the Democratic platform of 1896, which demanded a trial by jury for all persons arrested for indirect contempt of court; and denounced the process under the term of "government by injunction." This has been repeated in almost every platform since that date. To conciliate the large labor vote the Republicans at length made some concessions for they admitted that "rules of procedure in federal courts with respect to the issuance of the writ of injunction should be more accurately defined by statute,' and President Taft, in his message of 1909, urged that some congressional action should be taken to carry out this pledge. courts to declare statutes Not only have specific decisions of. the court been made Power of subjects of political controversy, but in recent years, as in the early years of the Constitution, the power of the courts to unconstitudeclare a statute unconstitutional has been specifically attacked. tional The method of the attack is a twofold one, aimed alike against individual judges and the decisions of the court. attacked of judges By the recall of judges, any judge, upon presentation of a (1) Recall petition signed by the requisite number of voters, may be removed from office. A new election is held, at which the judge against whom the petition was directed may or may not be a candidate. If he is a candidate and is reëlected he continues to exercise his functions. Should he be defeated, however, he is held to be recalled from his office. This device has already been adopted in several states. A proposal for a constitutional amendment was introduced April 7, 1913, by Congressman Lafferty,1 which provided for the election of all federal judges by a vote of the people, for twelve-year terms, and provided for a recall of all judges, both of the Supreme Court and inferior courts, at any general election at which presidential electors should be chosen. There is little possibility that such a revolutionary amendment will ever be adopted in the near future, but it shows the jealousy and hostility with which the judiciary is regarded in some quarters. Furthermore, it is but an attempt to establish for the federal judiciary the principle of election, which is practiced in an overwhelming number of states, and the recall of judges, which is in vogue in few. The second revolutionary attack by a political party is known (2) Recall of as the recall of judicial decisions. This, as regards state courts, decisions 1 House Joint Resolution 26, 63d Cong., 1st Sess. judicial was indorsed by Theodore Roosevelt and the Progressive party in its platform of 1912, which declared: That when an act passed under the police power of the states held unconstitutional under the state constitution by the courts, the people, after an ample interval for deliberation, shall have opportunity to vote on the question whether they desire the act to become law notwithstanding such decision. In dealing with state constitutions this seems to be but a short method of amending the constitution. But there has been at least one attempt to apply it to the federal Constitution. In December, 1912,1 Senátor Bristow in a resolution proposed an amendment to the Constitution, providing that any decision of the federal Supreme Court declaring unconstitutional an act of Congress may be submitted to the electors, and that by a vote of a majority of the congressional districts and of the states such act should, notwithstanding the decision of the Supreme Court, become a law. This likewise seems but a rough-andready method of surmounting the difficulties of amending the Constitution; but like the resolution of the Progressive party it has serious objections. A recall of a decision declares but a single law constitutional, despite such a decision. A constitutional amendment establishes a principle under which many laws may be passed. To illustrate, had Senator Bristow's scheme been successfully invoked in 1895, the income tax act of 1894 might have been declared law, but only that particular law; and neither the corporation tax of 1910 nor the graduated income tax of 1913 would have been clearly within the Constitution. But since Senator Bristow's proposal the Constitution has been amended in the orderly and regular method, after long consideration and agitation it is true, and not only the particular tax upon particular incomes mentioned in the act of 1894, but a tax upon "all incomes from whatever source derived" is constitutional. Decisions of constitutional questions tend to become political issues, and the inevitable problem arises whether it is best for the United States to continue under a rigid Constitution, difficult and slow of change, or under the flexible type of England and the European countries. 1 Senate Resolution 142, 62d Cong., 3d Sess. CHAPTER XVII THE WAR POWERS OF CONGRESS tional grants for military The experiences of the Revolution had shown the necessity Constituof giving the central government adequate power in time of war. In the Constitution this grant of power is found in Article I, power Sect. viii, and, arranged in logical sequence, gives Congress the following powers: (1) the right to raise and support an army and navy; (2) the right to make rules and regulations for the government of the same; (3) the right to provide for the organizing, arming, and disciplining of the militia of the states; (4) the right to utilize this militia to execute the laws, suppress insurrections, and repel invasions; (5) the right to declare war and make rules for captures on land and sea; (6) the right to make all laws necessary and proper to carry into effect these powers. Article I, Sect. x, clauses I and 3, prohibits the states from exercising their military power in a way to hamper the federal government; while the Second Amendment recognizes the necessity of a militia and forbids Congress to pass laws prohibiting the right to bear arms. It is also necessary to remember that Congress in the prosecution of war may exercise to the full all the general powers granted to it, among which are the powers to levy taxes, borrow money, or coin the same, as well as those granted by the clause just quoted, which gives Congress the power to pass all laws necessary for the prosecution of the war. With these grants Congress has almost unlimited power, un- Why the gov divided with the states, and Congress must meet and bear the ernment has responsibility. Enough power is granted to make the United militaristic States the most militaristic nation in the world. But the traditions of the country have been absolutely against such a development. Hatred of standing armies alike characterized the Puritans of New England, the Dutch and Quakers of the middle colonies, and the Cavaliers of Virginia; and many of the early immigrants came to escape the burdens so imposed. Reliance upon a citizen not become The regular army Army legislation, 1916 militia, as an Anglo-Saxon institution, was firmly rooted in the original colonists and quickly adopted by the immigrants. Consequently the regularly organized standing army of the United States, while excellent in character, has been pitifully small and inadequate for a country so large. THE ARMY Acting upon the constitutional grant, the first Congress, on September 29, 1789, took over the troops which had been raised under a resolution of the Congress of the Confederation. In 1790 was passed the first army organization act, which provided for a regular standing army, officers and men, not to exceed 1216.1 Since that time there have been frequent reorganizations; the most important in recent times being in 1901, 1916, and 1917. The reorganization of 1901 was made under the administration. of Secretary Root, and provided for a definite number of regiments for each service and a fixed number of officers. The number of privates was left to be fixed by executive order and congressional appropriation, at a number between 60,000 and 100,000. Thus there always existed a skeleton organization of an army of 100,000, while the actual number varied from about 60,000 to 80,000. In addition Secretary Root organized the General Staff, which was expected to secure the coördination of the various branches of the service.2 In 1916, owing to the outbreak of the war in Europe and the consequent agitation for "preparedness" in this country, a great increase in the standing army was demanded. Proposals of all kinds were submitted to Congress, which in the main looked towards three lines of increase: a larger standing army; a very large force of volunteers known as the "Continental Army," part of which was to be kept in active service and part in reserve; and the "federalization of the militia." The Secretary of War, L. M. Garrison, favored the first and second of these plans, but encountering the opposition of Mr. Hay, chairman of the House Committee on Military Affairs, and failing to secure the support of the president, he resigned. The House then prepared 2 See Chapter X. 1 U. S. Stat. at Large, Vol. I, p. 119. a bill which, as far as the regular army was concerned, provided for a force of about 143,000, and adopted the plan for the further federalization of the militia. The Senate increased the number of the regular army to 178,000 and adopted the Garrison plan for a continental army, and agreed, with some modifications, to the House plan for a federalized militia. In conference, the federal volunteer force, or the continental army, was dropped, but the Senate succeeded in fixing the size of the army at 175,000, while the plan for the federalization of the National Guard was retained. tional limita appropria It should be remembered that this plan is subject not merely Constituto legislation by future Congresses but to a constitutional limita- tions upon tion as well. Fear of standing armies was so strong in 1787 for the that Congress was forbidden to make any appropriation for the army support of the army for a period longer than two years. Hence, although a future Congress might repeal this legislation, every subsequent Congress must take affirmative action in order to continue the system. It is thus impossible for Congress to adopt a program for more than two years for the army, although this may be done in the case of the navy. THE MILITIA tional grants "To provide for organizing, arming, and disciplining the Constitumilitia, and for governing such part of them as may be employed in the service of United States." 1 "A well-regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed." 2 rity the militia "To provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions." 3 These clauses show the importance which the framers of the Main secuConstitution attached to the militia. Standing armies were contrary to their habits, and even the hard experience of the Revolution had not weaned them from their belief that the militia should be the main security of a free state. This idea not only 1 The Constitution of the United States, Article I, Sect. viii, clause 16. 2 Ibid., Amendment II. 3 Ibid., Article I, Sect. viii, clause 15. |