October 28, 1933 - Article - Stretching the Constitution, by David Lawrence

Again and again, the Supreme Court of the United States has proclaimed the rule that Congress "cannot by legislation alter the Constitution."1 This, however, has never discouraged Congress from trying to stretch the Constitution to cover all sorts of legislative adventures.

Ever since the New Deal was born last spring, an unanswered query has been in the background of the economic reorganization directed by the Government. Are the new laws constitutional? Will the Supreme Court call them valid on the ground that an emergency exists? If they are held unconstitutional, will we not be in a worse fix than before? Would the President retaliate by appointing more liberals to fill future vacancies on the highest bench?

We may guide ourselves, however, by analyzing those epoch-making decisions which reveal the trend of thinking on the part of the Supreme Court during the past fifty years. They are full of precedents and indicators. The social theorists who are responsible for much of the new legislation, of course, brush all this aside as obsolete. They call for a New Deal in constitutional law too.

The Agricultural Adjustment Act, however, shows on its face that the purpose of the processing taxes is to reimburse a certain group of citizens at the expense of another group. This will be the chief reason for attacking its validity. (pg. 23)

Each of the numerous sections of these new laws is protected by the customary provision at the end of each act to the effect that if any provision is held invalid, the other provisions will not be affected thereby.

Unquestionably there can be no disagreement with the general purposes of all the legislation - the object has been to bring about national recovery. Does the rnd justify the means? This brings us fac to face with a historic pronouncement by the Supreme Court of the United States, uttered in 1866:

"The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, in all times, and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of the Constitution's provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism - the theory of necessity on which it is based is false."2

Broadly speaking, there are two major principles upon which most of the constitutional controversies of recent years have been founded. One is that the citizen shall not arbitrarily have his property taken away from him, and the other is that the Federal Government has supreme power in regulating interstate commerce. (pg. 68)

It took more than a hundred years - in fact, not until 1887 - for Congress to awaken to its powers of regulating interstate commerce. When it passes the act creating the Interstate Commerce Commission, there began a series of regulatory acts over interstate carriers from which has developed the whole theory and philosophy of governmental regulation of interstate commerce.

The Supreme Court of the United States held that the wage-fixing provisions of the act curtailed "the right of the employer, on the one hand, and the right of the employee, on the other, to contract about his affairs," and that "this is part of the liberty of the individual protected by the guaranty of the due process clause of the 14th Amendment."3 (pg. 69)

 Under the famous due-process clause of the Constitution, it is not possible to take away private property. (pg. 70)

Comments: It's just plain common sense that the people who wrote the New Deal laws knew there was a lot of unconstitutional stuff in them. Otherwise, why did they put in those laws that if any provision is held invalid, the other provisions will not be affected thereby? In studying the time when the Constitution was framed, there is no doubt in my mind that the clause in the Constitution that gives Congress the power to regulate commerce meant commerce with foreign nations, and nothing more. Now the national government believes it can regulate anything that even effects interstate commerce. If one uses a little common sense, isn't that just about everything under the sun? Realizing that labor is property, what gives Congress the right to enter into all the states an despoil people of their labor with no restraints? Your own personal human labor is your most precious property, and yet most people, having been mentally conditioned since childhood, give up their labor and keep only the allowance the law gives them, just like a pre civil war wage earning slave. The most profound statement I have found concerning the property each person has in their own labor comes from the Supreme Court case of BUTCHERS' UNION CO. v. CRESCENT CITY CO., 111 U.S. 746 (1884). In this case, Justice Field said:

It has been well said that 'the property which every man has in his own labor, as it is the original foundation of all other property, so it is the most sacred and inviolable. The patrimony of the poor man lies in the strength and dexterity of his own hands, and to hinder his employing this strength and dexterity in what manner he thinks proper, without injury to his neighbor, is a plain violation of this most sacred property. It is a manifest encroachment upon the just liberty both of the workman and of those who might be disposed to employ him. As it hinders the one from working at what he thinks proper, so it hinders the others from employing whom they think proper.'

The article did not tell you what the cases that were quoted were, so I did the research and found them. They are listed below.

1. EISNER v. MACOMBER , 252 U.S. 189 (1920)

2. EX PARTE MILLIGAN, 71 U.S. 2 (1866)


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