The Flight From Reality: 23. The Flight from the Constitution Part I

Dr. Carson is Professor of American History at Grove City College, Pennsylvania. Among his earlier writings in THE FREEMAN were his series on The Fateful Turn and The Ameri­can Tradition, both of which are now avail­able as books.

The Constitution of the United States was the major obstacle to the use of the government to re­construct American society. Social reconstruction by government, if it could be done, would require the concentration of power in a single government, the central direction of the exercise of that power, and a concerted effort over an extended period of time. The latter would be a requirement if it were to be done gradually, and it should be clear that this was the method generally approved by American reformers. Ushering in utopia by government action would require not only an initial control over the lives of Americans but also a con­tinuing control such as to make continuing popular decisions im­practical, undesirable, and disrup­tive of the whole course of devel­opment.

The Constitution was carefully drawn so as to make such uses of the government which it author­ized exceedingly difficult, if not im­possible. The Founders did not have in mind preventing melior­ism (or socialism), of course, for they had never heard of it, though they were familiar with mercan­tilistic approaches to amelioration. They were concerned with protect­ing the liberty of individuals and preventing the government from becoming tyrannical. Any provi­sions that tend to accomplish this object will, at the same time, place obstacles in the way of using the government for social reconstruc­tion. Tyranny is made possible by concentrated and unchecked power, by the very conditions which are necessary for social recon­struction.

Beware of Factions

The Founders were not familiar with meliorism but they were ac­quainted with factions, interest groups, and parties. They were aware, by way of history, of the damage done to republics, to popu­lar governments, and to liberty by men joined together in factions and using political power to achieve their aims. In short, they were conscious of the dangers of faction and party. James Madison provided an acute analysis of the sources and dangers of factions in the Federalist number 10. He first defined the term:

By a faction I understand a num­ber of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the perma­nent and aggregate interests of the community.1

He explained that this tendency of men to group as factions arises from human fallibility and liberty. The partiality of men’s vision coupled with self-love inclines. them to pursue what they think is for their own well-being, though it be at the expense of others.

The latent causes of faction are thus sown in the nature of man; and we see them everywhere brought into different degrees of activity, ac­cording to the different circumstances of civil society…. So strong is this propensity of mankind to fall into mutual animosities that where no substantial occasion presents it­self the most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly passions and excite their most violent conflicts…. Those who hold and those who are without property have ever formed distinct interests in society. Those who are creditors, and those who are debtors, fall under a like discrimina­tion. A landed interest, a manufac­turing interest, a mercantile interest, a moneyed interest, with many lesser interests, grow up of necessity in civilized nations….2

The main purpose of Madison’s essay was to refute those who held that a confederated (or federal) republic was inappropriate as a form of government for America, since the population was dispersed over a vast area. On the contrary, he held, this was the most propi­tious situation for such a govern­ment. Factions had destroyed small republics in the course of history. Pure (or direct) democracy had given too great an op­portunity for the majority to tyr­annize over the minority, whereas in America, the indirectness of representation and the dispersion of the population would make it most difficult for factions to use the government for partisan pur­poses.

Pressure Groups Discouraged

Indeed, the United States Con­stitution did place formidable ob­stacles in the way of any interest group which wanted to use gov­ernment for its ends. Not only is the population dispersed over a country of broad extent but also any potential faction or interest group may be expected to be spread throughout the country. The manner of election of repre­sentatives established by the orig­inal Constitution made it difficult for any faction to bring its weight to bear in concert upon the gov­ernment. Only one body of the Federal government — the House of Representatives — was origin­ally chosen directly by the elec­torate. Provisions were made for Representatives to be selected by voters within states, usually by districts. The electors of the Sen­ate came from within even smaller districts, for the Senate was to be chosen by state legislatures. The electors of the President were chosen by states, and could be selected by whatever electorate the states might decide upon.

The difficulties of factions were compounded by dispersing the powers of government between the general (Federal) government and states, and by separating the Federal government into three branches. For action to be taken by the Federal government both houses of the Congress must act by majorities, the President give his assent, and the courts enforce it. If any bill fails to get a ma­jority in either house, it does not become a law. That is to say, either house may prevent legisla­tion from being passed. If the President vetoes a measure, it has to be passed by two-thirds of those present and voting of both houses. If the courts will not en­force an act, it is of no effect at law. In short, it takes the concur­rence of both houses of Congress and to considerable degree all branches of government for gov­ernment to act, but it requires only one house to prevent legisla­tion and any branch of govern­ment has considerable power to forestall it.

Constitutional Curbs

The Constitution limits the gov­ernment both substantively and in the procedures it requires for changing it. The powers which the Federal government may exercise are specifically granted in the Constitution. It is prohibited to exercise certain powers, i. e., the passing of ex post facto laws, the restriction of free speech, the taking of property without just compensation, and so forth. All powers not granted to the Federal government by the Constitution are reserved to the states or to the people. To make the limitation upon the government as plain as possible, the Ninth Amendment says, "The enumeration in the Constitution of certain rights shall not be construed to deny or dis­parage others retained by the peo­ple." The Tenth Amendment says, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respec­tively, or to the people." Moreover, the procedures prescribed for amendment are such as to require overwhelming approval throughout the country for changes to be made in the basic instrument of government. The ordinary route of amendment is for both houses of Congress to pass a proposed change by majorities of two-thirds or more. The measure is then sub­mitted to state legislatures, or conventions within states. When three-fourths of the states indi­cate their approval, the measure becomes a part of the Constitu­tion.

Protection, the Objective

The purpose of these complex checks upon the Federal govern­ment (along generally, with sim­ilar checks upon state govern­ments) should be abundantly clear. They were aimed to prevent the use of the government by fac­tion or party for the special ends of interest groups, to protect mi­norities from abuse by majorities, to keep government action to that which would be in the general in­terest, and to assure that such action as was taken would have behind it a broad consensus. To make this emphatic, the original Constitution requires that all taxes, duties, imposts, and excises be levied "for the common defense and general welfare of the United States…." In short, moneys should only be appropriated for the well-being of everyone.

These provisions were, of course, only writings on pieces of paper in 1789. They had no force of their own, no power to make anyone adhere to them, no inher­ent strength to make anyone ob­serve them. They might have be­come dead letters in short order, as so many constitutions have in later times. Instead, they were given vitality and life by men who found in their attachment to the Constitution means of achiev­ing goals which they sought and retaining the fruits of victories they had won. For those who sought to forge a Union from distinct and disparate states, the Constitution offered them their best hope. For those who valued protection from an overweening and arbitrary government, the Constitution was their shelter. Nor were these disparate ends; union and liberty were reconciled for many men by the Constitution. The Constitution was the primal contract of the American peoples — the union of peoples by states established by it, the powers of the general government stemming from it, the protections against arbitrary government provided in it.

The Constitution did more than this: it provided a symbol and source of continuity to a people who had dispensed with monar­chy, who had cast off the heredi­tary means of continuity, who sought government by law not by men. At the hands of great jurists — John Marshall, Roger Taney, and others — it became the funda­mental law by which all other law must be tested, the body of law to which all must submit when they operated within its jurisdiction. It was no longer a mere piece of paper; it was that to which judges deferred when they applied the law, that to which Congress and the President looked for authority, that in terms of which the power of government could be brought to bear upon individuals.

The point is this. The Constitu­tion provided diverse modes of election for those who should hold office under it, separated powers within the government, limited the powers to certain specified objects, and provided protections for the rights of individuals. It provided protections for minorities and made it most difficult for factions to gain control of the government. These provisions gained great force by the sanctity men came to attach to the Constitution. The words became flesh, as it were, as courts deferred to them, as legis­lators heeded them, as executives based their actions upon them.

Coalitions Formed

Yet, for a good many years now, the government of these United States has been embarked on a program of social transformation—on and off, but more and more. The assent to these efforts at social re­construction has been obtained mainly by appeals to factions and interest groups. The art of politics has become largely the art of achieving majorities by gaining support from a sufficient number of factions. The reverse of what Madison predicted has occurred; he held that the mode of election of representatives and of the exercise of power would make it extremely difficult, if not impossible, for the government to fall into the hands of factions. The electorate was so dispersed that factions would be prevented from bringing their weight to bear as a unit upon the government. Instead, the country is today divided into factions and interest groups which wield great influence upon the government and promote the concentration of pow­er in government. This concentrat­ed power is then used in programs of experimentation at social recon­struction.

There has been a flight from the Constitution. It has not been by constitutional amendment, though one or two amendments have fa­cilitated the flight; for there are constitutional means for amending the Constitution. In any case, the Constitution has been little changed from the original, with one excep­tion, in regard to the selection of representatives. The flight from the Constitution has been accom­plished without altering the verbal content of the document generally: it has been done by extraconstitu­tional developments, by interpreta­tion, by the assumption of powers not granted, by the gaining of pow­ers by one branch at the expense of another, and by allowing some safeguards to atrophy or be al­tered.

Some early extraconstitutional developments set the stage for the flight from the Constitution, though in themselves they may have been innocent enough. The Constitution provides that the President shall be chosen by an electoral college. Each state has as many electors as it has Senators and Representatives in the Con­gress. They are chosen in the man­ner directed by state legislatures. The assumption was that electors would be chosen because of their eminence within their states and that they would select a President without reference to anything other than their own choice. The original Constitution provided that each elector should vote for two persons. The person receiving the highest number of these votes, pro­vided it constituted a majority, would become President; the one receiving the next highest would be Vice-President. In case no can­didate got a majority, the election would revert to the House of Rep­resentatives, where each state would have one vote. Initially, state legislatures often chose elec­tors.

Party Politics

One extraconstitutional devel­opment was the growth of political parties. Some of the early leaders, notably George Washington, hoped that political parties would not de­velop in America. It was a vain hope. The outlines of parties began to form over the very question of the ratification of the Constitu­tion. Within a few years they had taken definite shape under the leadership of Alexander Hamilton and Thomas Jefferson. The Con­stitution has no reference to such organizations; they are given no role to play. But Alexander Hamil­ton was a man with a vision, a vi­sion of a unified people in a nation made great by the vitality and ex­tent of its commerce and manu­facturing. He proposed to attain these objects by an energetic use of the Federal government. Jeffer­son welded together a party to op­pose much of this governmental activity and intervention, and in defense of a strict construction of the Constitution. By 1800, political parties had assumed much of the extra-constitutional role they have continued to play in our history. It has been a fateful role, for it enables factions to determine pol­icy, insofar as political parties de­termine policy, across the lines of electoral districts.

Parties early gained sway in the electoral college, i.e., electors were chosen on a party basis. But the constitutional mode for the voting of electors tended to thwart this. If all of a party’s electors voted for the same men for Presi­dent and Vice-President, there would be a tie between these two men, and the election would revert to the House of Representatives. Indeed, this happened in 1800 and might have been expected to hap­pen regularly thereafter. Instead, the Twelfth Amendment was rati­fied in 1804; it provided that each elector should have one vote for President and one vote for Vice-President. Thus, the way was pre­pared for party determination of candidates and for electors to be­come mere figureheads for their parties.

Additionally, states decided for a whole slate of electors. When, as happened shortly, the electors were popularly chosen, all the votes of a state were cast for the party’s electors receiving a majority of the votes of the citizenry. Most of the electors might have been chosen in congressional districts, the remaining two in state-wide elections, thus dispersing the vote. This was not done. By having all of them chosen by a state-wide majority the way was opened to the forging of majorities by ap­peal to state-wide factions or in­terest groups. Political parties provided the instrument for fac­tional use at the national level.

Early Abuses Insignificant

It would be a mistake, however, to make much of these early de­velopments. They provided a po­tentiality for the factional use of government and for the concentration of power. The Federal gov­ernment was used for interest groups in the nineteenth century on occasion, most notably in the case of the protective tariff. But there were still many obstacles to concerted party efforts to carry out programs. Most of these de­velopments had to do with the choice of a President. Members of Congress were still chosen in the way originally prescribed.

Nominally, congressmen adopted some party label, but there were few effective devices for enforcing party discipline. A congressman could vote for a program advanced by his party or not, as he chose, and only those within his district could discipline him. Even if one who had voted against most of the planks of his party’s platform should be defeated in his district, it would be by no means clear that his failure to serve as a party man had led to his defeat. The Presi­dent had little authority over con­gressmen; the Founders had tried, with considerable success, to make it so. Each branch was to be inde­pendent of the others. Moreover, the Constitution, as it was ob­served, placed great substantive limits upon what could be done by government, in any case. Many other changes had to be made be­fore the government could be used for a sustained effort at social transformation.

Reform by Amendment

Three other constitutional amendments deserve mention. The Fourteenth Amendment, declared ratified in 1868, made all those born within the United States cit­izens of the United States. Also, it extended in other ways the au­thority of the Federal government. It prohibited the states to take life, liberty, or property without due process of law. Moreover, the amendment was rather vaguely worded, and this ambiguity has been exploited and amplified by the Supreme Court as it has used it as a basis for the extension of the sway of the general govern­ment. The Sixteenth Amendment, which authorizes direct taxes without reference to population, enabled the Federal government to enact an income tax, thus greatly increasing the revenue available to it.

But for the empowerment of factions, the Seventeenth Amend­ment was probably the most im­portant of all. It was ratified in 1913, in the same year as the Six­teenth, and it provided for the di­rect election of Senators. There­after, Senators were to be elected by state-wide popular votes. Fac­tions and interest groups could play roles in these elections now that had formerly been denied to them. A pivotal minority could provide the necessary votes for a majority. An interest group with large numbers in it could virtually dictate the choice of a party candi­date in an election. This result has been most noticeable in states which have several important minority groups, such as organ­ized labor and racial minorities.

"Independent" Agencies

Most of the changes and ac­cretions of power, however, have been accomplished without benefit of constitutional amendment. One of the most effective devices for evading the constitutional separa­tion of powers and enabling the Federal government to exercise greatly expanded powers has been the so-called independent commis­sion, e. g., the Interstate Com­merce Commission, National Labor Relations Board, and Federal Com­munications Commission. Since these organizations will be treated in greater detail elsewhere, they need only be alluded to here. They have played a very impor­tant role in the attempts at social transformation, however. The in­tricate regulation which reform­ers have sought could hardly be encompassed in general legisla­tion. The separation of powers made it very difficult to take ac­tion. The executive branch might apply legislation in ways not con­templated; the courts could, as they did frequently for many years, nullify the action as a viola­tion of due process, or some other constitutional protection. The in­dependent commissions, however, frequently combined all these functions — legislative, executive, and judicial. Though their powers derive from Congress, they are nonetheless real.

The change in the role of the President, particularly as regards legislation, too, has been done without formal constitutional al­teration. The President’s formal legislative powers are mainly neg­ative. He may veto bills that come before him. Except in foreign affairs, this is the extent of the grant of powers over legislation to him. (He is, of course, charged with faithfully executing the laws.) Strong Presidents in the nineteenth century were frequent­ly men distinguished for their vetoes. Andrew Jackson and Grover Cleveland come readily to mind. But by the early twentieth cen­tury, as some Presidents became enthusiastic about meliorism, they began to perceive possibilities for the chief executive to take over much more of the leadership and initiative in legislation. Theodore Roosevelt showed the way to such leadership, but it was Woodrow Wilson who formulated the theory of presidential predominance in the government.

In his early writings, Wilson indicated his regret that the Pres­ident was "merely an administra­tor." On one occasion, he wrote:

If you would have the present er­ror of our system in a word, it is this, that Congress is the motive power in the government and yet has in it nowhere any representative of the nation as a whole. Our Executive, on the other hand, is national: at any rate may be made so, and yet has no longer any place of guid­ance in our system. It represents no constituency, but the whole people, and yet, though it alone is national, it has no originative voice in do­mestic national policy.3

By the early twentieth century, Wilson had seen the way to change this situation. Since the President is the leader of his party, he may become the leader of the nation, or at least he… has it in his choice to be…. His is the only national voice in affairs. Let him once win the admiration and confidence of the coun­try, and no other single force can withstand him, no combination of forces will easily overpower him…. If he rightly interpret the national thought and boldly insist upon it, he is irresistible; and the country never feels the zest of action so much as when its President is of such insight and calibre. Its instinct is for unified action, and it craves a single leader.4

Some of the devices by which the President’s powers were ex­panded were inherent in the office, or so the proponents of presiden­tial power have argued. The Pres­ident is charged by the Constitu­tion with notifying each Congress of the State of the Union. He is also authorized to recommend to them "such Measures as he shall judge necessary and expedient…." He is commander-in-chief of the armed forces. He can make trea­ties, by and with the advice and consent of the Senate. His role in foreign affairs is, by the nature of these provisions, an eminent one. Wilson noted that when foreign affairs are foremost in national concern, the President’s stature is apt to increase and his role ex­pand. As commander-in-chief, the President is in a position of lead­ership in making war.

Foreign Entanglement

It is worth noting that the same Presidents who have been most determinedly devoted to melioris­tic reform have also been those who have gotten us most deeply embroiled in foreign affairs which usually led to war, that is, Presi­dents Theodore Roosevelt, Wood­row Wilson, Franklin Roosevelt, Harry Truman, John Kennedy, and Lyndon Johnson. Nor is the con­nection entirely accidental. Em­broilment in foreign affairs not only increases the role of the President in decision-making but it is more than likely to involve the United States in such wars as occur. Moreover, twentieth cen­tury wars have been leading occa­sions for the introduction of re­formist innovations, regulations, and restrictions, and these can, and have been, blamed upon the exigencies of war.

This is not to say that Presi­dents have involved the United States in war in order to advance reform programs. If such a thing had occurred, it would probably be forever beyond the reach of his­torical proof.⁵ Since we lack such proof, the matter can be suffi­ciently explained in this way. Presidents with a penchant for intervention can most readily ex­ercise it in foreign affairs, for the bulk of their interventionist powers lie in that realm. Inter­vention is likely to lead to war. Once the country is involved in war, the President can use it as an occasion and opportunity for domestic intervention. The pen­chant to intervene, which is prob­ably rooted in human nature in the will to power, is, of course, nurtured and provided with in­tellectualist justifications in me­liorist ideologies.

The President as Lawmaker

The President’s powers have been increased in a number of other ways. The incidental au­thorization in the Constitution for the President to recommend measures to Congress has served as a base for Presidents to take the initiative in legislation. Pres­idents in the nineteenth century did not utilize this much for pro­moting particular acts of legisla­tion.

There were many reasons for this. The main one is that nine­teenth century Presidents were not committed to extensive re­forms. They did not conceive it to be their mission to transform American society. Had they thought otherwise, however, there were good and sufficient reasons for them to abstain from legisla­tive leadership. The President’s primary task is administrative, the execution of the laws. If he becomes involved in the making of particular laws, he may take po­sitions which will unfit him for executing them, particularly if he has vigorously opposed measures that are subsequently passed over his veto. Congress might well re­sent presidential tampering with its prerogatives. The President’s prestige would be at stake in the measures he promoted.⁶ Moreover, he does not have sufficient leverage over Congress to get his measures enacted. Its members are chosen independently of him.

Most of these objections and difficulties have, of course, been overcome or shunted aside in the twentieth century, for Presidents have taken over legislative leader­ship. Woodrow Wilson was the first to do so on a large scale, though Theodore Roosevelt had pointed the way. Wilson ran on the basis of a program called the New Freedom, and, once inaugu­rated, he proceeded to get the pro­gram through Congress. Since that time, Presidents have gone much farther in assuming leg­islative responsibilities. This reached a peak in two years: 1933 and 1965. In 1933 many of the bills which were passed by Con­gress were actually drawn by men in the executive department, sent to Congress, and, in the case of some of them, passed without benefit of committee examination. By 1965, Congress had come to accept the presidential initiative as standard procedure. The tradi­tional roles of the two branches had been reversed; Congress could exercise what amounted to a veto on bills proposed by the executive, but the initiative had passed to the President.

Platforms for Change

The difficulties of doing this were overcome in various ways. In the first place, Presidents did become reformers. It became cus­tomary for presidential candidates, at least Democratic ones, to set forth a program of changes which they expected to institute if elected. These programs have often been given names, as New Free­dom, New Deal, Great Society, and so forth. Not only have presi­dential candidates run on these, but congressional candidates as well. Once elected, a President is then assumed to be committed to rendering these into bills which he is to push through Congress.

Secondly, the prestige of the of­fice of President has been built up, particularly in wartime. That of Congress has suffered by com­parison. When Congress has failed to pass presidential bills, it has been labeled obstructionist, and has suffered from both subtle and not so subtle vilifications by colum­nists and assorted publicists. In short, Presidents—with assistance from their numerous helpers in the media of communication—have found ways to advance particular proposals without losing face if they fail. Instead, Congress is supposed to lose face by failing to pass them.

Third, Presidents have found ways to bring sufficient congress­men to heel to forge majorities for much of their legislation. In the main, these consist of patron­age, spoils, and pork barrel. Con­gressmen are brought around by promises of government projects to be located in their districts, getting their men appointed to office, a new dam, a new post of­fice building, a new Federal office building, a defense plant, a gov­ernment contract, and so on, ad nauseam.

On the face of it, it is difficult to imagine a more ironic develop­ment than this latter one. To Con­gress belongs the power of appro­priation, as well as the initiation of acts. Yet, congressmen truckle to the President to get a portion of the largess they have voted to distribute. There is an explanation for this, however, and it will get us to the nub of the matter. A congressman is one man among many men. Theoretically, his vote counts for no more than any other, and in the course of a few years of legislating, his district should come out on a par with all other districts in getting Federal larg­ess. Of course, not all men are equally influential in Congress, some have important seats on crucial committees, others not. Such a congressman can parlay his influence in Congress into size­able gains for his district by also serving the President faithfully. Presidential discretion in handing out benefits greatly augments what a congressman could get on his own.

Budgetary Difficulties

These are but accommodations, however, by which some congress­men get their quid pro quo for yielding up their legislative pre­rogatives. The prerogatives had to be yielded up as Congress gave its assent to the building of an ever vaster Federal establishment. The fact is that it is no longer prac­ticable for Congress to devise a budget, or, what amounts to the same thing, initiate appropria­tions. Congress cannot oversee the vast Federal establishment effec­tively; it cannot devise the intri­cate regulations and restrictions which now govern the lives of Americans. It cannot do the work which a huge Federal bureaucracy now performs, nor could any other legislative body.

The flight from the Constitution does not consist simply of the power which factions can now ex­ercise, of the concentration of power, or of shifts in the relative weight of the branches of govern­ment. It stems from the overrid­ing of the substantive limitations upon the powers of the Federal government. In short, much of the huge Federal establishment has been built by the exercise of powers that were not granted in the Constitution. Most of the reg­ulations, restrictions, expenditures (excepting for defense) and far-flung activities were not author­ized by the Constitution. Nor have they been authorized by amend­ments. Instead, they have been acquired by reading into the Con­stitution what is not there, and pro­mulgating mystifications about what is there.

A Word for the Court

Those seeking a scapegoat to blame for the flight from the Con­stitution may find it convenient to place the burden of responsibility upon the Supreme Court. Yet such an historical interpretation would be a gross injustice to many of the men who have made up that au­gust body. It is true that the ma­jority of the Court have now joined the flight from the Consti­tution, may even be in the fore­front of it, but this is a recent de­velopment. The members of all branches of the government are charged with observing the Con­stitution, the members of Con­gress and the President no less than the courts. A majority of either house of the Congress can just as surely nullify a bill on the grounds of its unconstitutionality — by refusing to pass it — as the Supreme Court can nullify an act of Congress—by refusing to en­force it. The President can veto a bill on the grounds of its uncon­stitutionality. It could still be passed over his veto, but this would be no reason for a Presi­dent to fail to do his duty by the Constitution. It is true that the Supreme Court has the last say, but to the extent that the flight from the Constitution has been by the regular legislative route, the courts have only concurred in flights already made by other branches.

Moreover, the Supreme Court held out much longer against the general flight from the Constitu­tion than did any other branch. Initially, it greatly circumscribed the activities of the Interstate Commerce Commission, made of limited effect for a number of years that strange piece of legis­lation known as the Sherman An­titrust Act, only very reluctantly accepted the privileged status of organized labor. It did not readily concur in the piecemeal absorption of property rights by government in regulatory measures. The Fed­eral courts held out for four years or more against the drastic meas­ures of the New Deal after the Congress had become a rubber stamp for executive measures. It nullified the central acts of the early New Deal when it invali­dated the N.R.A. and A.A.A.

But there are limits to what can be expected of men, and those limits apply to justices of the Su­preme Court as well as other men. For years before 1937, a literary assault upon the Constitution had been going on. Writers had pro­claimed that the Constitution was itself a class document, that it had been drawn by well-to-do mer­chants and planters to serve their interests. It was outmoded, others said, perhaps well enough suited to an agrarian society but hardly fit for an industrial one. New times require new measures, other men proclaimed. A new outlook had been developed; in terms of it government was supposed to act in accord with the needs of the moment, not in accord with some "ossified" eighteenth cen­tury "piece of paper." In theory, the Court’s position is secure; in practice, it is not certain how long it can hold out against the combined Congress and President. The men who make up these branches are popularly elected. They are the voice of the people, so the argument ran. Could nine men withstand the wrath of a nation, prevented from going in the direction it wanted to go? The Court might have held out with impunity. At any rate, it did not. After 1937, it capitulated, for whatever reasons following Roose­velt’s ill-fated Court Reorgani­zation Bill (popularly known as his "Court Packing Scheme"). Since that time it has only rarely called a halt to some particular reconstructionist activity.

The above is to set the record straight. The role of the Court in defense of the Constitution when the other branches were irrespon­sibly evading its limitations has gone unsung. The point needed to be made, too, that, legends to the contrary notwithstanding, the Court is not the sole keeper of the Constitution. This is a solemn re­sponsibility enjoined upon those who serve in all branches of the government. The courts have, however, played an increasing role in the flight from the Constitu­tion, and that story needs to be told also.

The next article in this series will further describe "The Flight from the Constitution—II."

—FOOTNOTES—

¹ James Madison, Alexander Hamil­ton, and John Jay, The Federalist Papers (New Rochelle, N.Y.: Arlington House), p. 78

² Ibid., p. 79.

³ Quoted in A. J. Wann, "The Devel­opment of Woodrow Wilson’s Theory of the Presidency: Continuity and Change," The Philosophy and Policies of Wood­row Wilson, Earl Latham, ed. (Chicago: University of Chicago Press, 1958), p. 58.

4 Quoted in ibid., p. 61.

⁵ Witness, for example, the spate of books during and after World War II attempting to prove that Roosevelt de­liberately provoked the attack on Pearl Harbor. Yet, they prove only that he might have done so, that the policies he followed did little to inhibit a sneak at­tack. The chances are good that nothing more than this will ever be proved, for hidden motives are involved.