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vant, but I gave you a respectful answer to it, and told you I was opposed to the principle of the amendment. But it is the Constitution now and the laws passed in pursuance of it are now the laws of the land, and what my personal view of the matter is is irrelevant to this particular matter which is now before you for your decision. I say unless the principles which I have been attempting to state are sound, then it seems to me that the whole course of our political thought for a century and a quarter has been absolutely wrong.
Mr. Robson. May I ask the gentleman another question for information? I notice nearly all or a very large percentage of the folks that come in here denouncing this law come from Baltimore. Why is it Baltimore is so much interested in this?
Nr. Rawls. We believe in the Constitution in Baltimore, sir.
Mr. ROBSION. I notice there is a good deal of opposition expressed in Congress and other places to the eighteenth amendment coming from Maryland.
Mr. Rawls. It seems to me it is not a reply to any principle I have advanced here to say that a constitutional amendment has been adopted by the people. I do not recognize and can not see the force of that contention. Will you deny, sir, may I ask you in turn-and I have endeavored to answer some of your questions—do you deny, sir, that it is a fundamental principle of this Government that matters of local concern should be left with the State and that only those matters of national concern should be dealt with by the Federal Government? If you care to answer that I would be glad to have you
Mr. ROBSION. Of course, that would take some discussion as to what is strictly a local concern and what is solely and entirely of national concern.
Mr. Rawls. I do not think there is any question
Mr. ROBSION. I think the matter of education is a matter, from the top to the bottom, or from the bottom to the top, concerning the whole country.
Mr. Rawls. Then do I correctly understand you to say, sir, that all education should be taken over by the Federal Government?
Mr. ROBSION. Oh, no; you know I don't say that.
Mr. Rawls. Well, sir, if it is national in that sense, where do you draw the line?
The CHAIRMAN. Let us see if I understand your position. Your position is that the powers not delegated to the Federal Government by the Constitution of the United States are reserved to the States and to the people?
Mr. Rawls. Exactly, sir.
The CHAIRMAN. And that if it is proposed to give to the Federal Government any of those powers that are reserved to the States, that the proper way is by constitutional amendment?
Mr. Rawls. Undoubtedly, sir.
The CHAIRMAN. And your objection to this bill is that in an indirect way it gives to the Federal Government powers not delegated by the Constitution?
Mr. Rawls. Unquestionably, sir. May I illustrate that by repeating—because it is sharp commentary on what you have just statedif Congress has power to appropriate this money for education, then what earthly sense is there in submitting a child-labor amendment 94041--241
to the country? In other words, you can grant an appropriation so enormous, so large, as to make the States adopt any law that you see fit to prescribe, just as you are doing in this bill. I think that illustrates exactly the point that the chairman has just stated.
The CHAIRMAN. In other words, your point is that while under the Constitution you can not prescribe rules and regulations governing education in the States, that by giving an appropriation, offering an appropriation to the States and making certain conditions, we accomplish the same thing.
Mr. Rawls. Exactly, sir; because you put a pressure on the States that is irresistible; when you get into these big sums you impose a condition that the States can not resist accepting. You have the power to make it a hundred billion dollars, you have the power to make it so much that the pressure in fact will be irresistible, and in that way you are destroying the basis of constitutional government.
I thank you very much, Mr. Chairman and gentlemen, for your attention.
The CHAIRMAN. Although there may be some other witnesses here, we will have to adjourn, as it is 10 minutes to 12.
(Thereupon at 11.50 a. m., the committee adjourned.)
COMMITTEE ON EDUCATION,
Wednesday, April 23, 1924. The committee met at 10 o'clock, a. m., Hon. Daniel A. Reed presiding.
Mr. REED. The committee will come to order, please, and we will proceed.
Mr. TUCKER. Mr. Chairman, I hesitate somewhat about this, but as this record is to contain the opposition to the bill, I have been requested to offer a speech which I made on the subject, to be put in the record.
Mr. REED. Very well.
Mr. HOLADAY. The only objection I have to it is that it is a very hard speech against the bill. [Laughter.]
Mr. * TUCKER. If that is the only objection, I think I will let it (The speech referred to is as follows:)
(Speech of Hon. Henry St. George Tucker, of Virginia)
THE SO-CALLED STERLING-TOWNER BILL
Mr. TUCKER. Mr. Speaker, I greatly hesitate at this late hour to inflict myself—I will not say—upon a wearied House, for you ave had great oratory to stimulate your ideals—but I have risen to discuss with you for a little while the so-called Sterling-Towner bill. I should like very much to discuss it in detail, if time permits.
The advocates of the bill claim its constitutionality under what is known as the general welfare clause of the Constitution.
The bill itself must be read in detail for full information. For the purpose of my argument it is only necessary to state some of the cardinal features of the bill:
1. It provides for the creation of a Secretary of Education, to be a member of the President's Cabinet.
2. It authorizes an appropriation of $100,000,000 to the States for the purposes of education.
3. Assuming the power of Congress to appropriate $100,000,000 for the purposes of education to the States, the bill imposes various conditions upon the States, among these conditions is one which requires the $100,000,000 donated by Congress to be duplicated by each State by its proportion of the $100,000,000. Also a condition that any State accepting the benefits of this bill must have a compulsory education law, and also that every State accepting the bill must have a term of at least 24 weeks during the year for its schools.
4. The bill also provides for the creation of a National Council on education to consult and advise with the secretary of education, who is to be the chairman of the said council. This council is to be constituted (a) of the chief educational authority in each State, (b) 25 educators representing the different interests in education to be appointed by the secretary of education, (c) and 25 persons, not educators, who may be interested in education from the standpoint of the public, to be appointed by the secretary of education. The council is to meet once a year, and the expenses of the conference are to be paid by the department of education. A modest beginning, indeed, for ultimate political control of the schools of the States.
CONSTITUTIONALITY OF THE SO-CALLED STERLING-TOWNER BILL UNDER THE
GENERAL WELFARE CLAUSE OF THE CONSTITUTION-THE MEANING OF THE WORDS THE GENERAL WELFARE AS SHOWN BY THEIR USE WHERE ORIGINALLY FOUND
The "welfare” of the people to be provided for by these words must be that which affects the whole people; not a part; not a class; but the public. It must be "general.” A law, therefore, to help the people of a State, a class, or community would not be general, but special welfare. The welfare contemplated must affect the whole and not a part of the people, for the words are broad and will embrace anything looking to the benefit, comfort, or improvement of the people. So that a law looking to these ends passed by Congress which is general in its application and not special, in the opinion of the advocate of this interpretation, is contemplated by the Constitution of the United States, because its aim and object is the welfare of the whole people. The words are of the broadest import. Could any be broader? What need, what want of the people of the United States fails to be embraced in their boundless compass? Are not the blessings of liberty found therein? Is not freedom, civil, and religious, embraced in them? Are not the rights of property, domestic rights, and civil and religious rights, commercial and financial, and all other rights contained in them? Can the human mind conceive of anything affecting the well-being of the people which would not be embraced in these words? They are as broad as humanity itself and as boundless as the sea. And this amplitude of power is sought to be given to Congress by those who advance this construction.
In getting at the real meaning of a phrase, of course, the words themselves must first be considered; but if the phrase has been used in other papers or documents, the construction and meaning which attached it to there would naturally attach to it in its new environment. And we inquire where the words “the general welfare" can be found elsewhere than in the Constitution of the United States. It is well known to all students of our constitutional history that these words were first found in the Articles of Confederation, in the third, the eighth, and the ninth articles. In Article III they appear as follows:
“The said States hereby severally enter into a firm league of friendship with each other, for their common defense, the security of their liberties, and their mutual and general welfare.”
Under this article the Congress is given no power, and it is akin to a pream ble declaring the fact that an alliance has been formed and setting forth the objects in view. How these are to be accomplished by Congress is set forth in the subsequent Articles VIII and IX.
In Article VIII they appear as follows:
“All charges of war and all other expenses that shall be incurred for the common defense or general welfare and allowed by the United States in Congress assembled shall be defrayed out of a common treasury."
Did these words in the Articles of Confederation bear the broad interpretation which is sought to be given them now by those whose views we are combating? If not, what was their meaning in these articles? The Articles of Confederation were confessedly inadequate. The Constitution was framed to
strengthen that weak instrument and to give to the United States a government that could function. Article II of the Articles of Confederation declares:
“Each State retains its sovereignty, freedom, and independence and every power, jurisdiction, and right which is not by this Confederation expressly delegated to the United States in Congress assembled.'
It is claimed to-day that under these words in the present Constitution Congress has power to pass this bill and others of like character. These same words, the general welfare, we find used three times in the Articles of Confederation. Will any man claim that under the Articles of Confederation, from which we derive this clause, this bill would have been considered for a moment or recognized as a valid exercise of power under these articles? Article II, just quoted, declares that unless expressly granted no such power existed in the Congress under the Articles of Confederation, and I think no one would be bold enough to-day to assert that under the Articles of Confederation such bills would have had a moment's consideration in the Congress of the Confederation. If that be true, we find that the advocates of this new interpretation are seeking to give to these words transplanted from the Articles of Confederation to the Constitution of the United States a meaning which they never had in those articles. Bound hand and foot by Article II, which denied to Congress any power except those expressly given, this phrase lay imbedded in three articles, completely impotent as the source of any legislative power, in the Articles of Confederation. If impotent as a source of legislation where found originally, by what process of construction and by what species of ingenuity can their complete impotency-while resting in the Articles of Confederation—be transformed into a virile power which subordinates all other powers in the Constitution of the United States to its imperial sway?
Congress, under the Confederation, could lay no taxes nor raise money but by loans and the emission of bills of credit and by requisition on the States, and so on. Congress could not raise an army, for this was left to the States. Congress could not regulate commerce.
These objects and others confided to Congress in the Constitution of the United States all pertain to the general welfare of the United States. Congress could do none of these things because the articles did not grant it the express power to do them. Can it be claimed then that the Congress of the Confederation, though denied these powers, could, under the "general welfare” clause, have exercised such powers? Though denied the power to raise armies, or to lay taxes, yet these two powers are clearly embraced in the power to provide for the common defense and general welfare," and if these latter words were endowed with the power sought to be given them now in the Constitution of the United States, how can the patriots of that day in the Confederation Congress be excused for failure to raise armies and lay taxes when American liberty was trembling in the balance; and, if powerless in the Articles of Confederation to do these things under the welfare clause, why should such power be assumed for these words when transferred to the Constitution of the United States, which abounds in specific grants to Congress, but which is limited by the Constitution of the United States as to all other grants by the tenth amendment? By what process of governmental construction could the architects of our present Constitution in the use of one of the stones of the defunct Confederation temple transfer this stone into our new constitutional building, and give to it additional length and breadth and height unknown to it in its original place? “Which of you, by taking thought, can add one cubit unto his stature?” And this is the more remarkable when it is remembered that when placed in our constitutional building it was circumscribed by 17 other stones chiseled with exactness in length and breadth to bear their proportionate share of the burden of the whole building.
As Mr. Madison said (Federalist, No. 41):
“But what would have been thought of that assembly (Congress of the Confederation) if, attaching themselves to those general expressions and disregarding the specifications which ascertain and limit their import, they had exercised an unlimited power of providing for the common defense and general welfare? I appeal to the objectors themselves, whether they would in that case have employed the same reasoning in justification of Congress as they now make use of against the convention. How difficult it is for error to escape its own condemnation.”
Mr. J. Randolph Tucker, on this subject, says (Tucker on the Constitution, vol. 1, p. 481):
“A very conclusive argument on this point is derivable from the language of the eighth article of confederation, for which this clause is an unquestion substitute.
"That article provides that all expenditures for the common defense and general welfare ‘shall be defrayed out of a common treasury, which shall be supplied by the several States,' etc., and raised by their own system of taxation. This money, so derived to the United States from the several States, is to be devoted to the common defense and general welfare; just as under the tax clause of the Constitution the revenue derived from such taxation is to be applied to the common defense and general welfare. The mode of raising money is different; the object, to provide for the common defense and general welfare, is the same. What would have been thought of the Congress of the Confederation had it taken the money supplies by the several States and expended it for State purposes in aid of State education (these words were written by Mr. Tucker in 1896; it was not strange that he should have referred to the matter of education in the application of this principle, for he had opposed in Congress for years the Blair educational bill, which had for its object the appropriation of $77,000,000 to the States for the purposes of education), under the idea that all of these might be considered by Congress as for the common defense and general welfare? That the States should send to Congress their revenue for Congress to send back to them to be expended for State purposes would be a great and absurd anomaly. How, then, can it be supposed that the revenue derived by Congress under the present Constitution can be properly applied to pay for carrying into execution the unreserved power of the States?'
These words are also found in the preamble to the Constitution of the United States, which is as follows:
“We, the people of the United States, in order to form a more perfect Union, establish justice, insure domestic tranquility, provide for the common defense, promote the general fare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America."
Of course, it will not be claimed that these words in the preamble constitute any grant of power any more than the expression to establish justice or secure the blessings of liberty to ourselves or any other provision in this preamble could be the source of power for action by Congress.
This conclusion has been sanctioned by the Supreme Court, but nowhere more clearly than Justice Harlan, speaking for the court, in Jacobson v. Massachusetts (197 U. S. 11):
“Although the preamble indicates the general purposes for which the people ordained and established the Constitution, it has never been regarded as the source of any substantive power conferred on the Government of the United States or on any of its departments. Such powers embrace only those expressly granted in the body of the Constitution and such as may be implied from those so granted. Although, therefore, one of the declared objects of the Constitution was to secure the blessings of liberty to all under the sovereign jurisdiction and authority of the United States, no power can be exerted to that end by the United States unless, apart from the preamble, it be found in some express delegation of power or in some power to be properly implied therefrom.”
The meaning of words, if a question of doubt arises as to their proper construction, would be determined by the consideration of the whole instrument in which they are placed and that construction arrived at which will give effect, if possible, to all parts of the instrument. Section 8 of Article I contains most of the specific powers granted to Congress, and this clause is included therein. These words are merely an expression of the general objects of the Government, immediately followed by the specific enumeration of 16 distinct powers and then by the coefficient clause, which enlarges and expands those powers in the right of Congress to pass all necessary and proper laws for carrying them into effect. The advocates of this new construction must therefore explain why a power which embraces every need and every want of a people in every phase of human development in society, which needs no specifications to enlarge its power—why such a power should be lodged in an article which follows with 17 specific grants of power to Congress. These specific grants, under their claim, were useless, aimless, and of no effect, for they were all embraced in “the common defense and general welfare."
To sum up the argument, these words, “the general welfare,” are found in the Articles of Confederation where Congress could exercise only powers expressly granted; the express grants of power in the articles embrace the right to declare war, make treaties, establish post offices, and so forth, but not the power to lay and collect taxes or regulate commerce; but these words, "the general welfare,