Vol 114

No 6

T

HERE is an ancient document known as the Constitution of the United States in which is written: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech." Not deny the freedom of speech, not prohibit the freedom of speech, but not ever shall Congress abridge the freedom of speech.

But there is a peculiar doctrine which has come to have recognition among us. It was said during the late war that as soon as war was declared, the Constitution of the United States was in a sense suspended, that the Congress could pass any law it saw fit. At first, that seemed to me to be a subject of amusement, and I still really think it is. But as a matter of fact, it was seriously advocated by learned and able men, legislators and heads of executive departments. It was on that theory and apparently on that principle that many things were done during the war. For myself, I want to repudiate it once and for all. I trust that no such vicious and un

American doctrine will ever be seriously considered by the people of this country. There is only one way you can change the Constitution of the United States or suspend any of its provisions, and that is in the same way and by the same power that made it-the people of the United States themselves, in the manner pointed out by the Constitution. Every clause, every line, every paragraph, of that Great Charter holds good in time of war as in time of peace. Washington was something of a soldier. Hamilton understood something of war. The framers of the Constitution had all passed through a great conflict that lasted eight years. They undoubtedly understood that the Republic would in all probability be called upon to wage war in the future. Do you suppose they thought they were building a government or writing a Constitution that was to function only during peaceful days? They wrote a Constitution sufficient and efficient to carry on the work of peace and also to carry on war. The Constitution gives sufficient power by its own

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terms for the conduct of war, and none of its provisions is suspended or annulled by the declaration of war. Any other theory would be utterly vicious. It would be to write into our very Government the doctrine of the tyrants, that necessity knows no law. Let those who think our Constitution was made for peace and not for and not for war turn to a decision of the Supreme Court of the United States and read it in full. The Court says: "The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men at all times and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false; for the Government within the Constitution has all the powers granted to it which are necessary to preserve its existence, as has been happily proved by the result of the great effort to overthrow its just authority."

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The belief is all but universal among those who deal with international questions that force must always be in the background, always be subject to call. Its futility for peace has been proved a thousand times but it still prevails. There are no words to describe and no philosophy to explain this superstitious idolatry of force. Governments make treaties in which they agree, under certain conditions, to employ force, to send armies and navies, to sacrifice

treasure and life, and no one stops to ask: Will the contracting powers keep their promise? Who will see that they execute their pledge? It is all taken for granted.

But when governments make treaties, or propose to make treaties, in which they agree to submit their controversies to the decision of a

court and abide the judgment thereof, immediately the question is asked: Who will enforce the judgment; where is your army and your navy to carry the decree into effect? As a matter of fact, it is precisely the same thing behind and back of both treaties-the solemn pledge of the nation, only that and nothing more. In one instance there is the honor of the nation to send an army and in the other, the honor of the nation to abide by the judgment of a court. We find no difficulty in relying on the former pledge. We utterly distrust the latter. It is another manifestation of that wicked, persistent distrust of human nature which comes down to us from the days when governments were founded on force and the people had no voice. You fix the machinery of government and the plans for peace, so that public opinion may operate, so that the average man and woman may have a voice, and the judgments of your courts will be respected.

As it is now, in the last analysis, there is no difference between the advocates of peace and the advocates of war. They ultimately meet upon the common ground that force is the final arbiter in international affairs. Every peace scheme ends with a provision for war and an arrangement for armies and navies. Speaking at Geneva last March, the

Foreign Secretary of the British Government declared: "Brute force is what they fear, and only brute force enlisted in their behalf will give them the security of which they feel the need." He was speaking for peace. A short time before this a noted American general publicly declared: "If for one moment you remove force as the mainstay of government, that moment the civilization of 2000 years disappears like an exploded soap-bubble." He was speaking for war.

But here you have the doctrine from both sides, the doctrine which has lately reduced a continent to one weltering mass of human misery, still claiming to be the stay and prop of civilization, still accepted as the basis of peace and of war. Did Bernhardi claim anything different or anything more? Did Cæsar or Napoleon build upon any different theory? Does the law of the jungle rest upon any different basis? I utterly reject the doctrine that force is the mainstay of government. Unfortunately it still has its place in organized society, but it is incidental. It is subordinate to a higher and more enduring power, and should always be regarded and treated as such. The fleeing criminal and the pursuing sheriff are but an incident in the life of the countless millions whose devotion to order and obedience to law make organized society possible. We see only the criminal and the sheriff, and overlook the silent, majestic force which finds expression in millions of homes and in the daily occupations of the people and through which alone society is held together. If it were not for the love and loyalty of our people to our

country, this Government would crumble in a night, and our army and navy would go with it.

We have reached a point where it seems to me there is no alternative. We shall either change our faith, or civilization will experience the crash which has twice before overtaken it. After 2000 years of this worship of force, after 2000 years of this teaching and of the practice which flows from such teaching, what are the results, what are the fruits? If any one is familiar with the vernacular of hell, let him undertake to paint the picture. Human tongue is inadequate to the task. First, a debt of $350,000,000,000, resting like an eternal mortgage-for it will never be paid-upon the brains and energies of the human family, driving men and women on to days and nights of ceaseless and fruitless toil. Nations rich, marvelously rich, in national resources, now on the very verge of bankruptcy, and still laying on like a burning lash upon the backs of their peoples, heavier and still heavier burdens. Hospitals from Leningrad and Berlin to San Francisco and Peking, crowded with the diseased, the maimed and the insane. Families broken and scattered, states dismembered, peoples oppressed, babes born prematurely old and cursed with inherited disease, communities visited with strange epidemics and incurable afflictions, and finally every government, in the face of all this, now searching for more deadly and destructive means of indiscriminate murder; these are the fruits of this worship of force, this urge for blood. I maintain that the human family cannot carry the creed. It is undermining and de

stroying the race. We have no alternative. We are compelled as a matter of self-preservation to reject this fetish. We must work definitely to outlaw war forever and to make it illegal.

There is another issue which is now confronting the American people. It is that of supporting law and order, or of preaching nullification and anarchy. Here again it is a question of loyalty to the Constitution and to the nation.

Perhaps no provision of the Constitution ever went into that instrument after more consideration and more deliberation, more agitation, more discussion, than the Eighteenth Amendment. Thirty-three states prior to its adoption, had established state-wide prohibition; the subject had been discussed among and before the people for the last fifty years; every state legislature had adopted the principle in some form or other. Finally, the amendment came before Congress, was discussed in both bodies of Congress, went to the respective legislatures of the states, was considered by the legislatures, and ratified by all the states except two. Certainly, no one can contend that this provision of the Constitution is there by accident. Certainly, they cannot successfully contend that it went there without proper discussion and consideration. The amendment is there as the deliberate, expressed will and wish and purpose of the American people. It carries the same sanctity and the same force as any other provision of the Constitution. It is there, and so long as it remains there, it is vital to the cause of good government, to the cause of

constitutional government, and to the cause of law and order, that it be lived up to and maintained in all its integrity. There can be no more vital problem presented to a free people than the problem of whether or not they can hold and maintain the Constitution of which they have deliberately written.

What did this constitutional amendment do and propose to do? It established, in the first place, a great national policy, the policy that intoxicating liquors should not be manufactured, sold or transported throughout the United States, or any part of it; that they should neither be imported nor exported. Here, therefore, was a national policy declared and written into the fundamental law as the deliberate, the unmistakably expressed will and wish of the people of the United States. The question presented therefore is a greater question than that of prohibition. Important as the question of prohibition is, the question that is now presented is the enforcement of the amendment, the higher and bigger and broader question of whether we, as a free people, can maintain and enforce the provisions of the Constitution as they have been written. That involves the whole question of constitutional integrity, of constitutional morality—indeed, of the ultimate success of free government itself. Let us view it from that standpoint as we consider the question.

But the constitutional provision went further than the mere declaration of a national policy. It declared, or granted, the power to both the State and the National Government

to execute and make effective that national policy. It gave concurrent power to the State and to the National Government to see that that policy was made effective. It did not leave it to the National Government. It did not withdraw from the states the powers which they had had and lodge them in the National Government; but after declaring a national policy, it placed the obligation upon both the State and the National Government alike to enforce it.

There has been much discussion about the duty of the State under these circumstances. It is a subject about which earnest and able men may differ. But the discussion has seemed to me to proceed on too narrow and too technical a plane. It is not only a question of what the State is legally bound to do, or what it may be compelled to do, but what the State as an integral part of the American Union and acting in the integrity and purposes of that Union should do. Certainly we cannot mandamus a state to pass a law or to execute or enforce a law. But there is an infinitely more compelling power calling the State into action, and that is the fact that the State is an integral part of the American Union. The whole purpose, the very existence of the Union requires and depends on concerted action in carrying out the aims and purposes of the Union as expressed in the Federal Constitution. We live under two sovereignties. We seek to combine and utilize local and national interests in one grand purpose. We are endeavoring in this way to work out the great problem of representative government. Is not every state a part, and anxious to be considered

a part of that purpose? Is not every state interested and deeply concerned in working out that problem? Is not every state bound in the most solemn way to contribute to the fullest extent of its ability to the solution of that problem? Who wants to be considered a slacker in the most sublime task ever undertaken in the affairs of government-that of demonstrating that a people may govern themselves, govern under established law and in the spirit of regulated liberty? Does any one think such a task possible of achievement, if sovereign states withdraw or withhold their most zealous support of the supreme law of the land or any part of it? Forget for a moment that the Eighteenth Amendment covers the question of prohibition and think of it only as a part of the Charter under which we live and to which we owe allegiance and support, and how plainly the duty of every individual and of every state appears!

If some one thinks the Eighteenth Amendment is unwise and desires to come out before the American people and advocate its being taken out of the Constitution, neither you nor I can criticize him; that is a right which he has. But so long as it is there written, so long as it is a part of our Constitution, the questions of States' rights can have no hearing when the question of enforcement is up for consideration. The question of States' rights was fought out when it was before the State legislatures, and the states, as sovereignties, said: We delegate this power and are willing to coöperate with the National Government. And it is not the part of any government or any individual representing a state after that judgment