Jefferson at that time wrote to Madison-and we have already given one example of an effective check to the beginning of a war:

We have already given, in example, one effectual check to the dog of war, by transferring the power of letting him loose from the Executive to the legislative body, from those who are to spend to those who are to pay.

The reason why I differ fundamentally from the suggestion of Mr. Stimson is that this proposal is not a new thing which is a departure from the past, but it is solely in the line of the logical thinking of 1787. We find that in 1788 New York was in favor of a two-thirds vote in the legislative chamber, in order to make still more difficult the declaration of war. In 1814 Connecticut, Massachusetts, and Rhode Island endorsed the position taken by New York in 1788.

For the first 100 years at least of this experiment of ours, that philosophy of the founding fathers seems to me to have been carried forward without any variation. I find that, for example, as recently as the time of Attorney General Wickersham-published in the Attorney Generals' Opinion, volume 29, page 321-the following

statement:

That the militia can be called forth to execute the laws of the country only when they are in force and can be executed and enforced.

The writings of the Attorneys General throughout the period clearly indicate, then, in my opinion, that the civil laws of the United States had originally no extraterritorial force.

But

It is true that there was a deviation accepted by the people of the Nation when we sent troops abroad into the "war to end wars." Woodrow Wilson said at Topeka, Kans., in 1916:

The national authority has no right to call the National Guard for any service outside of the State, unless the territory of the Nation is actually in danger. That philosophy was even incorporated in part, as Senator La Follette has indicated, in the platform of the Democratic Party in

1924.

Now, against this background, it seems to me obvious that the referendum concept was impossible, was not conceivable, in 1787. There were enemies at the door. The war-making process was considered only from the point of view of invasion by enemies. A referendum could not have been taken because of the expense and the lack of communication facilities. Literacy, or illiteracy, rather, made it impracticable to attempt a referendum. And the absence of the democratic voting process, which permitted such a small percentage of the people in 1787 to even hold the franchise, made a referendum less than a worth-while extension of the democratic process.

In the Constitutional Convention it was perfectly apparent that the group that won out against the Hamiltonian concept of the President elected for life, and the concentration of power-or the group that defeated that policy, in effect said, "Let us in case of war, the supreme act of the Nation, broaden the base as much as possible." And the matter was debated step by step. But we limited it to the President and we limited it to the Senate. And the principle finally went through to place the power in the broadest possible group that existed at that time.

And since 1787, and that first step toward democracy, amendments to the Constitution have always been consistent extensions and the widening of the democratic faith. The change in the election of the President, the adoption of the first 10 amendments, and the thirteenth, fourteenth, and fifteenth amendments, the woman's suffrage amendment, and the amendment for the direct election of Senators are all in the same direction as enunciated by the founding fathers; and I assume, from a reading of the Federal Papers and the debates in the Constitutional Convention, that if there had been facilities for a referendum at that time; and if the basis of voting had been broader, and if we had been in a more fortunate location—which we did not have, because we had enemies bordering on every State-it might well be that, in taking a vote on the question of war and the taking of human life, except for the preservation of the state, this resolution would have well fitted into the policy of Madison and the group that. dominated the convention.

Now, may I refer to four objections that are raised to this proposal? In the first place, I must constantly keep in my own mind that the proposal in essence is nothing but a suggestion that the Congress of the United States share the responsibility for men dying abroad in an aggressive war. It does not take away from the President of the United States any constitutional power that is vested in him. It does not eliminate the Congress of the United States, because, as I read the resolution, the people of the country cannot express their desire to go into war unless the Congress of the United States has placed the proposal before them.

Now, it is said that the time element is a weakness, that it would take time to have a referendum, and that in many people's minds seems to be a major objection.

In the first place, it is not clear that the time element takes on a different aspect if we are considering the time for a conclusion in the public mind to defend our rights, rather than to go ahead and to fight some enemy in another continent.

Now, I cannot pose in any way as an expert as to the length of time it would take to have a referendum; others will testify on that score. I know nothing about the subject.

But I find in the literature of this proposal, and others analogous to it, that high officials in the United States Navy have declared, according to printed declarations, that a referendum could be effected in 48 hours, and certainly in 72 hours. And I call to your attention that it took 4 months before we had a division of troops abroad. There were 4 days of debate of Congress before there was a declaration of war in 1917. I hazard the opinion that, on any declaration of an aggressive war in a foreign country in the future, it might well run beyond 4 days.

Senator BORAH. Who was it that confined it to 4 days?

Mr. ERNST. Admiral MacGowan, Paymaster General of the Navy. Senator BORAH. I do not think it would be safe to take that estimate.

Mr. ERNST. I inferred to that, but I know nothing about it; but I would take the position that, even if it took several weeks, if it was for the purpose of sending troops abroad, the effect that would arise from such a delay, in my opinion, would have to be balanced off in

your minds against the affirmative advantages of the proposal, which I will discuss in a moment or two.

It is said further that a referendum will weaken us, because the popular vote might be close. That argument also cannot be brushed aside entirely; there is something to it.

But I do call to your attention that, at least in Australia, where there were votes with respect to conscription, which in part can be analogized to this kind of referendum, the conscription vote in Australia in 1915 and 1916, with the electorate numbering approximately 2,000,000-the referendum was decided by a difference of approximately only 100,000 votes. And as far as I can read the evidence in resepect to that area, all of the fears that had been enunciated in advance as to a disunited people, due to the closeness of the vote, evaporated instanter on the announcement of the vote.

Furthermore, what if the vote in the Congress were close? That also is inconceivable. And I venture to express my opinion that a close vote in Congress, acting solely through a delegated authority, acting perchance in a time when the Senators and Members of the House were not elected on a mandate involving the declaration of a foreign war, might have a far more disastrous effect than opposition declared in a popular referendum.

And furthermore, Mr. Stimson and others indicate that we must continue to operate solely through delegated authority, and imply that there is something undemocratic, or something pernicious, is merely conceiving philosophically such direct action by the people supplementing the action of the Congress.

We submit that that is the same type of argument that was invoked at the time of the debates with respect to the direct election of United States Senators. You will recall the nature of the talks at that time, and the debate on the theory that the local legislatures were so much better informed and would be so much more intelligent, and that the legislation would be so much more deliberate, that we ought not to permit the democratic process to go down to what might now be called the hoi polloi, which in effect means the people who are, perhaps, to be killed, to die on a foreign battlefield.

Now, it is also said that the President would be embarrassed in his foreign relations if he should have delegated to Congress the power to act on any proposal which he would make with respect to a war.

I think that is true. I think that argument should be frankly faced.

I said at the start that, fortunately, this resolution can be approached in impersonal terms, because the article presumably would not be adopted for a couple of years.

But I am in favor of embarrassing a President of the United States, because, as I see it, he could in no way be embarrassed if his moves were in the direction of peace, because those moves would not be subjected to the criticism in the public mind that follows by a referendum. But moves which might be construed to be in the direction of a foreign war-not a war of defense, but a foreign war-would be subjected to criticism, and the foreign policy of the Nation would be embarrassed, because it would have to be defended before the people of the land, in addition to the Congress.

Senator BORAH. Suppose we had a situation such as we have in these days, when there are a great many people who actually believe that, as a matter of self-defense, we must first proceed to defend some other nation, for fear they may be destroyed?

Mr. ERNST. Well, Senator Borah, I did not want to get into legalisms.

Senator BORAH. That is not a legalism.

Mr. ERNST. NO; but you have, according to the resolution itself, a possible question arising as to whether or not such a situation would in effect become a defensive war.

Senator BORAH. I simply suggested that for your consideration. Mr. ERNST. Yes, sir.

May I just go on to another consideration? It is perfectly true— and I meant to come to that later-that there are two great forces in this world that, at one stage or another, would be desirous, perchance, to draw us into a foreign war, and would try to sell us a bill of goods on the theory that it is a defensive war-and if you do not mind I would like to take that up later, because there is no doubt in my own mind that the two groups I have referred to at this time believe in the principle of dictatorship rather than that of democracy.

It is also said that the people might make a wrong decision. That after Congress has deliberated and come to the conclusion to put the matter before the people for joint action, the people might be wrong.

I think we can say in all frankness that the people might be wrong. I know of no process in the democratic mind whereby anybody can assure us of a right decision. But I can assure you that the odds are not greater or less if the people act on the proposal.

Mr. MILLER. There is also in the resolution the theory that Congress might be wrong.

Mr. ERNST. Congress could submit a referendum, and I take it that the submission of the referendum by Congress would follow deliberation and consideration; and therefore there is no means of insuring the conclusion of a wise provision of the smaller group; but there is merely a supplementation, which seems to me to be of great advantage to those unfortunate Members of Congress who at that time will have to wake up the morning after they have declared that our men go abroad and fight.

But whether or not the people will guess wrong or not in supplementation of the congressional attitude, I think we can agree that historians are unanimous in telling us what were the principal causes: for our ever entering into wars.

If you take a historian like Rhodes, you find a great deal of material indicating that if Mark Hanna had by any chance been President of the United States instead of McKinley, we would not have gone into the Spanish-American War. It is clear now, and it might have come out in the debates before the people, that the American Ambassador to Spain informed the Executive of the Nation at that time that the Queen of Spain had indicated concessions to every demand except two or three, and those two or three she was willing to leave to arbitration.

Senator BORAH. How much did the people have to do with respect to that war?

Mr. ERNST. I think the public's propulsion was great with respect io that war, and as I look at the record, Congress was acting on its

best guess as to what the people then wanted, and the people, by and large, with the lack of information they had, agreed with the vote of the Congress.

The point I make, however, is that, in connection with the debates in the public forum of the resolution, it would be put up to the people by the Congress, and we would have, in the first place, what is a real influence, a psychological throttling on the Executive's moves in the recommendation to go to war, and we would have also a throttling to some extent on the action of Congress; and we would have at least some additional chance of matters being smoked out in public at all which are difficult to discuss, and which are not fully discussed when the debate is solely in Congress.

The pressures have changed. For instance, it is now clear to me that one of the secret impulses for the last war impinged upon the fear that we would not recover the money we had invested back of the Allies. That was one of the impulses, and, as a matter of fact, we never did recover the money, anyway.

But at least we are running the chance-I do not say we are certain—but if there is a chance that those situations can be fully explored, or more fully explored-we are at least going in the line. of the democratic process. We are trusting the will of the people before they go abroad to fight.

I imagine it would be a great relief to the Congress of the United States, to the members of the House and the Senate, to have this provision added to the Constitution of the United States. As I say, it takes away to no extent any constitutional power now vested in the President. It does not in any way cut down congressional power, so far as I can find, with respect to voting for bigger armies, for big navies, or more planes, or more defensive equipment. Senator MILLER. It takes away responsibility?

Mr. ERNEST. It does not do that either. It provides machinery for sharing it.

Now, I must translate myself into the position of a person who at some time may be called upon to vote to send men abroad at once under our present procedure. The members of Congress, as I see it, would explore to the best of their ability, what was in the minds of the people, and what the people wanted them to do as to engaging in a foreign war and sending troops abroad, to Asia or to Europe. How do they do it? They do it, not on the theory of delegated power, where, as Mr. Stimson argues, each Congressman tries to sense the opinion of the people in his district, and each Senator that of the people in his State. When it comes to that situation, every Member of Congress endeavors to sense the will of the people. How do you do it? You do it through a scientific process. You read the results of polls. You have no method of exploring the economic impulses back of the vote shown by the poll. You look at the headlines in the papers; you have some petitions. People like myself, and others speak only for themselves, and those who may attend the hearings-all of that is less than Congress ought to have to determine on the will of the people in the only real important measure, in relation to foreign affairs.

This program avoids, as I see it, concentration of responsibility; because the Congress must still act, insofar as it puts up to the people

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