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words, if you can just subvert the Supreme Court, the subversion of the rest of the Constitution follows automatically.
There is no longer any hope, as there was in the past, that when vicious and unconstitutional measures once get by a legislative body you have a backstop in a Supreme Court which will correct those things. We might just as well face the issue on it. We have got to eventually. We might just as well be honest about it now. · The mere fact that a group of nine men almost entirely without judicial experience the Supreme Court Chief Justice has never been so much as a country justice of the peace trying $30 lawsuits before he was elevated to that position. A group of men appointed because of their political activity and appointed to continue their political activity under the guise of judicial decision.
Those men are undertaking to give us a new Constitution, created in their own image, and they are doing it under the guise of so-called interpretation—that interprets out and perverts the whole spirit of the Constitution.
Who are they kidding when they tell us that in more than a century and a half of our existence, during which the great giants of American legal history have sat on that bench, no one but the present little group of nine men ever understood what the Constitution was about? They know better than that.
When they can tell us, with no one legal authority cited-because every legal authority on the books is entirely against them—when they can throw all that out the window, when they can disturb the constitutional rights of the States that have been honored by their more honorable predecessors on the bench for two generations, when they can throw that out of the window with no authority save that of a more or less Communist alien, a man who may not have a technical membership in the party but who spouts its doctrines, a man who has said our American Constitution is, to use his own words, "a plot against the common people," when with that as their only authority they can throw this out on the specious ground that "we cannot turn the clock back to 1896" in order to continue in force the decisions of their own Court previously made, what are you going to say when they make their next decision that they cannot turn the clock back to 1791, when we adopted the Bill of Rights, in order to keep the American constitutional liberties of freedom of speech, freedom of the press, freedom of religion, and the right to jury trial, and the rest of your Bill of Rights? That is what you are going to get next.
Now, I am a lawyer. I know that somebody has to lose every lawsuit. I know that there are times when you have a close decision, and somebody has to make a decision. I do not have the idea that every decision I do not agree with is wrong or corrupt. I have long since learned better than that.
But, likewise, nobody can kid me when they take a sanctimonious air and subvert the Constitution and say, "Oh, this is nothing but interpretation." You cannot interpret contrary to its language and fool anybody who knows the law. And that is what they have done.
Now, the one guardian of the liberties of the American people remains the Senate. I do not have to tell Senators or Congressmen what pressures they are under constantly from these organized minority pressure groups. You all know just how many hours, probably, it has
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been since you were last threatened with political reprisals if you do not vote for this measure or that which you knew was unwise and perhaps even vicious. Those things have jammed through evil legislation.
Now, it is against this that the public desperately needs that those particular legislators who are not vulnerable to that kind of pressure be left free to expose the inequities of these bills.
And there is where this gag-rule censorship would do its evil work. Whenever one of these things comes up supported by organized minority pressure groups, it is most necessary that those things be examined very carefully and very thoroughly. You have got to look into these things. Who are the forces, what are the motives behind that kind of a bill? What advantage do its supporters seek to get by this bill? What effect is it going to have upon the rest of the country and upon those who have some reason to oppose it? What are the basic phil. osophies of government involved here? Is one side or the other seeking to go out of proper constitutional bounds?
All of those things need to be thoroughly dragged out into the light of day, and no man living can do that in 1 hour's time.
Now, of these particular bills or resolutions, Senate Resolution No. 21 would allow gag rule censorship to be applied by just 25 votes out of the 96 Senators—and even less if some of those present failed to vote, which may very well happen. Some of those present may be under a pairing agreement. Yet their presence counts to make up a quorum. Some of them may just not have the courage to stand up and be counted, and may not vote. So that even less than 25 votes can deny the American people the right to have these things dragged out into the light of day.
Senate Resolutions 17, 30, and 32 would impose this gag rule by only 33 votes—and, again, less if some if those present failed to vote.
Senate Resolutions 19 and 28, which are the least obnoxious of the lot, require a bare majority vote to apply a gag rule.
But I want to say this: When any proposed legislation is so vicious and unfair that 49 percent of the Senators are opposed to it, that is just the time when gag rule is most dangerous. That is the thing that needs to be thoroughly exposed until nobody votes on it in ignorance, until nobody can hide behind the statement, "Well, I didn't know; nobody brought that up before I voted."
You are the only guardians left of the liberties of the American people.
The American Constitution and the laws made under it in the past have made us the greatest nation in the world. And the same people who are constantly making their slimy and slanderous attacks upon it are the very same ones who came here fleeing from the other nations of the world, coming here because this was the finest thing God has ever permitted to develop on this earth. They got here in every respect conditions superior to anything they had anywhere else.
But they come here and they crab and they quibble and they complain; and this does not suit them, and that does not suit them; and they want it changed.
Now, American constitutional liberties are not going to be lost by going awfully slow on making changes. We have had these liberties, and they have made us the greatest Nation that ever existed. It is the
Because so much new legislation is the end product of agitation by minority groups, it too often is so that any given new law itself represents compromises, group combinations among minorities, trades, and deals. It cannot therefore be presumed in favor of proposed and particularly highly controversial legislation, that it represents even the considered will of an informed majority of the people.
Considerations of this character lead us to favor rules and regulations which if anything tend further to restrict passage of new legislation rather than to encourage its enactment,
Even though the Constitution of the United States clearly vests legislative power in the Congress, in practice the legislative power has been too largely usurped by other branches of the Government. The executive branch, particularly, forgetting its primary responsibility for seeing the laws faithfully executed, assumes power to dictate to the Congress what laws shall or shall not be passed, as well as to legislate directly by Executive orders, administrative rules and regulations.
Each succeeding administration appears committed to the view that its primary function is to secure enactment of a whole new body of law, radically changing important public policies. To procure enactment of pet measures, succeeding administrations do not hesitate to bend the legislative mind to the executive will be promises of political patronage or outright diversion of public funds either to punish or reward members of the legislative arm of Government as occasion makes necessary.
Because executive pressure in favor of new legislation favored by that branch of Government is exerted in so many ways and often so unscrupulously as to amount to bribery, the right of the United States Senate, and through its debates, of the people to examine new laws without haste or further limit on discussion should not be further restricted.
The end result of executive usurpation of legislative power is both personal irresponsibility of the people's constitutionally designated legislators for legislation and neglect and incompetency of the executive in performance of its constitutional function of seeing the laws faithfully executed, which results from preoccupation with "administration” legislative programs.
The Nation is presently alarmed also because of a fear that the judicial branch of the Government, wherein appointive judges are installed at full pay for life, will usurp both the functions of making and of executing the laws. Since Federal judges are neither elected by the people nor responsible to them for continued tenure in office, such trends legitimately raise concern lest the people find themselves under control of a judicial oligarchy. Hastily considered actions of the Congress itself, even of the Senate, have helped bring about this regrettable situation.
These circumstances constitute further grounds for permitting the closest possible scrutiny in the United States Senate of new laws and proposals of every kind or character, for there is no assurance that an enactment of the lower branch of the Nation's lawmaking body represents even a free and voluntary expression of the true convictions and opinions of a majority even therein.
Only 96 Senators in the United States Senate exist to speak the collective voice of 160 million people and of all the States in the Union. It becomes apparent that each Senator has, in effect, responsibility for expressing the opinions, on the average, of nearly 2 million citizens. Since this is so, no Senator's voice should be needlessly stifled. This right to talk freely and without further unnecessary limit should be zealously guarded.
It is doubted that if in the history of the United States the passage of any legislation has been so urgent or the public emergency so great that the Nation's larger interests would have been benefited by less careful and mature consideration of any measure in the United States Senate.
The general opinion of advocates for further limitation on debate appears to be that emergencies, real or fancied, or new or unusual conditions, justify haste and less mature consideration of so-called urgent legislation, therefore that the voice of Senators who may oppose should be forced to subside in the interest of speed.
Our own considered and careful reflection seems to support the proposition that the greater the seeming emergency for some new legislation, the greater the need is for careful consideration and debate in regard to it.
In our view, more debate surely is to be preferred to more bad laws. The need is for more vigorous opposition, more thorough debate, more centering of public attention upon the vices of most new legislative proposals, rather than less.,
If the Congress of the United States should for a space of 10 years busy itself primarily with the repeal of too hastily considered laws already enacted, rather than to continue the present trend toward hasty passage of an ever-increasing volume of new and dubious legislation, this would, in our opinion, result in great good in a period when all governments of and by the people are under attack by forces both at home and from afar bent on their destruction.
Under present conditions, even the nine Justices of the Supreme Court of the United States are in constant disagreement concerning the law; inferior Federal and State courts and lawyers are in hopeless confusion because none can know what the law is.
The tendency of the courts to make law for themselves, then to worship their own errors, rather than to read and apply the law as it is written, undoubtedly stems to some degree from the circumstance that the body of the statutory law is so vast and complex that there is possibly no citizen in the United States who has attempted to read all the law, and certainly none who can rightly claim to have studied it with sufficient care to comprehend it all. Had more careful consideration and less speed been exercised, had more time been devoted to considering whether so much law was really needed by the United States Senate in former days, this situation might have been prevented.
Federal criminal law is such that no citizen can be sure he has not violated some of its penal provisions. In fact, most, at some time or another possibly have, for citizens can be convicted and severely punished even for failure to answer rightly or to state correctly answers to questions in myriads of Government forms, the nature and purpose of which, many, if not most, do not understand, and the correct answers to many questions in which are not easy to determine. Citizens may be jailed under Federal law for such loosely defined
offenses that guilt or innocence often depends upon the favor, or lack of it, of the judge on the bench.
Illustrating more specifically unwise and hurriedly considered legislation which, in our opinion, has found its way into Federal law, we invite attention to laws "such as the following:
Senator JAVITS. Now, Mr. Foster, at this point would it be convenient to you to put in the record the specific examples you give which appear upon the ensuing pages of your statement and ask you to read your conclusion or make such conclusion as you wish, which I note here is at the last page of your statement?
Mr. FOSTER. Yes.
Senator Javits. You have taken about 20 minutes, which is all right. We have no complaints about that. Except this seemed a convenient stopping point.
(The balance of Mr. Foster's prepared statement follows:) 1. Adopting charter of the so-called United Nations
The treaty adopting the charter of the so-called United Nations was rushed through in a veritable frenzy of demand for speed and without adequate consideration by the United States Senate. This treaty established a permanent and irrevocable alliance between the United States and the Communist regime of Russia, headed by "Uncle Joe" Stalin.
Ostensibly calculated to preserve the peace of the world, the United Nations has ushered in an era of perpetual war, worldwide, both cold and hot, and no end of it in sight.
Such semblance of peace as exists rests on mutual, mortal fear and is maintained by the ever-increasing and impossible burden of a race to create more and better atomic bombs and to preserve a peace based on terror. There is presently neither promise nor pretense of any peace based on mutual respect, confidence, or regard for justice and right.
The lone voice of one courageous United States Senator at te time the United Nations Charter was being considered might have saved the United States and the world from its present tragic dilemma. More debate might have aroused others like the late United States Senator MeCarran who confessed sadly regret for his approval of the U. N. Charter to his dying day. 2. Drafting citizens as soldiers to serve as armies for foreign nations.
As a result of the lack of courageous Senators who would contend against such laws to the death, citizens of the United States may now be drafted to create the armies that are to sustain or destroy any government in any quarter of the earth in furtherance of the ever-changing vagaries of the executive branch of Government as determined by the State Department, and without so much as the knowledge of the United States Senate.
Paradoxically, pressure from the State Department upon the Congress and a claimed emergency furthered this radical change in national policy at the very time the world was supposed to be enjoying that celebrated peace brought about and maintained under the aegis of the United Nations.
American citizens not yet old enough to vote are systematically ordered from their homes to report for military service, where they may be compelled to serve under the flag of the United Nations and to execute its mandates, regardless of the circumstances that no citizen of the United States owes or has pledged allegiance to United Nations and despite the circumstances that the only enemy in the world presently posing a threat to the peace and security of the United States and of the world occupies in the United Nations a dominating position.
That such an indefensibly stupid arrangement, lost for us the last war appears to disturb. our State Department not at all, for to the State Department peace and war are but interchangeable terms for the same status of world turmoil and disorder.
More deliberation by the United States Senate might have prevented this deplorable and to us indefensible invasion of the civil rights of American youth, which threatens both our identity and our existence as a free nation.