Destroying Our 'Indestructible States'

I

CHIEF JUSTICE CHASE of the Supreme Court described our system of government, established by the Federal Constitution, as an ‘indestructible union, composed of indestructible States.’ In an article like this, even an impressionist sketch of the history of that Constitution is impossible. Perhaps, however, it may not be out of place to recall a few circumstances surrounding its inception.

Following the Revolution, America — as we have appropriated the designation — consisted of thirteen independent, fully sovereign states, bound together, it is true, in a loosely organized confederation for the prosecution of the war with Great Britain, but proving every day its impotence as a nation. Its relation was only with the states in their sovereign capacity, and the states had repeatedly evidenced their indifference to the policies and decrees of the Confederate Congress. Each of the states was jealous of its prerogatives, proud of its individual history, and desirous of maintaining its identity. The Confederacy was powerless in America, distrusted, even despised, abroad.

' The people of the several states, nevertheless, recognized the need of some sort of union. They knew history, they were familiar with the repeated failures of other confederacies, they realized that thirteen separate nations could not exist on this continent without becoming the prey of foreign governments, even if they did not reënact among themselves the story of the Kilkenny cats. The aptness of Franklin’s earlier witticism about the individual patriots, that if they did not hang together they would all hang separately, they fully appreciated.

The result of this situation was the Federal Constitution. That remarkable document, so often and so universally praised by all students of government the world over, was admirably designed to meet the peculiar requirements of America.

Recognizing the futility of a confederacy acting only upon its sovereign constituent members, — taught not only by their own experience but as well by the failure of every similar combination, — the founders cut that Gordian knot by an innovation as bold as it has proved successful. They made every citizen of each and every sovereign state also a citizen of the nation itself — of the United States. They fortified the purpose of this innovation by requiring the ratification of the Constitution, not by the states in their sovereign capacity, but by the people of each state acting in entire independence of the state governments. This is the first and great characteristic of our nation. Those of us who are citizens of any one of our forty-eight states are each, not only a citizen of that state, but equally a citizen of the United States. We owe allegiance to each — exclusive allegiance within the field of the powers and activities of each government.

The United States, thus formed, was not a nation in the previously understood connotation of that term. It was not formed because the people of the several states were dissatisfied with their governments. It was the result of their knowledge that thirteen separate nations in America would be, if not stillborn, at least early victims of infant mortality. It was their admission that in union is strength. They desired that union only to the extent that they felt the need of its strength. Consequently, the federal nation, set in being by the ratification of the Constitution, was one of limited powers, albeit powers deemed — and in the experience of a hundred and fifty years proved — to be adequate to its purpose. To it each state transferred, irrevocably and exclusively, certain of its own attributes of sovereignty — to be thereafter exercised only by the Federal government. All its other powers and attributes each state retained to itself.

The subjects of sovereignty thus transferred were exactly those commensurate with the purposes for which the new government was adopted. Those purposes are thus described by Hamilton in Number 23 of the Federalist: —

The common defense of the members; the preservation of the public peace, as well against internal convulsions as external attacks; the regulation of commerce with other nations and between the States; the superintendence of our intercourse, political and commercial, with foreign countries.

Corresponding to this delegation of powers may be cited Madison’s description, also in the Federalist (Numbers 45 and 46), of the general character of what was retained in the jurisdiction of the states: — The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State. . . .

By the superintending care of these [the States], all the more domestic and personal interests of the people will be regulated and provided for. With the affairs of these, the people will be more familiarly and minutely conversant.

So well had the authors of the Constitution performed their task, and so satisfactorily did the new government fulfill its object, that, from the inauguration of Washington in 1789 until the end of the Civil War, only two amendments were adopted after the addition by the First Congress of the ten Bill-of-Rights amendments virtually agreed upon as a condition to the ratification of the instrument itself. Of the eleventh and twelfth, both adopted before 1804, the former reduced the power of United States courts to entertain suits against the several states, and the other made changes in the election of the President and Vice-President.

During this period, however, that phase of States’ Rights — embodied in the claim that a state could secede from the Union — persisted, until the Civil War finally negatived its existence and confirmed the correctness of Hamilton’s designation of the new government as ‘an indissoluble union.

States’ Rights, in their broader sense, are still nevertheless a subject of vital interest to all of us. The subject no longer is connected with the exploded theory of secession; but it involves the proper separation of governmental activities between the Federal and the State governments. Until the Civil War, the respective governments substantially exercised their powers as defined by Hamilton and Madison. Notwithstanding frequent minor controversies, there was little encroachment by either upon the understood field and jurisdiction of the other. The founders, indeed, argued that the chief danger to the new Federal government, with its powers restricted to matters of national import, would be the aggrandizement of the states to the prejudice of the nation. They said that the latter would have few employees, and consequently slight patronage, limited sources of influence, and only negligible points of contact with the people. This apprehension proved happily groundless. The two jurisdictions marched together. Differences of opinion were ironed out. The unique experiment of a dual allegiance was, with an intelligent electorate as its main support, a demonstrated success. The distinct fields for the operation of the two governments were generally recognized and respected.

II

Since the Civil War all this has changed. There has been increasingly manifested an inclination greatly to enlarge the jurisdiction of the Federal government, and to extend its authority to concerns directly affecting the individual citizen — sometimes through a decision of the Supreme Court, sometimes by a bold assumption of powers by the Congress, which were either consciously, or, as was oftener the case, through ignorance or indifference, tolerated by the states and the people; and more recently by express amendments to the Constitution itself. The net result of this tendency is so far-reaching, one might say revolutionary, as to demand the attention of every citizen. If it is desirable and for the genera] benefit, we should wish it Godspeed and help it along; if it is otherwise, every lover of this country should exert himself to check it before our system of government is destroyed.

The enormous expansion of the everyday, ordinary Federal operations significantly appears in the increase of the per capita cost of those operations and the number of civilian officeholders engaged in their conduct. In 1871, notwithstanding the inevitable expansion due to the four years’ war between the states, there was only one civil employee of the Federal government to each 733 of the population. Fifty years later, in 1921, every 192 people in the country were burdened with the support of one such employee. War expenses, past and present, and preparation for possible future wars, are legitimate subjects for Federal expenditure. They should, therefore, be deducted from the total costs of the Federal government, for the purpose of determining the cost of conducting its ordinary peace activities.

The cost of the Federal government, exclusive of the amount paid out for the army, navy, pensions, and interest on the public debt, in 1871, was $62,777,666, averaging only $1.58 per capita. The cost of the Federal government in 1921, excluding every item which might even remotely be claimed to be a war expense, — not only, as before, the military establishment, pensions, interest on public debt, but also the disbursements for Federal railroad-control, vocational education, and the Emergency Shipping Fund, — reached the discouraging total of $825,968,057, or $7.64 per capita — almost five times the per capita cost fifty years before. The population of the country had increased about two and a half times. The number of civil-service employees had increased over ten times, from 53,900 to 560,863. The total cost of the peace activities of the government had increased more than fourteen times!

To what is this staggering increase in Federal expenditures due? Space permits only a fewr illustrations. Hamilton placed the supervision of agriculture among the things ‘proper to be provided for by local legislation’ and which could ‘never be desirable cares of a general jurisdiction.’ Nevertheless, in 1862, a modest Bureau of Agriculture was set up in Washington. For its use for one year $80,000 was appropriated. In 1889, this bureau was erected into a Department and the Commissioner of Agriculture was made a member of the Cabinet. Its appropriation for t hat year was $1,134,480. The appropriation for this single department in the current fiscal year (1923-24) is $85,061,453 — more than the entire ordinary annual cost of the government, exclusive of so-called war expenses, in any year from the inauguration of Washington to and including the year 1890.

In this same Department has been recently created a Bureau of Public Roads. The first apportionment of Federal aid in the construction of highways began in 1917, with $4,850,000, or $16,160 for each of the 300 workingdays in a year. The apportionment for 1922, six years later, was $73,125,000, or $243,750 per working-day. The total apportionment for the six years, 1917-1922, was $339,875,000.

The Federal Trade Commission was established in 1914, with an appropriation of $75,000. Eight years later its appropriation was $995,000, or thirteen times the initial and expected annual expense.

In April, 1912, the Children’s Bureau was deposited like a foundling on the doorstep of the Department of Labor. It asked and obtained only $25,640, and its staff consisted of six persons. At the end of its second year it had 76 people on its pay roll, its appropriation was $164,000; and in 1923 it is costing $1,240,000.

In 1898 the Civil War pensions called for $144,651,879. Last year (1922) they required $236,151,244. Had it not been for President Harding’s courage in vetoing the so-called Bursum bill, there would have been added, according to his veto message, a further $108,000,000 to the annual pensionexpense. In the meantime, between 1898 and 1922, the number of Civil War pensioners had fallen from 745,822 in the earlier year to only 193,881 last year. This expenditure is among the so-called war expenses of the Federal government. It is not included in the $825,968,057 of annual ordinary costs of that government. It illustrates, however, the reckless extravagance of the Congress, and its disregard of the results of such prodigality, even when in some cases it was taking three fourths, and in more cases one half, of the income of its citizens under the confiscatory taxation made possible by the Sixteenth — the income-tax — Amendment to the Constitution.

Appalling as is the cost of this enlarged Federal jurisdiction, it is far outweighed by the effect upon our system of government. With the exception of prohibition, which was the result of a constitutional amendment, it has been accomplished through Congressional action, urged on by cliques and blocs, in stretching and distorting certain powers expressly delegated in the Constitution itself. The powers to regulate commerce between the states and to levy excise taxes have been the favorite ones for this purpose. There has been recently a striking attempt to utilize these two powers to accomplish an object entirely foreign to their real purpose.

The Child Labor Committee, an organization highly commendable for the work it originally undertook, was formed about twenty years ago to ameliorate and improve the conditions affecting the labor of children. It worked, as it should, to secure better laws in the various states and to see that such laws were enforced, both against grasping employers and against greedy parents. Its record has been one of extraordinary success, as it frankly admits itself, except when urging the constitutional amendment which I shall presently mention. In a great majority of the states it secured the enactment of enlightened and progressive laws. In a few states, however, chiefly in the South, its efforts were comparatively unsuccessful. Its management became impatient, appealed to Congress, set in motion the usual agitation, and secured the enactment of a Federal statute prohibiting transportation in interstate commerce of goods made at any factory where children had been employed under certain objectionable conditions of labor. The Supreme Court, by a vote of five to four, held the Act unconstitutional.

In less than a year Congress again attempted to regulate the labor of children, this time by incorporating in the Federal Revenue Act of 1918 an additional tax of ten per centum on the profits of any establishment in which children had worked under conditions prohibited in the Act previously invalidated by the Supreme Court’s decision. This statute also has been held invalid by the Supreme Court.

Now the Child Labor Committee is conducting a campaign to amend the Constitution and to give to Congress absolute power to regulate, and even to prohibit, the labor of all minors under eighteen years of age. This proposed amendment, if adopted, would produce a legal situation similar to that respecting prohibition under the Eighteenth Amendment. The authority of Congress, so far as exercised, will be absolute and exclusive. By the terms of the amendment the states are permitted to pass child-labor laws, but only such as are consistent with and go as far as the Federal law. A Volstead child-labor law, prohibiting the labor of all minors under eighteen years of age, which is entirely possible under the terms of the amendment as drafted, would leave no jurisdiction in any state over this subject. The New England farmer’s boy could not pick blueberries on the hills; the city schoolboy could not sell papers after school; the country boy, white or black, could not work in the cotton, wheat, or hay fields of the South or West; the college student even, if under eighteen, could not work to pay his way through college.

It may be answered that Congress would not pass such a drastic law. Perhaps it would not. It should not be forgotten, however, that the Sixteenth — the income-tax — Amendment was hardly ratified before Congress levied an income tax, and at a time when the country was at peace with the whole world. Yet that Amendment was adopted upon the unanswerable ground that without it the nation in case of war or other public emergency would be without adequate means of raising revenue. Even before the Eighteenth Amendment took effect the extreme Volstead law was enacted, so extreme that, in the opinion of many thought - ful citizens, its provisions are more responsible for the unsatisfactory enforcement of prohibition than is objection to the principle of prohibition itself.

A campaign for another amendment, the regulation of marriage and divorce, has recently been launched and is gathering headway. Like the proposed child-labor amendment, this will be a distinct invasion of the domestic concerns of our citizens. We have fortyeight states, each with its own treatment of divorce, presumab’y in each , case that best adapted to the experience and wishes of its citizens. Who can draw a divorce law at once satisfactory in South Carolina, which wants and permits no divorce, in Massachusetts, with its seven grounds of divorce, carefully administered and developed in the light of three centuries of experience, and in Nevada, with a code so flexible as almost to satisfy the free-love principles of the Russian Bolsheviki? Necessarily the uniform measure must be a compromise. Doubtless it would be an improvement upon some of the forty-eight codes, and, with equal certainty, it would be inferior to some of the others. The people in the former states, however, would not be grateful for having foisted upon them an improvement they did not desire; while the citizens of the latter states would complain, with justice, against this letting down by Federal fiat of their own regulation of the domestic relations of their citizens.

The last Congress, under pressure from certain organizations, passed the Sheppard-Towner Maternity Act. This Act set up in the Federal government a commission of three designated officials to supervise the distribution among the states of $1,240,000 each year. Only such states are to receive the Federal largess as appropriate an equal amount for the same purpose, and as conform to the standards and regulations prescribed by this Federal Commission. While the provisions of the Act are far from clear, they leave no doubt that, in the promotion of the welfare and hygiene of maternity and infancy, three officials in Washington are to be the final arbiters. Any state which chooses to disregard the directions laid down by these three officials forfeits its right to share in the Federal dole.

There was pending before that same Congress the Sterling-Towner bill to create a Department of Education. The bill carried as a starter an appropriation of $100,000,000, half of which was to be used to raise the pay of teachers throughout the country. Its effect, if enacted, must be ultimately to transfer to the Federal government the entire control of the educational system in every state. It naturally has behind it, urging its passage, the teachers’ bloc. If enacted and if, as should be the case, the Act should be declared invalid by the Supreme Court, this same bloc will appear with still another proposed amendment to the Constitution.

III

Nearly all the changes which I have mentioned, and many others which might be pointed out, did space permit, have for their object some form of social welfare. Indeed, one of the propositions before the last Congress was to establish a Department of Social Welfare, with a Secretary and Cabinet Minister at its head. No class is more impatient for results, more intolerant of the slow and orderly processes necessary to bring about the ends they desire, than social reformers. No class is so ready and eager to substitute governmental dictation for personal persuasion in the difficult task of improving individual conduct, morals, and true happiness. No reformers are so energetic in striving to substitute national for state agencies to accomplish their ends. Often their purposes are praiseworthy. Certainly temperance is desirable. I should not personally have contributed for many years to the Child Labor Committee had I not felt that the exploitation of children should be prevented. The proper regulation of marriage and divorce is fundamental in our civilization. We and our ancestors have insisted from the earliest times upon the education of our children. No one wall dispute the desirability of intelligent and, where necessary of financial aid to mothers and infants.

These questions, however, are not in issue as respects the Federal Constitution. The sole question is, by whom shall the reforms be undertaken and administered — by the central government in Washington or by the several states?

This country has an area of 3,000,000 square miles and a population of 108,000,000 people. Some sections and some states are highly industrialized; some are almost, exclusively agricultural. In some the population is largely of recent foreign origin; in others of so-called native stock. In many Southern states nearly half of it is of a distinct and different race from the governing portion. For a vast majority of our citizens the seat of our Federal government is prohibitively remote. The ordinary citizen is prevented both by lack of time and lack of means from personally seeking either information or redress from Washington.

The central government has not, nor is it humanly possible for it to develop, the machinery to administer satisfactorily the functions of government it has already undertaken; still less those with which it is proposed to load it. The ordinary method pursued is to pass an Act of Congress and then delegate to some commissioner or bureau its administration, with authority and power to make regulations binding upon the citizens unless and until reversed by the courts. Such regulations already promulgated, for example, under the Revenue Act of 1921 are 2326. Under the Volstead Act a government publication of 64 pages of regulations, additional to the many provisions in the Act itself, was issued in February 1920, when the Act took effect. Many additional regulations have since been adopted under that Act, but they can be found only by delving through some thousands of Treasury decisions, although a new codification of the prohibition regulations is promised sometime in the future.

Only a specialist can hope to be reasonably posted on this mass of bureaucratic orders and decrees. The ordinary citizen neither knows them, nor knows where or how to find out what they are. They represent merely the opinion of bureaucrats, not responsible to the people, and are adopted and issued by those bureaucrats, without public consideration or legislative investigation or debate. They are issued with none of the safeguards required in the enactment of laws; and yet, so far as the individual citizen is concerned, they have practically the same binding effect as if they were laws regularly and constitutionally enacted.

With the actual and proposed transfer of powers from the states to the Federal government, what is left of the distinction drawn by Hamilton and Madison between the jurisdiction of the central government and that of the states? Even before the citizen of a state can now be born, he and his prospective mother are subject to rules and regulations established by a Federal bureau. After birth, the extent and method of his education will, under the Sterling-Towner bill, be fixed by a Federal Department of Education. However needy may be the condition of his parents, or however great his own ambition to earn something, the childlabor Amendment will enable Congress entirely to prohibit his labor until he is eighteen years old. On reaching manhood, his right to marry and, in the event of an unfortunate marriage, his resort to divorce, may be dictated by the Federal government. If he is divorced, the legitimacy of his children will be determined, not by the state within which he lives, but by that same Federal authority. That bureaucratic, and to him remote, government already decides which of his beverages constitute intoxicating liquors and shall be denied him. By the incometax Amendment a blank check upon his entire earnings during life has been given to the Federal Congress, which also does not hesitate, after his death and burial, even to reach out, through the estate tax, to deprive his widow and offspring of a substantial portion of what, by his thrift and self-denial, he may have intended to leave them for their support. Would it not be difficult to imagine a more complete invasion of those ‘more domestic and personal interests of the people’ which the authors of the Constitution intended should be ‘provided for and regulated’ by the states?

The successful maintenance of a self-governing democracy depends upon the intelligent interest and participation of individual citizens. Our governmental system has been peculiarly favorable to creating and preserving such a condition. The principle of local self-government, to the greatest practical extent and applying to the widest possible range of subjects, administered by the smallest governmental unit reasonably adequate for the purpose, has been the corner stone of our institutions. It existed before the Constitution was adopted, and its preservation was an important object in the provisions which that instrument contained.

The tendency to centralization represents the antipodal principle. The individual citizen is unable to follow, feels himself powerless to influence, what a government far removed from his locality, operating through unknown and inaccessible bureaus and commissions, may be doing. Consultation with his fellow citizens is useless and for the most part impossible. They represent 25,000,000 voters scattered over 3,000,000 square miles. The cost of postage alone on a single circular is a quarter of a million dollars. The increasing sense of powerlessness among these individual voters dulls their interest, lessens their participation, and produces a general atrophy in the electorate. The central government, becomes subject to the influence only of organized minorities and blocs, each actuated by some one dominating purpose, all maintaining national headquarters at Washington and raising and using large amounts of money to carry their several purposes into effect. A vast lobby-system develops at the capital, and controls legislation and government .

IV

There remains one other proposed amendment which should be mentioned— one surer than all the others thus far brought forward to break down and destroy the states and, therefore, the Union. Because the unscientific and ridiculously high surtax provisions of the income-tax laws have driven the wealthy to invest in taxexempt state and municipal bonds, it is seriously urged that the Federal government should be permitted to tax those bonds! The advocates of this change believe that it will bring about lower surtaxes, that thus the withdrawal of capital from productive uses will be lessened, and that the economic evils already resulting from unscientific taxation will be cured. My own belief is that the only result will be to add another subject of taxation—at the same high rates; to invite further raids by interested blocs upon the Federal Treasury; and to prolong the orgy of Congressional extravagance which the income tax has already encouraged.

Be that as it may, one result is certain. The Federal government will be placed in control of the financial and credit activities of the states. A Federal bureau, under a graduated system of taxes, — lower or higher according to the purposes for which bonds are to be issued, — will ultimately decide when and for what objects a state may borrow money. The states will be at the mercy of the Federal government, their independent action will be at an end, they will be for all practical purposes as much mere bureaus of the Federal government as its own departmental bureaus and commissions in Washington.

When the states shall have been thus destroyed, — as they surely will be unless present tendencies are checked, — who believes that our present Union can continue? Said Madison (in the Federalist, Number 14): —

Were it proposed by the plan of the convention to abolish the governments of the particular States, its adversaries would have some ground for their objection; though it would not be difficult to show that if they were abolished the general government would be compelled, by the principle of self-preservation, to reinstate them in their proper jurisdiction.

Who has ever seen the keystone of an arch remain in position when its supporting members have been removed?