I just came across a speech given by Alvin O’Konski, future Congressman from Wisconsin, in an extemporaneous speaking contest in March of 1925. O’Konski, not yet 21 years old, drew the topic “The Constitution has been amplified by custom, judicial interpretation, and formal amendments so that it now includes much more than the original written instrument.” He had three hours to prepare his talk, and “his speech was of such a calibre as to win first place from six of the eight judges who placed him.” “His speaking was forceful yet he was neither bombastic nor spoke with the spirit of the radical.”
A local newspaper, the Oshkosh Advance, printed his remarks in full on March 25, 1925. Here they are:
- Ladies and Gentlemen – Perhaps there isn’t one of you in this audience this afternoon that hasn’t at some time read the Constitution of the United States. Yet, have you ever asked yourself how so brief a document has made possible so great a success? The Constitution, as we all know, is very brief and does not go into detail as to the powers granted to the President, Congress, or the Courts; yet we have developed miraculously under it. How is it conceivable that so brief a document has made possible so great a Constitution’s success; so great a nation’s success under the Constitution? It is conceivable because by custom, by judicial interpretation, and by the formal process of amendment, the constitution has expanded and bent toward public needs. Custom, judicial interpretation, and the formal process of amendment have made possible the Constitution’s success; the nation’s success under the Constitution.
- It is of this amplification of the Constitution by custom, by judicial interpretation, and by amendment, that I wish to speak this afternoon. There are three methods prevalent in the American constitutional system by which the Constitution may be amplified to meet the needs of the American people. They are: first, by custom; second, by judicial interpretation; and third, by the formal process of amendment. I shall take each of these three in order, ladies and gentlemen, and demonstrate the true value and actual working of each in relation to the original document formulated by that notorious body of constitutional framers of 1787.
- The first method is that of custom. By custom we mean usage or tradition set by some preceding generation. Custom, my friends, is often mistaken for constitutional law. In reality, custom itself is not part of constitutional law. Yet, queer though it may seem, whenever custom comes into conflict with the written Constitution, the Court follows custom rather than Constitution. Custom has played a leading part in the Constitution’s life and is accountable for its miraculous development and success. Permit me, ladies and gentlemen, to give a few illustrations of custom under the Constitution. The most remarkable example is that of political parties. My friends, nowhere in the Constitution do we find a call for political parties. In fact the framers of the Constitution were opposed to political parties of any form under the Constitution. Yet the political parties in the United States have been the prime agencies in upholding the Constitution. Today, no one would dare be a candidate for the Presidency of the United States without being endorsed by some recognized political party. This was exemplified in the last Presidential campaign when citizens of the United States were denied the right to vote for the Progressive Party, simply because the candidates were not nominated and endorsed properly as was the custom. Here is a characteristic example of custom under the Constitution. Another example is that of the President’s Cabinet. No where in the Constitution is there a word calling for a cabinet. [the Opinion Clause?] The position of the cabinet officer is an unofficial position not sanctioned by the Constitution. Yet how ridiculous would the President of the United States become if he failed to appoint a cabinet. The committee system in Congress, the Speaker of the House of Representatives, the Veto power used today by the President, the check of appointments by the Senate are other examples of mere custom under the Constitution. All these, my friends, are extra-constitutional requirements. From the illustrations given it is self-evident that custom has played an important role in the success of the Constitution and the success of the nation under the Constitution.
- The second method is that of Judicial interpretation, that is, Judicial construction. The Constitution is a bit of clay in the hands of the judges, who mold it to meet the people’s needs. It is the Court that grants powers to officers that help meet public demand. The Constitution would be a document of controversy were it not for the Court. Here, my friends, I wish to call your attention to a misconception of the Steven’s Point speaker. He said that we have developed so miraculously because the Court makes law in time of need. No, my friends, that is not why we succeeded. We succeeded because the Court has protected the people from unjust legislation and preserved the rights and liberties of the American people. The Court does not make law but grants additional powers, to a law-making body or other departments.
- Perhaps the best example of Judicial expansion through Judicial construction and interpretation is the power of the Court to declare laws unconstitutional. As to whether or not the Court did or did not have this power is a disputed question. That is, in the case of Marbury versus Madison in 1803, the Court arrogated unto itself the power and has received the sanction of all generations. Another example is that of giving Congress the power over Interstate Commerce. At first the regulation of Commerce was left to the state. However, as time went on, commerce started interstate. The problem then was not an intrastate but an interstate or national problem. By a series of judicial decisions the power was taken from the states and given to Congress. Here we have an excellent example of the Court interpreting for the public safety and the public welfare. Another example is the so-called doctrine of implied powers. In 1816 Congress passed a law to establish a national bank. In a test case of McCulloch versus Maryland, it was questioned whether the Court had this power. Nowhere in the Constitution did Congress get the right to establish a bank. However, the Court stated that since Congress had the control over the monetary system and collection of taxes, Congress had the right to establish a national bank. The Court stated that an “implied power” is just as great and forceful as one specifically granted in the Constitution. [an implied power can’t be “greater” than its principal, according to CJs Marshall and Roberts.] Again the Court interpreted for public safety and welfare. The conclusion is that the Court has in every respect the highest amount of praise earned. If it weren’t for the Court’s wise use of its power, perhaps today we would be reading American history from a different angle.
- The last method is that of amending the Constitution. To date we have witnessed nineteen such occurrences. When the Constitution was ratified no one was satisfied with it. To make things run smoothly certain rights and privileges had to be guaranteed as against the United States. The first Congress proposed ten [actually, twelve] amendments, and in two years all the ten were ratified, giving the citizens guaranties. The eleventh amendment was enacted after the case of Chisholm versus Georgia, allowing citizens of one state to sue citizens of another state. The twelfth changes the method of electing a President. The thirteenth, fourteenth, and fifteenth amendments are outgrowths of the Civil War, and guarantee rights and privileges to the Negro. The sixteenth gives Congress power to levy taxes on incomes from whatever source derived. The seventeenth changes the method of electing the Senators. The eighteenth, my friends, needs no explanation. The nineteenth gives the women a right to vote. These nineteen amendments have made great changes in the Constitution; in fact, so great that today the framers would not recognize their work.
- The Constitution, ladies and gentlemen, has undergone tremendous changes – more changes in the last century and a third than have occurred in any ten centuries preceding.
- Custom, judicial interpretation, and amendments have played dominant parts in our success and are accountable for the place we hold in the center of the world’s stage. Our Constitution is, in every truth, a living Constitution, amplified by custom, judicial interpretation, and amendment so that today it includes more than the original document.