All Commentary
Monday, April 1, 1963

What Happened to the Constitution?


Mr. Roe is an engineer, retired, after many years in editing technical publications.

It was a select group of men who sat in Philadelphia through the warm summer months of 1787 hammering out the Constitution of the United States. James Madison, who was one of them, tells us: “There never was an assembly of men, charged with a great and arduous task, who were more pure in their motives, or more exclu­sively or anxiously devoted to the object committed to them.” The results of their labors support this opinion. It is doubtful if a body of men could be assembled today as unanimously devoted to a great cause and the results of whose work would survive as long.

Our Constitution remains un­surpassed in conciseness, clarity, and masterly organization of con­cept and content. It has the vir­tue, unusual among basic docu­ments, that it can be understood by almost anyone. The language and arrangement are such that a high school student can easily pre­pare a one-page outline of its prin­cipal components, although few to­day are required to do so. It was the first basic charter in history to be written and adopted in ad­vance of organization of a new government; and it stands today alone, the oldest written and still living constitution in the world.

But our people are amazingly unfamiliar with their Constitu­tion. To some it is merely an an­tique document in a glass and bronze case in the National Ar­chives in Washington, guarded and revered, but only a relic and not something to be read and studied. Gone are the days when eighth-grade scholars declaimed Web­ster’s reply to Hayne on a vital aspect of the Constitution. It is true that United States history and the Constitution still remain in high school syllabi, but they have to share time now with social studies, including instruction in automobile driving and in dating the opposite sex, to say nothing of the United Nations and the facts of communism. The result is inev­itable. In any social group, no matter how well-educated the in­dividuals may be, let someone raise a question about the consti­tutional basis of any pending leg­islation or recent court decision, and note how quickly the group disperses or turns with a laugh to other subjects. The Constitution is no longer a vital element in our national life. We are close to the time predicted by James M. Beck, formerly Solicitor General of the United States, when he wrote that “that noble edifice [the Constitu­tion] will one day become as the

Parthenon, beautiful in its ruins, but nevertheless a useless and de­serted temple of Liberty.”

Times Have Changed

There are good citizens who would not agree that we are put­ting the Constitution in moth­balls. Some of them say we are merely reinterpreting it, that we are following today the road f a­vored by Alexander Hamilton lead­ing to a strong central govern­ment. To the charge that we are no longer a federal republic com­prising freely participating states, it is said that the usefulness of the states in these days of rapid and universal communication has greatly declined and the states could wither away to mere paper organizations without detriment to our way of life. It is alleged that our vast technological attainments have brought situations never visu­alized by the founders and that it is therefore necessary to interpret the Constitution very broadly in­deed. The old concept of a federal government of enumerated powers cannot fit the needs of the mid-twentieth century, hence the cur­rent recognition of the “general welfare” clause as authority for the federal government to do any­thing—and proponents of this point of view seem to mean any­thing.

Well, reams could still be written in addition to those already completed explaining how and why many enactments of Con­gress, many decisions of the Su­preme Court, and many actions upon initiative of the President in these days cannot be made to ap­pear in conformity with the Con­stitution, no matter how it is re­interpreted. But instead of thresh­ing over a few instances among thousands, it is desired here to at­tempt a look ahead, to see if it can be determined “whither we are drifting.”

Drifting

And “drifting” is the right word, for it seems that no one is deliberately trying to sabotage the Constitution. No one bears it any ill will. Few have any definite ideas about improving it or re­placing it with something else. Whatever is happening seems to be the result of neglect and indif­ference. Those who in former times would have been most deep­ly concerned—the legal profes­sion—are saying very little about it today; like the rest of us, they seem to be too busy with other things. A couple of cynical re­marks, the first made by a Chief Justice of the Supreme Court, are frequently quoted, usually with humorous intent: “The Constitu­tion is what the judges say it is,” and “What is a constitution be­tween friends?” Such expressions would not have been heard in former times.

Trend Marked by Amendments

In the first place, a trend has been marked out by amendments to the Constitution. Jefferson con­templated an amendment to en­able him to purchase Louisiana from Napoleon in 1803 but was persuaded to proceed without it, as there was no opposition. This was the first deviation and might be unimportant if it did not head a list of increasingly serious in­stances. There is no constitutional provision for purchase and an­nexation of territory. Jefferson‘s concession to expediency estab­lished a precedent and was fol­lowed without a qualm by the Gadsden Purchase in 1854, Alaska in 1867, and the Virgin Islands in 1917.

The Fourteenth Amendment in 1868 lectured the states on the elements of humanitarianism. Al­though they all had somewhat similar provisions in their own constitutions and statutes, here was the central government at Washington telling them (at bay­onet point in several instances) how they should treat their own citizens. That the amendment was intended to bring recognition as citizens to the recently freed slaves is beside the point, as are also the highly questionable man­ner of its ratification, its validity, and its effectiveness. It was an as­sertion of authority by the central government in matters usually considered to concern only the states and their own citizens.

The Income Tax

The Constitution had prohibited any “direct” tax, carrying over from the Articles of Confedera­tion the idea that any general tax­ation must be apportioned among the states upon the basis of popu­lation. This preserved a standard of equity which recognized the states as units. But the Sixteenth Amendment, adopted in 1913, em­powered the Congress to collect taxes upon income, ignoring the states; and this has since become the method of obtaining four-fifths of the national revenue. Al­though few noticed or objected to this by-passing of the states, it marks the second and a most im­portant step in the process of downgrading the states and ag­grandizing the central government through the amendment process.

The third step came only a few months later, still in 1913, with ratification of the Seventeenth Amendment. This provided for di­rect election of senators by the people instead of by the state leg­islatures as originally provided—blow Number 3.

The Eighteenth Amendment, prohibiting manufacture of and traffic in intoxicating liquors, and the Twenty-first Amendment which repealed the Eighteenth, represent a fiasco which one is re­luctant to associate with a docu­ment as noble in purpose and as dignified in style as the original Constitution. The Prohibition Amendment was an experiment in sociology, a hang-over from the Puritans, and it failed miserably. But the point here is that sumptu­ary laws are not mentioned in the original Constitution and have al­ways been considered, if they are necessary, as enactments appro­priate to the states. This excur­sion into practical morality was, therefore, further indication of the trend of all government toward Washington.

These are all bits of evidence showing an increasing divergence between the aims of the growing republic and the principles of the Constitution. But at least the amendments cited were the results of efforts to bring the old Consti­tution up-to-date. The people were looking more and more to the cen­tral government for what they wanted. This goal can be criti­cized but it must be admitted that they used the proper methods to obtain it. Valid criticism can be directed, however, against efforts to obtain temporary advantage by simply ignoring constitutional lim­itations and hoping no one inserts a stumbling block. Instances of this kind of “progress” are innumera­ble but a few will be cited.

Two Methods of Departure

By two separate methods Con­gress has subverted the Constitu­tion, usually at the behest of the Executive: (1) The blank check to the President, granting him vast sums of money to spend at his discretion without accounting; and (2) setting up the so-called independent agencies which oper­ate without the customary super­vision of the President and his Cabinet. There are a great many of these independent agencies, some of them very powerful and expending vast sums. The degree of constitutional relationship var­ies. Some of them have a well-defined authorization in certain areas but are then found to be op­erating in related areas quite out­side any possible constitutional coverage. At least some of the ac­tivities of the following, for ex­ample, are clearly outside any pro­vision of the Constitution, no mat­ter how broadly it may be inter­preted:

Department of Agriculture

Department of Labor

Department of Health,

Education and Welfare Farm Credit Administration

Federal Mediation and Conciliation Service

Federal Power Commission Housing and Home Finance Agency

National Aeronautics and Space Administration National Labor Relations

Board National Mediation Board National Science Foundation Small Business Administration

Tennessee Valley Authority United States Information Agency

Monetary Manipulation

It would require volumes and many specialized minds to record all the devious paths followed by our government in the financial area. The Constitution merely lists among the powers of Con­gress, “to coin money,” and “regu­late the value thereof.” Nothing is said about prohibiting the people from owning gold nor about sub­stituting a managed currency for that with the traditional metallic base. In expressing his dissent in the “gold clause” case in 1935, As­sociate Justice McReynolds stated: “As for the Constitution, it does not seem too much to say that it is gone.”

The Constitution gives Con­gress the power to declare war but this, too, is now ignored. A headstrong Executive leads us into war, sometimes not even bother­ing to inform the Congress or to ask for confirmation. A more cyni­cal disregard of our basic law could hardly be imagined. We also have had two recent instances of highhanded use of the armed forces within states, without re­quest of the governors, in both cases by initiative of the Execu­tive, although the wording of the Constitution is clear: “Congress shall have the power… to pro­vide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions.”

Authorized Expenditures

Expenditures under authoriza­tion by Congress show the most flagrant disregard of constitu­tional limitations: forty billion dollars, in installments, to place a man on the moon—a project which isn’t even represented as related to national defense; three million for a private yacht for Emperor Haile Selassie of Ethiopia; hun­dreds of millions in foreign aid to countries demonstrably unfriendly to the United States; millions for the development of recently freed colonies of European nations in Africa, as though it were a duty of the American people, through their government, to pay for the hit-or-miss evolution of young na­tions which their European spon­sors cannot or will not support. And what possible sanction can be found in the Constitution for the hundreds of millions we pour into the United Nations where it is spent without our control and sometimes for objectives contrary to our interest?

Ignoring the Constitution

Even learned and respected scholars and judges of the Su­preme Court were not content to settle the 1954 school segregation case upon their reading of the Constitution, but cited the views of a Swedish sociologist—a social­ist at that.

A former President wrote to a member of the House Ways and Means Committee in relation to a law he wanted passed: “I hope your Committee will not permit doubt as to constitutionality, how­ever reasonable, to block the sug­gested legislation.” Compare that with the conscientious scruples of Jefferson in the Louisiana Pur­chase matter, and his first plan to seek a constitutional amendment to substantiate his authority. Can there be any question that over the years the respect with which the Constitution was originally re­garded has been replaced with a contemptuous disregard in the highest echelons of our govern­ment?

Expecting Too Much?

Perhaps no written constitution could ever survive. Perhaps the American people have changed to such an extent that continuous ad­herence to a written set of prin­ciples, no matter how high, is not within the scope of their desires and maybe not within their ca­pability. Perhaps an unwritten constitution, playing by ear for a few centuries while we build up an intangible code of precedent and custom and honor, like the British, would better suit these times in America.

Perhaps. But there is a nobler way, better fitted to a nation in a position of world leadership. Let the people be fully informed of the basic changes in our form of government that have taken place and are still continuing. As the original conference which drafted the Constitution was composed largely of men with training and experience in the law, and as our Congress all through the yearshas always included a majority of lawyers, just so in this situation the legal profession could take an important part in informing the people. Various publications could contribute, much more than most have done, to warn the citizenry of what is happening. The schools and colleges, recognizing the cur­rent changes in our way of life, could also help by seeing that every graduate understands the basic principles of our Constitu­tion and the form of government it contemplates. After making a serious effort along these lines for a few years the attitude of the people could then be accepted as controlling. Being fully informed, if they still want to scrap the old Constitution, it could be done de­liberately, instead of by neglect and default. But it could well hap­pen that there might be a resur­gence of interest in maintaining freedom—the high purpose for which the Constitution was writ­ten and adopted.

 

 

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Ideas on Liberty

Robbers and Socialists

When you think about it, robbers and socialists are not bad for what they do with what they have taken from other people—they might be doing good. It is taking from other people which is so wrong. That robbery is illegal and socialism legal, does not make either of them morally right.

J. KESNER KAHN