(The documents above referred to are here printed in the record, as follows): W. D. Guthrie, one of the ablest lawyers in America, in an article in the Constitutional Review, April, 1921, has this to say: I have also studied the report of the joint hearing before the Committees on Education and Labor of the Sixty-sixth Congress, as well as a number of publications discussing the above-mentioned bill and the governmental policy that it seeks to introduce. The aspects of the subject which I have considered may be briefly summarized as follows: 1. Under the Constitution of the United States no power has been delegated to Congress to regulate or control education in the several States. That subject was left within the exclusive domain and governmental duty and responsibility of the several States, and Congress can not constitutionally seek, directly or indirectly, to regulate or control education in the States without violating the reserved rights of the States and the fundamental principle of local self-government. 2. The provisions of the Smith-Towner bill would, in my judgment, inevitably involve an attempt at interference in the local affairs of the States, and the policy of so-called federalization of education once established would lead to an agitation and demand for a constitutional amendment in order to vest in Congress adequate and effective power of centralized supervision and control. 3. Any such increase of Federal power and diminution of State authority, responsibility, and duty would be prejudicial to the best interests of the Nation and of the States. 4. The creation of a new executive department, to be known as the department of education, with a secretary of education at the head thereof and as such a member of the President's Cabinet, would bring the subject of education into politics, with the danger of constantly varying educational policies and constantly pursued efforts to control the patronage of the department in the interest of the political party then in power. 5. The tendency of Federal interference and direct or indirect control would be toward the centralization and standardization of education, and such centralization and standardization would in all probability prove to be prejudicial, not only to the public school system, but to the independent and satisfactory operation of existing private schools, including those maintained by various religious denominations for the purpose especially of securing to the younger children of the country the benefit of adequate religious training as well as secular education. * If the American people now permit the appropriation by Congress of one hundred million dollars of Federal funds annually in aid of education in the States, it will soon be realized that this sum is inadequate to produce any substantial results, and the next step will be to increase the appropriation. In a few years it will be appreciated that Federal interference, which they have been permitting and seeking indirectly to bring about, can after all only be accomplished effectively by a constitutional amendment. Accustomed by that time to the idea of Federal regulation, anxious as some of the poorer States will be to be relieved of the burden and responsibility of education, misled by the clamor of ardent or fanatical propagandists, and blind or indifferent to the great principle and duty of preserving to the states their right to local self-government, the proposed amendment might be brought about as easily and as speedily as the eighteenth amendment. [From Massachusetts Law Quarterly, May, 1924] THE "FEDERAL AID GIANT" The following discussion appeared in the Springfield Union of January 29, 1924. It is reprinted with a supplementary note on the constitutional question with references to Madison's views, in order to provoke discussion both as to policy and legality. PRESIDENT'S RECENT UTTERANCES DESERVE THOUGHTFUL ATTENTION To the Editor of The Union. SIR: The President's recent talk to the Federal executive officers has received less attention than it deserves, and particularly the following sentences which relate to the class of "Federal aid" measures. In the address as reported, President Coolidge said: "I take this occasion to state that I have given much thought to the question of Federal subsidies to State governments. The Federal appropriations for such subsidies cover a wide field. They afford ample precedent for unlimited expansion. I say to you, however, that the financial program of the Chief Executive does not contemplate expansion of these subsidies. My policy in this matter is not predicated alone on the drain which these subsidies make on the national treasury. This of itself is sufficient cause for concern. But I am fearful that this broadening of the field of government activities is detrimental both to the Federal Government and the State governments. "Efficiency of Federal operations is impaired as their scope is unduly enlarged. Efficiency of the State governments is impaired as they relinquish and turn over to the Federal Government responsibilities which are properly theirs." It is obvious that there can be no tax reduction if Congress embarks on a program of State aid for maternity purposes under the Sheppard-Towner Act, for education under the proposed Sterling-Reed bill, and for similar compacts on a 50-50 basis with separate States in regard to all kinds of other things which are, constitutionally, none of its business, because they are within the principle of local self-government protected by the tenth amendment. The President refers to the fact that there is "ample" precedent for "unlimited expansion" in this direction. This does not necessarily mean constitutional precedent in a legal sense. Many of the earlier grants of land, etc., for the benefit of education in building up States in the West were appropriations by Congress of the "public lands" or of the proceeds under the express provision in Article IV, section 3, that "The Congress shall have power to dispose of the territory or other property of the United States." But the distribution of the money raised by taxation is a very different matter, as the power of taxation was given to Congress not for unlimited purposes, but to carry out the powers specifically enumerated or necessarily incident to the national government. "Federal aid" measures, like the Sheppard-Towner maternity act and the proposed Sterling-Reed education bill (providing for separate compacts with each State under which Congress will contribute a certain proportion of $100,000,000 and more to such States as comply with certain conditions specified in the acts of Congress or regulations thereunder), represent a new class for the indirect exercise of power by Congress over the local affairs of the States of so unlimited a character as to raise a new question of constitutional law. It seems beyond the scope of any principle hitherto clearly recognized. There is a misunderstanding of the recent opinion of the Supreme Court of the United States. Charl Ormand Williams, in an article in the February number of Good Housekeeping, entitled "Putting you in education," makes the statement (on page 166): "The Constitutionality of this procedure has been established for all time by the decision of the Supreme Court last spring in regard to the Sheppard-Towner maternity act." The court did nothing of the kind. In the opinion they said, "We have reached the conclusion that the cases must be disposed of for want of jurisdiction without considering the merits of the constitutional questions." They said nothing whatever that can be twisted into a decision in support of the constitutionality of these acts. They simply decided that the question had not been brought before them under such circumstances that they were warranted in deciding it. It is not an uncommon idea that nothing is unconstitutional unless the Supreme Court says so, but this shows a misunderstanding of the function of the court. The court does not act as a revision committee for Congress. There may be many questions of constitutional law which are difficult and even impossible to bring before the court by a proper proceeding in such a way that it is their duty to decide them. The Supreme Court's only function is to decide litigated cases in which the question may arise whether an act of Congress relied on by one party violates the Constitution which is relied upon by the other party as "the supreme law of the land." When that situation arises, it is their duty to decide. That is all there is to it. But it is the duty of every Member of Congress to consider the question in regard to every act that is passed whether it is within the power of Congress under the Constitution. It is important that the voters should also consider this question whether it ever comes before the court or not. One of the arguments presented orally by Mr. Rawls, of Baltimore, to the court in opposition to the maternity act deserves more general attention than it has received. He said, "Where is there any power for compacts for extension of power in the Federal Constitution? Let us ask ourselves that question." The people of the United States adopted a constitution giving Congress certain specified powers and expressly and emphatically reserving to the States all the powers not therein conferred upon Congress; thereby protecting the principle of local self-government as part of the foundation of national strength. Article V carefully provided methods by which that constitution can be amended. But, without any amendment, Congress undertakes to rely on the words "general welfare" as a basis for authority to make separate contracts with each of the 48 States on a 50-50 basis, to distribute national tax money to such of the States as comply, and continue to comply, with conditions specified in the act of Congress. These appropriations and conditions relate to subjects clearly within the recognized principle of local self-government. By imposing such conditions, Congress necessarily legislates indirectly upon those subjects for some States and not for others, and uses the national taxes as a bait with which to seduce the State governments or their temporary representatives to surrender control or lose the contribution of the Federal Government. That is the human nature of it. Thus, Congress attempts to do, by separate contract, indirectly, something which the tenth amendment expressly prohibits, and for which there is no power given to spend or to raise the national taxes. If the words "general welfare" used in the Constitution warrant this action, then Congress can extend its power indefinitely, without any amendment of the Constitution or authorization from the people, whenever it can persuade any State (or the temporary representatives of the government of any State) to enter into such agreements with the assistance of a body of busy bureaucrats acting as go-betweens. The fact that the conditions in the contracts provided for in the Sterling-Reed bill sound harmless and simple does not alter the situation at all. If Congress can impose any condition whatever, make these contracts with the States, and distribute the money, then it can or, at least, will probably try to change the conditions later as well as increase the amounts appropriated. In the early eighties, William G. Sumner said: "The type and formula of most schemes of philanthropy and humanitarianism is this: A and B put their heads together to decide what C shall be made to do for D. I call C the Forgotten Man." The idea thus expressed was one of the reasons why Congress was not given unlimited powers by the Constitution. This "Federal-aid" policy, which President Coolidge has warned against with his customary "adequate brevity," will (if it is not stopped) by the natural working of human nature, and, in spite of all the theoretical language used in the statutes, grow into a giant political automaton, with a tremendous power of suction in regard to the control of local affairs in the States and the consequent weakening of the sense of individual responsibility, which is the basis of the idea of local self-government and part of the strength of the Nation. We separated from England in the eighteenth century partly to protect the idea of local self-government in this country because we did not like being governed from a distance in our local affairs. As a matter of common sense, do we want to create and feed this "Federal-aid" giant? F. W. GRINNELL. BOSTON. NOTE ON MADISON'S VIEWS DO THE WORDS "GENERAL WELFARE AS USED IN THE CONSTITUTION CONSTITUTE A HEEL OF ACHILLES FOR THE WHOLE INSTRUMENT were Perhaps the fullest recent historical discussion, in support of the constitutionality, but not the policy, of such acts as the maternity aid act and the proposed education act, is the article on "The spending power of Congress" in the Harvard Law Review for March, 1923, by Edward S. Corwin. James Madison had as much to do with the drafting of the Constitution as anyone, and, in the forty-first number of the Federalist he explained that the words "general welfare taken from the Articles of Confederation and were not intended to contain an unlimited grant of power to override all the other provisions creating a balanced dual system of government. This explanation must have been an important factor in securing the ratification of the Constitution, for otherwise all the carefully balanced provisions, reenforced as they were expected to be, and subsequently were, by the tenth amendment, were mere suggestions, rather than barriers to a complete distruction of the character of the government created, by congressional encroachment through the taxing and spending power, and the resulting establishment of a centralized government. If Madison's views on this point then expressed had not reflected the common understanding it seems a safe guess that the Constitution would not have beeen ratified. He repeated these views, near the end of his life, in 1830. Mr. Corwin disputes them and points out a variety of congressional spending habits as precedents for a practical interpretation of "general welfare" limited only by congressional discretion. The trouble with this argument is that it runs up against the principle of the child-labor cases, which seems to be that Congress can not indefinitely suck up prohibited powers indirectly by the use of granted powers. Anyone who has listened to public arguments of enthusiastic supporters of the proposed bill for Federal aid to education knows that some of them, at least, are interested quite as much in enforcing conditions as they are in aiding education in the States. The argument that the power to tax is the power to destroy is not always convincing against the existence of the power to tax in specific case. But the question which seems to be approaching for the American people, and possibly for the court (if anyone succeeds in raising it in a proceeding in which the court must decide it) is, whether the interdependent spending and taxing powers of Congress exist in such unlimited form that through their progressive joint or alternate exercise the essential character of the government established by the Constitution can be destroyed and a new form of government established by Congress in its unlimited discretion and without constitutional amendment. The current attempts in Congress at indirect exercise of prohibited powers, and "direct" taxation, in competition with the States, by means of ingenious statutory language, having the appearance of indirect taxation, seem to involve this question in one way or another. Trevelyan, in his History of England Under the Stuarts (p. 122) speaks of Lord Coke as having "turned the minds of the young gentlemen at the Inns of Court * * * to contemplate a new idea of the constitutional function and of the political affinities of their profession which they were destined in their generation to develop in a hundred ways as counsel for England gone to law with her King.' While Mr. Corwin and others may regard James Madison as a lonely figure in this discussion, it may yet be that, through the forty-first number of the Federalist and his later note on the enlargement of congressional power through congressional spending and compacts with temporary state governments, Madison will help to call the present generation of the bar "back to the Constitution" and inspire them "in a hundred ways as counsel" for the people of the United States "gone to law" with their Congress over the following question. "Does the Constitution mean that Congress can tax us all in any way it pleases in order to spend the money for any purpose and in any way it pleases upon any conditions it pleases and with the assistance and support, and, at the instigation, of as many office holders, State and Federal, as it pleases, provided Congress in its absolute discretion considers it to be for the 'general welfare'?" The American bench and bar may well read and reflect on the last part of the forty-first number of the Federalist and Madison's note in 1830. (See Writings of Madison, Vol. IX, pp. 424-431.) I have reserved for you a copy of the Report of the Secretary of the Treasury on Manufactures, for which I hoped to have found before this a private conveyance, it being rather bulky for the mail. Having not yet succeeded in hitting on an opportunity, I send you a part of it in a newspaper, which broaches a new constitutional doctrine of vast consequence, and demanding the serious attention of the public. I consider it myself as subverting the fundamental and characteristic principle of the Government; as contrary to the true and fair, as well as the received construction, and as bidding defiance to the sense in which the Constitution is known to have been proposed, advocated, and adopted. If Congress can do whatever in their discretion can be done by money, and will promote the general welfare, the Government is no longer a limited one, possessing enumerated powers, but an indefinite one, subject to particular exceptions. It is to be remarked that the phrase out of which this doctrine is elaborated is copied from the old Articles of Confederation, where it was always understood as nothing more than a general caption to the specified powers, and it is a fact that it was preferred in the new instrument for that very reason, as less liable than any other to misconstruction. Remaining always most affectionately yours. HOUSE OF REPRESENTATIVES, Members of the Committee on Education of the House of Representatives. GENTLEMEN: I am opposed to the Sterling-Reed bill. Without discussing the measure in detail, permit me to submit the following brief statement embodying some of my reasons for opposing the bill: This bill, if enacted into law, would practically give the control of our educational system to the Federal Government. Even under the present system of control by the States and communities the matter of the education of our children is sometimes removed too far from those who ought to be most vitally interested. The proposed Federal control would make it still more difficult for the parents and for the community to have a voice in educational matters. The added efficiency in some directions which might result from Federal control could not offset the loss which would be caused by a lack of interest in these educational matters on the part of parents and citizens most concerned. Under the present system the various Christian churches have enjoyed the privilege of providing in a large measure for the training of their children, if they so desire. Under Federal control of our school system this privilege would in all likelihood be greatly curtailed, if not ultimately taken away entirely, the work of the churches would thus be interfered with, and they would thereby be prevented from serving the best interests of the community and the country at large. The definition of the term "Americanization" and the preservation of religious liberty guaranteed by the Constitution are matters of vital concern to every true American, and both of these might easily be materially affected by a Federal bureau of education under political and denominational influences. There is a strong probability that under this proposed law the whole field of education would be thrown into national politics, with added opportunity for waste, incompetence, and graft in administration under the centralized authority. I can see no benefits accruing to the States that each State could not more efficiently secure for itself; yet the States would pay, through taxation, for this proposed national control. There would be an undoubted increase in cost with a possibility, if not a strong probability, of an unfair distribution of funds in the several States. I can not feel that this proposed standardization of our educational system is justifiable. There is no assurance of how flexible the policy would be in operation. It would depend in too large a measure upon the attitude of the secretary in charge of the proposed department, this attitude and policy necessarily changing with the ever-shifting political winds. Education is too sacred and too precious an affair to be handed over to a political machine at Washington. Very truly yours, Whereas the Towner-Reed educational bill has been referred to the Educational Committee for its report; and Whereas we realize that this bill should be favorably reported upon and that the same force that defeated a like bill in the last Congress: Therefore be it Resolved, by North Zulch Klan No. 264 in regular klonclave assembled, That we memorialize our Representatives in Congress to notify that committee that we favor this bill and demand that same be enacted into law. Done in klonclave assembled this the 20th day of May, A. D. 1924. [SEAL.] R. V. HIBBETH, Kligrapp. |