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But for 150 years we have had an unending struggle between those who would preserve this original broad concept of the Constitution as a layman's instrument of government and those who would shrivel the Constitution into a lawyer's contract.
Those of us who really believe in the enduring wisdom of the Constitution hold no rancor against those who professionally or politically talk and think in purely legalistic phrases. We cannot seriously be alarmed when they cry “unconstitutional” at every effort to better the condition of our people.
Such cries have always been with us--and, ultimately, they have always been overruled.
Lawyers distinguished in 1787 insisted that the Constitution itself was unconstitutional under the Articles of Confederation. But the ratifying conventions overruled them.
Lawyers distinguished in their day warned Washington and Hamilton that the protective tariff was unconstitutional-warned Jefferson that the Louisiana Purchase was unconstitutional—warned Monroe that to open up roads across the Alleghanies was unconstitutional. But the Executive and the Congress overruled them.
Lawyers distinguished in their day persuaded a divided Supreme Court that the Congress had no power to govern slavery in the territories, that the long-standing Missouri Compromise was unconstitutional. But a War between the States overruled them.
Lawyers distinguished in their day persuaded the Odd Man on the Supreme Court that the methods of financing the Civil War were unconstitutional. But a new Odd Man overruled them.
The great senatorial constitutional authority of his day, Senator Evarts, issued a solemn warning that the proposed Interstate Commerce Act and the federal regulation of railway rates which the farmers demanded would be unconstitutional. But both the Senate and the Supreme Court overruled him.
Less than two years ago fifty-eight of the highest priced lawyers in the land gave the nation (without cost to the nation) a solemn and formal opinion that the Wagner Labor Relations Act was unconstitutional. And in a few months, first a national election and later the Supreme Court overruled them.
For twenty years the Odd Man on the Supreme Court refused to admit that state minimum wage laws for women were constitutional. A few months ago, after my message to the Congress on the rejuvenation of the judiciary, the Odd Man admitted that the Court had been wrong-for all those twenty years-and overruled himself.
In this constant struggle the lawyers of no political party-mine or any other have had a consistent or unblemished record. But the lay rank and file of political parties has had a consistent record.
Unlike some lawyers, they have respected as sacred all branches of their government. They have seen nothing more sacred about one branch than about either of the others. They have considered as most sacred the concrete welfare of the generation of the day. And with laymen's common-sense of what government is for, they have demanded that all three branches be efficient that all three be interdependent as well as independent--and that all three work together to meet the living generation's expectations of government.
That lay rank and file can take cheer from the historic fact that every effort to construe the Constitution as a lawyer's contract rather than a layman's charter has ultimately failed. Whenever legalistic interpretation has clashed with contemporary sense on great questions of broad national policy, ultimately the people and the Congress have had their way.
But that word “ultimately” covers a terrible cost.
It cost a Civil War to gain recognition of the constitutional power of the Congress to legislate for the territories.
It cost twenty years of taxation on those least able to pay to recognize the constitutional power of the Congress to levy taxes on those most able to pay.
It cost twenty years of exploitation of women's labor to recognize the constitutional power of the states to pass minimum wage laws for their protection.
It has cost twenty years already-and no one knows how many more are to come to obtain a constitutional interpretation that will let the nation regulate the shipment of national commerce of goods sweated from the labor of little children.
We know it takes time to adjust government to the needs of society. But modern history proves that reforms too long delayed or denied have jeopardized peace, undermined democracy, and swept away civil and religious liberties.
Yes, time more than ever before is vital in statesmanship and in government-in all three branches of it.
We will no longer be permitted to sacrifice each generation in turn while the law catches up with life.
We can no longer afford the luxury of twenty-year lags.
You will find no justification in any of the language of the Constitution for delay in the reforms which the mass of the American people now demand.
Yet nearly every attempt to meet those demands for social and economic betterment has been jeopardized or actually forbidden by those who have sought to read into the Constitution language which the framers refused to write into the Constitution.
No one cherishes more deeply than I the civil and religious liberties achieved by so much blood and anguish through the many centuries of Anglo-American history. But the Constitution guarantees liberty, not license masquerading as liberty.
Let me put the real situation in the simplest terms. The present government of the United States has never taken away and never will take away any liberty from any minority, unless it be a minority which so abuses its liberty as to do positive and definite harm to its neighbors constituting the majority. But the government of the United States refuses to forget that the Bill of Rights was put into the Constitution not only to protect minorities against intolerance of majorities, but to protect majorities against the enthronement of minorities.
Nothing would so surely destroy the substance of what the Bill of Rights protects than its perversion to prevent social progress. The surest protection of the individual and of minorities is that fundamental tolerance and feeling for fair play which the Bill of Rights assumes. But tolerance and fair play would disappear here as it has in some other lands if the great mass of people were denied confidence in their justice, their security, and their self-respect. Desperate people in other lands surrendered their liberties when freedom came merely to mean humiliation and starvation. The crisis of 1933 should make us understand that.
On this solemn anniversary I ask that the American people rejoice in the wisdom of their Constitution.
I ask that they guarantee the effectiveness of each of its parts by living by the Constitution as a whole.
I ask that they have faith in its ultimate capacity to work out the problems of democracy, but that they justify that faith by making it work now rather than twenty years from now.
I ask that they give their fealty to the Constitution itself and not to its misinterpreters.
I ask that they exalt the glorious simplicity of its purposes rather than a century of complicated legalism.
I ask that majorities and minorities subordinate intolerance and power alike to the common good of all.
For us the Constitution is a common bond, without bitterness, for those who see America as Lincoln saw it “the last, best hope of earth.”
So we revere it-not because it is old but because it is ever new not in the worship of its past alone but in the faith of the living who keep it young, now and in the years to come.
ADDRESS OF HONORABLE WILLIAM E. BORAH
UNITED STATES SENATOR FROM IDAHO, ON CONSTITUTIONAL GOVERNMENT, CONSTITUTION Hall, WASHINGTON, D. C., SEPTEMBER 16, 1937, UNDER THE AUSPICES OF THE GRAND LODGE, F. A. A. M., OF THE DISTRICT OF COLUMBIA AND THE UNITED States ConSTITUTION SESQUICENTENNIAL COMMISSION LADIES AND GENTLEMEN: It sometimes seems to make but little difference to those so fortunate as to possess influence or to enjoy power, economical or political, what kind of a government you have. It may be a matter of some importance to them, but it is not vital. They fare reasonably well under any kind of government. The industrial leaders in two of the most despotic governments of Europe are said to be entirely content with their security and satisfied with their profits.
But no kind of government has yet been devised—and both reason and experience teach none can be devised—which offers opportunity and insures liberty to the average man or woman, which preserves and protects the rights and privileges of those whom Lincoln called the common people, except a government of law with independent tribunals of justice. There is no such thing as security for the masses or protection for minority groups, political, racial, or religious, never has been-and in the nature of things never can be under any form of government, save government where the people through their representatives make the laws and uncontrolled courts construe them.
This is the kind of government for which the Declaration of Independence declared and for which American patriots waged a seven years war. This is the kind of government which on September 17, 1787, was submitted to the people for approval.
The story of the writing of the Constitution, its submission and its adoption, and finally, the launching of a free nation, needs to be reread and retold again and again. The boldness of that enterprise, the over-mastering spirit with which it was carried forward, the unselfish devotion of the leaders to the cause of human liberty, and above all, the comforts and the blessings which this plan of government has brought to the average man or woman, lifts the story into the realm of sacred history. Perhaps you would expect me to retell that story tonight, but I have other things which it seems I ought to
Painting by Howard Chandler Christy SIGNING OF THE CONSTITUTION OF THE UNITED STATES This painting, originally suggested to Mr. Christy by the Honorable Sol Bloom, Director General of the Commission, was authorized by a joint resolution of Congress on April 20, 1939, and was unveiled in the Rotunda of the Capitol on May 29, 1940. It will be hung in the Capitol. It is of great size (20' x 30'), and depicts the moment when the delegates of North Carolina were signing and those of South Carolina were to follow. It is an inspirational rendition of the dramatic scene, exact as to portraiture and surroundings.