As late as 1916, when the attempt at undermining the States by transgressing the Tenth Amendment was undertaken by a very formidable and persistent aggregation of forces, the assailants were three times hurled back in a battle which lasted twelve years. But the contest was close.
Congress passed two unconstitutional bills and the President, presumably advised by the Attorney General, signed them. Constitutional government, and the Tenth Amendment particularly, were saved by the Supreme Court.
Under the direction of the American translator of the writings of the patriarchs of Communism, Karl Marx and Friedrich Engels, there was begun in 1916 an extraordinary attempt to break down the constitutional structure of the United States and thereby curtail the liberties of the American.
This woman pushed a bill through Congress which would forbid the moving in interstate commerce of manufactured articles into the making of which the work of persons under the age of 18 years had entered. The ostensible idea was to protect the young from oppression by ruthless employers and uncivilized fathers and mothers who were taking wages from the servitude of their children. From the strident propaganda that was organized and turned loose, a stranger just arriving on the planet would conclude that parenthood on the Earth was covetous wickedness itself.
According to the "Woman Patriot," a paper then published in the City of Washington, the promoter of the Child Labor Law had boasted that in her legislative drives she never let appear on the front of the movement the real intent of the propagandists. That is the basic strategy of Communism. The Child Labor Act had no relation to child labor, because there was in objectionable volume no such thing. After the census of 1920 the Department of Labor made a boastful report to the effect that since the taking of the last decennial census so many laws of States had lengthened the months of school required; had set such severe conditions for a youth to qualify for work during vacation, had so completely forbidden work by minors in theatres and like places and prohibited working with dangerous machinery, that the so-called child-labor evil had been all but wiped out.
But even had the States been delinquent in the exercise of their police power to guard the health, education and welfare of childhood, that could not have conferred power on Congress to assume jurisdiction. It had no place in the field of the States. It has been shown from authorities that the States cannot abdicate their police powers and that Congress cannot take them over.
Had there been a child-labor evil and there was none of magnitude it was for the people at home to make their legislatures take police action.
But, as before said, the "ballyhoo" was so overwhelming and ceaseless that many good but uninformed people were taken off their feet, and they gave way to tears for the American child so victimized by his greedy and heartless parents.
There being no child-labor problem to solve, it is manifest that the undertaking was to remove the youth of the land away from the police control of the States as the National Labor Relations Act, 19 years later, removed all workers children and adults of the country out of local jurisdiction and transfer authority over them to the central Government at Washington. Making the central Government top-heavy would cause it in time to collapse of its own weight, and the collapse of the finest specimen of Government securing liberty and property has been the object of Communism for many years.
The use of the Commerce Clanse of the Constitution to bolster the act of Congress was one of those lawlessnesses which Governor Franklin D. Roosevelt of New York denounced in the strongest terms. And when he became President he broke all records in promoting this sort of legislative malpractice!
Why did men representing the people of the States in Congress vote for a bill by which the Nation would usurp power not granted to it by the Constitution, and the States would lose by abandonment powers inherent in them for the care and protection of youth?
Why did a President with an Attorney General to advise him sign such a bill? What is an Attorney General for?
Congress could not by its act gather to itself police power over "the health, morals, safety, education and general well-being of the people." Nor could the States surrender their local police sovereignty to Washington. That was decided (219 U. S. 270) in 1911 by the Supreme Court of the United States.
Of course, when an employer and a father both attacked the act as against liberty, the Supreme Court in 1918 held (247 V. S. 251) that, although it pretended to be a regulation of commerce between the States, it was in reality a seizure from the States of their police power, in violation of the Tenth Amendment, and therefore unconstitutional.
Did that stop the constitutional illiterates representing the States in the Congress in their push to degrade their commonwealths?
In 1919 Congress passed a Child Labor Tax Act and the President signed it, presumably with the approval of the Attorney General By that enactment a destructive tax was placed on the product of child labor, so heavy that the manufacturer could not sell the goods in competition with other makers. The Commerce Clause having failed to support the other act, Congress resorted to the Taxing Clause.
But when a citizen affected by the legislation attacked it, the Supreme Court in 1922 held (259 U. S. 20) that as the tax imposed was intended to prevent the manufacture by youth, it would also put an end thereby to the revenue, for which reason it could not be treated as a revenue act It was palpably another lawless attempt by Congress to take from under the police power of the States the supervision and protection of youth.
Neither did that decision stop the constitutional illiterates of the States in Congress in their determination or in the determination of the Communist-minded and unschooled sentimentalists who were lashing them to weaken their commonwealths and enlarge the central Government.
The energy and fury behind this movement of Communism, supported by weeping women and educators, was frightening.
Having failed twice in "dashing itself against the imprisoning walls of the Constitution," as Bryce described our legislative body, Congress proposed in 1924 an amendment to the Fundamental Law which would empower it to prohibit labor throughout the United States of persons under the age of 18 years.
It was immediately rejected by enough legislative bodies in the States to defeat it, but every time new legislatures were elected the promoters again urged adoption.
During the pendency of the proposal before the legislatures of the States, 20 of them repeatedly rejected it, in Massachusetts 8 times, in New York 7 times, in Texas and South Dakota 6 times, and in 3 other States 5 times.
In 23 instances attempts were made in Congress to modify the resolution so as to draw in some of its reckless implications, but they were voted down sometimes howled down without a record vote.
When President Roosevelt took office he immediately urged legislatures to adopt it, which course was an illegal interference by the Executive with the functions of the States. It was also contrary to his declarations as Governor of New York. Some States acted as he requested; but when he telegraphed "my native State" to ratify the proposal, the legislature of New York promptly rejected it.
The rejection of the proposal by the legislatures shows that many Congressmen were as badly informed of the wishes of their constituents as they were on the Constitution.
What insidious and unseen power could maintain for more than a dozen years that assault on the constitutional integrity of the United States? Why was there not force enough in public opinion to check Congress in its wayward course?
It may be that the defeat which Congress suffered in 1918 in the first decision of the Supreme Court respecting Child Labor was the cause of its classing in the Revenue Act of 1919 the compensation of the judges as income subject to taxation and thereby reducing their compensation, which the Constitution forbids.
The way to cure the weakness is by requiring the schools, colleges, and universities to make everyone graduating a sound constitutional scholar.
About forty of our States have laws requiring the teaching of the Constitution of the United States in public and private schools, but in not one State is our Great Charter thoroughly taught as a separate study to the youth who are to govern the land and hold the destinies of the Republic.
To show that references herein to constitutional illiteracy are not extravagant or unjust, it is mentioned that in March, 1947, a dispatch from Washington said that a member of the House of Representatives from the great State of Illinois and a member from the great State of Louisiana introduced bills making it a felony to try to bribe an athlete. There had recently been much in print about crookedness in baseball and other sports. The boy or girl leaving school before reaching High, as over 16 per cent of them do (while half of the 1,700,000 leave before the end of the second year), to govern the United States and direct its destiny, should know better than that. It is an indictment of schools, colleges, and universities that members of Congress should introduce such bills. Felonies fall within the police power of the States.
Congress has no Sumner, no Conkling, no Cameron, no Hoar, no Ingalls, no duplicates of the many old worthies chosen for the Senate by legislatures instead of popular vote with experience in taking the President by the sleeve and showing him back to his place.
When the States take back their Union they should tolerate no more weak Congresses. It is discreditable to them as governmental entities and to their people entrusted with the present and the future of the Republic that there should have been Congresses deserving of the epithet of "rubber stamp."
They should require that every man and woman appearing to register as a voter present a card showing membership in One Great Union, a certificate from the County Superintendent of Schools that the bearer has passed a thorough examination in writing on both the History and the Constitution of the United States. The requirement of an examination in writing would disqualify, properly, the illiterates who control the great cities which drag down the States. The predicament of the State with an unclean city is likened in the memoirs of Senator Hoar of Massachusetts to the eagle in Tennyson, "caught by his talons in carrion and unable to rise and soar."
It would also repair the damage done by the delinquent States which frustrated the Australian ballot and gave to the political bosses in the cities for the use of their illiterates the "straight ticket" and too often the control of the Presidential election.
The rescue of the Union by the States and the preservation of it perpetually is that easy.
While the proponents of the Child Labor Acts and the proposed Child Labor Amendment drove their measures through Congress, like-minded groups "put over" in 1921 An Act for the Promotion of the Welfare and Hygiene of Maternity and Infancy, and for Other Purposes.
In a strong argument against the power of Congress to pass such a bill under the Constitution, Senator Reed of Missouri read the catalogue of the names of the women throughout the land leading the move toward centralism and not one of them was married!
The law expired by limitation in 1929 after costing the taxpayers $11,000,000. The American Medical Association reported that not one new idea was developed by the expensive experiment. It is the only legislation of the socialistic sort from which Congress eventually backed away. A constitutional amendment may some day wipe out the others.
Had the Supreme Court accepted jurisdiction of two cases brought to test the validity of this Maternity Act, instead of questioning the right of the plaintiffs (262 U. S. 447), and had it shown for permanency, after the manner of John Marshall, the line between the power of the Nation and that of the States respecting such subjects, then A Bill to Alleviate the Hazards of Old Age, Unemployment, Illness, and Dependency, to Establish a Social Insurance Board in the Department of Labor, to Raise Revenue, and for Other Purposes, along with other kindred measures of the "New Deal," might never have been attempted.
A Judiciary without statesmanship to foresee the consequences to the Republic of a decision is not what the writers of the Constitution designed.
While the representatives of the States in Congress were passing unconstitutional bills to deprive their commonwealths of police power over youth, maternity, and infancy, and proposing an amendment which the legislatures of the States rejected, many times by some of the States, the members of the legislatures were, seemingly, so occupied at home with building debt that they, also, were at fault regarding the constitutional position and the obligations of their States.
A notable illustration of this is in their failure to take hold of the matter of divorce, a subject of police which our "centralists" have for a long time been asking Washington to regulate. It has been before the public for a quarter of a century or more, and in January, 1950, it was discussed in a meeting of workers for improved social conditions. The Committee on Uniform State Laws of the American Bar Association, which framed bills on many subjects acceptable to all the legislatures for enactment, gave this problem up.
Of course, it is a subject for the States. Massachusetts long ago settled the question for itself, and all the other States need to do is to copy the statute of Massachusetts, which was upheld (188 U. S. 14) by the Supreme Court of the United States in 1903.
The General Court (legislature) of Massachusetts declared that a decree of divorce granted to a citizen of that State by a court of another State would be valid in Massachusetts when the foreign court should have had jurisdiction of both parties; but that when an inhabitant of Massachusetts should go to another jurisdiction for a divorce for a cause arising in Massachusetts when both parties are domiciled there, or for a cause which would not authorize a divorce in Massachusetts, a decree in such a case would have no effect in that commonwealth.
The Supreme Court of the United States held that law not repugnant to the Full Faith and Credit Clause of the Constitution, requiring the judicial proceedings and public acts of one State to be given effect in all others. Massachusetts was not obliged to give credit to a decree to one of its citizens when obtained against its public policy.
An inhabitant of Massachusetts went to South Dakota and obtained a decree of divorce in a suit in which his wife did not appear. Because the court had no jurisdiction of her the decree was of no force against her in Massachusetts. The husband returned to Massachusetts and remarried. Upon his death his first wife brought proceedings to be adjudged his widowed spouse and to be entitled to administer his estate and take his property. She won.
A similar statute of North Carolina, requiring a spouse domiciled in that State and desiring a decree of divorce, to apply to a court of North Carolina, was upheld by the Supreme Court (325 U. S. 226) in 1945, respecting decrees granted in Nevada when the applicants were not in law domiciled there. The domicile is the place where a person resides and intends to stay. Marrying in Nevada immediately after receiving decrees, the two spouses returned to North Carolina, They were arrested on the charge of bigamous cohabitation, the former spouse of each being resident in the State.
So it would be a very simple undertaking for the legislatures of the States to copy the law of Massachusetts or that of North Carolina, both held constitutional.
That would bring down to earth the whole flock or those "birds of passage," as one court described them, who are pictured day by day at the airports taking flight for Nevada, Florida, or Mexico to get quick releases from the first, second, third, or fourth bondage.
Neglect of this subject has been one of the most censurable delinquencies of the States.
1. This decision by Chief Justice Taft, that a pretended tax law which is not for revenue is unconstitutional and fraudulent, disposes of the preposterous proposition of President Franklin D. Roosevelt to Congress, namely, that taxes be made so heavy as to permit no income above $25,000 a year, and that all incomes be prevented from being "too high."
It also disposes of several poorly considered dicta of "progressive" judges, that taxes may be levied for regulatory and punitive purposes.
2. The Australian ballot groups the names of all the candidates for one office in one block, all the names of candidates for another office in another block, and so on. There can be no "straight ticket." If the voter is too illiterate to find the names of those for whom he would vote, that is to the advantage of the country.
Penalties are visited upon the citizens who do not vote unless they present valid excuses. The Australian Embassy said that in 1943 the vote in the Federal election was 96.3 per cent of the electors. All the States in Australia have compulsory voting laws.
In our election in 1948 only 47,500,000 persons voted, although, according to the Bureau of the Census, there were 95,000,000 eligible to vote.
Ohio adopted in 1949 a form of ballot to put an end to the "straight ticket." That looks like sunrise.
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