An equilibrium of balance within the Federal Government itself has not always been obtained in our national history, but it is correct to say that with the exception of a state of war, there never has been heretofore such vast concentration of congressionally delegated power in the office of the Chief Executive as existed under Roosevelt's New Deal administration. In 1933, the justification for such a deposit of power was that the emergency nature of the times demanded it, and that the Chief Executive himself, or his office, could with greater efficiency exercise or execute it. As in a state of war, the President is empowered by Congress to declare by public proclamation when this emergency status had ended. This has not yet been done, even fifty-five years after the so-called "great depression" ended, and the view now widely held in Congress is that the powers delegated to the Executive arm will be retained indefinitely, or until Congress itself reassumes the powers or repeals the statutes. Particularly in the expenditure of federal funds without specific allocation or "earmarking," or at most only in broad terms, did the Congress empower the President with absolute authority; or stated otherwise, with respect to expenditure of federal funds, it signed a blank check, authorizing the Executive to fill in the amounts. The irony of this practice in so far as the Congress was concerned has been that in expending federal funds for business pump-priming, social legislation, health care and of course, pork-barrel expenditures, the Chief Executive has great power either to defend or elect Congressmen, according as they were or were not his supporters.

Under the Constitution, of course, there was no legal machinery to prevent this deposit of power by Congress, in the first instance, nor to compel repeal of such legislation. The only possible constitutional remedy was for a private litigant in a proper case or controversy to question exercise of a given instance of such power, if he could prove special damage. This might be difficult to prove.Footnote1 And obviously the recipients of these federal funds would not challenge the source of power,Footnote2 and even had they done so would not have been met by well established judicial doctrines of estoppel or waiver, as the case might be. Government by executive order or decree has been made possible under the vast powers thus entrusted to the President by a complaisant Congress, thus substantially destroying, for the time, equilibrium of power within the federal framework. That Congress during the 1930's or even today, may have been or may be motivated by laudable intentions does not validate it as constitutional.

In tracing the various forces and events which have led to a "streamlined" Constitution, special attention should be drawn to the views held by Franklin Delano Roosevelt - the Chief Executive of the Constitution and of the character of the functions of the Supreme Court, because by virtue of this high office such views had wide influence upon the American people, and undoubtedly millions of them agreed with Roosevelt, but equally other millions did not.

While deciding whether or not to run for an unprecedented third term, Roosevelt received several telegrams from various supporters urging him to run for the sake of the nation and the people. One labor group adopted the following resolution:

Whereas we have today in the White House a Chief Executive of unsurpassed ability and statesmanship; a man of unimpeachable character and stainless record, whose great sympathy and understanding of the needs of the common people have endeared him to the masses of this Nation, and whose championing of the cause of the wage earners of our country has brought down upon his head the enmity and the hatred of the privileged class; a man whose recognition, support, and encouragement to our American labor movement have enable us to carry on in our resistless march toward the liberation of the American working man and woman; and

Whereas this great humanitarian, President Franklin Delano Roosevelt, has by his liberal and progressive administration, his persistent and resolute opposition to the chiseler and the profiteer, the exploiter and the parasite, aroused against him all of the reactionary forces of the Nation; and

Whereas there is no legal nor logical reason why our great President cannot accept a third term as Chief Executive, and in view of the overwhelming sentiment of the great mass of people in his favor: Be it therefore

Resolved, That the forty-third annual and third biennial convention of the Missouri State Federation of Labor go on record as urging upon Franklin Delano Roosevelt, in the name of the common people, for the sake of the "forgotten man," and in the cause of humanity, to accept a third term as President of the United States, and thereby pledge our loyal support to his success; and be it further

Resolved, That all interested parties be furnished with copies of this resolution.

Following the decision of the Supreme Court invalidating in large part the National Industrial Recovery Act, Roosevelt expressing his disappointment, if not resentment with the decision, referred to the Constitution as a relic of the "horse and buggy" era. On other occasions, Roosevelt, criticizing the Court's position on minimum wages prior to its subsequent overruling itself, stated that the Constitution as thus interpreted created a "no man's land" where neither the Federal Government nor the several States could legislate, which in his opinion was a reductio ad absurdum. His conception thus exhibited seemed to be that Government in the United States should be all powerful and not subject to those heretofore well established rights of the individual against governmental invasion. In another public address Roosevelt stated that the "general welfare" clause in the body of the Constitution (not the preamble) justified blanket legislative power unconnected with the spending power, a view which would clearly negate the rule that the Central Government was one of delegated power, for if that Government was to have blanket power there would have been no rationality in the drafters of the Constitution in specifically enumerating the powers delegated. Now, criticism of the Supreme Court or at least some of its personnel, on the part of the Chief Executives of the past, is not without precedent in our national history - Andrew Jackson and Thomas Jefferson and even Lincoln being notable examples. President Theodore Roosevelt had emphatic views of the extent of powers granted the Executive, but he did not put himself on record publicly to the extent that President Roosevelt did in 1937. Such criticism on the part of the Chief Executive was but systematic of the temper of the American people, struggling with economic depression, and looking to government for material aid and assistance, yet fearing that the governmental framework under the Constitution would not permit it if attacked in an independent Supreme Court.

Equally striking is the viewpoint of Roosevelt with respect to the nature of the Supreme Court's functions and duties. Early in his administration, in seeking emergency power through legislation to combat the depression, Roosevelt is said to have privately sounded out Chief Justice Hughes on the question of the Supreme Court's co-operation with the two other branches of the Government in the likely event that the Court would be asked by litigants to review the validity of the measures enacted. He is said to have received an unfavorable reaction on the ground that the Court's functions did not permit such cooperation promised in advance, and that the admitted gravity of the times afforded no justification for any departure from the established practice. Roosevelt is said to have cited as precedent for his action similar cooperation given him by the New York Court of Appeals when he was Governor of the State. That the Supreme Court could not cooperate with Roosevelt, let alone promise it, is amply illustrated by its subsequent decisions during the first four years of the New Deal administration, but prior to the defeat of the Judiciary Bill of 1937.

On one public occasion, Roosevelt strikingly illustrated his conception of judicial cooperation with the other branches of the government by drawing an analogy with a three-horse team plowing a field; in order to have the field properly plowed, he reasoned, it was necessary for all to pull together. Democracy could be made to work in America, he said, only by this method, and not by allowing one of the horses-presumably the judiciary in his analogy-to pull in an opposite direction from the other two. And in still another public address, Roosevelt stated that in the Constitutional Convention of 1787 a plan had been brought forward, but rejected, to give the federal judiciary veto power over acts of Congress and the President. The inference drawn by Roosevelt was that the federal courts today should not have the power to declare acts of Congress or the President unconstitutional. What he did not make clear was that veto power standing in isolation is in reality a part of the legislative or executive power, whereas the power to declare laws unconstitutional in proper cases and controversies only, is totally different. The federal judiciary never had the so-called "Veto" power, because this was not a proper judicial function, and the delegates were on sound ground in voting such proposal down; but the judiciary did rightfully have the power to declare laws unconstitutional because of the essential nature of the governmental framework created by these same delegates in the Constitutional Convention.

By the early 1940's, after nearly a decade of governmental handouts and intrusion, the people were finally ready for the last phase of Roosevelt's New Deal. Unlike the war raging in Europe and the Pacific, the war in America for control over the minds of the people had been won without a single shot being fired. This is evident in Roosevelt's State of the Union address, delivered January 7, 1943, in which be claimed victory over the minds of the people by declaring:

"When you talk with our young men and women, you will find they want to work for themselves and for their families; they consider they have the right to work; and they know that after the last war their fathers did not gain that right.

"When you talk with our young men and women you will find that with the opportunity for employment they want assurance against the evils of all major economic hazards - assurance that will extend from the cradle to the grave. And this great government can and must provide this assurance.

"And if the security of the individual citizen, or the family, should become a subject of national debate, the country knows where I stand."

In order for this peaceful counter-revolution to continue a new generation of American's had to be taught and trained to uphold and sustain this new way of their fathers. The job fell upon the public school system to continue the job of indoctrinating teachers and students by preparing teaching materials designed to "influence the social attitudes, ideals, and behavior of coming generations. Completely new textbooks were needed. Millions of school children learned American political and economic history and structure in the 1940's from several books.

The class struggle theme was the vehicle used to openly advocate cradle-to-grave welfare care for all. F.A. Magruder in his American Government textbookFootnote3 uses this technique. Magruder says:

From birth to death our governments act as guardians. They provide free education and require children to avail themselves of it, they provide employment or relief for the middle-aged, and they provide old-age pensions or benefits for the aged who need them.

In a later edition of the American Government textbook, Magruder equates opposition to the welfare state with selfishness of the few. In a section blatantly entitled, Welfare of the People from the Cradle to the Grave, Magruder says:

The United States has increasingly curbed the selfish and provided for the welfare of the many. The Government has established the Children's Bureau to look after the welfare of every child born in America. (pg. 15)

Indoctrination in the availability and rightness of the free handout was not limited to high school students. The re-education started in the first grade. Recall the story about the hardworking little squirrel who gathered and stored nuts for the winter. The story has a moral: Work hard and save wisely for uncertain days ahead.

But in 1961, the story was rewritten. The new version was found in a first grade textbook entitled, The New Our New Friends, published by Scott, Foresman & Company in 1956. The chapter was entitled, Ask for It. In it, a little squirrel named Bobby, ate nuts from a tree during the summer. Other squirrels suggested that Bobby put some nuts away for winter. As Bobby Squirrel didn't like to work, he ignored the advice.

Winter came and one morning Bobby awakened to find the world covered with snow - and all the nuts were gone from the tree. He got awful hungry but remembered that a boy who lived in a white house had taken some of the nuts from his tree during the summer. Bobby went to the white house and gave a squirrel call. A door opened and a "fine brown nut" rolled out. Bobby Squirrel learned his lesson. The story concludes:

"Well!" thought Bobby. "I know how to get my dinner. All I have to do is ask for it." (pg. 159)

But at what cost. A loss of our unique national character. Or perhaps a loss of personal freedom to ourselves and our posterity. Viewing the current state of affairs of the Nation, one can only wonder if the benefit or in Bobby's case, the "fine brown nut," was worth the price.

To conclude, let us turn to the authority of the universally esteemed and lamented Justice Story, as to the high responsibilities of the people, and the proper means of guarding their individual liberties. In reference to the Constitution of government he says:

"It must perish, if there be not that vital spirit in the people, which alone can nourish, sustain, and direct all its movements. It is in vain that statesmen shall form plans of government, in which the beauty and harmony of a republic shall be embodied in visible order, shall be built up on solid substructions, and adorned by every useful ornament, if the inhabitants suffer the silent power of time to dilapidate its walls, or crumble its massy supporters into dust; if the assaults from without are never resisted, and the rottenness and mining from within are never guarded against. Who can preserve the rights and liberties of the people, when they shall be abandoned by themselves? Who shall keep watch in the temple, when the watchmen sleep at their posts? Who shall call upon the people to redeem their possessions, and revive the republic, when their own hands have deliberately and corruptly surrendered them to the oppressor, and have built the prisons or dug the graves of their own friends? This dark picture, it is hoped, will never be applicable to the Republic of America. And yet it affords a warning, which, like all the lessons of past experience, we are not permitted to disregard. America, free, happy, and enlightened as she is, must rest the preservation of her rights and liberties upon the virtue, independence, justice, and sagacity of the people. If either fail, the republic is gone. Its shadow may remain with all the pomp, and circumstance, and trickery of government, but its vital power will have departed. In America, the demagogue may arise as well as elsewhere. He is the natural, though spurious, growth of republics; and, like other courtier, he may, by his blandishments, delude the ears and blind the eyes of the people to their own destruction. If ever the day shall arrive, in which the best talents and the best virtues shall be driven from office by intrigue or corruption, by the ostracism of the press, or the still more unrelenting persecution of party, legislation will cease to be national. It will be wise by accident, and bad by system.

"In a free state, every man, who is supposed a free agent, ought to be concerned in his own government; therefore the legislative power should reside in the whole body of the people, or their representatives. The political liberty of the citizen is a tranquillity of mind, arising from the opinion each person has of his safety. The enjoyment of liberty, and even its support and preservation, consists in every man's being allowed to speak his thoughts, and lay open his sentiments."

Footnote1

Ashwander doctrine.

Footnote2

Revenue Sharing Acts.

Footnote3

1940, p. 8.