Source: International Socialist Review, June, 1911. Vol. XI, No. 12.
Transcription and Markup: Bill Wright for the Marxists Internet Archive, October, 2022
Comrade [Victor] Berger has blundered seriously, dangerously. The introduction by him into Congress of the Joint Resolution on the amendment of the Constitution as to the President’s veto power, the Senate, and the right of the Judiciary to declare legislation unconstitutional, is one of those unfortunate blunders easily committed but hard to retrieve. It is not the purpose of these lines to berate Comrade Berger for his mistake: that would be as useless as it would be easy. Besides, I do not consider the blunder due to Comrade Berger’s personal fault, but rather to the shortcomings of our movement. For years the study of all serious subjects, historical, political and economic, has been sadly neglected, in fact discouraged, in our movement. Small wonder, then, that our representatives exhibit a woeful lack of knowledge when the occasion demanding serious knowledge arises. So I shall limit myself to a mere statement of the blunder, and a suggestion of a possible way of lessening its damaging effect. I cannot leave, however, the subject of culpability without calling attention to the responsibility of our National Executive Committee in the matter. While Comrade Berger personally may be excused because the movement has not properly prepared him for the task now thrust upon him, no such excuse can be urged on behalf of the National Executive Committee. That committee has at its command the entire resources of the whole movement. And surely, our movement as a whole is not so poor in the requisite knowledge as not to be able to deal with the subject intelligently.
That a grievous error has been committed in including the Judiciary powers in the resolution for an amendment to the Constitution is plain to any one familiar with the history of this country and the development of its institutions, and having a fair knowledge of the practical exigencies of the present political situation in the United States. The usurpation by the Judiciary, both Federal and State, of the powers of legislation, by the exercise of the power to annul legislation on the ground of alleged unconstitutionality, is the principal weapon of the capitalist class of this country in its subjugation of our working class. Unlike, however, the other and inferior weapons at its command, such as the President’s veto-power and the Senate, this weapon was never given to our ruling class by the Constitution itself. It is sheer usurpation. It therefore forms the most vulnerable point in its defences. Hence its great sensitiveness on this point. You can attack the veto-power, or the Senate, as much as you like, and they will complacently laugh at you. But you cannot say anything about the usurpation of the Judiciary without bringing them into a rage. Even our so-called “radicals,” who glibly talk about the “treason of the Senate" and similar matters, fight shy of the question of the usurpation of the Judiciary, and never mention it, on the rare occasions when they do, above a whisper. They are mortally afraid that the people might find out the truth.
And for the same reason this is the most potent weapon we have at our command in our fight against capitalism in this country. We should, therefore, never tire of telling the working class of this country this most important truth. We should never tire telling them not only of the enmity of the courts to labor, but also that the power which gives this enmity its great importance has never been granted to them by the Constitution, and is based on sheer usurpation. When the people wake up to a realization of this fact, an awakening so justly dreaded by the capitalist class, there will be no further necessity of amending the Constitution. It is around this point that the great struggle between capital and labor will be centered. And it is at this point that we must hammer incessantly.
But our blows have lost most of their power when we have admitted that it is a question of constitutional amendment. To propose a constitutional amendment involves the admission that the Constitution as it stands at present gives the Courts that power. This admission is further emphasized by the linking of this amendment with the proposed amendments abolishing the president’s veto-power and the Senate, both of which were distinctly created by the Constitution. But it means more than that. It means a shifting of responsibility from the courts and the capitalist class to the people, and a long and futile agitation for an amendment which is as hopeless as was the case of the negro-slaves when left to the good-will of the masters.
No sane person now believes that any important amendment to the Constitution stands the ghost of a chance of being adopted by the regular method provided in the Constitution itself. The U.S. Constitution is for all practical purposes unamendable. Comrade Berger, with that fine revolutionary instinct which sometimes distinguishes true leaders of the proletariat, recognized this fact when he introduced his Joint Resolution for the calling of a Constitutional Convention. That was a proclamation of the fact that the present method of amending the Constitution is a mockery. He should have stuck to that position, and refrained from offering any regular amendments. The introduction of any regular amendment was a mistake. But we could stand it in the matter of the president’s veto-power and the Senate. We cannot stand it in the matter of the courts. It paralyzes our striking arm.
What shall be done now?— is a matter for the party to say. For my part I suggest that the National Executive Committee ask Comrade Berger to at once introduce a resolution in Congress that the Constitution never gave the Courts the right to annul legislation; that this power has been usurped; and that this usurpation should no longer be acquiesced in. This should be followed up by the introduction of a carefully prepared bill amending the Judiciary article of the U.S. Revised Statutes so as to entirely reconstruct our court system with a view to carrying out these ideas.
I know that neither such a resolution nor such a bill has any chance of being adopted. Nor has Comrade Berger’s present resolution. Only Comrade Berger’s present resolution is vicious in principle and paralyzes our agitation, whereas the steps I suggest are sound in principle and would greatly enliven our agitation.
There are a number of other things that I would like to say in this connection, but I consider the matter too important to obscure the main point by a discussion of minor matters.
Last updated on 06 February 2023