RISE OF EMPIRE: THE ANCIENT DESIGN: II
There is no comfort in history for those who put their faith in forms; who think there is safeguard in words inscribed on parchment, preserved in a glass case, reproduced in facsimile and hauled to and fro on a Freedom Train.
Let it be current history. How much does the younger half of this generation reflect upon the fact that in its own time a complete revolution has taken place in the relations between government and people? It may be doubted that one college student in a thousand could even state it clearly.
The first article of our inherited tradition, implicit in American thought from the beginning until a few years ago was this: "Government is the responsibility of a self-governing people.
That doctrine has been swept away; only the elders remember it. Now, in the name of democracy, it is accepted as a political fact that people are the responsibility of government.
The forms of republican government survive; the character of the state has changed.
Formerly the people supported government and set limits to it and minded their own lives.
Now they pay for unlimited government, whether they want it or not, and the government minds their lives—looking to how they are fed and clothed and housed; how they provide for their old age; how the national income, which is the product of their own labor, shall be divided among them; how they shall buy and sell; how long and how hard and under what conditions they shall work, and how equity shall be maintained between the buyers of food who dwell in the cities and the producers of food who live on the soil.
For the last named purpose it resorts to a system of subsidies, penalties and compulsions, and assumes with medieval wisdom to fix the just price.
This is the Welfare State. It rose suddenly within the form. It is legal because the Supreme Court says it is. The Supreme Court once said no and then changed its mind and said yes, because meanwhile the President who was the architect of the Welfare State had appointed to the Supreme Court bench men who believed in it.
The founders who wrote the Constitution could no more have imagined a Welfare State rising by sanction of its words than they could have imagined a monarchy; and yet the Constitution did not have to be changed. It had only to be reinterpreted in one clause—the clause that reads: "The Congress shall have power to lay and collect taxes, imposts and excises to pay its debts and to provide for common defense and welfare of the United States."
"We are under a Constitution," said Chief Justice Hughes, "but the Constitution is what the judges say it is."
The President names the members of the Supreme Court, with the advice and consent of the Senate. It follows that if the President and a majority of the Senate happen to want a Welfare State, or any other innovation, and if, happily for their design, death and old age create several vacancies on the bench so that they may pack the Court with like-minded men, the Constitution becomes, indeed, a rubberoid instrument. The extent to which the original precepts and intentions of Constitutional, representative, limited government, in the republican form, have been eroded away by argument and dialectic is a separate subject, long and ominous, and belongs to a treatise on political science.
The one fact now to be emphasized is that when the process of erosion has gone on until there is no saying what the supreme law of the land is at a given time, then the Constitution begins to be flouted by executive will, with something like impunity. The instances may not be crucial at first and all the more dangerous for that reason. As one is condoned another follows and they become progressive.
To outsmart the Constitution and to circumvent its restraints became a popular exercise of the art of government in the Roosevelt regime. In defense of his attempt to pack the Supreme Court with social-minded judges after several of his New Deal laws had been declared unconstitutional, President Roosevelt wrote: "The reactionary members of the Court had apparently determined to remain on the bench for as long as life continued—for the sole purpose of blocking any program of reform."
Among the millions who at the time applauded that statement of contempt there were very few, if there was indeed one, who would not have been frightened by a revelation of the logical sequel. They believed, as everyone else did, that there was one thing a President could never do. There was one sentence of the Constitution that could not fall, so long as the Republic lived.
The Constitution says: "The Congress shall have power to declare war."
That, therefore, was the one thing no President could do. By his own will he could not declare war. Only Congress could declare war, and Congress could be trusted never to do it but by will of the people. And that was the innermost safeguard of the republic. The decision whether or not to go to war was in the hands of the people—or so they believed. No man could make it for them.
It is true that President Roosevelt got the country into World War II. That is not the same thing. For a declaration of war he went to Congress—after the Japanese had attacked Pearl Harbor. He wanted it, he had planned it, and yet the Constitution forbade him to declare war and he durst not do it.
Nine years later a much weaker President did. After President Truman, alone and without either the consent or knowledge of Congress, had declared war on the Korean aggressor, 7000 miles away, Congress condoned his usurpation of its exclusive Constitutional power. More than that, his political supporters in Congress argued that in the modern case that sentence in the Constitution conferring upon Congress the sole power to declare war was obsolete.
Mark you, the words had not been erased; they still existed in form. Only, they had become obsolete. And why obsolete? Because war may now begin suddenly, with bombs falling out of the sky, and we might perish while waiting for Congress to declare war.
The reasoning is puerile. The Korean war, which made the precedent, did not begin that way; secondly, Congress was in session at the time, so that the delay could not have been more than a few hours, provided Congress had been willing to declare war; and, thirdly, the President as Commander-in-Chief of the armed forces of the republic may in a legal manner act defensively before a declaration of war has been made.
It is bound to be made if the nation has been attacked. Mr. Truman's supporters argued that in the Korean instance his act was defensive and therefore within his powers as Commander-in-Chief. In that case, to make it Constitutional, he was legally obliged to ask Congress for a declaration of war afterward. This he never did.
For a week Congress relied upon the papers for news of the country's entry into war; then the President called a few of its leaders to the White House and told them what he had done. A year later Congress was still debating whether or not the country was at war, in a legal, Constitutional sense.