Undermining The Constitution
A HISTORY OF LAWLESS GOVERNMENT
By Thomas James Norton
THE COURSE OF PRESIDENTIAL ELECTIONS DURING THE LAST FORTY YEARS HAS MADE CLEAR THAT THE SAFETY OF THE REPUBLIC REQUIRES RETURN TO STRICT CONFORMITY WITH THE DIRECTIONS OF THE CONSTITUTION In this chapter may be found the answer to the question of James Bryce (1 The American Commonwealth, 77) as to why our Presidential Office has not been oftener filled by the most competent men. He wrote that Europeans ask and Americans do not always explain "how it happens that this great office, the greatest in the world, unless we except the Papacy, to which any one can rise by his own merits, is not more frequently filled by great and striking men."
That it should be so filled always, was the careful design of the Constitutional Convention.
Let us proceed to search out the causes of the condition which seemed strange to Bryce and which we have tolerated too long.
The constitutional government of the United States is scientific. Science is defined as classified knowledge, or the conclusions which the classification compels. The causes of all the breakdowns of governments in history254
were gone over in the Constitutional Convention and it was concluded that law making, law enforcing, and law interpreting must be definitely in different hands.
All national and foreign concerns were assigned to the Nation and all others were retained by the States or the people.
All officials, State and National, were put under oath to support the Constitution and observe the boundaries to power specified in it. As far as could be, men with power were chained.
Education in this science is indispensable. It is badly lacking.
An early prophecy respecting the President
"The Executive of our Government is not the sole -- it is scarcely the principal -- object of my jealousy," wrote Jefferson from Paris, urging upon Madison the need of amendments making a Bill of Bights additional to the twelve provisions already in the Constitution; "the tyranny of the Legislature is the most formidable dread at present, and will be for many years. That of the Executive will come in turn, but it will be at a remote period."
The tyranny of the Executive has come.
The field of the President's authority under the Constitution is very limited. It does not include the States, to say nothing of the external world. In No. 75 of The Federalist that was pointed out by Hamilton:
"The execution of the laws and the employment of the common strength, either for this purpose or the common defense, seems to comprise all the functions of the Executive Magistrate."
The guilelessness of the Press
Yet the Press, instead of dealing with the great committees of the Senate and the House -- on Ways and Means, on Banking, on Foreign Relations, and others -- unwittingly abandoned Congress as the constitutional General Manager of the United States and gave itself over to the President as a sounding board for him to proclaim his "plans" and "policies." Dispatches from Washington daily refer to the President as "the administration." To be sure, an inferiority complex in the Congresses which brought upon them the description of "rubber stamp" contributed to this unfortunate situation.
To illustrate what a change has come in the strength of constitutional Government, a quotation is made from the Autobiography of Seventy Years of Senator George F. Hoar of Massachusetts (vol. 2, p. 46):
"The most eminent senators -- Sumner, Conkling, Sherman, Edmunds, Carpenter, Frelinghuysen, Simon Cameron, Anthony, Logan -- would have received as a personal affront a private message from the White House expressing a desire that they should adopt any course in the discharge of their legislative duties that they did not approve. If they visited the White House, it was to give, not to receive, advice. Any little company or coterie who had undertaken to arrange public policies with the President and to report to their associates what the President thought would have rapidly come to grief."
They ask him for guidance now.
A witness of Congressional deterioration
Maurice Francis Egan, our Minister to Denmark during World War I, noticed this change in the Congress when he returned home in 1918. Mentioning in Recollections of a Happy Life the change which he had found in the city, in the clubs, in the offices, and elsewhere, he added:
"The quality of our Legislature seemed to have deteriorated greatly. One had only to go to the Senate or the House and compare the speeches of Senators and Representatives with what one heard in the seventies and eighties to feel strongly that there was something radically wrong with the American people if these men were their voluntarily chosen delegates. A recent visit to Milwaukee and an examination of the Wisconsin legislators, as expressed in their speeches, has corroborated this impression.
Too much "democracy" and not enough republicanism. Those who promised to cure the evils of democracy by "more democracy" propagated more evils.
Jefferson wrote to Francis Hopkinson that even with a Bill of Rights added to the Constitution, "it would still have one fault in my eye, that of perpetual re-eligibility of the President."
Through absence of mind, especially on the part of the Bar, which, by reason of its education, should have known better than shirk the duty accepted in its oath, the election of the President of the United States has descended to what too closely resembles the popular vote for party nominees, the very course which the Constitutional Convention employed all its ability to prevent.
President has become in politics virtual chief
By force of the evil machinery which has been developed, the President, as it has several times been demonstrated since 1904, is able, through the use of patronage and other pressure, to control the National Nominating Convention of his party and renominate himself or pick his successor.
It being in the nature of unchecked power to spread itself, conditions eventually enabled the President to step with impunity over the strong customary law of the American people against a third term. With that step, "new powers," as he called them, were accumulated so that nomination and election for a fourth term were even easier than they had been in the previous adventure. For the President had raised the number of nonelected Federal executive employees throughout the States from about 500,000 in 1932 to 3,121,153  on June 30, 1944.
1. This quotation from an article in a magazine in July, 1949, by one of the personal secretaries of President Franklin D. Roosevelt, is not so humorous as the writer thought it. One of the great perils of the times is revealed:
"Hannegan [Democratic Chairman] had a lengthy palaver with the Boss, and when he came out of the President's sitting room he was carrying the letter [of the President] naming Douglas or Truman as an acceptable running mate.
"'Grace, the President wants you to retype this letter and switch these names so it will read "Harry Truman or Bill Douglas."' The reason for the switch was obvious. By naming Truman first it implied that he was the preferred choice of the President The Convention took it that way and Truman was nominated."
So have gone the safeguards set up by the Constitutional Convention for selecting the two chief Officers of the Republic.
2. Report Joint Congressional Committee on Reduction Non-Essential Federal Expenditures.
On which side the bread is buttered
It is in human nature that such a body of appointees will support the appointing power to which they are indebted for their pay envelopes. Those men and women, and their children of voting age, must have cast 5,000,000 ballots in November, 1944, when ambition achieved its fourth term. In addition to that, many of the big cities to which Washington had been lavish in the unconstitutional granting of the money of the taxpayers for "relief" and for "development" supported the President for the fourth term.
From 13 Northern and Western cities he received 2,280,000 votes of his plurality of about 3,500,000. It is therefore manifest that, without the vote of those who were beholden to the President for personal favors, he would have been defeated.
"A power over a man's support," wrote Hamilton in No. 73 of The Federalist, "is a power over his will."
In 1948 the electoral conditions were so extravagantly bad that they should convince the most enthusiastic advocate of "democracy" that a popular election of the President and the Vice President would be the worst blow possible to our representative form of Government, and that the design of the Constitutional Convention, "that every practicable obstacle should be opposed to cabal, intrigue and corruption," has been proved by our experience to be sound.
History disproves need for National Nominating Convention
The first eleven Presidential elections took place without the help of the spectacular National Nominating Conven=
tion. There was no "campaign" supported by contributors expecting something.
That successful history shows that the National Nominating Convention is unnecessary -- we can get along without it. The record which it has made discredits it.
Washington (twice) was chosen without a National Nominating Convention, so were Adams (once), Jefferson (twice), Madison (twice), Monroe (twice), and Jackson the first time. The convention for the second term of Jackson was rather a popular gathering to ratify his course during his first term, and not the Nominating Convention which we know.
So the American people and the Republic had a very good line of Chief Executives without the aid of machinery external to Government.
And during that half century Congress enacted no Corrupt Practices Laws.
After the ratifying convention mentioned, in 1832, Van Buren was nominated by a Democratic Convention in 1836. But the Whigs did not hold a convention.
For the first nine elections there was no platform and there was no popular vote.
And the people lived through those years in content without long platforms promising that Government would "give every body every thing." They were then so close to the Declaration of Independence that they still believed the Government to be a protector and not a provider.
States can resume control of Constitutional Election
Their experience proves to us that it would be very practicable for the States to resume control of their Union by
returning to the constitutional election of the President and the Vice President.
And our latter-day experiences prove beyond argument that the National Nominating Convention will no longer do.
In "Thirty Years' View" the National Nominating Convention was condemned (1859) by Senator Thomas Hart Benton of Missouri thus:
"An irresponsible body (chiefly continued, and mainly dominated by professional office-seekers and officeholders) have usurped the election of the President (for the nomination is the election, so far as the party is concerned); and always making it with a view to their own profit in the monopoly of office and plunder."
In 1872 Charles Sumner spoke of the Convention as "the engine for the nomination of the President, allowing the people little more than to record its will" and becoming "the personal instrument of the President when elected, giving him dictatorial power, which he may employ in reducing the people to conformity with his purposes and promoting his re-election, all of which is hostile to good government, and of evil example."
Sumner favored the popular election of the President, but recent elections have demonstrated that the officeholders beholden to the Chief Executive would then control -- there would be no real "popular" choice.
Direct election of President would be governmental suicide
In the Executive Department there were more than 2,000,000 on the pay rolls in 1948. In 1933, when Franklin D. Roosevelt took office, there were 575,123 on the rolls.
At his next inauguration, in 1937, there were 859,668. At his third inauguration, in 1941 (before World War II), there were 1,164,463 payrollers. At the fourth inauguration of President Roosevelt, in 1945, the number on his pay rolls was 3,465,420 (figures from Senate Committee Print No. 53, May-June, 1948). His plurality at the election was 3,596,227.
Thus, the payrollers alone, with the voting members of their families, could give him victory.
But in the election of 1948, giving the regime of Socialism, miscalled the "New Deal," the embryo of Communism, its fifth term, there were receiving checks from Washington, in addition to the 3,000,000 pay rollers, 2,500,000 beneficiaries of the Social Security Law, 3,500,000 farmers enjoying unconstitutional subsidies from the taxpayers of the country, 6,500,000 veterans, and 1,500,000 in the armed services.
The Presidential Office must be dissevered from that situation.
Customary law, made not by legislatures or constitutional conventions, but by the people themselves in daily life, has always been recognized in England and America as the very strongest form of legislation. Yet the customary law against a third term for the President went down in the election of 1940. That levee broken, the flood of Socialism took the land. In 1944, and again in 1948, it was, of course, irresistible.
Elections so foreign to Republic's welfare people cease voting
It cannot be said that those elections were turned in the best interests of the United States by the best sections of
the people. Indeed, at none of them was a representative poll made. In 1948 the votes for all candidates aggregated 47,500,000. The Bureau of the Census informs us that in the country there were 95,000,000 eligible to vote.
Did the half of the voters who remained away from the polls do so from disgust or from despair?
It may have been a feeling of discouragement that they could accomplish anything against the multitude that kept them away from the polls in 1948, as they had been staying away for many years. Bryce wrote in The American Commonwealth (vol. 2, p. 331) on "the fatalism of the multitude" and "the tyranny of the majority" as they appeared to him in our country:
"Thus, out of the mingled feelings that the multitude will prevail, and that the multitude, because it will prevail, must be right, there grows a self-distrust, a despondency, a disposition to fall into line, to acquiesce in the dominant opinion, to submit thought as well as action to the encompassing power of numbers."
There never was a stronger statement made in support of the conclusion reached by the Constitutional Convention, namely, that the President and the Vice President should be selected and elected, not by the people at large (democracy), but by representatives of the people "appointed" as directed by the Fundamental Law.
Road back to Constitution is very plain
We have only to return to the barricades which the Constitution erected and which delinquent States, for one reason or another, or for none, abandoned. When the legislatures of the States take hold of the subject as the Constitution directs and themselves "appoint" electors to choose
the President and the Vice President, the Corrupt Practices Acts as to the Presidential election will become dead letters, and the power of the pay rollers and the donees will be extinguished.
Then we shall have the Government of the days of George Washington.
Greatest fear of Constitutional Convention nearly realized
It was of the direct popular vote, liable to "cabal, intrigue, and corruption," that the Constitutional Convention stood in most fear. Our election of late years has given demonstration that they were right. From the fourth day of the Convention, when Edmund Randolph of Virginia presented a plan for a Constitution under which "a National Executive" was provided for, "to be chosen by the National Legislature," until the last day of the sessions, the subject of a Chief Executive was under almost continuous discussion. To no part of the Constitution did the Convention of able men at Philadelphia give so much patient care as they bestowed upon the plan to keep the choice of the first two officers protected from possibility of corruption, and also from domination by Congress.
The members of the Convention intended that the States would choose the chief officers of the United States, or, as someone has well put it, "the States united." This is a Government of States resulting from a Union of States which had won their independence as States by the prosecution of a Revolutionary War. The conception was that the States should pick and choose the Chief Executive of their Union.
On July 31, 1787, "the questions not yet settled" were
referred to a Committee of Eleven, which brought back on September 4 substantially what went into the Constitution for the choice of President. The Committee introduced to the Convention the idea of a Vice President. Its report was worked over from day to day until this second paragraph of Article II finally resulted (italics inserted):
States put imperative duty on themselves
"Each State shall appoint, in such manner as the legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or person holding an office of trust or profit under the United States, shall be appointed an elector."
It is an erroneous idea that whatever the Legislature of a State may do, or permit, with respect to the appointment of electors is valid.
Clearly, the language quoted commands that the electors be agents of the State as an entity of the Union which they, as States, established. For the plan of the Constitutional Convention, as extensively shown later herein by Hamilton, was that the States should themselves select and elect the two chief officers of their Union.
"Although the spirit of an instrument, especially of a Constitution, is to be respected not less than the letter," said Chief Justice Marshall for the Supreme Court (4 Wheaton, 122) in 1819, "yet the spirit is to be collected chiefly from the words."
It was the spirit of the Constitutional Convention, acting as States, that the States should, as governmental entities, select and elect the President and the Vice President. Then
that spirit was expressed in the plainest words, emphasized by the imperative shall -- "Each State shall appoint."
If the Legislature does not wish to make the appointment itself, as legislatures did from the beginning down through many years, Colorado so appointing them when it came into the Union in 1876, then any other mode that it may establish must operate as an organ of the State so that the result will be the appointment by the State. Any other reading is disregardful of both the spirit and the letter of the provision of the Constitution quoted.
In view of the importance given to Statehood from the Declaration of Independence -- "that these United Colonies are, and of Right ought to be, Free and Independent States" -- down through the Articles of Confederation -- "each State retains its sovereignty and independence" -- and the closing words of the Constitutional Convention -- "Done in Convention by the Unanimous Consent of the States present" -- ending with "Each State shall appoint" electors to select and elect the President, the idea is wholly untenable that the legislatures of the States can turn over the choice by States of the Chief Executive to political groups or parties.
No roving commission to legislatures
In the provision just before quoted there is no roving commission to legislatures to have their will in the choice of electors of the President, or to abandon to political parties, or to conventions of parties, or to Presidential primaries, their constitutional duty. Electors appointed for a State by a committee of a political party, or by a convention of the party in the State to send delegates to a National Convention to nominate a Presidential ticket, or by
primaries designed to express a choice of President, are not constitutional electors. They are not constitutional electors even where their names have been put on the national ballot of the party, as the practice was long ago, now largely abandoned through the "short ballot," and the people vote for them at the polls. For the voters are powerless to validate, as an appointment by the State, an appointment by a political committee or party, or by any other political machinery.
The mess for which legislatures are responsible
According to Beard's American Government and Politics, a number of States -- not half -- allow voters at primaries for choosing delegates to the National Nominating Convention of the party to express preference for Presidential nomination. That tends toward selection and election by the people directly, who were excluded by the States in the Constitutional Convention from such a direct participation in the choice of President. Their direct action was to be at the polls choosing legislators to appoint electors. An expression at the primaries is an introduction of "more democracy" against the representative structure.
In some States a list of the Presidential aspirants is printed on the primary ballot of each party and the voter may indicate at the polls his choice for President. That, also, tends toward the prohibited popular choice, and against the constitutional action of the people in voting for legislators to appoint electors.
In other States, candidates as delegates to the National Nominating Convention of the party may specify on the ballot whom they will favor in the convention for President.
"Thus," wrote Beard, "the voters may disclose their will indirectly." But the will of the voters cannot be legally so expressed. The constitutional expression of the will of the voters is given in their ballots for the members of the Legislature which is to choose the electors. At that election the people participate (or were intended to) in the election of the President. Their will so expressed constitutionally cannot be expressed again along the way to introduce "democracy" or "populism" against the representative system.
The effect of the short ballot
The early appointive system of the States, by which only the Governor and other top officers were elected by the vote of the people, gave way to "democracy," until all persons in public service, down to the least important, were named on the ballot. In one Congressional district in Chicago the voter was perplexed by the names of 334 nominees on the ticket. The evil had become so great and general that an agitation was begun for return to the appointive method, and the short ballot resulted. It struck from the ticket all the names of the Presidential electors, leaving the voter to cast a ballot directly for the President and Vice President named at the head of the ticket, which the Constitution plainly does not permit.
The short ballot was adopted by States with 350 of the 531 electoral votes. "The Book of States" for 1948-1949 says that 70 per cent of the voters ballot for the two candidates named at the head of the ticket. This, it should be repeated, they have no right to do. And so electors not appointed by the Legislature, or by any constitutional organ set up by it, and not voted for in most of the States,
meet and vote for the nominees of the party and report the result to the President of the Senate!
Here is the most censurable default of the States in constitutional obligation. They can easily get right, and reduce the President from Imperator to constitutional Executive with limited powers.
Officeholders prevented from participating in Presidential elections
Members of Congress and all holders of office or trust were carefully prevented by the provision just before quoted from participating in election of the President. The Constitutional Convention seemed to have fear of the time when it would become to the interest of members of the Senate and the House, and of Federal officeholders generally, to control the choice of the President. With the introduction of the unconstitutional National Nominating Convention, at times overrun by members of Congress, members of the Cabinet, postmasters, and other Federal payrollers executing the will of the President by renominating him or nominating his pick for a successor, the very evil feared was brought to pass.
Although section 1 of Article II sternly commands that "no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector," the spirit of that has many times been disregarded by National Nominating Conventions controlled in whole or in part by members of Congress and other Federal officeholders.
Convention's fear of Government in politics becomes fact
The Constitutional Convention foresaw that the separation of powers which it designed would be undone if the Executive Department should become the creature of the Legislative Department and the officeholders. Both Madison and Jefferson expressed fear of the combining of powers in one hand or in one group.
In Henry L. Stoddard's It Costs to Be President, published by Harper & Brothers in 1938, it is shown that in the Republican National Convention of 1920 there were 18 Senators who had themselves chosen as delegates from nine States, and 4 more who were chosen singly from different States.
The Senators represented, or assumed to represent, 400 of 984 delegates.
Senator Lodge of Massachusetts was Chairman of the Convention.
Senator Watson of Indiana headed the Committee on Resolutions.
Senator Harding of Ohio was nominated for President.
Senator Lenroot of Wisconsin was almost nominated for the Vice Presidency, but the best heads thought that that would be going too far. So Governor Coolidge of Massachusetts was given second place.
While those Senators were not acting as the electors of the Constitution, they influenced the naming of, if they did not name, the two men for whom, under our degenerated system, the electors would be obliged to vote. Virtually they were acting as the forbidden electors. In
1948 a Member of Congress was chairman of the National Committee of each party.
The Legislatures of the States must take over their duty.
Unsound argument against election according to Constitution
The assumption in this relation of the unschooled commentators, as in several other instances, that the electoral system prevents the people from exercising their prerogatives, is wholly unsound. For the legislature of the State is elected by the direct vote of the people, and what the legislature does as the agent of the people who choose it is an expression of the will of the people. All that the legislature does from year to year in the management and support of the Government of the State is an expression of the will of the people through the agent which they choose for that purpose. No worry has ever been manifested that the legislature cannot be trusted to do the will of the people who elected it in framing and enacting laws, in raising, by taxation, money for the essential needs of Government, in providing means of education, in exerting its power of police for "the health, morals, safety, education and general well-being of the people," and in performing all the other obligations inherent in the State, of which it is the General Manager.
Why, then, should anyone have fear that in appointing electors of a President and a Vice President, as commanded by the Constitution, the legislature of the State is likely to be faithless to the people? As officers of the State, the legislators are put under oath by the Constitution of the United States to support the Fundamental Law of
the Nation. Trusted in all other relations, why should anyone question their fidelity here?
Convention for government by representatives instead of crowd
Besides, as profound historians the members of the Constitutional Convention knew that eventually the crowd becomes unmanageable, even in its own interest.
Much historical learning, legal scholarship, and sound thinking underlay that system, which Washington hoped would influence nations (as it has), which Webster called "the last hope of the world," and which Bryce and other foreign scholars declared to be the greatest expression of genius in the field of government.
Precise problem solved by Constitutional Convention
Let Alexander Hamilton tell just what the Constitutional Convention, of which he was a member, had in mind respecting the choice of a President. Discussing in The Federalist (No. 68) the electoral plan, and especially referring to "cabal, intrigue, and corruption," he wrote "to the people of the State of New York" that the most plausible of the opponents of the Constitution who had appeared in print admitted "that the election of the President is pretty well guarded." Hamilton proceeded (italics inserted):
"I venture somewhat further and hesitate not to affirm that if the manner of it be not perfect, it is at least excellent. It unites in an eminent degree all the advantages the union of which was to be wished for.
"It was desirable that the sense of the people should
operate in the choice of the person to whom so important a trust was to be confided. This end will be answered by committing the right of making it, not to any pre-established body, but to men chosen by the people for the special purpose, and at the particular conjuncture.
"It was equally desirable that the immediate election should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. A small number of persons, selected by their fellow citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations.
"It was also peculiarly desirable to afford as little opportunity as possible to tumult and disorder."
If Hamilton and his coworkers in the Constitutional Convention could have foreseen the "tumult and disorder" of our National Nominating Convention, what might they have done to prevent its coming!
"This evil," he went on, "was not least to be dreaded in the election of a magistrate who was to have so important an agency in the administration of the Government as the President of the United States. But the precautions which have been so happily concerted in the system under consideration promise an effectual security against this mischief."
Speed desired to prevent cabal and intrigue
On the need for prompt action and security from interference and what we call "pressure," Hamilton wrote:
"And as the electors chosen in each State are to assemble
and vote in the State in which they are chosen, this detached and divided situation will expose them much less to heats and ferments which might be communicated to them from the people than if they were all to be convened at one time in one place."
That is to say, any such aggregation as the National Nominating Convention would be abhorrent to Hamilton and his coworkers.
Addressing himself to what in time brought about the Corrupt Practices Acts of Congress, Hamilton said:
"Nothing was more desirable than that every practicable obstacle should be opposed to cabal, intrigue, and corruption....
"But the Convention have guarded against all danger of this sort with the most provident and judicious attention. They have not made the appointment of the President to depend on any pre-existing bodies of men who might be tampered with beforehand to prostitute their votes; but they have referred it in the first instance to an immediate act of the people of America, to be exerted in the choice of persons for the temporary and sole purpose of making the appointment.
Convention sought to prevent officials from controlling election
"And they have excluded from eligibility to this trust all those who from situation might be suspected of too great devotion to the President in office."
Pointing out that members of Congress and others holding office cannot be electors, Hamilton continued:
"Thus, without corrupting the body of the people, the immediate agents in the election will at least enter upon
the task free from any sinister bias. Their transient existence and their detached situation, already taken notice of, afford a satisfactory prospect of their continuing so to the conclusion of it. The business of corruption, when it is to embrace so considerable a number of men, requires time as well as means... .
"Another and no less important desideratum was that the Executive should be independent for his continuance in office on all but the people themselves. He might otherwise be tempted to sacrifice his duty to his complaisance for those whose favor was necessary to the duration of his official consequence."
About the second term, Hamilton said:
"This advantage will also be secured by making his re-election to depend on a special body of representatives deputed by society for the single purpose of making the important choice."
That would prevent him from renominating himself, as he does now.
Convention saw statesmen, not politicians, in Presidential office
Passing over some details as to the casting and counting of the votes of the electors, we come to this:
"The process of election affords a moral certainty that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications. ... It will not be too strong to say that there will be a constant probability of seeing the station filled by characters pre-eminent for ability and virtue."
Quotation has been made at some length to show with
what care the Constitutional Convention considered the choice of the two Chief Officers of the Republic, a subject which was under discussion from the opening of the Convention until near its close. The electors spring from the people. Recently elected legislators take immediate steps to carry out the will of the voters under the direction of the Constitution.
Evil foreseen by Convention has broken down barrier
The growth of the evil which the Constitutional Convention endeavored so faithfully to forestall has long been watched with apprehension by capable men. Thirty years before the election of 1944, when the Federal payrollers through the land (3,121,153), with the vote of the big cities which were supporting the administration at Washington in its quest for a fourth term, were larger in number than the plurality (3,596,278) which the President received, Senator George W. Norris of Nebraska said this:
"When this influence [patronage] is combined and used for the perpetuation in office of the head of our Government, it is a danger to free institutions and strikes at the very root of democracy. Such a danger leads directly toward a monarchy and takes away from the people themselves the right to select their own Chief Magistrate....
"It exists now to a greater extent than it did, because Federal offices have been multiplied manyfold and partisan political machines ... are now enthroned in power greater than ever in our history."
In 1914, when Senator Norris made that statement, there were 482,721 Federal payrollers living on the tax-
payers and "doing politics" throughout the country for the administration in power. As previously seen from a report of a committee of the Senate, there were 3,596,278 of them in 1944 within the Executive Department of the President.
Direct election would not give popular control
Even had an amendment to the Constitution made legal the direct vote of the people for a President, as some persons have advocated, the free will of the people would have been frustrated in 1940, 1944, and 1948 by that controlled vote and the vote of like inclination which went with it. The constitutional vote is needed.
Since 1907 Congress has been striving unsuccessfully to keep suppressed the corruption and the peril to Government necessarily latent in this burlesque on constitutional procedure which we call the Presidential campaign. Corrupt Practices Laws have been enacted, amended, and rewritten, but to no effect. A revision in 1925 of the Corrupt Practices Law made it unlawful for any corporation "to make a contribution in connection with any election" for the choice of Federal officers, including a President and a Vice President.
A series of futile acts against corruption
In 1939 an Act to Prevent Pernicious Political Activities forbade persons to contribute, directly or indirectly, in excess of $5,000 a year in connection with a Federal election. That would allow a person to put up $20,000 during a Presidential term. It also prohibited intimidation of Federal employees, the promise of employment, the use of relief funds, and some other activities respecting such an
election. Then it forbade those in the Executive branch "to take any part in political management or political campaign." The present-day extraordinary campaigning activity of the President is seemingly covered by that prohibition, as it should be.
In 1940 the foregoing act was amended by an act retaining in effect the act of 1925 and prohibiting a political committee from collecting and spending over $3,000,000 a year in relation to a Federal election. That would permit the gathering of $12,000,000 by a political committee during the term of the President! It also prohibited the purchase of advertising or any commodity in connection with a Federal election.
In 1943 an act relating to the use and operation by the United States of plants, mines, and facilities for the promotion of war amended the act of 1925 by writing "labor organization" along with "corporation," which was the first contributor to be checked by Congress. It forbade contributions respecting a Presidential or other Federal election and fixed a penalty of $5,000. Every officer was made liable to a fine of $1,000, or imprisonment for one year, or both. This law did not come until seven years after a reported contribution by a labor union of $60,000 to the support of President Roosevelt in the campaign of 1936. It is stated in Beard's American Government and Politics that "labor organizations contributed $770,218 to the Democratic National Committee in 1936."
Thus the corporation, the person, the political committee, and the labor organization have been successively brought under the Corrupt Practices Laws. But with the extension of the laws the collecting and spending of money
in Presidential campaigns have grown larger in amounts and more offensive in methods.
The only way to prevent "cabal, intrigue, and corruption" in relation to the election of the President was thought out in the Constitutional Convention with an imperative direction that it be followed.
The President as a gatherer of party funds
The act of 1940 undertook also to cure a sore which appeared in the Democratic campaign of 1936, when the party was in debt $400,000. In addition to Jackson Day Dinners at $100 a plate in Washington, and at lower prices throughout the country, which were addressed by the President by radio, and which yielded $315,000, the "Book of the Democratic Committee" was prepared and autographed by the President -- the autographed copies selling for $100 each. They were taken in large numbers by the heads of corporations. Of course, the general manager of a great company had to consider what might happen if he should decline to buy a dozen or two of the books. While the money was gathered to meet the debt of a campaign gone by, and the Corrupt Practices Act relates to an election "to be held," the spirit, if not the letter, of the law was violated by the transactions. The Attorney General ruled that the law was not violated, but Congress expressed its dissent from that ruling by providing in the Act of 1940 that it would be unlawful for any corporation or person "to purchase goods, commodities, advertising, or articles of any kind or description" where the proceeds would benefit candidates for Federal elective offices (italics added).
From advertisements and sales the book brought in $860,000. As before stated, the Jackson Day Dinners yielded $315,000, making the two devices for avoiding the Corrupt Practices Act a total of $1,175,000.
Almost another million was raised and spent by organizations outside of the political party -- the Good Neighbor League, the Progressive National Committee, Labor's Non-Partisan League, Young Democratic Clubs, and many others.
In the campaign of 1940 the Democratic Committee prepared to repeat the use of the book autographed by the President, but the Second Hatch Act, of July 19, 1940, dashed the plan. Already contracts for advertisements in the book had been made up to $340,000.
President Roosevelt by-passed Corrupt Practices Act
In the campaign of 1944, the use of the money-coining book autographed by the President in 1936 having been prevented by an act of Congress, which made the transaction illegal, President Roosevelt proposed the formation of a Thousand-Dollar Club of at least a thousand members. A million or more was raised almost on the instant. It was promised that each person contributing $1,000 would be taken into the councils of the Government and that he would be treated with special favor during the services of inauguration. The dispatches from Washington on January 20, the day of the fourth inauguration of the President, told of the presence of the contributors and of "a full-scale program of Inauguration Day social events" which had been prepared for them.
What activities to occupy the mind and time of the President of the United States!
And what will the authorities in Moral Philosophy say (leaving to one side the question of constitutional observance) of the offer of the administration to take into the councils of the United States nonelected and nonchosen persons in consideration of money! And what should the people say?
As long as there are so many persons and "interests" seeking advantage or pecuniary gain from the party in control of Government, and as long as the party must look to them for funds with which to function, corruption will necessarily underlie the nomination and election of a President by the present unconstitutional method.
In the good days that may be ahead
When the States resume their constitutional function in the choice of a President and a Vice President, then the members of the legislatures chosen at the ballot box by the people will "appoint" electors of a President and a Vice President who will look over the country and vote for the two men standing highest in their opinion or in public
3. From the speech of acceptance of Grover Cleveland in 1884 and one speech thereafter, and the address of acceptance of William McKinley from the front porch of his home in Ohio in 1896 and two or three others from the same standpoint to visiting groups, we have come a longer way than the years indicate to the "sound and fury" of the late Presidential campaigns, with the nominee racing around the country in special trains and calling at every stop to the people to support him. Since the special train was first employed, the radio has come, and both means are availed of by the candidate for presenting to the masses the merits of his party and himself. The spectacle presented is far from edifying.
Choice of the President by the electors of the Constitution will stop that unseemly exhibition, along with the grotesque Nominating Convention and the evils of the campaign fund.
esteem. That will produce nonpartisan and highly competent Executives. We shall have a President of the United States instead of a political party. That is to say, for illustration, a President so chosen would not appoint to the courts of the United States 185 Democrats and only 3 Republicans, most of them neophytes in law; ignoring in his selections seasoned jurists on the Supreme Courts of the 48 States. Nor would he name to the Supreme Court of the United States 9 of his political supporters, because he would not be in debt for the help of a party. Nor would he be interested in caring for persons rejected by the people at the polls, affronting their former constituents by giving to "lame ducks" offices, in some instances for life, with good salaries.
President would not be embarrassed by political bargains
He would not be forced by political considerations "a very difficult letter to write," asking one of the ablest men in the service to resign to make place for one who "deserves almost any service which he believes he can satisfactorily perform: I told him this at the end of the campaign, in which he displayed the utmost devotion to our cause." The President should not become involved in a debt like that, nor should the people be given service measured by such a standard.
In short, we should have in every instance a nonpartisan President.
4. The Lord High Chancellor of England, whose duty is to select and appoint the judges of the Kingdom, spoke to the American Bar Association in 1947 and mentioned that he had never appointed to the Bench a member of his own political party.
Men of capability would have chance to serve Republic
The electors will be able to consider governors who have won public approval by wise and economical administration. They will weigh in the balance members of Congress who have exhibited in service true American vision of the proper place of this Republic in the family of nations, and who have been guided in all their actions by the provisions of the Constitution.
Those two classes are mentioned because, generally speaking, no one without the training of experience in the field of government or law should be thought of for the Presidency.
How many Presidents of this century would have been kept out of the White House had the constitutional method of choosing been employed! And how much of the disastrous to constitutional Government would have been prevented!
Political parties as at present could be maintained
The party organizations could be maintained in the States as usual. They could send Republican or Democratic believers to Congress as they are doing now. Congress could then resume its constitutional function as General Manager of the United States, which would have administration according to the tenets of the party in control. The President would withdraw from determining policy and new laws and confine his industry to the comparatively few duties assigned to him by the Constitution.
There is just one way to put the President in his consti-
tutional place. That is to elect him by electors "appointed" by each State "in such manner as the legislature thereof may direct," the members of the legislature having just come from the people at the ballot box. They act quickly in voting for a President and a Vice President. It was this which made the members of the Constitutional Convention feel that they had, by shortening the time and quickening the action, removed the subject from the opportunities for the cabal, intrigue, and corruption to which Hamilton referred in The Federalist and which have been among the most striking features of the National Nominating Convention and its "campaign."
The tyranny of the Executive which Jefferson said would come "at a remote period" is here. By the power of patronage, chiefly, and money he has overcome the Legislative Department and reduced the Judicial Department below respect. The craven Senate enabled him to set up a Judiciary to his liking. The farcical vote for "electors" of a President is controlled by his appointees on the rapidly enlarging pay rolls of the Executive Department.
Illegal Presidential power responsible for departures from Constitution
No other practice in Government has gone so far from the Constitution, and that transgression has been attended by correspondingly bad results.
Most of the evils in National Government of which peo-
5. The legislators should themselves "appoint" from among the competent people of the State the number of electors to which the State is entitled. In view of what has resulted from allowing political parties to name electors to be voted upon by the people, the legislature should return to first principles and allow no intermediary to have anything to do with the great duty. It should courageously perform this function in relation to the choice of a President and a Vice President of the Union of States.
ple complain will disappear when the States take back their Union. The third term and the fourth have told what to the observing and educated American was not in need of telling. "A conclave of anthropophagi" has ousted the Government of the Constitution.
In support of the proposition of this chapter, that the present method of selecting and electing the President and the Vice President is a disgrace to our constitutional system, another quotation from Henry L. Stoddard's It Costs to Be President is made.
Roosevelt not choice of his own State in 1932
In the Democratic National Nominating Convention of 1932 Franklin D. Roosevelt could not muster the number of delegates required by the two-thirds rule of the party established by Andrew Jackson to prevent the choice of a man not in the very highest favor. Stoddard wrote:
"Roosevelt realized that he must make a drastic move. He had to have aid.
"There was just one man who could supply enough votes in a bunch to insure success. That man was William Randolph Hearst. He was sponsor for the John Nance Gamer boom. He had persuaded the Texas Congressman into the race and had aided him to carry the Texas delegation. He was solely responsible for defeating Roosevelt in the California primaries, and for instructing the Golden Gate delegates, headed by William Gibbs McAdoo, for Gamer.
"Roosevelt knew that there was no need to open negotiations with Gamer and his lieutenants; the real decision was with Hearst -- the others could be talked with later. Farley was given the job of telephoning Hearst at his San Simeon ranch in California. He did it. Straight to Hearst
went the Roosevelt argument that 'if you don't take me you will get Smith or Baker.' That was no news to Hearst; he had foreseen that possibility. He preferred Roosevelt to either of the other two.
"Two hours later Paul Block, the well-known publisher, and I sat in his room for a good-night exchange of opinion. He then said that he had been talking over the telephone with 'W. R.' and that a deal had been arranged by which the 69 Texas and California delegates, after complimenting Garner on two or three ballots, would swing to Roosevelt. He added that Gamer would go on the ticket as Vice President and McAdoo was to have no opposition in California for the Democratic nomination for U.S. Senator.
An outsider controlled convention nominating Roosevelt
"The news was in confidence, however, for Hearst, of course, had no power to release delegates pledged to any candidate. That was for Garner and McAdoo to do. Hearst, however, undertook to talk with both of them and with Mayor Cermak of Chicago, who controlled the Illinois delegation. He persuaded all three that after a few ballots they should turn to Roosevelt, and they did.
"It all happened that way, as the convention records attest, but it also happened that 190 delegates, including a majority from Roosevelt's home State of New York, stubbornly refused to make the nomination unanimous.
"When Roosevelt airplaned from Albany to Chicago to accept '100 per cent' the tendered leadership and party platform he faced the only National Convention that had ever failed to give its entire vote finally to its nominee --
except the Republican National Convention of 1912, when Taft had his battle with Theodore Roosevelt.
"So turns the wheel of fortune in politics."
But what the Constitutional Convention strove from first to last to exclude from the choice of the President and the Vice President was "politics" -- what Hamilton described as cabal, intrigue, and corruption.
Badly reasoned proposal to amend Constitution
A resolution to amend the Constitution is pending in Congress by which, instead of letting all the electoral votes of a State go to the candidate carrying the popular vote, the electoral votes would be apportioned between or among the candidates according to the shares of their parties in the popular poll.
In case of failure of choice by that method, the proposal would send the election to Congress in joint session, where the vote would be by members, not by States. That would give the large States control. Equality among the States is the first idea of the Constitution.
And the emphatic design of the Constitution (Twelfth Amendment) is that when the electors appointed by the States fail to choose a President and the election thus goes to the House of Representatives, "the votes shall be taken by States, the representation from each State having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the States, and a majority of all the States shall be necessary to a choice."
Therefore, the new resolution, which passed the Senate on February 1, 1950, by a vote of 64 to 27, is at war with the paramount idea of American constitutional government as repeatedly expressed from the Declaration of
Independence down -- the equal position of the States in the Union. Indeed, the only amendment forbidden by Article V is one by which a State, "without its Consent, shall be deprived of its equal Suffrage in the Senate."
In the Farewell Address, Washington cautioned that we resist "the spirit of innovation" upon the principles of the Constitution, "however specious the pretext." What is the pretext for the resolution? That the Presidential election should be determined by an approximation of the direct popular vote for candidates named by the parties.
First step in electing President taken by people
But the idea is quite erroneous that the electoral system of the Constitution denies to the people a voice in the election of the President. In The Federalist (No. 68) Hamilton wrote (italics inserted):
"It was desirable that the sense of the people should operate in the choice of the person to whom so important a trust was to be committed."
On the same point, Jay wrote in No. 64 of The Federalist:
"They [the States in the Convention] have directed the President to be chosen by select bodies of electors, to be deputed by the people for that express purpose."
That is where begins the choice of the President and the Vice President by the people at the polls.
No voting at primaries, or for the head of the ticket, or otherwise, has any constitutional relation to the election.
The manacles which the Constitutional Convention put on the Chief Executive to prevent him from becoming Caesar -- manacles which he has slipped -- must be restored to place by the lawful election.
Proposed amendment would be futile anyway
But what good would such an amendment accomplish after a man over two thousand miles from the National Nominating Convention had named for the Presidential ticket the two candidates of a party to which he had not consistently belonged? Or, after external and presumably mercenary forces had nominated a Democrat for the Republican ticket? Or, after an aspirant reputed to be a master of organization had snuffed out other candidates in the Nominating Convention and taken the place on the ticket for himself? Or, after a President had nominated himself for a second term and then picked his successor? Or, after another President had nominated himself for the second, third, and fourth terms?
It is not a pro rata distribution of the electoral vote of a State that is called for. Indeed, strictly speaking, there is now no electoral vote. What is called the electoral vote is an amorphous creation rising from the delinquency of the States and the permitted, if not invited, manipulations of party organizations and politicians.
Proposed amendment carries unconstitutional theory of "democracy"
The idea behind the resolution to change the Constitution for the removal of misunderstood factors in the problem dates back at least to 1893, over 56 years, nearly half of the 160 years that our Fundamental Law has been in effect. It is the idea from which the Initiative, the Referendum, and the Recall came, which brought the direct primary and the "presidential preference" primary, and which broke down the House of States -- the idea that
democratic or popular action should supersede the representative Government by which George Washington and his compatriots put the United States "in the forefront of nations," as the British historian Green expressed it.
It is an alarming fact that for more than half a century the pressure for "more democracy" has not been relaxed in seats of learning, so called, in parts of the Press, in some political groups, and in organizations of the social minded.
The pending proposal to amend the Constitution by introducing the popular vote to a dangerous degree -- never before legally involved -- in determining the result of the election, would be the beginning of the end of the representative or Republican process.
Nor would the suggestion from several quarters, that Congress (the taxpayers, now so comfortable financially!) put up a campaign fund of $3,000,000 to each of the two parties and thus keep out "contributors" in quest of something, help against the evil which the delinquent States have brought upon the country.
Governmental battle between populism and constitutional republicanism
The paramount question in this land today is whether the representative method of the Constitution will be restored as to the choice of the President and the Vice President, or whether the democratic or popular infiltration of the last half century and more will be extended to that.
Writing ninety years ago (2 Thirty Years' View, p. 787) in condemnation of the National Nominating Convention, Senator Thomas Hart Benton of Missouri put the choosing of the President with slavery as one of the two "trials"
confronting the Republic. War disposed of slavery. The other "trial" remains before us.
The jurisdiction of the problem and the plain solution are wholly with the States.
In 1874 a committee of the Senate made use in a report of the following language:
"Whatever provisions may be made by statute, or by State constitutions, to choose electors by the people, there is no doubt of the right of the legislatures to resume the power at any time, for it can neither be taken away nor abdicated."
That language was quoted by the Supreme Court of the United States (146 U. S. 1) in an election case in 1892.
People of the States can direct legislatures to appoint electors
It is for the people of each State, who cannot be unaware of the peril of present conditions, to rouse themselves and direct their legislatures to appoint presidential electors in pursuance of the constitutional command and in protection of the Republic.
This vigilance has become the more imperative because correspondents in Washington, who scatter to the country curbstone opinions on the laws and the Constitution, have begun to write frequently of the "inherent powers" of the President and what he may do by the use of them -- perhaps in retiring Congress altogether! To accept that notion would be to turn him loose in "a boundless field of power," of the dangers in which Jefferson gave warning, "no longer susceptible of any definition."
The man in the White House has heritable rights and
powers, like every other individual, "among which are life, liberty and the pursuit of happiness."
But the Chief Executive in the White House, an altogether different character, is just as much a manufacture as a child's doll -- absolutely without any power not specifically conferred by some provision of the Constitution. No power can inhere in this creature apart from those given by the States when they created it to serve -- not to master -- them.
When State legislatures resume their duty
When the legislatures of the States return to their constitutional duty of appointing as electors the most able and discerning men in their respective commonwealths to vote for a President and a Vice President, the Chief Executive will be a person with adequate understanding of and respect for our governmental theory and practice.
When the first session of the 81st Congress ended in 1949, there were remaining on the calendar a score or more of demands for unconstitutional legislation from the "program" of the President, who is not authorized by the Constitution to have a program and take control of legislation. He is required to "recommend" measures, but Congress may accept the recommendations or not.
The President in disregard of the Constitution
We have learned from Madison, Hamilton, Wilson, and others of the Constitutional Convention; from Jefferson, President Cleveland, and other Presidents, that the limitations in section 8 of Article I against spending by Congress -- "to pay the Debts and provide for the common Defence and general Welfare of the United States" only -- restrict it
to the enumerated instances following in that section, namely:
And make all laws "necessary and proper" to execute the foregoing
- To borrow money
- regulate commerce
- establish rules for naturalization
- govern bankruptcies
- coin money
- fix standards of weights and measures
- punish counterfeiting
- establish post offices and post roads
- protect inventors and authors
- constitute courts inferior to the Supreme Court
- punish piracies and offenses against international law
- declare war and make rules therefor
- raise and support armies -- for two years only
- provide a navy
- make rules governing all armed forces
- provide for calling out the Militia of the States
- provide for training, arming and disciplining the Militia
- govern the District of Columbia
- govern places in States when permitted to own forts, etc.
In all other relations the American makes his way untouched by the National Government. In 1933 that had been the settled doctrine. Legislation since then touching other matters has been unconstitutional.
Departures by the Chief Executive from that chart
From what has been shown, it is plain that in the message of the President to the second session of the 81st Congress, on January 4, 1950, on the state of the Union,
these requests for legislation were beyond its constitutional powers to spend money:
- World economic recovery
- Expansion of world trade
- Improvement of living standards in regions of poverty
- Large capital from the United States to undeveloped regions
- Stabilization of agriculture by price supports
- Development by Federal money of national resources, soil, water, etc.
- Promote education by Federal grants of money
- Distribute property fairly
- Aid with capital independent businesses
- Set up Labor Extension Service
- Pursue Federal housing under Housing Act, 1949
- Control rents for another year
- Countrywide development of public electric power
- Develop electric power in St. Lawrence River
- Set up National Science Foundation
- Promote health by Federal grants of money
- Provide unemployment compensation
- Expand hospitals
- Provide medical insurance
- Enact Civil Rights Law
- Expend for growth of domestic economy
- Work for a better life for all (in appendix)
Those subjects that touch "the health, safety, morals, education, and general well-being of the people" fall within the police power of the States, which, we have heretofore seen, the States cannot constitutionally abdicate and Congress cannot constitutionally take over. The others are completely "out of bounds" as to any American government.
It is tragic that the failure of the educator to inculcate
in the youth of the land American constitutional principles, together with the abandonment by the States of their constitutional duty to elect the President, should bring from the White House such a message.
It is equally tragic that a Congress of 531 members should have received without rebuke or protest proposals for such unconstitutional outlays of money, when the spending of the Government in time of peace was 45 billion a year as compared with 81 billion a year during World War II.
President Truman employed more than 5,500 words in urging Congress to take legislative action on 22 matters over which the Constitution gives it no jurisdiction. A character in English fiction set for him an example which he would have done better to imitate. Addressing the voters (as President Truman really was doing), Tittlebat Titmouse promised them that when elected to Parliament he would put through A Bill for Giving Every Body Every Thing.
The philosophy of Titmouse has superseded the constitutional principles of American Government.