Address Before the National Civic Federation at the Belasco Theatre
Mr. President, Ladies and Gentlemen:
In the first place, I am glad to welcome the Civic Federation to Washington. I think the sun shines a little brighter in Washington than it does anywhere else along on the same latitude, and it is a very pleasant place either to live in or to be in; and therefore, I congratulate the Civic Federation on having had the good sense to come here.
You are not the only citizens of the United States who look in this direction. I am glad that you came here at the same time that the Governors did, so that your deliberations and theirs in the same direction, and the right direction, as they doubtless will be, will have the weight of two great forces, not only upon the National Legislature, but upon the State legislatures, for from Washington everything radiates to the ends of the country.
In the discussion of uniformity of legislation, when you take a man who has gotten out of the practice of the law, so that he does not remember with great exactitude those principles that are applied in actual cases, he can not help falling back on a discussion of the Constitution. The constitutional lawyer is a gentleman who has gotten out of the practice and who has gone into politics.
Now, my friend, Senator Root, whom I am delighted to class with me in the same category, some years ago was greatly misunderstood with reference to his view of the Constitution and the trend under the Constitution toward centralization of government. If I understood him, his view was that, unless the States did their duty in the exercise of the functions which it was necessary they should exercise in the interest of good government, there would be a tendency toward the enlargement of the Government at Washington; and he uttered a warning to the States that if they would retain the power given to them under the Constitution in all its integrity, they must see to it that they exercised that power in the interest of the people and in the interest of the country generally. The misunderstanding led to ascribing to him views in favor of centralization that would certainly have been most radical, but I am sure he does not have them. We have a nation and we have a centralized government, and the reason why we have it is because John Marshall was put at the head of the Supreme Court early and exercised that power which a good judge always exercises with his colleagues. He did not minimize the power of the Supreme Court to construe that Constitution authoritatively. And so construing it, he made this a nation with all the powers incident to a nation. And then when he left the Bench, after that long period of useful service, he was succeeded by Chief Justice Taney and his associates, and at that time the trend toward national power and authority of the party, from which Chief Justice Taney was selected, led him right along the same path that Marshall had marked out, until we came to the war. And then with the war amendments, the same tendency to make this government a Nation as distinguished from a Federation, continued to the present day.
Now, it is said that we have centralized too much. There are jurisdictions which might be asserted under the Constitution that Congress has not asserted, notably in the jurisdiction of the Federal courts. So, too, in bankruptcy; so, too, in elections. With respect to the jurisdiction of the Federal courts, there is a large measure which Congress does not assert which it might take away from that which the State courts now exercise. And so, with respect to bankruptcy, it might be made much more exclusive of State jurisdiction in that regard, and with respect to elections, they have gone back entirely to the States.
There are other matters under the Constitution which I shall not stop to mention, which show that all the power conferred upon the National Government has not yet been exercised; but the reason why it seems as if we were becoming a more centralized government is not because of a change in the construction of the Constitution, but a change in the importance of the power which was always given to the National Government under that Constitution, to wit: the interstate commerce clause. When the Constitution was framed, the state traffic as distinguished from the interstate traffic was as 25 to 75, and now, instead, the interstate traffic is to the state traffic as 75 to 25 — a complete reversal of the amount of interstate business done as compared with the state business. And that is the reason why the National government's power seems to have grown so largely because its power covers more volume than it ever did before. With respect to that, I am inclined to think that it will be found wise after a time to recognize these great organizations, concentrations of wealth, and plant and capital that do a country-wide business, going into every State, whose business is almost wholly interstate, to recognize them as instrumentalities of interstate commerce and to incorporate them in order that we may get them more directly under the control of the National Government.
I admit there is ground for dispute, and I have only recommended this as something that I look forward to in the future as a means of saving to the public what is valuable; as there is a great deal that is valuable in those trusts, and eliminating permanently that which is vicious and contrary to public policy. But you are not Congress, and I did not come here to convince you on that subject. I only mention it in passing.
There has been, during the last ten or fifteen years, an earnest desire on the part of some people to minimize State power altogether. They say — I heard the distinguished Governor of Massachusetts say, the United States can better regulate child labor than can the States — so what's the use of talking! Why not put that power into the United States Government? And so, with reference to every power, the suggestion is that the Central Government has more capital; being more centralized, its execution of the laws is more certain and less affected by local conditions, and therefore it is wise in the interest of effective government to put what we can in the Central Government. Therefore we invoke the old "general welfare clause." We have got the money in the Treasury, and we can spend the money there for anything we choose, because there is no court to prevent it. We cannot issue an injunction against the Secretary of the Treasury dishonoring an appropriation of Congress. And when it comes to the expenditure of money, the history of the United States is full of appropriations and expenditures that can not be explained on any ground except that of old "General Welfare." And the way they propose to expend it when there is a particular subject that needs attention is to organize a bureau, and let that bureau occupy an advisory relation and experimental relation to the States in the exercise of that jurisdiction which is undoubtedly theirs. They have got to a point where, just before I sent in my message, in the list of bureaus that was asked for was a bureau on earthquakes. I assume that the argument was that as earthquakes did not know any State bounds neither did the exercise of jurisdiction with respect to them know any State bounds.
Now, the lesson that this teaches is that we have a Constitution by which the Government of the United States can not accomplish all reform, and that there is a burden and there is a heavy responsibility, eloquently described by Mr. Root, upon the States with reference to meeting the demands of those who call themselves progressive, and who are in favor of the reforms to uplift the people and to make the comfort of the individual greater.
In no department of government, in no reform, is this uniformity of legislation going to be more important than in the conservation of our resources. The Federal Government has no power to compel owners of forests to attend to those forests with a view to the welfare of the community, of the neighbors who live there, or of those who are affected by the denudation of the land of the trees. That must be done through the State government if it is done at all. And so with respect to many of the streams. Indeed, if one follows out legal reasoning, it will seem, I think, that there is more to be done by the States in the conservation of resources even than by the Federal Government, large an influence as that Federal Government may have by reason of its ownership of the public domain.
Now there are many other subjects that ought to occupy the States with reference to uniform legislation. If I had been a member of the Constitutional Convention, I would have voted to have included marriage and divorce in the Federal jurisdiction, but it will never get there now.
The theory upon which they put in bankruptcy was that where a man was declared a bankrupt it fixed his status, and that status ought not to vary in one State from the status in another. But when a man is married, he has established a status and certainly that status ought not to vary between the States, but as it is not possible to secure an amendment to the United States Constitution placing that subject within Federal cognizance, it certainly calls for uniform legislation on the part of the States. I state that because I think everybody will agree with me. Then I am not going on to say what kind of legislation there ought to be, because I am told that in that discussion as yet even the Civic Federation has not reached a result.
Then there is another subject upon which there may well be uniformity of legislation after we, in the Federal Government, have adopted a prop(doer system, and that is with respect to judicial procedure. If there is anything in our whole Government, state and national, that justifies an attack upon our present system of living, it is the delays in our judicial procedure, and the advantage that wealth gives in the struggle in the courts against those who have not the means to meet the expense that is now imposed on them.
If we can do something in the National Government to introduce the simplicity of the English procedure in equity and in law, perhaps uniting them, that will be a model for State legislatures in adopting a uniform system.
I might go on with respect to other subjects; I have said a good deal more than I intended to, and I have only — so to speak—"shot on the wing"; but if you had to write a message a week perhaps you would only write when you have to.
Source: Presidential Addresses and State Papers of William Howard Taft
William Howard Taft, Address Before the National Civic Federation at the Belasco Theatre Online by Gerhard Peters and John T. Woolley, The American Presidency Project https://www.presidency.ucsb.edu/node/363258