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to feel helpless and hopeless. Their Government appears to be an autocracy instead of a democracy.
The decision of the Supreme Court has set aside and nullified that law. The pressing question is, what are we going to do about it? In order to answer that question, it is necessary to recall the leading facts in the struggle between the people and the Federal courts on the subject of child labor legislation.
(Here Senator LaFollette, in his lucid and masterly
You have only to recall the decisions arising out of the employers' liability statutes, the Arbitration Act, the Workmen's Compensation Act, the Income Tax Laws, and the shameful manner in which the court rewrote and misapplied the Anti-Trust Act in the Standard Oil and Tobacco Trust and other cases. If perchance the memories of any of you are very short, I direct your attention to the recent decision of the Coronado Coal Company case.
The opinion in this case, by Chief Justice Taft, is significant because of what the court says on questions that are not involved in the case rather than because of anything that is actually decided. This is another case of obiter dicta.
A six-line decision was all that was required to dispose of the case on its merits, for the Supreme Court was reluctantly obliged to admit the fact that there is not, and never was, any evidence to show that the defendants conspired to restrain or monopolize interstate commerce. That being true, of course, there is not, and never was, any case against the United Mine Workers in the Federal Court. The court, however, went out of its way through 29 pages of obiter dicta to berate the defendants and to characterize them as outlaws and murderers, and the Chief Justice Taft wound up his opinion by saying: “The circumstances are such as to awaken regret that in our view of the Federal jurisdiction, we cannot affirm the judgment.” Here again the court went outside the record to announce a principle ich will be laid hold of by Federal courts whenever necessary to disrupt labor unions and farmers' organizations throughout the country.
I cannot leave these decisions, limited as my time is, without recalling to you the criticism which Justice Holmes (concurred in by Justice Brandeis) delivered with reference to the decision of the court in the now famous Abrams case.
mind this case, involving the fundamental right of freedom of speech, best illustrates the extreme length to which the court is prepared to go under the influence of its prejudices and passions. Justice Holmes did not mince words when he said in his dissenting opinion: “In this case sentences of twenty years' imprisonment have been imposed for the publishing of two leaflets that I believe the defendant had as much right to publish as the Government has to publish the Constitution of the United States now vainly invoked by them. ... Only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time, warrants making any exception to the sweeping demand, 'Congress shall make no law .... abridging the freedom of speech.' .... I regret that I cannot put into more impressive words my belief that in their conviction upon this indictment the defendants were deprived of their rights under the Constitution of the United States."
Heretofore the people of the United States have met the difficult situations created by the court's decisions on constitutional matters by dealing with the particular question upon which the court was at variance with the popular will. When the court held that a sovereign state might be sued by the citizen of another state, the people were indignant, but they cured this situation by speedily passing the Eleventh Amendment. The people of the United States cured the situation created by the Dred Scott decision by the adoption, after a Civil War, of the Thirteenth and Fourteenth Amendments. When the Supreme Court held the income tax law invalid, the people, after thirty years, were able to cure this situation by the adoption of the Sixteenth Amendment, which, as we have seen, the Supreme Court has already partially nullified by exempting stock dividends from taxation. Now we will probably have to have a stock dividend constitutional amendment.
We have never faced the fundamental issue of judicial usurpation squarely, with a determination to make an end of it -once and for all. The time has now come to do so. It would require a dozen constitutional amendments to correct the evils of the decisions which the court has handed down within the past three or four years. The time has come when we must put the axe to the root of this monstrous growth upon the body of our government. The usurped power of the Federal courts must be taken away at one stroke and the Federal judges must be made responsive to the basic principle of this government. Constitutions and statutes and all the complex details of government are ordained, established, and supported for the sole purpose of expressing and executing the sovereign will of the people.
Now, sir, as to a remedy!
The subject is one to which I have given much thought. For years I have seen the day coming when the Federal judiciary must be made, to some extent at least, subject to the will of the people, or we must abandon the pretense that the people rule in this country. We have created, or at least have suffered to grow up within our land a Frankenstein, which must be destroyed, or else it will destroy us. And we can destroy that Frankenstein without destroying the constitutional court that was created for us by our fathers if we will go about it.
No student of existing conditions, however conservative he may be, can ignore the alarming fact that there is a widespread and growing belief in the public mind that our courts and kindred tribunals established to administer justice under the law are more considerate of property interests than of personal rights.
For years the current literature of the day has teemed with it. It is idle to say that it is confined to the violent denunciation of agitator and demagogue. It has found expression in publications of accepted standing. It has been the theme of eminent publicists. It has been denounced from the pulpit. It has been discussed in the meetings of National and State bar associations. It has become the settled conviction of millions of worthy citizens of the Republic.
I say this is no longer an academic question. Out of it has come the demand for the recall of judges, which is already embodied in the constitutions of at least three States of the Union. In the American home, in our schools, and in all the relations of life we are taught to respect and reverence our courts. The judiciary alone, of all our institutions of government, was set upon an eminence of station and consecrated to a service designed to lift it above the suspicion of perverting justice. Standing somewhat apart from the turmoil and clash of the material world, our courts were insured a calm and repose where they might hold with even hand the scales of human justice. Nor was that all. Through common-law proceedings for contempt, and a great body of statutory crimes against justice, we have thrown about them as constituted every protection and safeguard which the wit of man can provide.
But this isolation and sanctity of position, this absence of direct responsibility to the people, has led the Federal judiciary, and particularly the Supreme Court, to assume and to exercise an arbitrary power wholly inconsistent with popular government. The question is, which is supreme, the will of the people or the will of the few men who have been appointed to life positions on the federal bench?
It is idle, sir, in my opinion, to talk about a constitutional amendment which will merely meet the objection to the Child Labor Law raised by a majority of the Supreme Court. We cannot live under a system of government where we are forced to amend the Constitution every time we want to pass a progressive law. The remedy must adequately cope with the disease, or there is no use applying it.
I fully recognize the fact that the power which the court now exercises to declare statutes of Congress unconstitutional is a usurped power without warrant in the Constitution, and it is absolutely certain the Constitution would never have been adopted had the men at that time believed that the court they were providing for would assume the powers now exercised by our Federal judges. Every student of history knows that to be true.
Is the remedy then such a drastic change in the Constitution as will forever strip the judiciary of this power? I do not think this is necessary, nor do I think that the popular election of Federal judges would adequately meet the situation.
I would amend the Constitution so as to provide:
(1) that no inferior Federal judge shall set aside a law of Congress on the ground that it is unconstitutional;
(2) that if the Supreme Court assumes to decide any law of Congress unconstitutional, or by interpretation undertakes to assert a public policy at variance with the statutory declaration of Congress which alone under our system is authorized to determine the public policies of government, the Congress may by repassing the law nullify the action of the court.
Thereafter the law would remain in full force and effect precisely the same as though the court had never held it to be unconstitutional. Had such been the provision of the Constitution the action of Congress in passing the Child Labor Law the second time would have been effective and we would have had an efficient child labor law today. Had such been the Constitution it would not have been necessary to wait twenty years to get an income tax law after the Supreme Court had reversed its former decision upholding the law. Were such now the Constitution, the Congress could, by statute, speedily correct the indefensible policy, asserted by the Supreme Court in the Coronado case, with respect to labor unions, farmers' associations and other voluntary organizations.
While, of course, it is a great burden upon the people to require them virtually to pass remedial legislation twice, never
theless, where the subject is important enough and the interest keen enough, it will not be a difficult thing to do.
The Constitution gave to the President of the United States a veto upon legislation, in order that the executive might be able to protect itself against encroachments. But it also gave to the Congress the power to assert its will by repassing the law even after it had been vetoed. This was necessary in order to prevent the President from using his veto to block all progress and make himself a despot.
The Constitution did not give the courts a veto, but as I have shown, repeatedly refused to permit them even to participate in the exercise of the Presidential veto power. Nevertheless, the courts have asserted not a veto power while laws were in the making, but have usurped the far greater veto power of nullifying laws after they have been enacted and by the process of so-called interpretation to declare the public policy. They thus themselves enact what shall be the law of the land.
What I propose is that Congress shall be enabled to override this usurped judicial veto and to declare finally the public policy just as it has the power to override the Presidential veto, so that we may realize in fact the fundamental purpose of the Constitution as declared in Article 1, Section 1, that “All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”
Certainly no one can complain that the plan proposed is revolutionary, or even radical. It can fairly be criticized as being too conservative, but it at least would give the people an effective method of expressing and enforcing their will if the sentiment and purpose is strong enough, and it would at one sweeping stroke relieve the present intolerable condition.
A very good illustration of what I propose is found in the recent history of the House of Lords of Great Britain. That body, as you know, constitutionally has a dual character. It is both a law-making body and a court. Our Supreme Court by usurping legislative powers has become somewhat like the British House of Lords. You will recall that several years ago the House of Lords refused to approve the budget adopted by the House of Commons, taxing landed estates for the promotion of a great program of social legislation. This veto so provoked the popular branch of the British Parliament that the next general election was fought out on the issue that thereafter if the House of Lords withheld approval of any measure of the House of Commons, the latter could by repassing the bill, nullify the veto action of the Lords. The British people overwhelmingly supported the House of Commons in the election on that issue.