of the Supreme Court . .
, system of government, it also formal1zes and
1n respect of recent efforts) , and that local self- . 1. d. . 1. . 1 11.1 h A .
b d , vita IZBS a 1st1nct po 1t1ca p 1 osop y— meri-
government must e preserve . We believe _ . .
, , , , * can1sm—and that the r1ght of the people to
that these prmclplcs are not Stcnlc €P1gmmS° determine the form and character of their ov
but living, moving, vital forces. . . . g
_ p ernment IS a sacred, an untouchable right. If
n the Constitution should need to be made more
IF THE DUAL sovereignty of Federal Govern- ` Perteet in eruer te tulnll tts Phil¤S0PhY in
ment and the States; if the separation of Fed- changed eenulttens» We sneulu Preeeed tv Such
eral powers in three coordinate departments, n Perteetlng ln e°nternntY Wttn the Presertned
Bach n Check upon the Others; be broken down F constitutional process of amendment. It is not
and unlimited power be concentrated in an un- necessary, m eur ePmlen» to seraP» or to evade,
restrained Executive; then we share the opinion tne tuntlamental tneerY et uemeeraeY by *lenY‘
of the Founding Fathers, reasserted by the Su- lng tne PeePle tnelr severelgn rtgnt tv eXPress
preme Court, that despotism is possible, a totali- tnelr eensent te tne klnu of gevernment bY
tarian State threatens. Likewise, Congress is Wnlen tneY ueslre te be geVerneu> by making
freed from its constitutional restraints, then a enanges tnreugn lnulreet means and under the
, , ' 66
pure democracy WISCIY rejected by our Found- allurmg Pretext et greWtn•”
ing Fathers is substituted for a Constitutional p
Democracy which is the original political phi-  
losophy of the United States—Ame1·icanism.   PROPQSED AMENDMENTS must bg Caro.
We Weulu then be eXP°seu te tne tYrannY et a ` fully analyzed, for there can be amendments
maJerltY» Wnlen nltter eXPertenee taugnt Our p which are dedicated not only to adapt our form
ancestors was as PCIIIOUS to ludlvldual freedom   Of government to new and unforeseen Situations
as ane°lutlsm· Our government was ereateu by and changed conditions, but also those which
tne éceensent et tne geVernetl”3 tne State is the completely destroy or change our fundamental
ereature et Man, net Man et the State; vur S and traditional political philosophy and result
Gevernment is tne servants not tne master et in the establishment of an entirely different
the eltlZen· lnallenanle rlgnts are Plaeeu be' theory of government. The distinction between
youd the reach of the Government. That is the the two is fundamental, We must, therefore,
kmu et Gevernment tne Feunulng Fatners es' carefully weigh each proposal to see in which (
tanltsneus and wnten we nave enertsned class it falls. One class of such proposed amend-
tnreugneut eur nlsterY· ments is growth, adaptation: the other is nul-
4 s
  t   g

 lification. One is evolution: the other revolu- le ieell theirs as cern lainants and re enentsi
, g Y P P P
hehe C h b 1 d to demonstrate that their proposals are not pos-
e onstitution as een accurate y e- sihle ef attainment li h d · h- h
_ __ _ ymetoswttmte o
scribed as a “l1v1ng organ1sm”; but we must not iramewerk el- eur institutiens; er elearlv te
forget that sh cchvhig ehgehismsw have dehhhe define how drastic a constitutional change is
Phgshiill ehgmetemstgis and heturatl attlhlhutes necessary to effectuate their social and economic
an t at t ese attri utes cannot e c ange eh- · l · h 11 h h · ii
_ _ _ _ lectives. t mig t we e t at in terms 0
without destroying theiorgamsm ltselfo 01: Blish- pelitieel freedom, the price of fheir alleged
st1tut1ng an entirely different organism in its eeccouomic Sccurity" might he tee highs At any
place. rate, the choice is ours. We do not want eco-
nomic security imposed on us at any price.
THEREFORE, TO ANSWER the question Why be sokdistruistful elf popular jtndgmentl ais
proposed by our subject, we must first be given v_ mt “’ mh Y S“ mh t e mue t° t e P°°P e'
the opportunity to determine if the amendment {
PY°P°S°d is “s¤>Wih" si "shshss·" This dis- THE Piiorsssiin OBJECTIVES of these
tinction must be made most clear and under- W prenenents ei ecgrewthv have heen in reeent
Stahdehle hiithe Peeléles Se that there can hs hg months reduced in many important respects to
doubt in t eir min s as to imp ications an statuter
_ _ _ y form so that we have had some con-
consequences of their choice. Of course, this erete examplesite guide eur Opinion as to their
IS hhpesslhle uhless these edveeahhg the heeeS' real effects. To characterize them as destructive
BUY hh` s¤¢h_ Change Preseht the emehdmehh of our constitutional system and violative of our
is might issshiw hs ihsi svsh ihs siisssd sppp- individual liberties is not expressing an opinion.
nelits to growth nnay acclcipt and adivocate 1t. The eiierts to penetrate eur constitutional har.
t is quite signi cant, owever, t at most ricrs to 44 M · h · h
_ put over new economic t eories y
advocates of such change do not formulate their Mehliteratiness the States, and hv hreaking dewn
Pi`€iP0Siiil$· h_rilheY 1t°bf°i`ee lihe mg"; In the the division of governmental functions into sep-
ma m 0 P 1 OSOP lea ii Shiaeheh ah umahh arate departments—in a word, by attempting to
tarian idealism. Certainly, as lawyers, we can ledge unlimited and untrammeled newer in the
demand that they make their petition more Exeeutive Departrnenti and even enereaehine
definite and certa1n——that they furnish us with upon eur reserved individual rights, have
a lil/ll ofi paruiiular; f I h d progressed so far that the Supreme Court has
s ecaimtatteirreusa tomeettis e- had re. d · d ·· · ·
_ _ _ peate occasion to a minister stinging
itinzilid ishbecause they are politically lfearfullto rgbukgg and to sound clear and dogmatic words
e ne t e issue. ey interpose rat er a p ea ei Warnin W h h · d- · ll ld
_ _ g. e ave een lu 1013 yto even
‘ of confession and avoidance. Furthermore, the theueh it sheuld have heen sel{_evident ite us
edveeetee ef tierewthv Persielehtly refuse te de' l from the record, that these artificially forced
bate the political and const1tut1onal issues in- iierewthsv in the ereanie strueture el- eur eev_
volved 1n their proposals, and skilfully try to t ernment result in depriving us ei the exereise
limit sh dlseuselehéie thie imrely Seem] and of those inalienable rights, and of rights of self-
economic aspects. ey ai to recognize, or h- h h le · · · · ir
_ _ _ government w 1C are t e asic institutions o
deliberately evade, the constitutional aspects eur i·reedem_ This is net epinien hut adiudi_
until forced to do so. Even conceding, for the eated fact.
saketof the argument, that their social and eco- Apparentlv the Supreme Ceurt did net reeee_
t nem1c proposals should be accepted, they still nize thc prizedlewersi the eerewthse ef the New
fail to accept the burden of proof, which is Deal, as having sprung {rem the seeds ei the
6 7

 Constitution, planted by the Founding Fathers, eral power to suit their desires of proving that
but mere ee elien Weeds which must be up_ transformation of our political system is neces-
rooted fel. feel, they might eheke the Very life sary, and that seems just as desirable in their “
out of our native Americanism. The Supreme mmds ee Impmving °m` eeeiel eee economic
Court has clearly exposed that the word fmtuuc eee S°°umtY’
“g1·owth” is a mild term of soft connotation for Let me iuustmtcl
transformation After the Schechter decision the sentiment was
expressed that our government was far behind
the overnments of Euro e in dealin with
THERE IS NO DOUBT that effeeee t° cxtimd probfems of social welfare.PThis criticisri over-
the scope of Federal power under the Const1tu- 1001{S entirely the tree eeture ef eee eeverm
tion have been made practically throughout our ment It eeefueed the Federal Geveeemeet
national life, that the application of the Con- ` with whet eur eeveremeet teeny ie__e eem_
eeeeeee hee eleeeeve been eeeee1>geePe¤eee},*eY   posite of Federal, State, nn.1 local governments
eudlcmj C°uSu`u;t10H’ BL; thcs? hgr°lYtl;S’ ee “ —all of which must be taken together in order
ctermmcd bY t C °°urtS’ cpt Wu m t B tame` L to understand what actually constitutes our
Wmk ef °-{ur Federal Systclr? _ _ government. It assumes that what the Federal
There we h°WcV°"¤ I") Smglc P““°d m Our Government cannot do, must remain undone.
history when so many and so far-reaching
"growths” were stimulated: "growths” which
attempted to extend Federal jurisdiction over A RESTRICTION against Federal action in
every conceivable social and economic activity; no way demonstrates that our government is im-
not only to change our political system, but potent to take action. It merely shows that the
completely transform our economic order. We Federal Government is not the proper division
now should clearly recognize these "growths” of the government to act in that case—unless,
for what they really are. It should also be of course, it is also shown that the State or local
clear to their advocates that they cannot con- governments are equally unable to take the
summate their program by “construction.” lt action. There is no reason to assume that, be-
just will not fit into the scheme of our Govern- cause some powers are given to State and local
ment. governments rather than to the central or Fed-
eral Government, our government as a whole is
NOW, WE MUST NOT fereet thet the Cem A less effective or less powerful than the more cen-
etitetiee hee eeerewnw e eeeiderebly end hee been tralrzed governments of Europe. To show sur-
feued thus fer adequate te meet eu eheeeiee pr1se that all governmental powers are not
and even emereeeey e eeditieeeo ieeludine f e1__ vested 1n the Federal Government completely
eign and eivil were Perhaps it hee been feund e overloeks the true.nature of our government,
inadequate te eehieve the preerem ef th e New and fails to ·recogn1ze not only the powers but
Dee] by the pertieuler methods eheeem Thee also the dut1es of the several States to provide
hewevee deee net prove that the Cenetitutiee ee for local matters. The United States Supreme
ie inedeeuete te meet existing eeeditieee, but ‘ Court 1n the Schechter dec1s1on clearly recog-
eely that the methede Seleeted were imprepee mzed that the goweernment of our people con-
Th e New D eelere leber under th e mieteken i d e e s1sts of more than just the Federal Government, W
that Our Cenetitutien ie m e eh eni e euy ebeelete. and that the duties of the State and of the local e
Well, it ie, in the Sense thet it eemlet b e ePe1__ government should be duly respected. At no 1
ated and utilized eeeerdine te the methede place. did the Court 1nd1cate that it proposed A
eheeeel It Prebebly weuld net expend the Fed_ any l1m1tat1on on governmental action as such; 1
8 9

 but it did indicate a dividing line between the quate to promote the common and united
powers and duties of the two divisions of our interests of the States without destroying the
governmental system. autonomy of the States, or to encroach upon or
WHEN CONSIDERING h f to curtail their powers, as to make them in-
t e powers o our gov- capable of local self- overnment.
ernment, the sovereign powers of the several The boundary lirfes between Federal and
States are of as much importance as the cen- State rights were more pronounced then than
tralized powers of the Federal Government. now. The thirteen original States were more or
Each has its proper sphere of action, and to less self-contained and each was to a large extent
look only at onef is to overlook the careliurly economically self-sufficient. Trade between them
planned system 0 our government as a w 0 e. was more a convenience than a necessit .
We fear that those who have been guilty of this Furthermore, each had its own colonial historiy
misconception are making their wish the father   and had, therefore, developed a distinct political
to their thought! individualit and a somewhat different set of
V The Supreme Court itself has observed that   traditions. yEach had a pride in its own inde-
this erroneous conception of our governmental   pendence. They had a diversity of social and
system existed in the minds of the draftsmen of economic problems, occasioned by differences
some of our recent legislation and it took the in climate, origin, development, social and eco- r
occasion in the recent A.A.A. case to refresh nomic activities, and other conditions, which
their recollections. It said: made local self-government necessar to meet
"The question is not what power the Federal Gov- different local requirements. And, iibove all,
ernment ought to have but what powers in fact have they had bitterly Suiiicrcd from Political “ob_
been give? by the peeplej It hardly Seems “eeeS' sentee landlordism” and they well knew the
sary to reiterate that ours IS a dual form of govern- . , _
ment; that in every State there are two govern. Il€CcSs1ty of l1aV1ng the SoVcrc1gn and the citizen
ments——the state and the United States. ,Each State bye in close Pr0Ximil@Y· Distant sovereigns did
has all governmental powers save such as the peo- BOYS ll11dc1‘Stand local needs, and they beeeme
ple, by their Constitution, have conferred upon the irresponsible because they could not readily be
United States, denied to the- States, or reserved to mado accountable.
themselves. The Federal union 1S a government of
delegated powers. It has only such as are expressly
a§’.Y.'§i$Z3e§i§1.$.°II.§§ea§§l.§£31T ii ?£?SZ2Zl1Z$b.Z£ Bitzi NOW GEOGRAPHICAL b¤¤¤d¤ri¤¤ ·>f¤==¤
radically from nations where all legislative power $66111 arbitrary and do I10ll I'1BC6SSa1‘ily constitute
is vested in a parliament or other legislative body cultural, social, or economic units, but our tra-
subject to no restrictions except the discretion of its dition ef ti Federal union of autonomous States
membe"e·” was predicated on sound reasons.
The Supreme Court even seems here to find Undoubtedly ths €XP¤11Si011 of the Country,
it expedient te nieke the comparison between ° the development of instrumentalities of inter-
0u]_• System and foreign Systems, as     Wgrg . COI]]I]1uHlCHlilOH, the sectional dl.VCI°Sl.ty of pI°O• t
aware that confusion existed in the minds of _ dustifiui mid the interdependence of different t
Berne as to their distinctive diii‘ereneeS_ · ‘ sections on the products and the markets of  
others all tended to lessen this separateness  
THE REAL QUESTION is today, as it was at and to illtcgfatc the States economically, S0. t
the time of the writing of the Constitution, only cielly, 811d politically. Our foreign trade and  
one of degree; that is to say, the extent to which 0¥11° i11t61‘11Hti0I13l interests have increased ent Q
it was deemed necessary or advisable to imple- 1166d f01' gfcatcr united national action, Al] gf  
ment the Federal Government with power ade- this is admitted, and 0}JVi011SlY the mere form V
10 11

 of government must yield to the substance of its had been establisned tnat eertain sPeeine
objectives, but when the concentration of power enanges were essential as tne eniv means tv
in the Federal Government transcends mere meet new eenditienst tnat vvenid be entireiv
matters of form and tends to obliterate the diiierenti but nP te tne Present tnat nas net
States and break down our Federal system, then been demenstrated· On the eentrarvv the argn'
this is a matter of substance—not form. We ment nPen Wnien they Predieate tneir claim ter
cannot deny that our courts have clearly recog- eiiange nas tnns far Preven to be mere assnmP‘
nized the necessity for greater integrated action tien·
and have greatly expanded the Federal powers
to ID€€t thi} CXlg€I1Cl€S of IICW COI1dltl0l1S, but       that Such °°grgw[h°’ ig necessary
aiwavs within definite eentinesa and aiwavs ean' to “adapt” the Constitution to existing condi-
tienslv Preserving tne severeigntv ei tne States tions; that the Constitution is outmoded and
and tne eenstitiitienai divisiens of PeWer· R obsolete. Now, I wonder if the advocates of
1 "growth” are not confusing conditions with their
Tnosrz WH0 MAINTAIN that aut Federal in g"“’°'i‘”‘ .Wi‘°“ thci Si’°‘°‘k °i “j1?'i°”“i’;l”sl;h°
ayatam is antiquated, and it no longer adequate reziiitiigfggg;°m':1‘°;;0E’1;°;‘;_”;;;‘;h‘;;°ig; fl;  
under changed conditionv must take upon ferriii to their theories—their theories of ov-
themselves the burden of proving their conten- g t . d . 1 9 Th g
tion, and thus far the convincing proof has not iirnmcn ° Cconomliis an Socio ogy. Cy iirguii
1n support of the1r content1on that the Consti-
bccn produced That the formula they Select to tution is inadequate that the Constitution as
accomplish their iibiiictives is prohibited is, not construed by the cotirts, is an obstacle to their
proof that the 0lE}_]€Ct1VCS could not be attained Program. But it is quite debatable if their
through permissive formular Morccvcir they theories as carried out in some of their recent
have not yet proven that the objective itself is 1 ° h 1 . f .f h
desirable. aws, are t e on y meaips, or, 1n act, 1 t ey
It is no answer to say that the constitutional Flliziioivggioigisofi; Oircie cgggii ;i1c;::° to meet
processes of amendment move too slowly. The Y gn i
Constitution has been amended twenty-one
times, and the last time with a rapidity which MOBEOVER, it might well be that $0me ee0·
conclusively Proves how arnenable to amend. IIOII].i.C CD.t€].°pI°iSCS*'agricu1turC, natural 1’€S0l1I'C€
ment it is when the public demand is clear. t¤d¤St1`ieSa and seme etner tYPes of indtistrY"‘
Furthermore, we have been told that certain have become, by the verv ierees ei eeenemie _
recent legislation was absolutely imperative to deveiePment¤ invention and Seetionai ini°i"ie'
meet emergency conditions and essential to Pendeneeo se integrated as te have transiermed
meet the new Order Of things. But when cm-. them from distinctly local enterprises into an
tain key-essential measures were nullified, we   inseParabie Part et tne natienal eeenemv and
experienced none of the advertised troubles it tnereieret tnat they have in feet beeeme na'  
which they were claimed to be the 8016 Protec, { a tional, even though still local in a constitutional r
tion against, but on the contrary witnessed an sense-. Te meet snen a enanged eeenemvv een' 1
improvement in economic conditions. Even the Stitutivnal adaPtatien mav Weil be neeessarv vr i
correctness of their economic prophecy has not eXPedient· But let ns ge ene steP inrtner and V
been demonstrated to be absolutely certain. understand the real siibstanee ei even tnis sue" j
Therefore,   permanently change our Polit- gCStlOI1. Let US ask ourselves: What is tl1€ IBB,].  
ical institutions to meet unproven—and, in some PnrPese benind tneir desire to eXPand tne Cen' i
eases, disprovcnicconomic speculations.   it Stlt`I.1lZlOI1 SO HS to iI`IC].udC RCW CHtCI°pI°l.S€S in `[IIC

 sphere of Federal jurisdiction? Is it for the The Present eenoei of eoneiilulionel eXPerl'
purpose of the necessary conservation of natural Siouists have resorted:
resources, the correction of recognized abuses First: to the eo.ee]]ed emergeney powers of
and melpreetleeet edd deelrelile regulation in the Federal Government. They have attempted
the national interest, or is it rather to regiment to convert the emergency power inte the erea.
absolutely such enterprises according to a blue- tion of eenew instruments of puhlie pew-er," not
Printed Pismwd <=<><>¤<>my‘? is it *0 impicmcm constitutionally granted to the Federal Govern- t
the Federal Government with the capacity to monn
regulate our existing economy, or, is it to set up Second: They have attempted to expand the
an ent1rely new economy? , . .
commerce clause beyond 1ts well-deiined l1m1ta-
tions into an instrument of control over all ac-
THERE IS a fundamental difference in these _ riViiieS of Preduerionv m¤¤¤f¤¤t¤¤= end eroP'
two uses of governmental control. So that we growing, on ine ineorY inet Buell Proddetlerl
find implicit in the so-called jurisdictional ques- ` burdened or affected the rree eurrenr or Herr of
tion, the Whole Problem of the future ehereeter interstate commerce, and that wage d1str1but1ons
of our national economy. Many of the advocates (ie nee One illustration) “ProVlde die neeeS'
of "growth” have already clearly revealed their Sei`Y stimulus in elerilng ine eumuleuve ioreej
theories of the form that they think our national making fvr eXPending eonlrnerelel eerlVliY‘
economy should take. This has been disclosed PreerieellY ie utilize lnie eXPreSS Power PY eX'
by the “rounded whole” of their legislative pro- Pending e limited Federal rilevernment mm e
gram. Obviously this "rounded whole" does not general and ooinpleie Soverelgnlyv Wlill the re'
ut into the framework of our constitutional sultant obliteration of the States and local self-
system, but to change our constitutional system governmenlr
so that it will lit is not adapting the Constitu- Third, They have attempted the expansion
tion to actual new conditions but rather trans- of the taxing pewer from its intended purpose
forming li to legalize novel ineoriee of providing revenue into an instrument of
Perhaps the PeoPle rniglii Prefer iliie “NeW social and industrial control and as a punitive
Order” of society; but that is a question which weapon to jmpeae "Ve]untary" submission, .
the people have not yet answered authentically, F h_ Th h t t d th i H
and, until they do so, why change our funda- Omit ° . Br .aliB at cmp C · C Bxpans 0
. of Federal jur1sd1ct1on over nav1gable streams
mental law to embrace mere theoretical poten· , . 1 d .
tialities, dictated by individual ambitions, not mt0,th€ {ldd Oi Cconomlc deve opment an mi
dcmaudcd b lar d i ? We ca . k vention, 1nclud1ng even the estabhshment of
. . Y pepu CS rc H Us d t' ks with which to establish rate struc-
experimentmg with statutory law, but not with yer S lc
the Constitution. tum; and
At any rate, their proof of inadequacy has ° Fifth: They are attempting to utilize Federal
thus far always been the fact of the failure of ·~ eeniirel over the postal eYetern into an instru'
some particular pet law to survive judioial   ment of public control-
Bcruunrr   Is it not clear that all these so-called
l "growths" far transcend "adaptation," and, in
` THE RECORD of the recent attempts to force fact, constitute transformation? You can see
"growth” by interpretation is significantly dif- how nccgssilir gt isbn) exlilmlilai Bgeh pmrglosal
fgent in ue ultimate purport than all previous f§‘g1‘l0:r‘;l;,,e‘tp;;‘g1e6SS ,§' Sue me ca me W°r S as T
e orts. ’ '
14 15

 IT IS UNNECESSARY for me to reiterate the y Sbeeeb aPt`ePeS et_ the Sebeebtet d¢¤i¤i¤¤» that
dogmatic language of the Supreme Court of the t the iebe_et}t*°g' df¢C1S10¤ g¤V€ HSC to 3 0015¤t1t¤·
United States repeated so many times of late   time ljttste qtttte as great 'ae ebe of Wat? wd
that the theories and policies contained in these § to at t e tbdttetttat t`etettttt°b_ metied tee fait
laws do not fit into the framework of our polit- Q Ttlgt tbe acgymmodetivg of Judimal th€€tfY·
ical institutions. Has it been demonstrated that   W e _tt°tttS tevetuttenv and mere eSPeetattY
all of the controls established by this legislation { d·lutb_°tat Ebellatyv as abbbed te a tmabmteue
are necessary to meet existing conditions and i deeteteb e   e Suptetne Courts cannpt be 1dlY
that existing conditions cannot be met ade- } _ tatmssegt Wttbettt aettette aPPt`ebebSteb· Tbta
quately without them? If so, where is that t tsha 1;¢1f¤tk¤X£$¤SS1¤¤ et btecgletgemlit flat tat;
? w 1C oc s 1S progress. u 1cia t eory,
proof?   _ ,
The President himself urged Congress to pass bg] Wbtclti bebdttty means t‘aW• mttet be atgetb
, 7 •
a bill notwithstanding “doubts as to const1tu- lt; °“t° as tttttzft Iatust be ;eee?medated_ tf;
tionality, however reasonable.” Congress itself ts   uttotb h °W¤ by Jttdtetat atttttteb
seems perfectly willing to enact laws without °t;l;t 1 °att°b° ittees bet 8aY*
any great legal scrutiny and to pass them on to ; _ Ct°_ S°°b;)Sl_t° e geme ettdenee et ab ettett
the courts for final decision as to their constitu- § :0 impatg Pu dt°_°°bf dence m_tbe eettttav ee as
tionality. We would hesitate to accuse anyone   9 ayt a °tm_ att? °t timevtbyg tbem as Gbat"
with deliberately planning to accumulate laws g Hats O tgetittng fttsttet astett abtt ter _ tbe
of questionable validity, or of known invalidity,   acmmmlti atteb e Jttibetat theo}? B. that IS to
and with passing the responsibility to the courts t ?"t§r’ mo gsttzt t°dtCP it‘°t`j1Att;etteabtSm bY the
of deciding this point, so that a record could be _t ZW t det an t° tt apt aut taw te amt
made that it is the courts which are thwarting 1 S cman S'
the popular will, but for the fact that one who
has been circumstanced in h1s OfIiC13I contiacts IN THIS CONNECTION it is WGH for us to
ee as te be able to Slteak t;bewtb€:tY» Sgt tb meditate deeply on the wisdom of what Chief
t`eSPeet of the beeesetty e meettbg teettea Justice Hughes writes in his book: "The Su-
taatet i preme Court of the United States.” Citing with
"One group, as you know, headed by my friend 3ppI‘0V3l Judge Bradley in the case of Boyd vs,
Professor Frankfurter of Harvard is rather 8¤Xl0u$ United States (1886), he tells us how best to ‘
gmt this Stwutd be d°“e by g°ttmg thc Sttptcmti resist the transformation of our institutions by
ourt gradually to mod1fy its VIEWS. I think the . t . . . ,6. . .
famous phrase is ‘judicial attrition} In practice this 1n_ érprguvc cxpattstontstst and by Judtetat at'
means serving up case after case in the hope that tt`ttt0b· He SaY$¥
the court will modify its more dogmatic statements, an was in this Opinion that Justice Bmdl
its very broad dicta about interstate C0mm€i`¢€· AH' sounded his eloquent warnin