March 31, 1937 — US Senate Judicial Hearings, Washington DC

 

The Chairman [Sen. Henry F. Ashurst]. Miss Thompson, will you favor us with a statement? You may read from a manuscript if you choose. No questions will be asked of you until you have finished. After that, some members of the committee may reserve the right to ask questions if they see fit.

Miss Thompson. Thank you very much, Senator.

The Chairman. Proceed.

Miss Thompson. I have responded to the request to come here to-day and testify on the question of the proposal to enlarge the Supreme Court, because I feel very deeply about the issues involved. I am speaking entirely as a private citizen. I have never been a member of any political party. As a journalist I supported almost all of the objectives of President Roosevelt during the last administration, though with certain reservations and criticisms mostly concerning method. I regret that I have not a more profound knowledge to lay before this committee.

I am not an expert on constitutional law, and my only justification for taking your time is that I have been for some years, as a foreign correspondent, an observer at the collapse of constitutional democracies. You might say I have been a researcher into the mortality of republics. The outstanding fact of our times is the decline and fall of constitutional democracy. A great need of our time is for more accurate analysis of the pathology of constitutional government, of why constitutional government perishes. A great deal of such analysis has been made, but the more thoughtful students have not made much impress on public opinion. And there are a great many people in the United States, for instance, who think that fascism is completely described as a plot of big business to seize government and run it in their own interests, through a dictator who is their stooge. Or they think that fascism has come about through some evil man, perhaps an evil genius of overwhelming ambition, bent on personal power, who suppressed free institutions by violence. Or they think that fascism is a peculiar institution of certain peoples, arising from special and limited conditions. For instance, that Germany became national socialist because of the Treaty of Versailles; or that Italy became fascist because she did not get what she expected to get out of the war. Or they think that constitutional democracies have fallen because they “failed to meet human needs” and pass adequate social legislation. I refer to that because that, apparently, is the President’s view. That is what he said, at his first speech in support of his proposals for reforming the judiciary. He said:

In some countries a royalist form of government failed to meet human needs and fell. In other countries a parliamentary form of government failed to meet human needs and fell. In still other countries, governments have managed to hold on, but civil strife has flared, or threats of upheaval exist.

That is what the President said, and apparently the moral of that is that unless Congress is made perfectly free to make any sort of legislation it may hit upon and then pass it on to a Supreme Court representative of the ideas of the majority, we shall see the end of democracy. Also, Mr. Harry Hopkins, in a radio address recently said, “The cure for the evils of democracy is more democracy.” That is just another expression of the thought that democracies perish if they are curbed, or if they fail to respond immediately to all the economic and social demands of powerful groups of the community.

Gentlemen, I have come to a quite different conclusion about why democracies collapse, and give way to tyrannies of one sort or another. This blanket definition of fascism is not very descriptive of what is going on. Italian fascism, German national socialism, the military dictatorship of Pilsudski and of his successor in Poland, the monarchial dictatorship in Yugoslavia, the Catholic and semi-military dictatorship in Austria, the brain-trust dictatorship in Portugal, and the dictatorship of Comrade Stalin in Russia cannot be described as belonging to any one system of ideas. In hundreds of respects they are completely dissimilar. But each of them was the answer of a particular people, with particular mores and particular traditions to governments which were failing, not to meet human needs — if by that you mean failing to pass social laws — but failing in the first function of government: Failing to keep order and social cohesion and respect for principles. And each of these dictatorships has the same essential function. Its function is to impose social disciplines; to impose those social disciplines by the edict and coercion of a single man and regime of men, because the people themselves had ceased to accept the discipline of law.

I think the disciplines of law are particularly needed in democracies and are especially needed at any moment when a powerful majority is in temporary control of the current political situation almost to the exclusion of minority representation. We have such a situation in this country now. The men who designed the structure of this Republic realized this. They did not believe that the cure for the evils of democracy was more democracy. They believed that the prevention against a democracy running away with itself, the prevention against a powerful majority riding roughshod over the temporary minority and selling short the whole future of the country, the prevention against today’s majority mortgaging tomorrow’s majority, lay in a written constitution and an independent Supreme Court to interpret that constitution.

There is a reason why Supreme Court judges are appointed for life, and removable only by impeachment. That reason is obvious. It was certain that successive executives and successive Senates would seek to put upon the Supreme Court Bench men responsive to their own ideas. Everybody is human, but it was arranged that the Supreme Court, only by the merest chance, by a very remote mathematical chance, would ever coincide with the majority of the moment. It was so arranged that the Court should represent, not the momentary dominant majority, but the continuity and tradition in American life.

The difference between a regime of pure democracy, which moves from majority to majority, one often overthrowing the other and seeking to destroy all or much of what its predecessor has done — the difference between that kind of government, which I do not think has ever worked on this globe — and our own constitutional democracy is the difference between legislation which is haphazard, which is directed by powerful forces at large in society, and legislation which is somewhat checked by the will to continuity. It is true that the Supreme Court is conservative. I think it is conservative by its very nature. And that, gentlemen, is its function — to conserve. It represents, the opponents, say, the past. Yes; perhaps it does. It represents continuity; it demands that today’s laws shall be checked against the whole body of law and the principles governing the state, and thus it insures that new laws shall be designed in some conformity with certain long-established customs and ways of life. And just because it represents continuity, because it exerts a constant reminder on the people that they have a past, a past to which they have a duty; just because it reminds them that when they act, however radically, however drastically, they must keep an eye on long-established patterns of law and behavior — just for that reason I think it safeguards the future. For certainly those political democracies, gentlemen, have been proved safest which have the longest and most unbroken traditions. You might say that just because we have a past, we can be most confident that we have a future.

The dangers that threaten democracies are two: One is that the legal pattern should be too rigid; that the dynamics in society should shatter themselves against a Chinese wall which can be broken only by revolution. That argument is constantly advanced these days by the advocates of rapid and drastic change. That argument is implicit in the President’s speech at the Democratic Party rally. It is the threat of revolution. I am not impressed by that argument. I am not impressed by it because in the past 17 years I have attended the funerals of many democracies and I have not seen one in which the cause of death could so diagnosed. This danger confronts absolutist systems, where popular opinion is not allowed to function, where there is no representative government, where insurrection is the only outlet. Mr. Hitler faced such a danger the summer of 1934; in Moscow, recently, we have had trials indicating that Mr. Stalin has been facing such a danger, or the danger can arise in a sudden and acute crises such as occurred here, in 1932, when thousands of people were threatened by actual starvation, by bankruptcy, and by the complete break-down of economic life. Such emergencies from time to time hit all republics, and often, during them the constitution is tacitly suspended, by almost universal consent. Such an emergency occurred in France in 1926–27 when the franc fell catastrophically. For years, Poincaré was virtually a dictator. It happened here and elsewhere during the war. But wise democracies do not attempt during such emergencies to fundamentally alter the continuing structure of the State or set precedents for new procedures, and they return as rapidly as possible to the traditional pattern of procedure.

I think the second danger to democracies is far greater: It is that reforms, often very good and much needed reforms, should be rushed through at a rate in which they cannot be digested in society. It is the danger that eager and unchecked majorities should set up new instruments of power, before they are equipped properly to administer such instruments. It is that the will of powerful pressure groups, even when such groups embrace a majority of voters, should find expression in total disregard of the feelings, apprehensions, and interests of large and important minorities. All of those things, for instance, would hold true if you analyzed the pathology of the Austrian Republic. There is the danger that radical changes, affecting the social structure, should take place without the guidance or the check of any clear unequivocal principles. I think the greater the demand for popular franchises and rights, the greater is the need for constitutional control. Otherwise, this struggle for democratic rights — or, if you want call if that, for new economic freedoms — can very rapidly degenerate into a chaotic redistribution of privileges. That again is what happened in Austria. There are always hundred percenters for democracy, those who want pure democracy. They want to do away with every impediment and march at high speed toward what they call a real or modern democracy, or the democracy in harmony with the times. But precisely in such revolutionary times — and we live in one — it is most necessary to have a point of reference, a warrant, an instrument which confidently assures the legitimacy of what is being done. For without such a point of reference, there ceases to be a spontaneous social cohesion and what you then get as sure as fate is social cohesion by coercion.

I am sorry, gentlemen, to take your time by what may seem to be a lot of political philosophizing. But this question is essentially a political, and not a juridical, one, and I do not know how to discuss it except on the basis of a philosophy of politics. I know that the President’s proposal is legally constitutional. But I am convinced that it is not politically constitutional.

It strikes the Supreme Court and the Constitution in the most radical and drastic fashion imaginable. Because it proposes to switch the Supreme Bench into line with the current political majority. That was frankly admitted by the President in his metaphor about the three-horse team. It proposes to create a court whose eyes are fixed, not upon the Constitution, and upon the whole body of existing law, but upon the White House and the ruling majority in Congress. It proposes to make the Supreme Court the instrument of that majority. The proposal suggests that its framers were in a confusion about the functions of society, the State, and the Government.

The Supreme Court is essentially an instrument of the State, not of government, which is a temporary majority running the State machinery. That is to say, it is a part of the entire legal apparatus. It is not there to guarantee that the will of the majority shall be expressed but to see that the will of the majority does not infringe the basic guaranteed rights of any individual citizen who wants to appeal against that will to a higher institution of reference. In fact, the very existence of the Supreme Court is an affirmation not only that every individual citizen has equality before the law, but that any individual citizen may, at some point, assert his equality with the whole political set-up. The conception that the individual may appeal to a court of reference which is above the majority; that he can stand there, all alone, and demand a right which perhaps 99 percent of the people do not want or cherish, is the most grandiose concept of political freedom. It was recognized as such by foreign critics and students of our system of government, such as Lord Brougham, Bryce, and Gladstone. Incidentally, 40 years ago Bryce pointed out that the power of the President to expand the Supreme Court was the weakest point in the whole system. And it has reality only if the Court is independent of the Government, and that independence has been arranged for by a way of appointment and removal which gives every mathematical chance of success. If it becomes the instrument of the majority today, what possible guaranty have you that it will not become the instrument of another majority tomorrow? If, in our desire — a desire which I share with many members of this administration — to see a greater national consolidation, to extend the economic control of government over chaotic economic forces — an objective with which in the large sense I am in sympathy — if in order to do that, we pack the Court, what possible guaranty have we that tomorrow a government which believes that a national emergency demands the curbing of free speech, the dissolution of certain political parties, the control over the radio will not pack it again?

We have had times in our history when honest men tried to suppress all civil liberties — we have been told a lot about Supreme Court decisions that have balked social legislation and we are asked to turn back history and remember the Dred Scott case, which, they say, brought on the Civil War. But some of you gentlemen in this committee are from the South, and I wonder if you are lawyers. Do you remember the role that the Supreme Court played in the reconstruction era, in the days of the carpetbaggers, when men like Thaddeus Stevens — who were the radicals of their day — convinced that they were trying to fasten a hideous tyranny forever on the South? In those days the Supreme Court alone stood between the people of the South and a black terror organized by white northerners. In those days the South was in the minority; in those days the North, in its own mind, represented all the forces of national union and solidarity, progressiveness, and enlightenment. And like lots of enlightened, progressive, world-savers in history they were ready to resort to any means whatever to make the forces of what they called justice prevail.

I do not know whether you remember that great lawyer, Benjamin Hill, of Georgia, who said: “The written Constitution is my client, and its preservation the only fee I ask?” Who encouraged the desperate people of the South to stick to the Constitution and seek aid and redress through the law and through the law alone? Fighting the military bill, which was to suspend all civil liberties and freedom of the press in the South, and fasten a permanent occupation on it, Hill said:

The South can fight with the Constitution in her hand. Better to brook the cost of delay for 10 years — 

he means by appealing our way through the courts — 

than to accept anarchy and slavery for a century.

I do not know whether you remember the Supreme Court decision in the Milligan case, denying the right to Congress to suspend trial by jury. “Then,” says Claude Bowers, who is an ambassador of this administration in Spain, “the ringing opinion of Justice David Davis, startling as a firebell in the night, was among the landmarks of human liberty.” But against that Supreme Court decision in that day, all the radicals clamored. They turned all their batteries on the Supreme Court, and Harper’s Weekly proposed that it be swamped “by a thorough reorganization to increase the number of judges.” Thaddeus Stevens, leading the radicals in the North, said of the decision refusing to allow a suspension or trial by jury:

That decision though in terms not so infamous as the Dred Scott decision is more dangerous in its operation upon the lives and liberties of loyal men. . . . . That decision unsheathes the dagger of the assassin. Now, surely every one can clearly see the need for drastic action.

And the drastic action he proposed was a bill dividing the South into military districts under commanders armed with arbitrary power. Stevens did everything he could to water and diminish the power of the Supreme Court. But I wonder if anyone thinks we would have been better off today, if he had been successful.

I have spoken occasionally of the dangers of dictatorship and been roundly trounced for it by my friends who call themselves liberals. I no longer know what a liberal or a conservative is. They say that I go around seeing bogeys. Perhaps I go around seeing bogeys because I have seen, in the last 15 years, so many bogeys suddenly take on flesh. In Germany in 1928 you could hardly find a civilized man who thought that the Republic was in serious danger. I remember in 1928 there was an election, and the German Social-Democrats, who were somewhat “new dealers” in Germany, came into power by a big majority, and Hermann Müller became Chancellor. I remember sitting in his office and talking with him about what I thought was the feeling in the country, a feeling of hostility and of disappointment and of rage, because they thought things were going too far, and he laughed at me. “Why,” he said, “the Republic was never safer in the world than it is at this moment.” Well, it was as dead as a doornail five  years later. I have never suggested that President Roosevelt is trying to establish a dictatorship. I would not be so foolish. But I have said that if any President wanted to establish a dictatorship and do so with all the appearance of legality, this is the way he would take. The modern coup d’état, by which so many democratic systems have fallen, does not destroy the legal apparatus of the State. The modern revolution is not made by violence. It keeps it, for the coup d’état wishes to appear legal. It only alters its spirit and its aim. Mr. Hitler took an oath to the Constitution of Weimar, and he has never offered another constitution. He has just obliterated it by a series of decrees backed by a supine parliament. He has just changed the rules under which it meets and made race and sedition laws which have caused the expulsion and arrest of part of its membership. You say this couldn’t happen here, but it has happened here.

It happened in New York State during the war, when the Socialists were expelled from the State assembly. The courts are all there, in Germany, but they are packed. And Hitler calls his system democracy — you can be put in jail in Germany for saying Hitler is a dictator — and from time to time subjects its ruling to a general plebiscite and gets a mandate from the people. But we call it dictatorship. There is a systole and diastole, an ebb and flow in the life of democracies. Radical or liberal regimes, particularly if they move very fast and introduce a great deal of legislation which is not based always on any very clear principles but is chiefly designed to meet emergencies of the moment and the demands of powerful groups, and which lead to considerable redistributions of wealth and power, sometimes with chaotic accompaniments — such regimes are almost invariably succeeded by conservative regimes, and the vigor and tempo of the retreat are usually in direct ratio to the vigor and tempo of the advance.

Today we have soil-conservation laws designed to keep land from eroding. Tomorrow another Congress in which you gentlemen may not sit may, in the face of some other emergency, pass a law to conserve natural resources by forbidding the waste of paper pulp and limiting all newspapers to 4 pages. And then, on top of that, that Congress might conceive that the public enlightenment and general welfare demand that certain edicts of government shall be published in full in such newspapers — and their publication might consume four pages. And a Supreme Court packed to give all legislation the benefit of every reasonable doubt, packed by the ruling Government, might uphold such a law. That seems utterly fantastic, but I have seen laws just as fantastic as that passed in highly enlightened countries. And all in the name of the general welfare. If I, who believe in most of the President’s objectives, protest against these proposals of Mr. Roosevelt and the Attorney General now, it is because I should like to be in a position to protest 4 years from now, or 10 years from now, when somebody else wants to do the same thing for other objectives, and I should like to be able to protest with some sort of moral consistency.

Professor Corwin, who testified here the other day, said, I believe, that the courts are not packed in advance of dictatorships — I think he said in advance of fascism — but are packed afterward by the Fascists. Gentlemen, neither the Italian nor the German dictatorships started as pure dictatorships. Mussolini went in as Premier of a parliamentary government, and it took him 4 solid years to change that government into an authoritarian state. Hitler went in as Premier, in a cabinet where he had no majority — I think he only had 3 seats out of 11 — and it was nearly 2 years before he really finished with free institutions. But, anyhow, if you want the explanation of Mr. Hitler, you must look for it in the history of the German Republic, and in the mistakes and failures of the German Republic; and if you want the explanation of Mr. Mussolini, you must look for it in the history of Italy between 1919 and 1921.

I would like to ask a question: Did the German Republic fall because it failed to meet human needs, because it was slow in extending the responsibility of government for the public welfare?

It did not. The German Republic came into being in a moment of national disaster. It was not the result of a revolution. Nobody shed his blood for it. You might say it was a “new deal” in German politics. The Weimar Republic had all the things, did all the things, that the New Deal wishes to accomplish. It had universal sickness and old-age insurance; unemployment insurances and federal relief; vastly extended public parks; playgrounds and sports arenas, subsidized housing for the poor, general trade-unionism guaranteed in law, with wage and hour agreements worked out by collective bargaining, and having the force of law. It raised the standard of health in Germany and more evenly distributed the economic gains. It finally came to control something like 40 percent of the national income. It had machinery for controlling both prices and wages, and it used that machinery; but found, as other democratic governments have done, that that machinery was no guarantee of prosperity. The failure of the German Republic was not a failure to respond to the demands of the masses, but it failed to create loyalty to its own basic principles. Perhaps if there had been a real revolution, for which men had died, the Republic might have survived. But the Republic made no such demands on its citizens. And the masses never regarded this Republic as holding the charter of their liberties, as being something in itself for which they were willing to make sacrifices. They regarded it as the instrument for their well-being; and it perished not because it failed to meet human needs, but rather because it guaranteed to meet them, and there came time when it could not possibly meet them on the scale to which the people had become accustomed.

The German people were never prepared, psychologically or otherwise, to fight for the constitution and political freedom. They were prepared to fight for minimum wages and maximum hours and social insurance; and finally parliamentary government was first suspended, not under Hitler but under Brüning, a democratic Chancellor. He invoked an emergency decree, giving President Hindenburg power to govern by edict, because Germany was facing an inflation that required Government retrenchment; and Brüning couldn’t get a parliamentary majority for retrenchment, because it would mean cutting in too many things that the people needed to have. Hitler came in and used the precedent that Brüning had established. Germany has been governed by decree from that day to this. The masses under the German Republic, in other words, cared more for what they could get out of it than they did for the Republic itself or for the principle of republican government; and when hard times came and neither the republican government nor any other could go on meeting those demands, it found no one was loyal to it. And then it found something else — it found that the German Republic had cut itself off from many old and deep traditions and codes of social behavior, which in an emergency came again to the surface and proved to have much more vitality and moral strength than the leaders had dreamed. And eventually the German people followed a leader who promised them neither shorter hours nor higher wages, but who demanded sacrifice, and in return promised only one thing: Order and the establishment of a unifying principle — the principle of a unified Germany.

Now, if you are interested, you might go to the explanation of Mussolini. It is to be found in the governments which preceded him. Really, fascism was brought about by a deadlock between capital and labor, whereby no one of the two could win. And that deadlock had been brought about by political policies. Labor was becoming more and more irresponsible, because the labor leaders at the top had an eye on political power, and the leaders of the rank and file were without adequate experience or the discipline of long trade-union training. The employers were frightened to death, both of the strikers and of the Government, which they considered hostile, and they were afraid to invoke old-fashioned methods of suppressing the strikes. At the same time, the government of Giolitti was trying to be clever and extend political power over powerful economic interests by using the militant workers as pressure from the country. The Giolitti government was not willing to break the deadlock, and so this went on until somebody who had been patronizing and advocating the most radical methods of the workers offered his services to the employers and broke it. That man was Mussolini. But Mussolini could not have gone as far as he eventually did if he had not won the collaboration of the last and highest point of reference in the state, or in Italy, the Crown. In other words, Mussolini had to have support in the masses plus the constitutional power in order to effect a legal coup d’état.

Now, I know that many people will say that these are very poor analogies, and they are right. The United States is not Germany and not Italy. This country has a long tradition of free government. And those critics are correct. One must not push analogies too far. Analogies as well as metaphors are always dangerous. But neither can one divorce events in this country from ideas and tendencies which are manifest throughout the world. The problems which we face are not unique. Everywhere constitutional democracies have had to face the question of how to make new integrations between economic and political power. We want power. That is the whole problem, the basic problem, of the New Deal. Everywhere constitutional democracies have had to meet increased demands from the masses for a greater share of the national wealth and for more security.

Everywhere there is a demand for more efficient instruments of political power. And accompanying these demands is a growing tendency toward personal leadership and personal government, and for a very simple reason: Personal leadership and personal government are the quickest and easiest way to get the things that people want. It is always easier to change the men than to change the law.

People grow restive under the checks imposed by a regime of law. And yet all history proves that what Aristotle said is correct — that regimes tend to turn into their opposites, if the political principle which they represent is allowed to develop to the bitter end. If democracy becomes so pure and so immediate that the popular will is subjected to no standards, it rapidly moves into tyranny.

The whole world today has a new vision of freedom; economic freedom. That actually means a redistribution of wealth which will diminish the privileges of the few for the sake of the under-privileged many. From both a moral and an economic viewpoint that demand is justified and made inevitable, by our era of mass production. But that economic freedom — I do not think this can be said too often — will prove a complete mirage unless it is accomplished with the maintenance of political freedom. Political freedom is the condition of all freedom, as the people of Russia have learned, as the people of Italy have learned, and as the people of Germany have learned. They gave up political freedom to get something else which they thought at the moment was very much more important, and then they found out that there is not anything more important. And the first condition of political freedom is that we should stick to a regime of law, and not move off the path toward a regime of men.

It is precisely because we live in a revolutionary age that it is most necessary for us to guard with the greatest caution the traditional procedures of government. I believe there is a constitutional crisis in this country. I said so in print last June. I feel very strongly that the way to meet it is to meet it in law and not in personnel. I do not like the constant reiteration that something — anything — must be done now, at this moment, in this instant, otherwise the whole country is going to bust. What social forces are threatening to overthrow everything if they are not immediately conciliated? Who is encouraging them? I do not like the talk about an outworn Constitution, or the pillaring of judges as “defeatist” lawyers — judges, incidentally, who are hampered by their very office from defending themselves. Precisely because we live in a revolutionary period, it is no time to break down public confidence in the basic institutions. And I am very sure that this proposal of the President would break down confidence. On the contrary, this is the moment to make clear to the people of the United States that social advances can only be won in conformity with established procedures, which require political effort on the part of the people themselves.

There is one other point I would like to make, and that is that I am apprehensive of the effect which packing the Supreme Court will have upon the State courts. After all, the Supreme Court is not only there to pass on acts of Congress. It is the pinnacle of the whole legal apparatus. You gentlemen know that State courts have been packed with politicians, and that in such States when a lawyer felt that a client was on the wrong side politically he has tried to transfer his case from a State to a Federal court, knowing that there might be one place where men stood above the conflict. That was a common condition in the State of Louisiana during Huey Long’s regime. When the Supreme Court invalidated some of his laws, he put in men who would support them. We were all very much outraged by that at the time. I want ask whether there is any difference essentially from what is proposed here? What effect will this precedent in Washington have on the State courts? Is there anything to prevent a strong Governor from taking a tip from this procedure down here?

I will support heartily as a journalist a constitutional amendment designed to meet the new problems of these times in the constitutional way. I have been convinced for at least 2 years that constitutional amendment would eventually be unavoidable. We are moving toward national consolidation. I think that tendency is necessary and desirable. But it will certainly involve questions of sovereignty as between the National Government and the States, and I do not believe any set of judges will be able to solve these problems on the basis of the Constitution as it now stands, with several hundred volumes of interpretations behind it. After all, the N.R.A. was declared unconstitutional by all nine judges. So was the first Frazier–Lemke Farm Mortgage Act. So was the case of Hopkins Federal Savings and Loan v. Cleary. So was the A.A.A.  processing tax in the Rickert Rice Mills case.

I am of course looking at this problem not as an expert, but as a citizen and as a publicist, and it seems to me that we ought to be educating the public to the real issues involved, very complicated issues on matters of sovereignty, and interpretations of property rights, instead of telling the public that they are the victims of six malicious old dictators. The only argument against this is that it will take time. I think that if an amendment were put forward, not as a party measure, not as a political measure, but with the backing of a commission of highly respected nonpartisan constitutional experts, an amendment designed to meet specific needs, and if the President would put his enormous prestige behind it, it would go through very rapidly. But anyhow, what about spending a little time?

Democracies need to make radical changes with the greatest possible measure of collaboration from all classes in society, if there is to be smoothness and continuity, and not abrupt and upsetting periods of chaos. Forty percent of the American voters have almost no political representation today in Congress. Those people ought to be considered a little.

I have always had considerable admiration for British Government, and one thing that has always impressed me has been the willingness of the British people to take time for decisions. Laws which we rush through overnight, and some them very badly framed and ill advised laws — and I know a lot of you gentlemen agree with me — would have been investigated for a couple of years beforehand by a British Royal Commission, and then passed only after a great deal of debate. I remember when the N.R.A. codes were being framed that a member of the Cabinet expressed astonishment and pique that a huge and important industry had not come in with a code after 2 weeks, and he asked the question: How can we get all industry under codes in 30 days’ time? In England they have codes governing certain industries, which operate pretty well. But I asked Mr. Walter Elliott, the Minister for Agriculture, once, how long it took to get one of them into operation, and he said “Oh, about 30 years.”

We are constantly being told these days that if we cannot have the Supreme Court changed, we cannot even control floods. But I understand that four New England States have just made a joint program for controlling floods in the Connecticut River Valley without even thinking about the Supreme Court, or for that matter, about the United States Congress. We have been told that we have to have Federal jurisdiction to control labor troubles, but Federal jurisdiction did not help much in the maritime strike, I noticed, in an industry which is unqualifiedly within the jurisdiction of the Federal Government. One wonders why, if Federal jurisdiction did not solve that labor situation immediately, we should think that it would work perfectly in settling disputes in the automobile business. Inflation can be controlled through existing agencies and perfectly constitutional policies, but it will cost some sacrifices. But, after all, that is one of the problems of our days, how to get everything done without its costing anybody anything. We are told that unless the Government has power over the courts it cannot be done. All that does not mean that I think a constitutional amendment unnecessary. I think it will be proved to be, in the long run, no matter who is on the bench, provided they are honest men.

We live in a time when many of the functions traditionally resting in society are being taken over by the State, and many of the functions of the State are being taken over by the Government, and many functions of the Government are becoming centered in the Executive. That is unquestionably true. That has been the tendency. 

And now you gentlemen are being asked to push that process suddenly a long step farther and do it in a hurry. You are presented with a proposal — not asked to help formulate one — which was not in advance discussed even with the Cabinet, to say nothing of being discussed with the responsible committees of Congress. You are being asked to take to yourself somebody’s baby — but you don’t know whose. And you are told that if you do not adopt this child and accept these proposals democracy is threatened. I think the question to ask is by whom and by what?

Thank you gentlemen. 

The Chairman. Thank you, Miss Thompson.

Senator [William H.] King. I should not like to mar a perfect address by any questioning.

The Chairman. Senator [Warren Robinson] Austin?

Senator Austin. Yes, Mr. Chairman.

The Chairman. Senator Austin is recognized.

Senator Austin. Miss Thompson, as one Vermonter to another, I should like to ask you, in connection with your closing thought here, if you do not believe that, assuming the premise to be true which was given to the Congress by the Chief Executive when he sent down this bill — that is, assuming it to be true that the objective was to facilitate the business, the performance of the function of the Supreme Court, that the plan deserved, for its own sake at least, consultation with the institution that was to be affected by it?

Miss Thompson. Of course I do. I think one of the things, if you will permit me to say so, that is most distressing about this proposal, is not only the proposal itself, but the whole manner, the whole procedure in which it was launched. It was launched upon a totally unsuspecting public, upon totally unsuspecting people, and nobody knows who was consulted. Nobody seems to want to come out and claim that he was consulted, or that he was partially responsible for it; and as a citizen I am a little bit appalled about the way it is being pushed in the country. It is turned into a party measure. One might ask, How about the democracy or parties? How about party democracy? It is turned into a party measure, pushed through by every means possible for a very powerful Government. It is defended on the air by Mr. Hopkins, and Mr. Hopkins is really in the position of a hired civil servant. He is in charge of a very large sum of money, on which the lives of many people depend, and he goes on the air and implies that if these proposals do not go through people are going to starve. That upsets me, as a citizen.

Senator King. Why do you not mention Mr. Farley, too?

Senator Austin. Mr. Chairman, I should like to ask another question. In connection with your research into the mortality of republics, have you found that there was similarity in the economic events which preceded the mortality of the republics of Germany, Poland, and Austria, to that of America at the present time? That is to say, there occurred for a number of years concentration of economic power, whereby individual companies and individual persons surrendered some of their liberties to a centralized authority, which fixed wages, hours, and conditions of service, called over there “cartels.” Did you observe that that process, that economic concentration afforded the instrument of concentration politically which subsequently was used?

Miss Thompson. I cannot say just yes or no to that. The most interesting and illuminating case is that of Germany. In Germany you had a very great, you might almost call it, codification. You had a great rigidity put in the whole economic system. You had a very great amount of monopolization in the big industries, and then you had practically — I am speaking now of pre-Hitler Germany, under the republic, and even before — before the republic; this was something that went on over a course of years — you had even the smaller businesses brought into this great system through the cartel, so that it became, long before the republic broke up, very difficult for instance for a little man in Germany to begin anything, to start anything; the big boys had practically all of it in their hands, or under their control in one form or another. Also finance capitalism in Germany was further advanced than it is here. That is to say, big industries were tied up with the banks very, very closely. Then the little industries, who were rather satellites of the leading industries, each came in under codes, under cartelization, and on the other hand you had very powerful and universal, practically universal trade-union organization, and these two things, between them, more or less divided the economic life of the country, with government acting more or less as an umpire. But there came a time when it did not work, because of technological advance. You had vast numbers of people who were outside of this mechanism. They could not get in. Either they were unskilled workers who could not find jobs, or they were unemployed workers, or they were little business men who were being driven to the wall, and it was then government began to expand its control and try to make alleviation of this system; and so there came a struggle between the economic power and the political power, with the political power constantly gaining, constantly winning; and then of course when it became clear — I am making this much too simple; it is much more complicated — but when it became clear that the economic life was becoming more and more totalitarian, apart from the state, it also became clear that the state would have to take over some responsibility for it and then it became a fight as to who should run the state, who should control the state, whether it should be the radicals or the conservatives, and it became a very bitter fight, because everybody’s bread and butter and whole life was involved in it.

Senator Austin. And thereupon Hitler was catapulted into power?

Miss Thompson. Thereupon he made a legal coup d’état. That is what happened.

Senator Austin. Exactly, and he destroyed the labor unions, did he not.

Miss Thompson. Of course he destroyed the labor unions. You cannot have a totalitarian state with labor unions. He had to destroy them, just as Mussolini destroyed them, just as Stalin destroyed them. All destroyed them.

Senator Austin. That rapid evolution mounted upon these economic structures that had been created by the people themselves?

Miss Thompson. Yes.

Senator Austin. In the supposition that they were bettering their social conditions?

Miss Thompson. That is true.

Senator Austin. I ask these questions, Mr. Chairman, because we are now considering a bill in the Senate which will centralize economic powers in the Federal Government, and if we put through both that bill and this we may contemplate a possibility at least of what this witness has spoken of.

Miss Thompson. Just apropos of that, when Mr. Hitler, for instance came into power, this situation arose. The courts in Germany have the power of judicial review. The supreme court in Germany also had it, but in Germany the judicial review began by the overruling by a two-thirds vote of the Reichstag. Therefore Mr. Hitler concentrated not only on the court but on the Reichstag or parliament itself. He knew that if he had a two-thirds vote in Parliament he could do everything he liked. Now, he did not have a two-thirds vote in Parliament, so what he did was to arrest a number of people in Parliament for conspiracy, in relation to the burning of the Reichstag, which probably his men set on fire themselves — that has never been proved one way or another — anyway, it was most convenient for him, and they took a vote with these men out, that is the way, but he insisted on getting his two-thirds majority, and then of course they could overrule anything. He got them to simply vote him a general blanket power.

Senator Austin. That is all.

The Chairman. Thank you, Senator. Senator [Frederick] Van Nuys?

Senator Van Nuys. On page 14 you say, Miss Thompson, that you feel quite sure that this proposal of the President will break down confidence. You are talking about our basic institutions. Can you amplify that statement a little further, and give your reasons for that conclusion?

Miss Thompson. The reason, gentlemen, why I think it breaks down confidence is my own mail. I am a journalist. I write a column 3 times a week in 80 or 100 newspapers, I do not know exactly how many, all over the country, Democratic papers and Republican papers, and independent papers, from Vermont to Texas, and I have had more mail. I have written a little bit about this, four or five pieces, and I have had more mail on it than on anything else I ever wrote in my life, and the expression in the mail, scores and hundreds of letters, is an expression of fear, an expression of apprehension. There is not any question that this proposal hit this country with a shock; and those letters incidentally, gentlemen, are not all written on embossed letterheads, and not all written with typewriters. They are written by all sorts of people, who express this concern, a concern which they feel more strongly, I might say, than I do, but there is not any question that they feel it, and time and again in my correspondence — I have it over at my hotel; I brought some the letters down — they say, “Well, how will we know that those people are independent, if they are packed now? We won’t have any confidence in these judges.”

Senator Van Nuys. There is one other statement in which you infer, at least, if you do not make the direct statement, that in the event this proposed bill should pass, you feel sure that the President would pack the Supreme Court by subservient members. That is in substance what I infer. That is a pretty alarming statement to make. Would you amplify that, and give your reasons for that statement, Miss Thompson?

Miss Thompson. I said that the President would pack the Supreme Court. My reason for saying the President would pack the Supreme Court with men subservient to his ideas was that the President said so. After all, Mr. Roosevelt has said it. Wait minute, I think I have got what said. He said [reading]:

What do they mean by “packing the Court”? If they mean that I will appoint judges who will not undertake to override the judgment of Congress on legislative policy, then I say that I favor doing just that thing, and doing it now.

I do not know what that means, unless it means that he intends to appoint judges who do not believe that the power of judicial review should be exercised, and also, that he intends to make the Supreme Court a part of government policy, is implicit in what he said about the “three-horse team.” He said: “We have no definite assurance” — note the word “definite” — “that the three-horse team of the American system will pull together.”

Of course, there never has been such assurance in the history our country. The idea of checks and balances may be good or bad. Certainly you can debate it all you like, but it is there, and implicit in that idea is that it is not a three-horse team which must pull together. That is why I said that.

Senator Van Nuys. Have you made any study of this question that has been brought up here frequently, that the Supreme Court in the first instance usurped its power of judicial review, or power to declare statutes unconstitutional? Have you gone into the history of that, Miss Thompson?

Miss Thompson. I have not gone into it as a scholar, Senator Van Nuys. I would not be considered competent to testify on it as a scholar. I know, however, that such men as Charles Beard and Ernest Sutherland Bates, who cannot by any stretch of the imagination be considered great champions of the Supreme Court and of the Constitution, as an absolutely perfect instrument, deny that the Supreme Court usurped the power. Bates says, first of all, that to construe the Madison amendment, so called, as evidence of a desire on the part of Madison to restrict or to negative [sic] the power of judicial review, and therefore to place him in the light of an apostle of that doctrine, is to completely distort Madison’s idea; that Madison wanted the Court to have a veto right equal to the President’s, not only an appellate right, but the same right that the President has to veto an act of Congress; and I know that in the constitutional convention that was attacked by [Elbridge T.] Gerry and by Luther Martin as giving the Court a double negative. I think there is no indication that what Madison meant was that he did not want the judicial review at all. I think he wanted this other thing extra. He wanted it made stronger rather than weaker.

Also, Ernest Sutherland Bates, who is a popular writer who has written a book very critical of the Supreme Court, and who has been asserted to be somewhat of a scholar; Bates believes that the first Congress, in giving the Court the appellate power, gave it the power of judicial review. I know there have been scholars ever since who think that since Congress did give it, there, it could bring it back, but I have not found many scholars who believe that, in my reading, which however has not been too voluminous.

Senator Van Nuys. And in your close touch with public opinion from all sources, and necessarily you have to keep in close touch with public opinion, you feel thoroughly convinced that if the Chief Justice and the Congress should get together on a necessary amendment, or amendments, that they could be rapidly and speedily pushed through; do you not?

Miss Thompson. I am not so in touch with public opinion that I can answer for the American people. My feeling is that there would be a feeling of enormous relief on the part of the people. The people want to find a compromise. They want to find some way of moving with a degree of unity, and the people who are opposed to this in the county are very, very numerous, and very, very much opposed. Of that there is no question. Yes, I think that it would be possible to get it though, and to get it through quite quickly, but I am not a political expert.

Senator Van Nuys. That is all just now, Mr. Chairman.

The Chairman. Thank you. Senator [Edward] Burke?

Senator Burke. Just a question or two, Mr. Chairman.

Miss Thompson, in your statement you referred to the possibility that sometime we might come to a period of restrictions on the freedom of the press, and you made the suggestion that it might conceivably take the form of restricting publications, say, to four pages, and then having some Government bureau supply “canned” material that would fill the full four pages, and you said I believe that that might be considered most fantastic. The question I should like to ask is this: If, a year ago, anyone had suggested that in March of 1937 Congress would be considering the suggestion — I might say the demand — of the President of the Untied States that he be authorized to name forthwith six additional Justices to the Supreme Court, would not that a year ago have been called fantastic?

Miss Thompson: I believe that there were some suspicious souls who did suggest something of the kind, and I believe it was called fantastic. I believe it was called fantastic by Senator Ashurst, if I remember correctly.

The Chairman. Will you allow me to interrupt you, Senator Burke?

Senator Burke. I yield to the chairman of the committee, the distinguished Senator from Arizona.

The Chairman. I could not be so ungracious as to ask for order after that brilliant flash of repartee, and I am now more highly honored than almost any other member of this committee has ever been, in having such a distinguished publicist and professional writer as Miss Thompson deign to notice my feeble remarks. I have been elected Dean Emeritus of Inconsistency. I am not going to mention any names, but I am conferring degrees constantly — degrees even upon witnesses who come before us; not upon you, however, Miss Thompson.

Senator Burke. Miss Thompson, one further question along that same line. In your statement you say that you have been a researcher into the mortality of republics, and in connection with that I would like to read you a statement and ask your comment on it, a statement made on January 29, 1937, as follows:

Mr. President, I do not know that I should tax my strength this morning in discussing the asserted power of the Supreme Court of the United States to declare acts of Congress beyond the powers of Congress further than to say that in all tyrannical governments, no matter what may be their form, whether an oligarchy, or, as Thomas Jefferson said, 148 men — no monarch, no tyrant, makes any progress whatever unless and until he seizes in his hands the legislative, the executive, and the judicial powers. Monarchs in Europe — some may call them tyrants — would be effectively hampered in their efforts unless they held in one hand, in one magistracy, the legislative, the executive, and the judicial powers. So the first thing a wise, prudent, scheming, subtle monarch in Europe does if he wants complete controls is to seize legislative, executive, and judicial powers.

Let me say that have no sympathy with attempts to whittle or to chisel, by indirection, circumlocution, and periphrasis, and “house-that-Jack-built” methods, in order to acquire power. Let us manfully stand up and say, “Mr. President, we ought to have more power. We need more power.” The way to obtain it is by consulting the States.

In my judgment the way to reach the desired objective is by bold frankness, by asking the people of the States to ratify the necessary amendments. If we think the Supreme Court should not exercise the power of passing upon laws, let us say so by amendment. In the long run there will be niches in the hall of time, and places in the record of history, for men who act directly in that way; but there will be found no niches, no place in the record of history, nor will there be a glowing tribute on the page of any history book for a Congress which by such methods as I have indicated tries to do indirectly that which it cannot do directly.

The question I should like to ask, Miss Thompson, is this — whether from your study of the mortality of republics, the author of the statement which I have just read did not, in making that statement, declare himself and make it clear that he was a real statesman, that he understood the history of republics and the process by which republics thrive for a time and then perish?

Miss Thompson. Yes; I believe so.

The Chairman. Miss Thompson, may I be pardoned for saying that it is obvious, from the lilt, that it is my rhetoric.

Miss Thompson. “A foolish consistency,” said Emerson, “is the hobgoblin of little minds.”

The Chairman: I insist, however, that my scholarly friend, who is a valued member of this committee, shall quote me correctly. I said, “hall of fame.” I would not make the faux pas of saying “hall of time.“

Senator Burke. I will change the printed copy I have before me.

The Chairman: Now, Miss Thompson, you see that as a word artist I almost rival you, and you may make any answer you choose.

Miss Thompson. I think it is an excellent statement, and an eloquent one.

The Chairman. Thank you.

Senator Burke. One other question, at least, Miss Thompson: In the effort to justify this proposal, which many of us consider a startling proposal, a very great search has been made for precedents, not only in this country but abroad, and some mention has been made of the fact that the British, to whom we look as a stable people, have followed this practice in that country, their example taking the form of packing the House of Lords. In your study of the mortality of republics, could you throw any light on the question of whether that is a precedent that can be properly used by the proponents of this measure?

Miss Thompson. The British have certainly packed the House of Lords by the creation of new peers, but I do not see the slightest analogy, between the British packing the House of Lords and this. After all, the House of Lords is not a court of judicial review. The House of Lords is another legislative body, which represents powerful hereditary vested interests. Now, they might have abolished the House of Lords, or they might have increased the number of people who were candidates for hereditary titles. They preferred to do the second, but it is not an analogy, because the function of the British House of Lords is an entirely different function. Of course, the power of judicial review does not exist in England, although it does exist in Canada and in Australia, and in the Irish Free State.

Of course, England is a very, very different proposition, anyway. It is not a Federal Government in the first place. It is not a federation of States. It is a unified State, and it is a very small State, inhabited entirely by Englishmen. It is a little different.

Mr. Roosevelt, by the way, had something to say about England once. I think I have got it here. He said in a speech while he was Governor of New York State:

It was clear to the framers of our Constitution that the greatest possible liberty of self-government should be given to each State, and that any National Government attempting to make laws for the whole Nation, such as was wholly practicable for Great Britain, would inevitably result in a dissolution of the Union itself.

Senator Burke. Just one other question, Miss Thompson, then I am through.

The Chairman. I hope you will not be restrained in asking questions.

Senator Burke. I have no more quotations from the distinguished Senator. I think we all would subscribe to the view that if we were in the throes of a great emergency, if the very life of the Republic were at stake, we should not be too careful or technical in trying to preserve some things that under other circumstances we might consider very fundamental. If we are on the very brink of a precipice, and our whole system of government and our organization of industry and everything else is in danger of toppling over tomorrow, and something must be done at once, “Now” we will say, we must take whatever means are at hand to accomplish the desired result. The question I should like to ask is this: What is your view as to whether the country now is face to face with a crisis that would justify us in throwing overboard all of the regular methods and means and instrumentalities by which we normally would expect to proceed? Is there a crisis?

Senator King. If you will pardon me, I assume you mean a crisis of that character, of that magnitude?

Miss Thompson. No; I do not think there is a crisis of such magnitude. I have also observed that crises are not infrequently created by groups of people anxious for certain forms of certain new policies of legislation, often created in order to afford a reason for dealing with them. That I have seen on numerous occasions. After all, it was a frightfully good thing for Mr. Hitler that the Reichstag burned down, and a lot of people have thought ever since that his boys set it on fire. It happened to be useful. One can create crises. 

Senator Burke. In that connection I would ask whether you, from your study of the mortality of republics, would agree with the view expressed before this committee last week by President Dodds, of Princeton University, who also has made a study of governments everywhere on the globe. He stated, as I recall his testimony, that careful study of governments everywhere has convinced him that the way the people of any country, any democracy, lose their liberties is to have this crisis psychology presented to them; one crisis, real or manufactured, is presented to them, and the people are asked to surrender some of their guarantees, some of their liberties, on the plea that it will only be for the moment, but they are never returned; and that is followed by another real or manufactured crisis, with more liberties and guarantees surrendered, so that one step leads to another, until democracy suffers the mortality to which you refer.

Miss Thompson. That is true. Of course, you have only to read the papers to see that that is true. Read what happens in Germany. Read what is happening in Italy. These dictatorships move from one crisis to another, by their very nature. Mr. Mussolini lives in a state of crisis, so does Mr. Hitler, with new means to meet them. If it is not Ethiopia it is Spain.

Senator Burke. And the trouble is, is it not, that in the first instance it is hard for reasonable, intelligent people to see that there is any danger. They have confidence in their leadership, and they surrender some of their rights under the crisis that they feel exists, but inevitably, as if they were being sucked into a whirlpool, they are drawn on until the real mortality comes. 

Miss Thompson. Yes. The perfect illustration of that I tried to give in my main argument, and that was the case of Brüning in Germany, where there was an emergency decree which was constitutional, but it was never put in the constitution for that purpose whatever. I know some of the people who wrote the German Constitution, and when they put that emergency power in, giving the President the power to suspend Parliament in case of national emergency, they meant an emergency like war, like armed invasion. It never occurred to them that it would be interpreted to mean that you could not get a majority to pass a budget. But Chancellor Brüning, who was a Democrat and the least dictatorial of all men, with no ambitions to be the dictator of Germany, found himself in a jam. They had to take some deflationary action in Germany, and they had gone on for years on deficit financing, and they had vastly extended social service and everything of the kind, and they were going to be in for a very very bad jam, possibly a new collapse of the German mark, if they did not retrench. They had to retrench somewhere. They either had to stop giving subsidies to the big landowners in Prussia, or they had to cut down some of the social service to the poorer people, or they had to stop giving subsidies to the big industries. He wanted to stop giving the subsidies to the big landowners of Prussia, and they were a powerful bloc; and the Parliament of Germany could not come to an agreement, and therefore Brüning thinks “Well, well.” And he invokes paragraph 108 of the constitution. That was the most fatal moment in German history. It gave Hitler.

If Hitler had come into power without the invocation of that, and had not thought of it himself, I do not know how he would have governed, but here he had a precedent made by a democrat, so he simply used good President Hindenburg, who was then an old man, and anyway rather sympathetic to the people around Hitler. He governed in just the way he governed with Brüning; and that was the beginning. After that you had government by edict.

Senator O’Mahoney. Would the Senator yield at that point?

Senator Burke. I am almost through. Without asking any further questions, Miss Thompson, I would merely say that my judgment is that if our 130,000,000 American people will read and consider your statement today, not less than 125,000,000 will express their opposition to the President’s proposal.

Miss Thompson. You are more optimistic than I am, Senator.

The Chairman. Senator [Joseph C.] O’Mahoney?

Senator O’Mahoney. Mr. Chairman, I wanted to venture to ask Miss Thompson one or two questions, if I am not delaying her. The colloquy that you had with Senator Burke suggested the inquiry to my mind, as to whether you would venture an opinion as to what would have happened if Brüning had not taken the course which you describe, in other words, if he had not invoked section 108.

Miss Thompson. Of course, it is terribly easy to be wise after the fact. I have a great deal of sympathy for the action he took. I mean I can see how he did it and why he did it, but I still believe that if he had heartened and had had a little more patience he could have gotten the majority. There is reason now to think he could have gotten the majority, that he could have gotten a coalition.

Senator O’Mahoney. But he had reason to believe that he could not get a majority?

Miss Thompson. He had reason to believe he could not get a majority.

Senator O’Mahoney. And he knew then, did he not, that the particular objective which he had in mind and for which he could not get the majority, or thought he could not, ought to be made effective?

Miss Thompson. Yes; of course.

Senator O’Mahoney. For the salvation of the German people?

Miss Thompson. Of course, but it was not a matter from one day to the next.

Senator O’Mahoney. You would not want us to believe that in your opinion the result which followed the onsweep of Hitler was a result of that particular mistake on the part of Brüning?

Miss Thompson. No, no, Senator; and I tried to make that clear in the main body of my argument. I think that the German Republic perished for the reasons that I have said — the people cared more for what they could get out of the Republic than they did for the Republic itself; that they did not see that in it was the character of their liberties, that in it was the mechanism of their freedom, and that they were not prepared to support it, the moment it ceased to give them handouts. That is what perturbs me about what is happening all over the world today. I observe that people are willing for the sake of what seem to me secondary things to sacrifice mechanisms of their political freedoms, because I am quite sure that they made a bad trade when they gave up the German Republic for fascism.

Senator O’Mahoney. That is what interested me particularly in your testimony. You say it is happening all over the world today. From your observation, is there any difference in character between what is happening in the United States and what happened in Germany and what happened in Italy?

Miss Thompson. Yes; there are differences in circumstances.

Senator O’Mahoney. I said “in character.” That is the question.

Miss Thompson. No; I do not think profound differences in character; no.

Senator O’Mahoney. In other words, you are telling us that the same thing is happening here?

Miss Thompson. I think that the fundamental problems are the same problems. That is, the fundamental problem is the adjustment between economic and political power. We have had a system of mass production, of finance capitalism, which has led to a great concentration of economic power.

Senator O’Mahoney. In other words, the totalitarian state is a result of the concentration of economic power?

Miss Thompson. Yes, yes; it is.

Senator O’Mahoney. And wherever it happens in the world, wherever this concentration happens, is it likely that the totalitarian state will follow?

Miss Thompson. Wherever that concentration of power happens, it is easy to get a totalitarian state, and there is a tendency. It does not necessarily have to have the same concentration of power to happen in Great Britain. In Great Britain and in England I do not think the constitutional democracy is threatened, that constitutional government is threatened, and very very great, as you know, readjustments have been made, but they have not been made, Senator, with anything like the speed that we are trying to make them here. They have been much more carefully considered. They have been much more gradually pumped into the body of society, and not done in such a rush.

I might almost give a definition of fascism, that “Fascism is a way of making a more scientific organization of society, in a hurry.” It is the hurry that makes it. It is the fact that you won’t take time to make it inside the constitutional mechanism.

Senator O’Mahoney. Is there any difference in the method which has been used in Germany, for example, to control or regulate or direct the form of this economic concentration, and that which is being used in Great Britain?

Miss Thompson. Oh, a very great difference.

Senator O’Mahoney. What is that difference?

Miss Thompson. The great difference in Germany is that it is so much more complete. After all, in Great Britain, there has been a very great extension of the functions of government, of the power of government in the the economic life, but there has also been in Great Britain a very clear attempt keep to the activities of government in the economic life and the activities of private enterprise separated; that is, the British state, which has a great deal of state capitalism, has attempted to compensate for the social inequalities growing out of this system. It has not attempted to take over the system and run the system. You understand what I mean.

Senator O’Mahoney. In what way does this state capitalism in Great Britain affect the concentration of economic power?

Miss Thompson. It redistributes economic power in the form of a great many social services. It does not, in a way, prevent the concentration. There is a great concentration still, but it is somewhat regulated, and a great deal of it is taxed away. That is the chief way in which it is kept from concentration, by the inheritance tax. At least it does not remain concentrated in the same hands, and by the redistribution in the form of social service, very much of which we are trying do here.

Senator O’Mahoney. The State in Great Britain has a much closer bond with many of the large corporations than in this or in any other country, is not that a fact?

Miss Thompson. Not closer than in this or any other. Than in this — but certainly not as close a bond as it is, for instance, in Germany.

Senator O’Mahoney. Of course, in Germany it is complete. 

Miss Thompson. Or in any of the other totalitarian states. You asked me whether it is the same.

Senator O’Mahoney. Yes.

Miss Thompson. It is not the same. There are whole provinces in England where the Government does not interfere.

Senator O’Mahoney. Is there any attempt in any of these European countries which you have studied to use the cartel, the artificial combination of economic power as a democratic instrumentality?

Miss Thompson. I do not know exactly what you mean by “democratic instrumentality.”

Senator O’Mahoney. The cartel in Germany of which you speak. There is nothing democratic about that at all, is there? How is it managed — by an economic combination?

Miss Thompson. Of course, the Germans will say that it is used as a democratic instrumentality.

Senator O’Mahoney. That what I am trying to find out. I do not know a thing in the world about it, you understand.

Miss Thompson. That would be their claim. They would say, “Here are these great concentrations of power which, until Mr. Hitler became dictator, were operating in their own interests, but now we propose to take these great conglomerations of power and make them operate in the interest of the people”; but the joker in it is — and that is the joker, in Russia, too — that the interests of the people are what the state, that is to say the bureaucracy and the army and the entrenched instruments of the state, say those instruments are. So Mr. Goëring, for instance, says that it is in the interests of the people that this great complexity, this concentration and conglomeration of economic power should be put to making cannons instead of butter. After all, the important thing is what you use it for, and that is what I meant when I said, if you destroy political freedom, any amount of so-called “economic freedom” and “economic equalization” and everything else is a complete mirage. You just transfer the power from big economic royalists to political royalists, that is all. 

Senator O’Mahoney. Does Mr. Hitler represent the economic royalists of Germany, for example, in your opinion?

Miss Thompson. No; Mr. Hitler represents the entrenched political system. The economic royalists thought he would represent them, but that is where they got fooled.

Senator O’Mahoney. It was by reason of their support that he first gained power; is that correct?

Miss Thompson. It was by a combination of their support and their fear of communism, plus a movement in the masses against socialism. It was all a negative thing. I mean they followed Mr. Hitler because they were afraid of the Socialist movement in Germany.

Senator O’Mahoney. And now Mr. Hitler represents the bureaucracy?

Miss. Thompson. Now Mr. Hitler represents his own mechanism. It seems to me that that is exactly what has happened in Russia. The dictatorship of the proletariat, or the dictatorship of the people, turns into the dictatorship of the dictatorship, by its own fate. It is the bureaucracy, from the last little petty bureaucrat up to Mr. Hitler himself, who determines what happens now in Germany, Hitler and his staff, plus the army.

Senator O’Mahoney. Where, in your opinion, is this movement tending in Europe? What follows Hitler? What follows Mussolini?

Miss Thompson. I do not know that anything necessarily follows it. I think this kind government can last for many years, for many generations. Tyrannies are very old forms of states, and not unsuccessful. Republics are weak forms of states that you have to be careful about.

Senator King. They are the most fragile of all governments, are they not?

Miss Thompson. They are weak; very fragile. And that is why I care so terribly, Senator, about procedures. Why has England, that little country, held together? It is in itself very bad; it is a little bit of a country, a little bit of an island, with a great and vast and scattered empire. Now, how is it held together? By a great loyalty to forms. Why do they keep these armies on parade, and this changing of the guard, and all this stuff about a king who is not really a king anyway? Why this extreme emphasis? Why this very sort of subtle social hierarchy that is kept intact? Why this great emphasis on all the courtesies and all the forms? Because that is what holds it together — tradition. The moment you begin to break down traditions then you break down the procedures, break down the authorities — the authorities to which people give voluntary allegiance as a matter of instinct, almost.

Senator O’Mahoney. These economic aggregations in Germany and in Italy, were they managed by, let us say, all of the persons whose capital was contributed to them, or were they managed — before the advent of Hitler, I mean — were they managed by a small group?

Miss Thompson. Oh, they were always managed by a small group, as they always must be.

Senator O’Mahoney. And then no effort was ever made in Germany or in Italy to have them democratically controlled? You say “as they always must be.” That is a conclusion perhaps you would not want to state dogmatically?

Miss Thompson. They certainly try. They have certainly tried to democratically control them, but it is very difficult to control them democratically and make them function. I think the great mistake was in ever allowing them to come into existence. They wanted to do away with competition, because they said competition is not efficient. If you do away with competition, then you have got to organize the business, so that there cannot be any competition. Then when you organize it, you find that you have got too big, too complicated, too subtle a system to run efficiently democratically, and therefore the stronger people run it. Then it becomes so powerful that the people rebel against it as being an economic force stronger than their political force, and therefore the state aggrandizes it, and then the question is who controls the state. It is too bad that it starts.

Senator O’Mahoney. I might say, in explanation of these questions that I have been propounding to you, that I have a notion, which may be altogether unfounded, that the economic unit can be made to respond to democratic impulses; and just to illustrate what I have in mind, I might relate an incident that took place when John D. Rockefeller, Jr., was endeavoring to supplant Mr. Stewart as the head and front of the Standard Oil Co. of Indiana, he conducted an electoral campaign which was not very different from that conducted by a candidate for Governor or for the Senate among the stockholders of the Standard Oil Co. of Indiana in order to get the votes to put Mr. Stewart out. I have in mind a rather amusing incident that happened in my home town, where one of the agents of Mr. Stewart went to the husband of a lady who owned a large block of stock in Standard Oil Co. of Indiana and secured the promise of that husband that the votes would be cast for Mr. Stewart. They were, however, cast for Mr. Rockefeller. The lady knew her own mind.

Miss Thompson. I am sure that they can be made to respond to democratic stimuli, but it is a different thing as to whether they can be controlled democratically. I doubt whether they can be controlled.

Senator O’Mahoney. Perhaps I will call you before another committee, of which Senator Austin and I are members, some day to discuss that.

Miss Thompson. Thank you.

Senator [Thomas Terry] Connally. I should like to ask just one question.

Miss Thompson. Certainly.

Senator Connally. You spoke of the British reverence for form and observance of precedents, and things of that kind. I assume you were offering that as a reason why we should in this situation follow our forms, by amendment rather than the short cut proposed here in this bill.

Miss Thompson. Yes.

Senator Connally. You are familiar with the practice in the British Parliament even yet, that when the King comes over in the House Lords they send the Black Rod over to the House, and they will not let him in until the doorkeeper looks out and inquires if he has got any soldiers with him — still keeping that up ever since the time of Charles I, the habit of seeing if the King’s messenger or the House of Lords’ messenger has any soldiers with him. It is only when he is assured that they have not that he lets him in.

Miss Thompson. That is right, in order to keep alive in the British people the sense of the liberties for which they have fought.

Senator Connally. And the danger of the King or of the House of Lords bringing any soldiers over to the House of Commons is continually kept alive in the House?

Miss Thompson. It is continually kept alive.

Senator King. Is it not a fact that the Government of the British Empire depends on and is largely the result of the fact that personal liberty is protected, the right of the individual to freedom of speech, freedom of thought, freedom of expression?

Miss Thompson. Yes; I think so.

Senator King. You may go out, as you have seen them, and as I have seen them in Trafalgar Square, and see Bolshevists, Socialists, and people of all sorts, teachers expounding their views, and if the policeman is there, he is there to protect them as he would protect the preacher who was there expounding his views of Christianity and humanitarianism. And is not that after all one of the reasons for the British Empire’s success, its dominance, its prestige in the world, that it believes in democracy and gives to its colonies in Canada, New Zealand, and South Africa autonomous government?

Miss Thompson. Yes.

Senator King. Instead of concentrating the power in the little island, it diffuses the power, and there is a decentralization instead of a concentration of power?

Miss Thompson. That is also apropos of Senator O’Mahoney’s question. The experience of the British Empire is that while there has been a very great extension inside Great Britain of economic power of government, that has been almost in direct ratio accompanied by a decentralization of government. That is, that they say that if government is going into all these economic areas, then it has got to limit the areas in which it operates altogether. It is very interesting to see the great amount of autonomy for the colonies, accompanying this concentration inside of England itself.

Senator O’Mahoney. I think that is very wise.

Miss Thompson. It is very wise. It could not possibly work otherwise.

Senator King. Is it not true that in determining our political and economic life, we have got to take into account the fact that we have a Federal Government, and that the States made the Federal Government and delegated it to whatever power it possesses, and that if there is any encroachment upon the reserved rights of the individuals or of the States, in contravention of the terms delegating powers under the Constitution, it ought to be done by amendment?

Miss Thompson. Of course, that is my belief, gentlemen. This [is] not a little integrated country like Great Britain. This is an empire inside one geographic boundary, consisting of 48 States, and how you are going run it without continually making and remaking new treaties between these entities I do not know, as expressed in a written law, which is why we have one, I think.

The Chairman. Thank you. Senator [James] Hughes, question?

Senator Hughes. Mr. Chairman, I was not here at the time the statement was made. I was on the floor of the Senate, and I did not hear the statement that the Senator to my left says will convince 125,000,000 or 130,000,000 people of the country.

Senator Burke. Read it carefully, and I will put you in with the 125,000.000.

Senator Hughes. I would like to just say one thing. I heard Miss Thompson’s statement that there was not a crisis before the country at this time, and I wondered if she had overlooked the fact that one of the most important Justices on the Supreme Court bench at the present time not a long time ago announced that we have no Constitution, and whether she would not consider that a crisis?

Miss Thompson. That we have what?

Senator Hughes. “No Constitution.” He said it does not seem to be too much to say that the Constitution is gone. Justice McReynolds said that in his opinion on the Gold Clause case. Do you think the Constitution is gone?

Miss Thompson. No; I do not admit that the Constitution is gone, but I admit that there is a constitutional crisis. I admitted it last June. I do not understand why it was not admitted fully 2 years ago, and why we have not been trying to really revamp certain things in the Constitution, to better meet the situation that we have; but if we have not got a Constitution, with the present nine judges on the bench, I do not think we will get a Constitution by putting six more on. I am against this business, because I do not think it meets the issue at all.

Senator Hughes. You do not think it meets what issue?

Miss Thompson. The President’s judiciary proposal.

Senator Hughes. What would be your solution of it? Because I was not here to hear your statement.

Miss Thompson. I am not proposing a solution, Senator. I am not a constitutional expert. I would like to have the opportunity to consider amendments which are the considered proposals of the best constitutional experts whom we can get in this country.

Senator Hughes. Which one of the twenty-odd that we have before us, in the way of constitutional amendment, do you think you favor?

Miss Thompson. I have not made up my mind about it. I do not know.

Senator Hughes. You know we have a number of constitutional amendments?

Miss Thompson. I know. I have seen some them, but I have not come to a conclusion. I think all of them raise a great many questions that I have not had adequately answered, to my unexpert mind, as yet.

Senator Connally. Miss Thompson, I beg your pardon. I was not here during your presentation of the first part your statement. Did you touch upon the question of what had happened to the press in Germany, what they have done about the free press in Germany, under Mr. Hitler?

Miss Thompson. They have never suppressed the free press, you know. I mean by any edict that calls itself that. They simply say that for the sake of the national welfare it is necessary to have a press which does not distort the truth.

Senator Connally. Which does not distort the truth?

Miss Thompson. Distort the truth, and then they set up a press board which decides what the truth is, but nobody says, officially, that there is not a free press in Germany. They just say there is a truthful press in Germany. “What is truth?” said Pilate — and never waited for an answer!

Senator Connally. Did you have any personal experience in your press activities in Germany?

Miss Thompson. No. I was asked not to come back to Germany. I was asked to leave Germany.

Senator Connally. In the interest of truth, of course, to maintain the truth?

Miss Thompson. They did not tell me why.

Senator Connally. I suppose it was carrying out this policy, though, that you just announced, that it was all right to print things?

Miss Thompson. There were several reasons for that.

Senator Connally. You must print what they say is the truth. That is all.

The Chairman. Thank you. Senator [Frederick] Steiwer?

Senator Steiwer. I have no questions, Mr. Chairman, but I should like to take this occasion to express my personal appreciation to Miss Thompson for the very lucid and splendid statement she has given.

Miss Thompson. Thank you very much.

The Chairman. Senator [Edward R.] Burke?

Senator Burke. Nothing further.

The Chairman. Let me have your attention, Senator Burke. A question has been sent up. I am going to ask you, as one of the most learned of our members, to try to answer it. The question is as follows:

Honorable Chairman: Will you please have someone define in the course of the hearing this afternoon what “due process of law” means?

(Signed) J. B. Strayer
Rochester, N.Y.

As penalty, Senator Burke, for what you did a while ago, I am going to ask you to define “due process of law.”

Senator Burke. Will you kindly hand this to Miss Thompson, and have her answer it?

Miss Thompson. I was only going to say that if Justice Roberts finds that “due process of law” means one thing in June, and that it means another thing 8 months later, it certainly is not for Miss. Dorothy Thompson to say what it means.

Senator Hughes. Mr. Chairman, would it be going too far to say that you might say “due process of law” is what the Supreme Court says it is?

The Chairman. A good answer.

Now, Miss Thompson, I am sure I but speak the sentiments of the entire membership of the committee when I say we thank you.

Miss Thompson. Thank you, Senator.

 

 

Source: “Reorganization of the Federal Judiciary,” Hearings on S. 1392. 75th Congress, 1st session, (Washington, DC: US Government Printing Office, 1937), pp. 858-884.