Speech at Lafayette Monument on Ordered Liberty (excerpt)
Baltimore, Maryland | September 6, 1924
Full speech available here.
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We have come here today to honor the memory of Lafayette, because long ago he came to this country as a private citizen at his own expense and joined us in fighting for the maintenance and extension of our institutions. It was not so much to acquire new rights, as to maintain old rights, that the men of that day put their fortunes to the hazard of war. They were resisting usurpations; they were combating unlawful tyrannies. No doubt they wanted to be Americans, but they wanted most of all to be free. They believed in individual liberty, safeguarded by constitutional guarantees. This principle to them was dearer than life itself. What they fought to preserve and extend, we ought to be ready to fight to maintain.
Very little danger exists of an open and avowed assault upon the principle of individual freedom. It is more likely to be in peril indirectly perhaps from the avowed intention of protecting it or enlarging it. Out of a long experience with many tyrannies abroad and a weak and inefficient government at home, the Constitution of the United States was adopted and ratified. The people who largely contributed to the early settlement of America came to escape the impositions of despotic kings. Many of the early inhabitants were separatists from the established church. They fled under the threat of the English King, that he would make them conform or harry them out of the land. Their descendants fought the Revolutionary war in order that they might escape the impositions of a despotic parliament.
This lesson was firmly in the minds of those who made the American Constitution. They proposed to adopt institutions under which the people should be supreme, and the government should derive its just powers from the consent of the governed. They were determined to be a sovereign people under a government having such powers as they from time to time should confer upon it by a written constitution. They did not propose to be under the tyranny of either the executive or the legislature.
They knew, however, that self-government is still government, and that the authority of the Constitution and the law is still authority. They knew that a government without power is a contradiction in terms. In order that their President and their Congress might not surpass the bounds of the authority granted to them, by the Constitution which the people had made, and so infringe upon the liberties of the people, they established a third independent department of the government, with the power to interpret and declare the Constitution and the law, the inferior courts and the Supreme Court of the United States. No President, however powerful, and no majority of Congress however large, can take from an individual, no matter how humble, that freedom and those rights which are guaranteed to him by the Constitution. The Supreme Court has final authority to determine all questions arising under the Constitution and laws of the United States.
That power and that authority has to reside somewhere in every government. Originally it lay with the king. After limitations began to be placed upon him, it was conferred upon the parliamentary body. One of the great contributions which America made to the science of government was the establishment of an independent judiciary department under which this authority resides in the Supreme Court. That tribunal has been made as independent and impartial as human nature could devise. This action was taken with the sole purpose of protecting the freedom of the individual, of guarding his earnings, his home, his life.
It is frequently charged that this tribunal is tyrannical. If the Constitution of the United States be tyranny; if the rule that no one shall be convicted of a crime save by a jury of his peers; that no orders of nobility shall be granted; that slavery shall not be permitted to exist in any state or territory; that no one shall be deprived of life, liberty or property without due process of law; if these and many other provisions made by the people be tyranny, then the Supreme Court when it makes decisions in accordance with these principles of our fundamental law is tyrannical. Otherwise it is exercising the power of government for the preservation of liberty. The fact is that the Constitution is the source of our freedom. Maintaining it, interpreting it, and declaring it, are the only methods by which the Constitution can be preserved and our liberties guaranteed.
Somewhere must be lodged the power to declare the Constitution. If it be taken away from the Court, it must go either to the executive or the legislative branch of the Government. No one, so far as I know, has thought that it should go to the Executive. All those who advocate changes propose, I believe, that it should be transferred in whole or in part to the Congress. I have a very high regard for legislative assemblies. We have put a very great emphasis upon representative government. It is the only method by which due deliberation can be secured. That is a great safeguard of liberty. But the legislature is not judicial. Along with what are admitted to be the merits of the question, also what is supposed to be the popular demand and the greatest partisan advantage weigh very heavily in making legislative decisions. It is well known that when the House of Representatives sits as a judicial body, to determine contested elections, it has a tendency to decide in a partisan way. It is to be remembered also that under recent political practice there is a strong tendency for legislatures to be very much influenced by the Executive. Whether we like this practice or not, there is no use denying that it exists. With a dominant Executive and a subservient legislature, the opportunity would be very inviting to aggrandizement and very dangerous to liberty. That way leads toward imperialism.
Some people do not seem to understand fully the purpose of our constitutional restraints. They are not for protecting the majority, either in or out of the Congress. They can protect themselves with their votes. We have adopted a written constitution in order that the minority, even down to the most insignificant individual, might have their rights protected. So long as our Constitution remains in force, no majority, no matter how large, can deprive the individual of the right of life, liberty or property, or prohibit the free exercise of religion or the freedom of speech or of the press. If the authority now vested in the Supreme Court were transferred to the Congress, any majority no matter what their motive could vote away any of these most precious rights. Majorities are notoriously irresponsible. After irreparable damage had been done the only remedy that the people would have would be the privilege of trying to defeat such a majority at the next election. Every minority body that may be weak in resources or unpopular in the public estimation, also nearly every race and religious belief, would find themselves practically without protection, if the authority of the Supreme Court should be broken down and its powers lodged with the Congress.
The same reasoning that applies to the individual person applies to the individual state. A very broad twilight zone exists in which it is difficult to distinguish where state right ends and federal right begins. Deprived of the privilege of its day in court, each state would be compelled to submit to the exactions of the Congress or resort to resistance by force. On the other hand, the legislatures of states, and sometimes the people, through the initiative and referendum, may pass laws which are very injurious to the minority residents of that state, by attempting to take away the privilege which they hold under the Federal Constitution. Except for the courts, such a minority would have no remedy for wrong done them. Their ultimate refuge is the Supreme Court of the United States.
At a time when all the world is seeking for the adjudication of differences between nations, not by war, but by reason, the suggestion that we should limit the jurisdiction of our domestic courts is reactionary in the highest degree. It would cast aside the progress of generations to begin again the contest for supremacy between executive and legislature. Whichever side has won in that struggle, the people have always lost.
Our Constitution has raised certain barriers against too hasty change. I believe such provision is wise. I doubt if there has been any change that has ever really been desired by the people which they have not been able to secure. Stability of government is a very important asset. If amendment be made easy, both revolution and reaction, as well as orderly progress, also become easy. The nation has lost little, but has gained much, through the necessity of due deliberation. The pressing need of the present day is not to change our constitutional rights, but to observe our constitutional rights.
A deliberate and determined effort is being made to break down the guarantees of our fundamental law. It has for its purpose the confiscation of property and the destruction of liberty. At the present time the chief obstacle to this effort is the Supreme Court of the United States. In this contest there is but one place for a real American to stand. That is on the side of ordered liberty under constitutional government. This is not the struggle of the rich and powerful. They will be able to survive. It is the struggle of the common run of people. Unless we can maintain our institutions of liberty unimpaired they will see their savings swept away, their homes devastated, and their children perish from want and hunger.
The time to stop those who would loosen and weaken the fabric of our government is before they begin. The time for Americans to range themselves firmly, squarely and uncompromisingly behind American ideals is now. The great body of our people have an abiding faith in their own country. The time has come when they should supplement that faith with action. The question is whether America will allow itself to be degraded into a communistic and socialistic state, or whether it will remain American. Those who want to continue to enjoy the high estate of American citizenship will resist all attempts to encroach upon their liberties by encroachment upon the power of the courts.
The Constitution of the United States has for its almost sole purpose the protection of the freedom of the people. We must combat every attempt to break down or to make it easy, under the pretended guise of legal procedure, to throw open the way to reaction or revolution. To adopt any other course is to put in jeopardy the sacred right to life, liberty, property, and the pursuit of happiness.
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