LOSING LIBERTY JUDICIALLY
Prohibitory and Kindred Laws Examined
THE MACMILLAN COMPANY
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TORONTO
BY
THOMAS JAMES NORTON
OF THE CHICAGO BAR
AUTHOR OF
"THE CONSTITUTION OF THE UNITED STATES: ITS SOURCES AND ITS APPLICATION"
NEW YORK
THE MACMILLAN COMPANY
1928
All
rights reserved
COPYRIGHT, 1928, BY THE MACMILLAN COMPANY.
Set up and printed. Published September, 1928.
SET UP
BY BROWN BROTHERS LINOTYPERS
PRINTED IN THE UNITED STATES OF AMERICA
BY
THE CORNWALL PRESS
TO
MY SISTERS SARA AND KATHARINE
"The aim, therefore, of Patriots was to set limits on the Power which the Ruler should be suffered to exercise over the Community: and this Limitation was what they meant by Liberty." — JOHN STUART MILL.
"To what purpose are powers limited, and to what purpose is that limitation committed to writing [in the Constitution], if these limits may, at any time, be passed by those intended to be restrained?" — CHIEF JUSTICE MARSHALL.
PREFACE
IN this book the discussion has to do solely with the Power of Government in the United States under the Constitution and the Liberty of the Man under the same instrument.
Sociology, political morals, policy, and "that convenient refuge of loose thinking which is vaguely called 'the spirit' of the Constitution," are excluded from consideration. They have already received too much attention from legislators and judges, to the beclouding of constitutional doctrine.
So, also, in dealing with prohibitory laws and decisions no element of "wet" or "dry" is permitted to enter. With wet or dry Government has no proper concern whatever. It did have a duty to protect the weak or irresolute man and his family and society from the manifest perils of the public saloon. Its constitutional obligation was even more imperative to let the self-reliant and capable man alone.
So, finally, in the criticism of other laws for their disregard of Liberty and Property, and in the examination of the decisions which sustained them, the measure of validity employed is, not social science, but constitutional principle.
The question respecting prohibitory laws is whether, in the performing of a duty to the class who need the protection of Government, the Liberty of those who do not need that aid, and whose conduct never contributed to the conditions which prohibition was instituted to cure, can be frittered away by judicial decisions or openly destroyed by legislative action.
A second question, really the more important of the two, is this: To what lengths of interference with Liberty and Property will Government go in following the precedents already set? For, as Tacitus saw it nearly nineteen centuries ago, and as it has remained and will remain, "That which is now supported by examples, growing old, will become an example itself."
These two subjects, neither of which has hitherto received adequate consideration apart from theories of fatherhood and motherhood in Government, will be treated, not as abstractions, but as questions plainly answerable from living law.
It will be seen that judicial decisions are too often concerned with moral philosophy to the relative disregard of those constitutional principles which were intended to control mischievous Power. The Constitution of the United States is a harness on Power; and, when it comes to a discussion of its proper application, its holding purposes, and not Government as a giver of gifts, should receive prime consideration. At the time the Constitution was written mischievous and destructive Power never had been controlled. The question then was, and yet remains: Can Power be controlled? The framers of the Constitution believed that in establishing an independent Judicial Department to pass upon the constitutionality of the acts of Power they had solved the problem.
But solution in that way must always depend upon the independence, quality, and courage of the judges. And those things depend upon the unremitting support of an educated press and people. The following discussion will show how the plan has been working out, and that eternal vigilance never was more clearly the price of Liberty than it is to-day.
References to the Declaration of Independence and to the Constitution of the United States are so frequent that those documents are inserted at the end of the book for the convenience of the reader, to whose careful and constant study they are earnestly commended.
A Table of Contents at the beginning of the book and a carefully prepared alphabetical Index at the end make readily findable anything that the volume contains.
THOMAS JAMES NORTON.
Chicago, July, 1928.
CONTENTS
CHAPTER FIRST
THE GREAT DESIGN OF THE CONSTITUTIONAL SYSTEM OF THE UNITED STATES IS THAT THE GOVERNMENT SHALL LET THE MAN ALONE.
PAGE
I. American Achievements Non-Governmental .. 1
II. The World of 1776......... 6
III. Colonists Victims of Government..... 10
IV. Struggle Between Liberty and Authority .. 13
V. Miserable Condition of Mankind..... 19
VI. Liberty: What Does It Mean?..... 23
VII. Americans Invented Judicial Safeguard ... 32
VIII. Independent Judges Necessary ..... 40
IX. Can Government Be Limited? 45
CHAPTER SECOND
THE JUDICIAL DEPARTMENTS OF THE STATES AND THE JUDICIAL DEPARTMENT OF THE NATION HAVE FAILED TO MAINTAIN IN SOME INSTANCES, NOTABLY WITH RESPECT TO LIQUOR LAWS, THAT BALANCE BETWEEN THE POWERS OF GOVERNMENT AND THE LIBERTY OF THE MAN WHICH THEY WERE ESTABLISHED TO PRESERVE.
I. Tributes to American Judicial System ... 51
II. Regulating Prescriptions of Physicians ... 62
III, Eighteenth Amendment Superfluous .... 75
IV. Doubt Should Favor Tenth Amendment ... 82
V. Mugler v. Kansas Critically Reviewed ... 90
VI. "The Rule of Reason" in Kansas..... 105
VII. Obiter Dictum Followed....... 115
VIII. "Policy" Never Unconstitutional..... 127
IX. Eighteenth Amendment Unconstitutionally Proposed ............ 144
CHAPTER THIRD
OTHER DECISIONS OF THE SUPREME COURTS OF STATES AND THE SUPREME COURT OF THE UNITED STATES HAVE UPHELD USURPATIONS OF POWER AND INVASIONS OF LIBERTY AND PROPERTY BY THE LEGISLATURES OF THE STATES AND THE CONGRESS.
I. Mugler Case as Precedent ... 154
II. Legislators Using Other People's Money ... 164
III. Public Taking Private Property..... 170
IV. Congressional Invasion of Judicial Department . 176
V. Supreme Court Yields to Encroachment by Congress ............. 183
VI. Legislative Department Scores Again .... 204
THE DECLARATION OF INDEPENDENCE......217
THE CONSTITUTION OF THE UNITED STATES .... 222
INDEX 243
LOSING LIBERTY JUDICIALLY
CHAPTER FIRST
THE GREAT DESIGN OP THE CONSTITUTIONAL SYSTEM OF THE UNITED STATES IS THAT THE GOVERNMENT SHALL LET THE MAN ALONE
I
American Achievements Non-Governmental
ALL that the American has achieved has been owing largely to the fact that Government has let him alone. He has carried on his back no royal family, no worse than idle soldiers, no crushing armaments. Almost as free from the touch of Government as the Indian was before the Discovery, he has gone his way in the fields of invention, exploration, development, science, and general education, all for the comfort and behoof, not of the State, but of the man, the woman, and the child. The State reared by such a man must necessarily be great.
It is not a mere happening that the American has the highest wages in the world and is now the world's banker; that he eats more meat and white bread and sugar and other good things than any other man; that he and his family wear more good clothing, drive more automobiles, use more telephones, consume more electricity, and have more conveniences of other kinds, many times over, than does the Briton, the German, the Frenchman, or the man of any other country.
And all these things which make the difference between the present age and the miseries of the masses of people in all past times have been in origin and development, it should be emphasized, non-governmental.
The railway, the telegraph, the telephone, the electrical machinery in countless forms, all the labor-saving devices, the results of researches in health, the increase and preservation of foodstuffs, all these and more are owing to the initiative, courage, brains and money of the individual. None of these marks of progress and comfort is governmental.[1]
Should it be said that this is a land of incomparable richness, and that the advancement described could not have been avoided, the answer is a negative. For proof: the London "Spectator" showed three years ago that while the British Empire is four times the extent of the United States, and the self-governing dominions twice the extent, "an inferiority of resources" in the United States "had been so treated as to produce an amazing superiority over the British Empire." Each American with his machinery has a productive power of about three men. And at the window of the bank, on the platform of the bricklayer, and in other places where no machinery is employed the well-fed American has demonstrated his superiority to other workers. The "Spectator" found in this country "a higher average level of prosperity than exists anywhere else in the world." It found what the Preamble to the Constitution promised, "domestic Tranquillity, ... the General Welfare and ... the Blessings of Liberty."
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[1] One of the financial difficulties of Canada in working toward normality after the World War has been the burden of a debt of over two billion dollars incurred by the national railway system of 22,000 miles, an application of socialistic ideas borrowed by advanced thinkers of the West from the open-air philosophers of Trafalgar Square. The Canadian taxpayer had load enough without carrying that, a burden of about $222 per capita.
In the United States, where self-named progressives had the idea that it is the province of Government to "give everybody everything," governmental interference in non-governmental matters was made unpopular by Federal control of railways in war time for two years and two months at a cost to the taxpayer of $1,700,000,000, in addition to the highest freight rates and passenger fares that he had ever paid and for the poorest service. An attempt to continue the "nationalization" of the railways after the War met with a practically unanimous protest from the shipping and traveling public.
Since then hundreds of municipalities throughout the United States which had been enchanted by the theory of socialism, although it never had been demonstrated in the country of its origin to be of any value, have been hastening to turn over to private owners their gas plants, electric lighting plants, and street railway systems.
The idea of 1787, permeating the Constitution, is that the Man will more effectually work out success and happiness when Government keeps its hands off.
______
It found the logical result of the liberation of a people from Government.
Another Briton discovered that the form of Government contributes, as all know (or should know) it does, to material, social, and intellectual prosperity. In "The House of Commons and Monarchy" this language is employed by Belloc:
Men eager for freedom and dignity of living in the individual rightly demand the separation of the various powers in Sovereignty. They insist on an independent Judiciary; on a Legislature uncontrolled by the Executive. But men who are concerned rather with the strength of the State, and especially with its action abroad, ... rejoice to recognize a high and successful centralization of Sovereignty, however masked, or under whatever name. Nowhere had that centralization proceeded to such lengths as it did in the England of the nineteenth century.
It is simply a question whether the Government shall keep hands off while the Man attains freedom and dignity of living, or whether he shall be the victim of it while it goes strutting through the world. As Belloc clearly perceives, it is the centralized government under which it cannot be hoped to achieve "freedom and dignity of living in the individual."
And yet, owing to constitutional illiteracy[1] in the United States and a lack of historical information, for some years centralization has been the hobby of what seem to be the most influential forces in this country. This recalls the comment of the historian Macaulay to an American seventy years ago, that the Huns and Vandals whom the United States has to fear "will have been engendered within your own country by your own institutions."
"I believe the States can best govern over home concerns," wrote Jefferson, "and the General Government over foreign ones. I wish, therefore, to see maintained that wholesome distribution of powers established by the Constitution for the limitation of both, and never see all offices transferred to Washington." [2]
However, the States have been not only willing to give up many "home concerns," but eager also. Their delegations in Congress have passed bills to centralize in Washington the management of many matters of local concern, such as the child-labor laws, the Maternity Act, an act for regulating boards of trade in the States, and others. As all the States have child-labor laws, why should the Congressmen of those States want to cripple their own commonwealths? Why cannot each State regulate its boards of trade better than a bureau in Washington can do it? If mothers among the poor need more care from nurses and physicians, the police power of the State can attend to that more quickly and efficiently through its standing organization than the Nation can do with a bureau far from the place of need. Workers for social betterment seem to have forsaken State capitals for Washington, and the Congressman seems ready to do whatever the organized controllers of votes desire.
______
[1] A survey made in 1922 by a member of the American Bar Association showed that the teaching of constitutional philosophy as an independent subject receives practically no attention in the public schools of the States. This was based on reports of school officers.
A report of the Committee on American Citizenship of the American Bar Association in 1926 disclosed that even in the law schools of most of the universities the Constitution is, generally, inadequately taught, not being even required in some of them.
At a meeting of the Association of American Law Schools in Chicago in December, 1927, the program, covering three days, with night sessions, and carrying 3 addresses, 3 papers, 8 round-table conferences, 8 reports of committees, and 21 topics for discussion, contained nothing whatever relating to the constitutional government of the United States.
[2] See Norton's "The Constitution of the United States: Its Sources and Its Application," page 226.
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Thinking along this line has changed since James Wilson told the Pennsylvanians that in voting on propositions in the Constitutional Convention he used his own head, not caring whom it might please or displease. Similarly, Edmund Burke, a friend in Parliament of the American colonies, said to his constituents that his mature judgment and enlightened conscience he did not get from them — they were a trust from Providence which he would not sacrifice to their opinions. But the day of Burke and Wilson is a long way gone.
"He denounced with a fierce scorn that they richly merit," wrote Theodore Roosevelt of Gouverneur Morris, "the despicable demagogues and witless fools who teach that in all cases the voice of the majority must be implicitly obeyed, and that public men have only to carry out its will."
It is a rule of construction in the study of a law that the evil which it was designed to cure should be examined into and understood as a prerequisite to a complete apprehension of the meaning of its provisions. To understand the Constitution of the United States it is necessary that one know the world which produced it. That world has given place to a new one, but it is the old that contains the lesson. It should therefore be valuable to take a look at the past and find the reasons why the Constitution of the United States contemplates that Government shall let the Man alone.
II
The World of 1776
In 1776, when the Declaration of Independence was written, the Man was the victim of Government in every nation of the world. He was regarded as being on earth for the uses and purposes of Government and governors. That idea persisted in many countries down to the World War, and in the enlightened and scholarly Germany it found expression in the word Kultur, meaning the Supreme State instead of the Supreme Man. The idea of the supremacy of the State controls in Italy, Russia, and Mexico to-day.
The Declaration of Independence told the world that "Governments are instituted among Men," not to use them, or to misuse them, or to rob them, or to destroy them, but to serve men — "to secure these rights" by which "they are endowed by their Creator," the "certain unalienable rights" with which men are incapable of parting if they were to try to do so, which they cannot alienate as against their posterity, rights which no government can touch, among which are "Life, Liberty and the pursuit of Happiness." The Declaration also proclaimed the philosophy which overspread the Western Hemisphere and which has been written into the constitutions of Europe which have been adopted since the close of the World War by peoples long crushed by autocracies, that all governments derive "their just powers from the consent of the governed." That is to say, Government is rightly the servant of Man, and not his master.
Four months before the Declaration of Independence the first volume of Gibbon's "Decline and Fall of the Roman Empire" was finished, the story of the end of a great system of government which "comprehended the fairest part of the earth, and the most civilized portion of mankind." The Empire contained an area over one-half as large as continental United States, "for the most part of fertile and well cultivated land." It had a population estimated by Gibbon (Vol. 1, p. 268) at 120,000,000, "the most numerous society that has ever been united under the same system of government."
But it went down. "The last three hundred years had been consumed in apparent prosperity and internal decline." While its system of law yet governs half the civilized population of the world, all else long since fell into "ruinous perfection." The modern world was to become interested through Gibbon in the foremost of the failures of Government just at the time the greatest constitutional Republic was taking rise. This is engaging as a dramatic incident. Must governments always fall?
In America, for the first time in all the long and miserable ages of the human race, the idea of Man's supremacy to his Government, stated in the Declaration of Independence, was cast in a fixed form, and this fixed form we call the Constitution of the United States.
The idea of the supremacy of the people to their Government had been entertained and expressed long before the Declaration of Independence, but it never was — never could be — put into practical operation until the Constitution of the United States gave effect to the Declaration. In the "Institutes" of the Roman Emperor Justinian (A.D. 534), prepared for the use of young students at his direction by a committee of learned lawyers, this appears:
Again, what the Emperor determines has the force of a statute, the people having conferred on him all their authority and power by the lex regia, which was passed concerning his office and authority.
In the Middle Ages the supremacy of the people was often stated, Marsilius of Padua (1270-1342), for example, saying that "law is the expression, not of the will of the Prince, ... but of the will of the people, who, by the voice of the majority, could enact, interpret, modify, suspend and abrogate it at will"; and, as Bryce points out in "The Holy Roman Empire," this doctrine "is to be found in other Mediæval publicists." Bryce thinks that he gets a glimpse of the doctrine in the "Politics" of Aristotle (B.C. 384-322), and he finds in it the germs of the English (1688), American (1776), and French (1789) revolutions, making it "one of the most curious links between the ancient and the modern world."
However, the English Revolution was not a complete success from our point of view: that is, the tyranny of the Executive Department only was put in bonds; whereas the experience of the American colonists with Parliament made them fear what Jefferson called "an elective despotism" even more than they did the King. So they defined and limited the powers which they conferred on the Legislative Department, as well as those which they gave to the Executive, when they wrote the Constitution. A century after the Declaration of Independence the Supreme Court of the United States, in a case involving the misappropriation of property by act of a legislature (Loan Assn. v. Topeka, 20 Wall., 655), said that if a man is to hold all that he is accustomed to call his own, all in which he has placed his happiness and the security of which is essential to that happiness, "under the unlimited dominion of others," it is a question "whether it is not wiser that this power should be exercised by one man than by many."
The French Revolution was a failure because, in part, the people were inexperienced in self-government. While the French had the idea of the supremacy of the people, they followed in their effort to make a constitution the theory of Rousseau (1762) in "The Social Contract," that each "puts his person and all his power in common under the supreme direction of the General Will, and, in our corporate capacity, we receive each member as an indivisible part of the whole." He traded his inherent rights for Government. Contrary to the American theory, that no majority can be large enough to take from a man his rights to Life, Liberty, and Property, the Frenchman was lost in the General Will, as every man in every land in every age had been lost to some sort of Sovereign Power.
"Whoever refuses to obey the General Will," wrote Rousseau, "shall be compelled to do so by the whole body: this means nothing less than that he will be forced to be free." The "whole body" then was probably a minority, as it certainly is in the United States to-day. Many, if not most, public officials do not receive a majority of the votes of those twenty-one years of age. The President himself has been a choice of the minority.
The Frenchman surrendered his personality and rights to "the whole body" and became as completely subject to that as he had been to the Bourbon King whom he had lately guillotined. By this theory, that the General Will is right, he defended some of the atrocities of the French Revolution.
The American, on the contrary, had a wholesome fear of the General Will, the "elective despotism" described by Jefferson; and so in his Constitution he sparingly conferred power on his three agencies of Government (Legislative, Executive, and Judicial), specifically withheld power in certain instances, set up courts to apply and enforce his Constitution as "the supreme Law of the Land," and then declared in Amendments IX and X that all other powers were retained by him or the States. He had had enough of the General Will. When the General Will undertook to force him to be free he wrote the Declaration of Independence.
This wide difference between American philosophy and French theory has not been noticed by many American writers. Indeed, some think that the Americans of the Revolution had learned of France.
III
Colonists Victims of Government
Returning to the victim of Government in Europe at the time of "the migration hither" of the colonists: fourteen years before the settlement of the first English colony at Jamestown, Virginia, and twenty-seven years before the Pilgrims landed at Plymouth Rock, the Parliament of England undertook to force men to be free in the field of religious thought. Parliament assumed, as other elective despotisms have since done and as some are now doing, that its judgment was necessarily correct and therefore not to be resisted or even questioned. In 1593, the thirty-fifth year of Queen Elizabeth, it passed the first of several Conventicle Acts, forbidding any person over sixteen years of age to attend any conventicle or meeting for worship not in conformity with the Church of England at which five persons besides the household were present. Conventicle was a word of reproach applied to the meetings of the English and Scottish nonconformists. The first act was directed toward the Separatists, known from their leader as the Brownists, many of whom took asylum in Holland. Punishment was fixed at imprisonment until the accused should conform. Many non-conformists fled to Holland from year to year. Among those was a congregation at Scrooby, in Nottinghamshire, led (1608) by William Brewster and John Robinson, which body, 102 in number, became the Pilgrims of 1620 who came to America in the Mayflower. By the end of the 1600s the established church of England had thrown off two bodies, the Non-conformists or Puritans and the Separatists or Pilgrims. The Puritans established Massachusetts Bay Colony at Salem in 1626. These two colonies formed a confederation in 1663, and, forgetful of their own quest for Liberty, drove out Roger Williams in the same year because he was a non-conformist as to their doctrines.
Thus the greatest of New England settlements is traceable directly to the innate inability of Government to let the Man alone. It was this settlement which raised up later Samuel Adams, John Hancock, John Adams, Robert Paine and Elbridge Gerry of the Declaration of Independence, and Nathaniel Gorham and Rufus King, signers of the Constitution. So tyranny works to its own confusion in the end.
South Carolina was founded by French Huguenot refugees in 1562; New York by the Dutch in 1626; Maryland by Catholic refugees from England in 1632; Rhode Island by the fugitive Roger Williams in 1636; Connecticut in the same year by the Rev. Thomas Hooker and one hundred followers driven out of Massachusetts; New Hampshire in 1638 by disfranchised religionists from Boston; Delaware in the same year by Swedes deposed from their rights and possessions in New York; Pennsylvania in 1681 by English Quakers in search of freedom; Georgia in 1732 by unfortunate victims of English prison brutalities, and German Lutherans. In 1755 the Acadians were ruthlessly scattered as told in Longfellow's "Evangeline." Under royal governors the established church of England was set up in several of the colonies and non-conformists were taxed for its support. Nearly every religious denomination suffered or caused suffering.
Thus there came to America one of the worst evils that Europe had produced. But it was battled by great souls like Jefferson and Madison in Virginia, by William Penn in Pennsylvania, by Baltimore in Maryland, and by the Otises, the Lees, the Perkinses, the Everetts and the Lorings in Massachusetts. One of the first acts of Virginia when it became a State exempted dissenters from tribute to the established church, and a later, long and bitterly contested, was its celebrated statute of religious freedom, which had been sought by the Baptists, Lutherans and Presbyterians. There had been laws which made it criminal to maintain certain opinions or to exercise certain forms of religion. When New York became a State its first legislature repealed many of the laws of intolerance which had plagued different religionists.
It is unnecessary to go beyond these illustrations, which might be multiplied, of the tendency in those times of Government to interfere not only with the personal, but also with the mental and spiritual, relations of the Man. Government drove him from his native lands and pursued him in the New World. It was out of this religious warfare that personal and political liberty was, in part, to come. "It is accordingly in this field," says John Stuart Mill, "almost solely, that the rights of the individual against society have been asserted on broad grounds of principle, and the claim of society to exercise authority over dissentients openly controverted."
In Lord Acton's "Lectures on Modern History," the like view is expressed (p. 206):
The Liberal ideas bred in sectarian circles, here and in America, did not become the common property of mankind until they were detached from their theological root, and became the creed of a party. This is the transition which occupies the reign of Charles II. It is the era in which parties took the place of churches as a political force.
A biographer of Bossuet, the great Frenchman, writing of his history of this religious struggle prevailing throughout Europe, says that he was the only one then "to view the conflict in its deepest aspects as a struggle between Liberty and Authority."
IV
Struggle between Liberty and Authority
While it is necessarily true, as Lord Acton says, that there was much of religion involved in the strife in England from James I (1603) down to the time of Charles II (1685) and after, because the Church had been established by Government, and in some aspects they were hardly distinguishable, the statement cannot be accepted without qualification. It is not to be overlooked that between the dates given we find the Petition of Right (1628) assented to by Charles I, the Agreement of the People (1649), the Instrument of Government (1653), and the Habeas Corpus Act (1679), all dealing with personal and civil Liberty.
It was from the Petition of Right that the framers of our Constitution took "the law of the land," and "due process of law," and the idea of the Habeas-Corpus Clause, of the Standing-Army Clause, of the Quartering-of-Soldiers Clause, and of the Taxing Clause, all relating, not to religion, but to the "Life, Liberty and the Pursuit of Happiness" written into our Declaration of Independence.
Nothing came of the Agreement of the People of Cromwell's time, the capture and execution of Charles I diverting attention from it; but it provided that "the Representative of the whole nation shall consist of 400 persons" to be elected by the people, that the Council of State "shall dissolve of course," and not be a Long Parliament at its pleasure; that no member of the Representative should hold other office, and that "no Representative may ... take away any of the foundations of right, Liberty and safety contained in this Agreement, nor level men's estates, destroy property, or make all things common." Here was an attempt at a "supreme Law of the Land" which should resist and break all encroachments on Liberty. Therefore the Agreement had to do largely with Liberty, Property, and Government.
Neither did the Cromwellian Instrument of Government become operative, but it is interesting as an attempt to put in writing a constitutional form, and some British historians have thought it to be the prototype of the Constitution of the United States. But to see that requires some help from the imagination. It put "the supreme legislative authority" in an elective Lord Protector and an elective Parliament without a House of Lords, and it set down six matters with which Parliament could not meddle, the second English attempt at limitation of Legislative power, both of which failed. It provided "that all laws" and ordinances "contrary of the aforesaid Liberty shall be esteemed as null and void," like the legislative acts in the United States which conflict with constitutional Liberty, and that bills not signed by the Lord Protector within twenty days "nor given satisfaction" therefor to Parliament "shall pass into and become laws."
Another thing not to be overlooked in the study of the time of the four Stuart Kings and William III, during which (1603-1702) all the English colonies in America except Georgia (1732) were founded, is that the Stuarts brought into discussion the theory of the divine right of kings, which the English poet Pope expressed as "the right divine of kings to govern wrong." In this claim they were supported by both doctors of the law and doctors of divinity. The House of Tudor (Henry VIII) had insisted on passive obedience, and the coronation oath of Edward VI was recast (1547) to make the king's hereditary right wholly independent of election or the will of the people. But although the Tudors were more autocratic in some ways than the Stuarts, they were somewhat careful to respect public opinion; and accordingly they applied the doctrine without talking too much about it. But James I, the first of the Stuarts, constantly stressed this great principle of passive obedience, derived, as a corollary, from the Fifth Commandment. He and his supporters employed many Scriptural quotations. "Submit yourselves to every ordinance of man," it is written in I Peter, chapter 3, verse 13, "whether it be to the King as supreme or unto governors." Milton, Sydney and others opposed the doctrine, the author of "Paradise Lost" writing "A Defense of the People of England" in answer to a defense of the King by Salmasius.
That passive obedience to the Sovereign had been taught by philosophers and theologians as well as by Stuart and Bourbon royalty, by Lord Bacon, Hobbes, Pascal, Descartes, Spinoza, Luther, Calvin, and many others, shows how wide was the departure of the authors of the Declaration of Independence from the prevailing thought of Europe when America was settled.
Necessarily those long and often savage controversies over the power of the King had an effect on those who were laying the foundations of the New World. They saw Charles I beheaded. They saw an interregnum of eleven years and a Lord Protector in place of the King for six years, with unsuccessful attempts to set up a government by representatives of the people under a written constitution restraining the legislative power. They saw monarchy come back in the person of Charles II, the exiled son of the beheaded king. They saw James II, the brother of Charles, driven from the throne and in his stead William and Mary (James's daughter) seated. Those happenings indicated that sovereigns were not supreme and that the people might become so. The new sovereigns were obliged to submit to the numerous and positive limitations on royal powers set down in the Bill of Rights (1689), which took the form and title of "An Act for Declaring the Rights and Liberties of the Subject." Parliament being the dictator, all the restraints which it prescribed were on the Executive power. Naturally it placed none upon itself.
As the title of the Bill of Rights tells, it dealt not chiefly with religion, but with civil and political Liberty. By accepting this the sovereigns agreed not to suspend laws, not to dispense with laws, not to levy money "by pretense of prerogative" but to ask it of Parliament, not to keep a standing army without the consent of Parliament, not to interfere with the free election of members of Parliament, not limit speech or question debates in Parliament, not to favor excessive bail, excessive fines, nor cruel and unusual punishments, not to oppose frequent sessions of Parliament. Those and some others "they do claim, demand and insist upon all and singular the premises, as their undoubted rights and liberties." Observe, again, that in the foregoing it is Parliament that towers.
The idea that the Man has Liberties which are beyond the power of the sovereign (and that includes a majority) to touch was thus set out in the Bill of Rights:
That all and singular the rights and liberties asserted and claimed in the said Declaration [of Rights] are true, ancient, and indubitable rights and Liberties of the people of this kingdom.
Indubitable rights are incontestable rights, undeniable, beyond dispute — rights not in the field of Government.
Thus resulted "the glorious Revolution of 1688," by which Power passed from King to Parliament. Having set itself up in its own way, of course it has ever since been without any such limitations on its power as the writers of our Constitution placed on that of Congress. It was the King who had chiefly done oppression in England. Parliament, although at times tyrannical, had not so much alarmed the people. So it was throughout Europe; all-powerful kings had oppressed and pillaged the people and led them to their graves in endless and needless wars. There had been no representative legislative bodies deserving of the name; and when the fall of kings came the only thought of the makers of constitutions was to hold future executives in check.
But within less than sixty years of the Declaration of Rights the King of England was as autocratic and the Parliament as subservient to him as Henry VIII had been dominating and Parliament had been submissive. George III drove the American colonies to Revolution, "and," says the historian Green, "the shame of the darkest hour of English history lies wholly at his door." That rather overstates the fact. After enumerating the grievances against George III, the Declaration of Independence says:
Nor have We been wanting in attention to our British brethren. We have warned them from time to time of the attempts by their legislature to extend an unwarrantable jurisdiction over us.... They too have been deaf to the voice of justice and consanguinity.
It is true that the Parliament was the King's obedient servant. However, it is blamable for being so. George III distributed all patronage himself, directed the management of debates in Parliament, suggested motions to be made or opposed, and dictated how measures should be carried.
Having observed the violence of the Parliament which beheaded Charles I, and having experienced the oppressions of an all-powerful king with a Parliament at his beck to pass measures to his liking, the founders of this Republic were diligent to bind with limitations in the Constitution both the Executive Department and the Legislative. That was done for the first time in all the experiences of men with government.
"In questions of power, then," wrote Jefferson, "let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution."
There, in a single sentence, is the whole history of governmental failures and national wrecks. No way had been devised successfully to chain the man in power, who always became mischievous. While European peoples, unacquainted generally, as before mentioned, with legislative bodies as we know them and as the Parliament of England was known in the time of the Declaration of Independence, have not in their constitutions drawn so many restraints around legislatures [1] as appear in the Constitution of the United States and in the constitutions of the several states, it is significant that in newer lands, in the countries of the Western Hemisphere and in Australia, the policy of defining and limiting the range of both Legislative and Executive activity has been followed. Canada and Australia took the pattern of the United States not only in this respect, but also in establishing a Supreme Court to determine when the question is raised whether the Legislature went beyond the bounds of the Constitution; and Bryce wrote nearly forty years ago that opinion had changed in his country and that many "lament that England should have no Supreme Court." Had there been a Supreme Court in England in 1764 and after, and had it held unconstitutional (as they were) the Acts of Parliament taxing the colonists without representation, and quartering troops, and maintaining a standing army, and taking away trial by jury, then there might never have been a Declaration of Independence.
Unlimited power, whether in King, Parliament, or Congress, is not compatible with Liberty.
[1] Gouverneur Morris while our Minister to
France "scorned the folly of the enthusiasts and doctrinaires ... who had put
the Executive in the power of the Legislature, and this latter at the mercy of
the leaders who could most strongly influence and inflame the mob."
—
Theodore Roosevelt.
V
Miserable Condition of Mankind
Turning from the ideas of Europe on religion, government and Liberty during the time the American colonies were being established, a look at the condition of the people themselves should be instructive as to what horrors Government not limited can produce and what the framers of the Constitution of the United States intended to make forever impossible in the New World.
Immediately after our Revolutionary War came the French Revolution, in considerable part an effect of ours. In Carlyle's history of that bloody time he makes the French people say to the government and governors of France:
This is the feeding and leading we have had of you: Emptiness — of pocket, of stomach, of head, and of heart. Behold, there is nothing in us — nothing but what Nature gives her wild children of the desert: Ferocity and appetite.
After all the long centuries the centralized Government Supreme in France had arrived at that! And it perished in a scene beyond description by the historian except by the words Reign of Terror.
Michelet, who was born when the feudal baron was going out of France, wrote of him:
Everything is his: the oak forest, the bird in the air, the fish in the water, the beast in the thicket, the running stream, the bell whose sound reaches a great way off.
We who own and enjoy the land and the forest and the stream and the mine and all that they contain too little understand the great value of our inheritance. Our position and our possessions have come to us through our constitutional Government, which keeps power in place and leaves the people to win their way unridden and unenslaved. Therefore, the first and unceasing care of the American should be the study (which will mean the preservation) of this constitutional system.
When Thomas Jefferson was our minister to France, under the Articles of Confederation, the Constitution which preceded the present one, he wrote:
Of twenty million people supposed to be in France, I am of opinion that there are nineteen million more wretched, more accursed in every circumstance of human existence, than the most conspicuously wretched individual in the whole United States.
The man in England at that time was some better off than the Frenchman, but not much. Thackeray's "Four Georges" gives an intimate view of the miserable condition of the man in that country, victimized by his Government. Other historians tell of his life.
Of the whole European situation Thackeray wrote:
Every prince imitated the French king, and had his Versailles, his Wilhelmshohe, his Ludwigslust; his court and its splendors; his gardens laid out with statues; his fountains, and waterworks, and Tritons; his actors, and dancers, and singers, and fiddlers; his harem, with its inhabitants; his diamonds and duchies for these latter; his enormous festivities, his gaming-tables, tournaments, masquerades, and banquets lasting a week long, for which the people paid with their money, when the poor wretches had it, with their bodies and very blood when they had none, being sold in thousands by their lords and masters, who gayly dealt in soldiers, staked a regiment upon the red at the gaming-table, swapped a battalion against a dancing-girl's diamond necklace, and, as it were, pocketed their people.
A little while before the first English Colony was planted (1607) in this country at Jamestown, Virginia, the Earl of Leicester, who had received a vast area of land from the Queen, which the people should have had, entertained Elizabeth and thirty-one barons and a host of retainers at the Castle of Kenilworth for seventeen days at an expense in present-day money of $50,000 a day. The party ate ten oxen a day and drank sixteen hogshead of wine and forty hogshead of beer. When earls and the like held all the land and spent their time in warring, hunting, gaming and profligacy, one may readily visualize the dreadful plight of the common man and his wife and children. Nor has the old condition been much improved as to some of the people. In the year before the World War it was stated by Lloyd George, then Chancellor of the Exchequer, referring to a strike of the farm laborers in England, that the worker on the land received less pay than the pauper in the poorhouse. The government spent more on the pauper than the owner of the land paid his worker.
The oppressions which were done to the people by Government when the Preacher in the Book of Ecclesiastes (ch. 4, v. 1) wrote of them in the second century before the Christian era, when he found that "on the side of their oppressors there was Power," prevailed continuously and over an increasingly large number of people down to the Declaration of Independence. Even if the historical records of the gross mishandling of the human race by Government were not so complete as we have them, the general and unending unhappiness of the mass of mankind would be unmistakably inferred from the visions of great souls, from century to century, of a better State.
In Solomon's dream (1015-977 B.C.) he was given "a wise and an understanding heart" beyond all men before or since because his prayer (1 Kings, 3) was, not for riches or long life or power, but for "an understanding heart to judge thy people" that he might "discern between good and bad." That for this thought he was made the wisest of men it is inferable that mankind were very badly governed.
About half a century after Solomon, and a little to the West, "The Republic" of Plato was written (about 375 B.C.) to show a government which would lift mankind out of their deep wretchedness and make them happy. But Plato believed that Government should have for its purpose, not leaving man unhampered to make his way and develop himself, but the training him in wisdom. "Unless the philosophers become rulers," he wrote, "or rulers become true and thorough students of philosophy, there shall be no end to the troubles of states and of humanity." Of course, that Government never came. In his view "the troubles of states and humanity" were very great.
Shortly after the discovery of America a great Englishman, Sir Thomas More, wrote (1516) "Utopia" in description of an imaginary land lifted by an ideal constitution above the appalling miseries in which the Government of his England and the other governments then held the mass of men.
Not long after the founding of the first English Colony in America there was published (1625) in Holland the work of Grotius on the "Right of War and Peace." He pleaded for the abolition or mitigation of some of the barbarities which governments employed in war; and he concluded his study of the mistreatment of the human race in the bloody adventures of emperors, kings, barons and retainers with a prayer to rulers that they would always remember "that you are governors of Man, who is very dear to God."
A century and a half later (1762) Rousseau in France wrote "The Social Contract" to tell a people misgoverned to destitution and ferocity how they might save themselves.
Those and many other dreams of great thinkers who were touched by the general and deep misery of mankind which bad Government had brought were put forward from century to century. They accomplished little beyond provoking men to think. They are referred to here to illustrate that down to the time of our Government the man and his wife and their children never had a show. Long centuries of wretched living in a lovely world! What an awful waste of human life!
Then, after those countless failures, came the Constitution of the United States with the sublime purpose of Solomon stated in its Preamble: to "establish Justice" and to "promote the general Welfare," as well as to secure for all time "the Blessings of Liberty."
VI
Liberty: What Does It Mean?
What was meant by Liberty in the Preamble?
What was meant by Liberty written eleven years before in the Declaration of Independence, which is so all-important that whenever "Government becomes destructive of" it "the People" have "the Right ... to alter or abolish" the Government which thus wrongs them?
From that pronouncement it must be understood that Liberty is important. Rather than that Liberty be destroyed, Government itself shall be swept away and the People shall "institute new Government, laying its foundation on such principles," the Declaration of Independence continues, "and organizing its power in such form as to them shall seem most likely to effect their Safety and Happiness."
Liberty, then, with Life and "the pursuit of Happiness," is, according to American doctrine, the greatest treasure in the world.
What is Liberty?
"The aim, therefore, of patriots," says John Stuart Mill, "was to set limits on the power which the ruler should be suffered to exercise over the community: and this limitation was what they meant by Liberty."
Liberty, therefore, is Limitation on Power. And so wherever a Limitation set by the people for the restraint of Government is removed, there Liberty is lost.
Liberty was restored (not granted) by the earliest (1101) document in the Constitution of the English people, the Charter of Liberties of Henry II, "a deliberate limitation," says Stubbs, of the power "which had been exercised by William the Conqueror and William Rufus."
Liberty was in Magna Charta over a century later (1215), when King John "granted to all the freemen of our Kingdom, for us and our heirs forever, all the underwritten Liberties, to be had and holden by them and their heirs, of us and our heirs forever." While through the centuries these liberties were often taken away by Government, that is, the limitations were broken down, it must be said for the Englishman that he never consented to such deprivation and that he never ceased to fight for "Liberty under law." It is in Magna Charta that first appears the expression, "by the law of the land," which contained the meaning in our constitutional phrase, "due process of law," both of which were written in the Petition of Right to Charles I in 1628. The latter clause is there traced back to an enactment in the twenty-fifth year of Edward III, that is, 1352.
Liberty was in the Habeas Corpus Act of 1679 "for the better securing of the Liberty of the subject" against the tyrant.
Liberty was set out in The Instrument of Government of 1653, for England, Scotland and Ireland, and "all laws, statutes and ordinances and any clauses in any law, statute or ordinance to the contrary of the aforesaid Liberty, shall be esteemed as null and void," a fine statement of our "supreme Law of the Land," which never came to pass in Britain.
Liberty was stated to be in the American Declaration of Rights of 1765, promulgated at New York, the essential to "the increase, prosperity, and happiness of the colonies"; and the Stamp Act and the Act of Parliament extending the jurisdiction of courts of admiralty so as in practice to destroy trial by jury were complained of as having "a manifest tendency to subvert the rights and Liberties of the colonists."
Liberty was again the word in the American Declaration of Rights of 1774, written at Philadelphia, where a General Congress of deputies of the colonies had assembled "in order to obtain such establishment as that their religion, laws, and Liberties may not be subverted." The first resolution was that they "are entitled to life, Liberty and property, and that they have never ceded to any sovereign power whatever a right to dispose of either without their consent."
The words in italics import the powerlessness of "any Government on earth," as Jefferson later wrote when advocating a Bill of Rights in the Constitution, to deprive the Man of Liberty — to overstep the limitations set by him for his protection.
In the Declaration of Independence the colonists went further than that: they declared Liberty to be "unalienable," that is, that they could not even "consent" to part with it and thereby lose it to their children and to posterity at large. The second resolution of the Declaration of Rights was that their ancestors had come to America possessed of "all the rights, Liberties and immunities of free and natural-born subjects within the realm of England." In the tenth and last resolve they said that "their indubitable rights and Liberties ... cannot be legally taken from them, altered or abridged by any power whatever without their own consent."
Once in the Declaration of Rights the course of Government is said to be "unconstitutional," showing a belief that rights are fixed and not to be blown away. Once the act of Government is declared to be "illegal," and two other acts are said to be "against law": early intimations of the belief in "a Government of laws and not of men," which was later (1780) to be written in the Constitution of the State of Massachusetts. One reference is made to "the English Constitution," and another to "a constitutional trial by jury," both of which had been disregarded by the Government. Those references showed a belief in settled law which could not be ignored by Government.
Liberty was in the Virginia Bill of Rights (June 12, 1776), written by George Mason, which proclaimed what appeared less than a month later in the Declaration of Independence:
That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and Liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.
What is this Liberty, the name of which is never lost to sight or ear across eight centuries and a quarter of the history of English-speaking men?
Has the word a meaning? Or has this persistent use of it been "sound and fury, signifying nothing"?
What did this word mean when written in the Fifth Amendment to the Constitution to protect the Man against the Government of the Nation, and in the Fourteenth to shield him against aggressions by the States? What substance was in the word in 1776 and 1787? With that known, the Constitution will be understood.
What this word had come to mean in England at the time of the Declaration of Independence may be taken from William Blackstone, who began in 1758 a course of lectures in the University of Oxford, in a chair just established, which lectures in book form are known as "Commentaries on the Laws of England," and which were taught in the College of William and Mary by Chancellor Wythe to James Madison, Thomas Jefferson, and some others who had to do with the founding of this Republic. Edmund Burke, one of the friends of the colonists in the House of Commons, stated that more books of law were going from Europe to the colonies than of any other kind. It is not unlikely, therefore, that Blacksone's remarkable formulation of English law, done in a literary style yet unexcelled for lucidity and charm, was known to many of the deep students and thorough scholars of that time besides those who came from the College of William and Mary. Moreover, an edition of Blackstone was brought out at Philadelphia five years before the Declaration of Independence.
Blackstone defines (Vol. 1, p. 125) natural liberty as follows:
This natural Liberty consists properly in a power of acting as one thinks fit, without any restraint or control, unless by the law of nature; being a right inherent in us by birth, and one of the gifts of God to Man at his creation, when He endowed him with the faculty of free will.
Then, mentioning that when man enters into society he necessarily submits to regulation of his natural Liberty "as the price of so valuable a purchase," Blackstone gives (Book 1, p. 125) this definition of the Liberty which belongs to man as a member of society or the State:
Political, therefore, or civil Liberty, which is that of a member of society, is no other than natural Liberty so far restrained by human laws (and no farther) as is necessary and expedient for the general advantage of the public.
Sharswood, a commentator on Blackstone, criticizes the use in the foregoing quotation of political Liberty and civil as synonymous. Political Liberty, he says, is "the security with which, from the constitution, form, and nature of established government, the subject enjoys civil Liberty." Sharswood adds this important observation:
It is certainly true that law in its turn may be a tyrant, whether enacted by the will of one man or of a majority of the people ... Whenever laws attempt more than is necessary to secure alike to every man, weak or strong, rich or poor, ignorant or instructed, the right, the moral power, of seeking his own happiness in his own way, they invade the natural Liberty of which they ought only to be the bulwark.
That idea, that the majority itself must be controlled, is at the base of the American system.
"A majority held in restraint by constitutional checks and limitations," said Lincoln in his first inaugural address, "and always changing easily with deliberate changes of popular opinions and sentiments, is the only true sovereign of a free people."
Referring to the observation of Locke, that where there is no law there is no freedom, Blackstone comments:
But then, on the other hand, that constitution or frame of government, that system of laws, is alone calculated to maintain civil Liberty, which leaves the subject entire master of his own conduct, except in those points wherein the public good requires some direction or restraint.
A great authority of that time, who wrote (January, 1776) "Common Sense" in support of American independence and, as Washington said, "worked a powerful change in the minds of many men," and who served in the army of the Revolution, was Thomas Paine, an Englishman grown tired of the English government. In "The Rights of Man," of which a million and a half copies were sold in England alone, showing that that Government was far from satisfactory to home people, Paine wrote:
Natural rights are those which appertain to man in right of his existence. Of this kind are the intellectual rights, or rights of the mind, and also all of those rights of acting as an individual for his own comfort and happiness, which are not injurious to the natural rights of others.
Civil rights are those which appertain to man in right of his being a member of society. Every civil right has for its foundation some natural right pre-existing in the individual, but to the enjoyment of which his individual power is not, in all cases, sufficiently competent. Of this kind are those which relate to security and protection....
That power [Government] produced from the aggregate of natural rights, imperfect in power in the individual, cannot be applied to invade the natural rights which are retained in the individual, and in which the power to execute is as perfect as the right itself.
That is a great definition of Government: It is the aggregate of natural rights of the kind which the possessors are unable alone to secure and protect — it has nothing to do with those other natural rights of thinking and acting which do not require protection and respecting which the possessor is therefore competent in himself.
Another illustration of what was understood in Revolutionary times of the right to Liberty and the proper sphere of Government is obtained from the writings of John Dickinson, whose Quaker grandfather had been driven out of England to find refuge in Virginia. "A Farmer's Letters to the Inhabitants of the British Colonies" made him eminent in the field of discussion. He was classically educated at Philadelphia. A three-year course in law in the Temple, London, finished his training. He was a leader in the Stamp Act Congress (1765), was chairman of the Committee of Correspondence of Pennsylvania, Chairman of the Committee of Safety and Defense for his State, was chosen colonel of the first battalion to defend New York when it was threatened, and in several Continental Congresses his pen was of the highest service to Liberty. His opinion should therefore be of value when the search is for the meaning of Liberty in 1776 and 1787, and the just province of Government.
"For who are a free people?" he asked. "Not those over whom Government is reasonably and equitably exercised, but those who live under a government so constitutionally checked and controlled that proper provision is made against its being otherwise exercised."
"A free people, therefore," he wrote in his sixth Letter, "can never be too quick in observing, nor too firm in opposing, the beginnings of alteration, either in form or reality, respecting institutions formed for their security. The first kind of alteration leads to the last: Yet, on the other hand, nothing is more certain than that the forms of Liberty may be retained when the substance is gone. In Government, as well as in religion, 'The letter killeth, but the spirit giveth life.'"
Therefore, the word Liberty, which had been in the vocabulary of English law since the year 1100 at least, had the meaning when the Constitution was written that Government could not, as Paine expressed it, "be applied to invade the natural rights which are retained in the individual, and in which the power to execute is as perfect as the right itself" — the Man needing as to those rights no help from Government. Liberty had the meaning when the Constitution was written that Government could not restrain the Man any further than, as Blackstone put it, was "necessary and expedient for the general advantage of the public." For the general advantage of the public as a fact, he clearly implies; and even then it can go "no farther." That Government can go "no farther" means that its pretensions are subject to examination and, if untrue, to rejection. The conclusion of Government as to how far and in what direction it should go "for the general advantage of the public" is not final. Its judgment may be at fault as to what "is necessary and expedient." Or, as history so often teaches, its judgment may be vicious. In either case there must be some means of stopping its activity or else Liberty will be lost. That fundamental need the Judicial Department of the national Government and the Judicial Departments of the States were established to supply. Instinctively the American has realized (for he never has been educated in constitutional government) that the courts are for the Man and his Life, Liberty, and Property.
"By Liberty," says Lord Acton, "I mean the assurance that every man shall be protected in doing what he believes his duty against the influence of authority and majority, custom and opinion. The State is competent to assign duties and draw the line between good and evil only in its immediate sphere. Beyond the limits of things necessary for its well-being, it can only give indirect help to fight the battle of life by promoting the influences which prevail against temptation — religion, education, and the distribution of wealth. In ancient times the State absorbed authorities not its own, and intruded on the domain of personal freedom. In the Middle Ages it possessed too little authority, and suffered others to intrude. Modern States fall habitually into both excesses. The most certain test by which we judge whether a country is really free is the amount of security enjoyed by minorities." [1]
[1] History of Freedom, p. 3.
In the United States to-day the erroneous belief has become rather prevalent that the minority cannot properly complain of any course of legislation or governmental conduct deemed necessary by the majority. This has come in part, probably, from what Bryce long ago wrote of as the fatalism of the multitude, added to lack of constitutional scholarship.
"Thus out of the mingled feelings that the multitude will prevail," he wrote, "and that the multitude, because it will prevail, must be right, there grows a self-distrust, a despondency, a disposition to fall into line, to acquiesce in the dominant opinion, to submit thought as well as action to the encompassing power of numbers."
But the chief cause of the condition is the general illiteracy of the people with respect to their Government and their rights under it and against it.
VII
Americans Invented Judicial Safeguard
The constitutional Judicial Department to see that Government goes "no farther" than its authority extends is an American invention, and it has been recognized by the best minds of the world as the chiefest contribution of genius to the promotion of Liberty. It is well that the people have known this by instinct. But in view of the "drives" of recent years against the Judicial Department by propagandists and "blocs" with selfish interests or worse, it is important that the people reënforce their instinct with study; that they know the principles of their Government as the founders of it did, and be prepared to act on knowledge.
Parenthetically, for the information of those who believe that the present generation is too advanced to follow what one of them called "outworn philosophies," a sentence from Bryce suggests a comparison between the giants of Government to-day and the men who founded the Republic. "Five men at least of that generation," he wrote (1 Stud. H. & J., 306), "Washington, Franklin, Hamilton, Jefferson, and Marshall, belong to the history of the world; and a second rank, which included John Adams, Madison, Jay, Patrick Henry, Gouverneur Morris, Roger Sherman, James Wilson, Albert Gallatin, and several other gifted figures less familiar to Europe, must be mentioned with respect."
"The complete independence of the courts," wrote Alexander Hamilton in "The Federalist" (No. 78) "is peculiarly essential in a limited Constitution. By a limited Constitution I understand one which contains certain specified exceptions to the legislative authority, such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this all the reservation of particular rights or privileges would amount to nothing."
But courts are not likely long to be independent if the people permit them to be pursued by "blocs" and by a Legislative Department with what Madison called an "enterprising ambition" to extend its Power.
"But it is easy to see," quoting Hamilton again, "that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution where legislative invasions of it had been instigated by the major voice of the community." [1]
[1] That the "major voice of the community" seemed to call for legislation invading the constitutional rights of the sober man as well as shielding the drinker to excess, explains, doubtless, why the courts have held no liquor law invalid, however gross the affront to American manhood. As will be seen more fully, the Supreme Court of the United States has admitted that it had gone further in liquor cases than would have been constitutional in others, without any explanation of its power to do so. "The major voice of the community" is too often that of a minority highly developed in vocalization, as was illustrated in the case of woman suffrage, which, when obtained, the majority of women did not use, meaning that they never wanted it. Even less reliable as a guide is "the major voice" for liquor laws severe to the degree of unconstitutionality, when many of the advocates in both legislature and Congress are violators of their own legislation. The only safe and sure guide for courts is, not "the major voice of the community" at any given time of excitement or propaganda, but constitutional principle. But, as Hamilton said, this sometimes requires "an uncommon portion of fortitude in the judges." They must be supported by a capable press and an educated public opinion, neither of which exists to-day.
There have been not only "legislative invasions" of the field of the Judicial Department, but in the Presidential election of 1924 a candidate on a platform for practically destroying the Supreme Court and putting in the hands of Congress judicial power as well as legislative ("precisely the definition of despotic government," said Jefferson of blended powers) received over 4,800,000 votes from supposedly educated men and women, one-sixth of all cast.
What Blackstone meant by Government's going "no farther" is illustrated by a case (4 Wall., 333) where Congress undertook to punish men without trial in court and by jury and the Supreme Court held the Act of Congress void as a bill of attainder forbidden by the Constitution.
State legislatures also, like the national legislature, have overlooked the constitutional consideration that in dealing with the Liberty of the Man they could not "invade," as Paine put it, "the natural rights which are retained in the individual" — could, as Blackstone said, go "no farther" than was "necessary and expedient for the general advantage of the public" — no farther in fact than was necessary and expedient. A legislature possessed of the crusading spirit, or feeling that the General Will desires it to force people to be free, cannot go so far as its enthusiasm would take it. It is the place of the Judicial Department to stop it when it attempts to go further than is necessary in fact.
Thus the Supreme Court of the United States checked the legislatures of several States (262 U. S., 390) when they undertook to tell students what they could study and teachers and other individuals what they could teach. The laws were directed in the heat of war-time and after against the German language.
The provisions of the laws requiring teaching to be done in the English language were sound. And they were observed. But the step beyond that, to control the mind by dictating what should be learned and what should not be acquired as knowledge, that brought conflict with the limitation in the Fourteenth Amendment preventing the State from denying Liberty.
The laws were what is known in Natural History as a reversion to type, by which the peculiarity or disease of an ancestor reappears after the lapse of several generations. They were the recurrence, after two centuries and three-quarters, of the Conventicle Acts of the Tudors and the Stuarts, which told people what to think, how to worship, which forced them to be free and thereby populated Massachusetts. Preventing youth in school from studying any but the English tongue until after passing the eighth grade was considered by the legislatures to be "necessary and expedient for the general advantage of the public." But that conclusion was not final. The American took great pains to see that the conclusion of a legislative body should not be final when the conclusion should conflict with a constitutional provision. He had felt sorely what that meant in the Acts of the Parliament of England. "An elective despotism," wrote Jefferson, "was not the government we fought for." He said that a group of tyrants would be less manageable than one, a truth which legislatures have since demonstrated, although it needed no further demonstration.
If it cannot be tolerated that one sovereign shall be an autocrat, why should autocracy in the majority be suffered?
"In the absence of an agreement," says Herbert Spencer in "The Great Political Superstitution," "the supremacy of a majority over a minority does not exist at all."
And there is no "agreement" in our Government by which, as there was in Rousseau's scheme, a General Will can be evolved to force men to be free. Nothing is surrendered under our Constitution by the Man to the Government. On the contrary, the Constitution is to secure his pre-existing rights: that is what the Declaration of Independence says.
Pointing out that the majority in a corporation or other business organization cannot control where the original purpose is departed from, Spencer says:
And I contend that this holds of an incorporated nation as much as of an incorporated company.
So a departure by the majority from constitutional principle and purpose is void. What they do is not binding on the minority. The act of any corporation beyond its charter powers is called in the law ultra vires.
It had been made plain by over a century and a quarter of experiences that it is not "necessary and expedient for the general advantage of the public" that only the English language be taught to the young. The United States had progressed beyond example in the history of the human race while parents and children together, and entirely unaided by legislators, had selected the languages which the boys and girls would study. Indeed, that progress was doubtless furthered by the thought and culture gained from the German, the French, the Italian and the Spanish. Had our educators and statesmen begun long ago to look a little farther into America every boy and girl in school would have had an opportunity to learn Spanish and we would have now a hold on the good will and trade of the peoples south of us which never should have gone to Europe. We would have to-day a large population capable of moving as freely in the southern republics as they go from State to State at home. It is the right "against any Government on earth" of any man to teach or have taught that language to his children, and it is the right of pupils to learn it. The difficulties and misunderstandings which the Pan-American Congress has been working to resolve never would have arisen had we early learned to be on "speaking terms" with our American neighbors. It was probably more our duty to learn Spanish than it was theirs to learn English, for their ties to Europe were recently cut, comparatively, while our separation was long ago, and a mixture of immigrants has further weakened the feelings of consanguinity. This example is in itself enough to illustrate how destructive of Liberty and progress would be such a power as the legislatures of three States claimed to have and undertook to use. The finding of fact which the acts of the legislatures imported was false. It was to be set aside, just as the findings of fact of a jury always have been set aside by the court when contrary to the evidence or when manifestly based on passion or prejudice. For our Constitution is rested on principles of law tested by long experience and accepted as essential. In finding, or claiming or pretending to find, what is "necessary and expedient" the legislature cannot trample common knowledge under foot. The police power over the health, morals, safety and general well-being of the people stops where constitutional limitations begin. For illustration, the police power could not authorize two-thirds of property owners to fix the boundary line for the others, whether to the damage of their property or not; nor did "the convenient apologetics of the police power" sustain a State in regulating interstate highways; nor could a State make a tenement house of one in which one person more than the family lived and regulate it accordingly. Those acts were assumed by the States to be "necessary and expedient" for the public interest, but they were not so much so as the constitutional provisions for the protection of Liberty and Property. An act purporting to be for the public health or morals may have no substantial relation to the subject; indeed, the courts have been burdened with cases arising from such regulations.
It is the Constitution, and not the legislative notion, or even the General Will, that is "the supreme Law of the Land" in the United States. The Constitution so declares.
Another legislation cut from the piece with the Conventicle Acts was that of a State which forbade (Pierce v. Society, etc., 268 U. S., 510) attendance at any but the public schools, the purpose being to close schools in which religious precepts of any kind were taught. All those laws sought to control ideas, to cast all brains in one mold, to destroy competition (and therefore life) in thought, to make, in short, Government master of the Man. The Declaration of Independence says that that cannot be done, since Government derives its "just powers from the consent of the governed." And it adds that "whenever any Form of Government becomes destructive of these ends" — securing Life, Liberty and the pursuit of Happiness — "it is the Right of the People to alter or abolish it."
The Supreme Court of the United States held all those legislative acts void for conflict with the Fourteenth Amendment to the Constitution, which says:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or property without due process of law.
Those cases fall clearly with Blackstone's definition of Liberty, which permits Government to regulate for the general welfare the natural rights of Man "no farther" than is "necessary and expedient." So by the common law of England, which the colonists brought with them, and which was afterward made (so far as not inapplicable to American conditions) the law of the States, either by constitutional provision or statutory enactment, the acts of the legislatures just reviewed were in derogation of Liberty as understood in 1776 entirely apart from the limitation on the power of the States written into the Fourteenth Amendment after the Civil War. Many other provisions of the Constitution are thus merely restatements of the common law of England, particularly those in the Bill of Rights (the first ten Amendments), which were reduced to writing to "make assurance double sure" and prevent as far as possible for the future the occasion of dispute. And it was held by the Supreme Court of the United States (Murray's Lessee v. Hoboken, 8 How. 272) that the "due process of law" guaranteed to the Man by the Constitution for the safeguarding of his Liberty and property entitles him not only to the protection of all constitutional provisions, but also to the shield of the English common law.
It is better to observe here in a parenthetic way than later that it is very significant that the three State laws dictating to parents, children and teachers what sources of culture in the languages should be open to their minds, were sustained (one justice dissenting in Nebraska, three in Iowa, and one in Ohio) by the Supreme Courts of the respective States as exertions of the police power not repugnant to the Constitution of the United States. The Supreme Court of the United States reversed the holding of the three courts of last resort in the States, two justices dissenting in the belief that "men might reasonably differ" as to the propriety or necessity of the legislation. The test laid down by a late authority (Freund, "Police Power," sec. 143) is whether "it is possible to secure the object sought without impairing essential rights and principles." The "object sought," it was said, was the stability of the State; and as the Nation had achieved its great destiny while other languages than English were being taught in school and out, the conclusion is unavoidable that the legislation was not necessary and that it therefore violated "essential rights and principles."
VIII
Independent Judges Necessary
Why did the State courts sustain the State laws? Were they made up of poor lawyers, or did the justices follow (insensibly or purposely) what seemed to be the popular feeling — what Hamilton called "the major voice of the community"? Cases too many to count have been thus unfairly cast upon the Supreme Court of the United States by the Supreme Courts of States when they have sustained laws of States not having in many instances the shadow of constitutionality. Undeserved criticism has been passed on the national Supreme Court when it has reversed such decisions. Is the elective judge in the States a failure? That is to say, is he naturally disposed to observe the will of the elective legislature which was elected at the time that he was elected? The Declaration of Independence pronounced bad the "Judges dependent on his Will alone for the tenure of their offices and the amount and payment of their salaries." Whether the sovereign be a George III, or the General Will which is too often inclined to force men to be free, makes no difference — the Sovereign should not hold judges in the hand. Accordingly the Constitution provided for nonelective, completely independent judges:
He [the President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for....
The Judges, both of the Supreme and inferior Courts shall hold their Offices during good Behavior, and shall, at stated times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.
Let James Wilson, one of the makers of the Constitution, explain (1 Wilson's Works, 364) the opinion of his day on this subject:
But how can society be maintained — how can a state expect to enjoy peace and order, unless the administration of justice is able and impartial? Can such an administration be expected unless the judges can maintain dignified and independent characters? Can dignity and independence be expected from judges who are liable to be tossed about by every veering gale of politics, and who can be secured from destruction only by swimming dexterously along with every successive tide of party? Is there not reason to fear that in such a situation the decisions of courts would cease to be the voice of law and justice, and would become the echo of faction and violence?
That is good thinking for the present day, when there is so much complaint of the failure of justice in the courts of the States.
And yet there has been insistent advocacy in some quarters of an amendment to the Constitution so that judges of the courts of the United States may be thrown into politics by being made elective.
Turning from Paine's and Blackstone's ideas of Liberty, a little space will be given to the views of James Wilson of Pennsylvania, the ablest lawyer in the Constitutional Convention, who was educated at Edinburgh and St. Andrews along with such men as Adam Smith, David Hume and William Robertson, who was instrumental in securing the ratification of the Constitution by Pennsylvania, and who was appointed by President Washington a justice of the Supreme Court of the United States, in which place he served with great distinction. It was in his day that the Bill of Rights was added to the Constitution, the Fifth Article (Amendment) of which forbids that by the Nation anybody "be deprived of Life, Liberty or Property without due process of law." Wilson's views of Liberty and the power of Government should, therefore, he helpful in finding the full and precise meaning of the word written into our Constitution, in the Fifth Amendment to protect the Man against the Nation, and in the Fourteenth Amendment to shield him from the tyranny of the State. Speaking at length and with power in the ratifying convention of Pennsylvania in favor of the Constitution, he said:
We have remarked that civil government is necessary to the perfection of society: we now remark that civil Liberty is necessary to the perfection of civil government.
Lecturing before the College of Philadelphia while he was a Justice of the Supreme Court of the United States, he laid down the purpose of Government:
What was the primary and the principal object in the institution of government? Was it — I speak of the primary and principal object — was it to acquire new rights by a human establishment? Or was it, by a human establishment, to acquire new security for the possession of those rights to the enjoyment or acquisition of which we were previously entitled by the immediate gift, or by the unerring law, of our all-wise and all-beneficent Creator?
If that question did not answer itself the correct response could be found in the Declaration of Independence: "that to secure these rights" — Life, Liberty, and the pursuit of Happiness — "Governments are instituted among Men." That is what Justice Wilson conveyed in his self-answering interrogatory.
In the same course of lectures Justice Wilson commented as follows on the Liberty of the Man against Government:
Every wanton, or causeless, or unnecessary act of authority, exerted or authorized or encouraged by the legislature over the citizens, is wrong, and unjustifiable, and tyrannical: for every citizen is, of right, entitled to Liberty, personal as well as mental, in the highest possible degree which can consist with safety and welfare of the State. "Legum" — I repeat it — "servi sumus, ut liberi esse possimus."
That is, we are servants of the law in order to be free.
Government must, as far as it is possible to do so, let the Man alone. It must let him alone mentally as well as physically. Government cannot, for illustration, tell a man what language he and his children may study, or force him to be free by accepting the belief that, when the majority desires, he should surrender his natural Liberty for a reason contrary to the common knowledge of mankind.
In the quoted passage Justice Wilson states precisely what Paine, Blackstone and others of the time laid down, that Government can go "no farther" than is "necessary and expedient for the general advantage of the public." If the step taken be not in fact "necessary and expedient," then it doubly wrongs the Man: by violating the common law as Blackstone stated it, and by violating the Constitution. It cannot be too often repeated that neither the Legislative Department nor even an overwhelming majority is the final judge as to how far it "is necessary and expedient for the general advantage of the public" to restrain the Liberty of the Man. That is a constitutional question to be passed upon by the Judicial Department of Government. And should the courts fail to maintain Liberty, then Government itself has failed and the powers committed to it through the Constitution, "incapable of Annihilation," as the Declaration of Independence says, "have returned to the People at large for their exercise." It is then for the people to take into their own hands the securing of the protection which the Judicial Department failed to give as the Constitution contemplated. It was because self-protection against Government was usually accomplished by the people in a disorderly and violent way that they worked out the constitutional method for the quiet and certain securing of Life, Liberty, and Property. But should the constitutional system fail, then the powers delegated to Government return to the People.
The success of the constitutional system devised for preserving Liberty is contingent upon independent, competent, and courageous judges with an educated press and people at their back. Without the press and people they cannot stand. How deplorable and dangerous has been the lack in this respect was demonstrated in 1912, when a political party advocated the recall of judicial decisions by the voters (who would, of course, know nothing about the constitutional questions involved) and its candidate carried six States, receiving over twenty-seven per cent. of the popular vote. This idea was first politically expressed in the platform of the Socialist-Labor party. The recall of decisions, and the recall of judges themselves, had been under discussion for several years. In 1908 a State amended its constitution to recall judges, that is, to mob at the polls a judge whose decision might, although sound, be unpopular. Several other States followed the example. At least one State amended its constitution to recall both the judge and his decision. Even in 1913, the year after the presidential election mentioned, two State legislatures proposed amendments for the recall of judges.
But the bar and press finally slew the evil thing, fuller details of which are omitted because most who had to do with it are well ashamed.
The proposal to destroy the independent Judicial Department, invented by American genius and established through the Constitution for the protection of Liberty, has been paralleled by nothing in our history but the teaching of secession.
IX
Can Government Be Effectively Limited?
Thirty years ago one of the leaders of the American Bar spoke precisely as Paine and Blackstone wrote of the "necessity" which is a condition precedent to a grant of any further power by the People to Government. "Liberty is safe when, and only when," said James C. Carter, "for each delegation of power which is demanded a necessity is shown." The existence of that necessity is not a question of policy for the Legislature or the Congress or even the majority to determine: it is a constitutional question for the courts. Otherwise the policy of the legislatures which undertook to control the minds of men in the acquisition of linguistic learning in the belief (presumably) that that course was "necessary and expedient for the general advantage of the public" would have stood, just as the Conventicle Acts of Parliament stood where Government was not held in proper place by courts and constitutional barriers. Carter's idea was that as the Constitution specifies the powers of each of the three departments of government, and then says in the Ninth Amendment that the people retain to themselves other powers, and in the Tenth Amendment that either the State or the people retain all powers not granted, it was the purpose to let Government have only necessary powers. Therefore, the safety of Liberty requires that, before any further grant of power be made or admitted, necessity that Government have such power must clearly appear.
Where Congress assumed the power not granted to it by the Constitution to declare the "policy" in the District of Columbia that by the contract of employment the employer should be charged with a duty to the employe of support from which even the parents are discharged when their children reach the age of 21, the conclusion of Congress was subject to review — it was not final. For however praiseworthy the motive and desirable the aim that each working woman receive from private employers good pay (even though the Government is a niggardly paymaster), it is a constitutional question whether a minimum wage law for the general welfare violates the prohibition of the Fifth Amendment, "nor shall private property be taken for public use without just compensation," when it sets weekly wages which an employe may be unable to earn, for lack of strength or lack of something else, which places no obligation upon the employe justly to earn it when able, and which takes no account of the earning ability of the employer's business to carry the charge. It is generally recognized that the ordinary employe has but little show in driving a bargain with the employer, and that therefore he is entitled to all lawful help. But labor in this country has made such great and rapid improvements in conditions through organization, able leadership, and the force of public opinion that it certainly can carry on its work without the aid of measures of questionable legality. And the courts have been good to labor. Persons needing help beyond their capacity to earn have usually been taken care of by taxpaying society. Certain it is that the helpless should be helped in the interest of public welfare; but, as the Supreme Court held in 1923 (Adkins v. Children's Hospital, 261 U. S., 525), private money or property cannot thus be taken for the public benefit while the Fifth Amendment stands. The provisions of the Constitution of the United States, the "supreme Law of the Land," express the highest "policy" down to date.
In 1874 it seemed "necessary and expedient" to Congress to enact that in a proceeding against a man for violation of the revenue laws he should be required to produce for inspection and for use in evidence his books and papers, and that, upon his refusal, the charges made against him should be taken as confessed, without further proof. On a trial in 1886 it became important to show the quantity and the value of an importation of plate glass. The accused produced his books in pursuance of the ruling of the trial court, but under protest that the law was in violation of his constitutional rights, and they were introduced in evidence. Reversing the judgment of the trial court, the Supreme Court of the United States held (Boyd v. U. S., 116 U. S., 616) that there was a violation of both the Fourth Amendment and the Fifth, the Fourth making the people "secure in their persons, houses, papers, and effects against unreasonable searches and seizures," and the Fifth forbidding that any one "be compelled in any criminal case to be a witness against himself." He was by the use of the books made to testify against himself. Nor were the books obtained as the Fourth Amendment directs, by a search warrant issued only "upon probable cause, supported by Oath or affirmation, and, particularly describing the place to be searched, and the person or things to be seized." To follow that very particular direction of the Fourth Amendment, which was written on a very sufficient historical background, the Government might be unable in many instances. Therefore, why not make a short cut to the conviction of the accused? On the "necessity" of this procedure in order to convict the guilty, "men reasonably might differ," as the dissenters said in the foreign language cases, and therefore the Constitution would not be violated. Congress found it "necessary and expedient" — why should not the finding of Congress stand? Simply because such methods had prevailed in England and had been practiced on the colonists when there was no Constitution to forbid and no court to hold a shield. So the writers of the Constitution, who had seen and experienced enough of striding Power, laid down the rule of justice for all time. Of the importance of constitutional safeguards to the Man, and of their worthlessness when the Judiciary falters "because men reasonably might differ" or for other motives, the spirited observations of the Supreme Court in the Boyd case forty-two years ago give illustration:
Though the proceeding in question is divested of many of the aggravating incidents of actual search and seizure, yet, as before said, it contains the substance and essence, and effects their substantial purpose. It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of the courts to be watchful of the constitutional rights of the citizen, and against any stealthy encroachments thereon. Their motto should be obsta principiis.
Obsta principiis — resist the first beginnings. Do not let the tyranny of Government get a start. "In questions of power, then," wrote Jefferson, "let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution."
The limitations in the Constitution are Liberty, according to the compact and complete definition of Mill. Where there are no limitations Liberty cannot be. For Government will always make "mischief," Jefferson said. It took him to select the right word. Where the limitations set by patriots are broken down, there Liberty goes out and Tyranny stalks in. In no other government that has ever existed have limitations on Power been so characteristic of the structure as they are of the constitutional Government of the United States. It is essential that the people understand those limitations so that they may detect the first tendencies toward transgression and express their objections to what may be taking place. That would prevent the supreme courts of the States and the Supreme Court of the United States from being overburdened with unconstitutional legislation, on which the silence of the people indicates approval. It is not in reason to believe that a few men can stand forever without such help against the surging tides of unconstitutional legislation and the attempts of legislative bodies to curtail the judicial power conferred by the Constitution.
"In proportion as the structure of a government gives force to public opinion," wrote Washington in his Farewell Address, "it is essential that public opinion should be enlightened."
It was with that idea that the public school system was established. It never has met in this field the purpose of its creation, what Washington called an enlightened public opinion. The colleges and universities also have been deficient here.
The foregoing explanation of the theory and purpose of the founders of the Republic for the control of Government, and especially of their understanding of Liberty as written in their two Declarations of Rights, in the Declaration of Independence, and in the Constitution, leads up to the question whether the Judicial Departments of the States and the Supreme Court of the United States have protected Man as it was intended that he should be shielded from the reach of Power.
CHAPTER SECOND
THE JUDICIAL DEPARTMENTS OF THE STATES AND THE JUDICIAL DEPARTMENT OF THE NATION HAVE FAILED TO MAINTAIN IN SOME INSTANCES, NOTABLY WITH RESPECT TO LIQUOR LAWS, THAT BALANCE BETWEEN THE POWERS OF GOVERNMENT AND THE LIBERTY OF THE MAN WHICH THEY WERE ESTABLISHED TO PRESERVE
I
Tributes to American Judicial System
IN this chapter there is to be reviewed and analyzed a series of judicial decisions arising out of liquor laws, beginning with Prohibitory Amendment cases (24 Kansas, 499), decided by the Supreme Court of Kansas in 1881, under the constitutional amendment of the preceding year, and ending with Lambert v. Yellowly (272 U. S., 581), decided by the Supreme Court of the United States in November, 1926, holding that Congress had power to enact a law regulating within the States the prescribing of liquors by physicians for medicinal purposes. The third chapter will deal with laws and decisions consequent upon these.
There will appear from this review the steady and complete wiping out of the common-law and the constitutional Liberty of the Man in this field, through the yielding of the Judicial Department to the aggressions of the Legislative, and to the will of an audacious propaganda.
The analysis will cover ten decisions of the Supreme Court of Kansas and the Supreme Court of the United States in direct line of descent, so to put it; and it will include the decisions of the Supreme Court of the United States on which those holdings were based, reaching back to 1847.
There will be examined four acts of Congress dealing unconstitutionally with the police powers of the States and usurping authority reserved to the States by the Tenth Amendment to the Constitution.
The Eighteenth Amendment and the legislation and decisions under it will of course be considered.
In its entirety this legislative and judicial record invites the careful consideration of the thinking citizen.
The supreme courts of the States, the justices of which are elective, have given but little protection to the Supreme Court of the United States against the onrush of unconstitutional legislation by the States in various fields. To action by the States, often irrational as well as unconstitutional, the courts of last resort in the States have in too many instances given their sanction. That was the easy way and the popular. In addition to the unjust burden of such cases the Supreme Court has had to face the increasing aggressions of Congress, such as were exhibited in the child-labor acts, and in other laws to be here reviewed.
In the elaboration of this thesis no pleasure will be found. The Judiciary has been subjected to so much unwarranted criticism of various sorts, most of it springing from constitutional illiteracy, which prevails among all classes and pervades the institutions of learning, and it has been the object of so many assaults by the Legislative Department in its reach for power which the Constitution withheld from it, that it would be far more agreeable to leave unsaid anything with even the appearance of censure.
Moreover, our judicial system, an American invention for the control of governmental Power — another way of saying the maintenance of individual right and Liberty — has drawn the admiration of the world to its general operation and has been copied in its fundamentals by many peoples, notably the Canadians and the Australians, who had seen demonstrated in our plan securities which the government of the mother country never had provided.
When James Bryce wrote (1888) "The American Commonwealth" fifty years ago Canada had been living for twenty years under a Constitution which was modeled on ours and which established a Supreme Court clothed with power to pass upon the question, when raised by a party to a lawsuit, whether a law of a Province or a law of the Dominion passed beyond the boundaries prescribed in the Constitution, the North America Act, 1867. In a remarkable discussion of and tribute to our judicial system (Vol. 1, ch. 23) Bryce said:
The march of democracy in England has disposed English writers and politicians of the very school which, thirty or twenty years ago, pointed to America as a terrible example, now to discover that her Republic possesses elements of stability wanting in the monarchy of the mother country.
They lament that England should have no Supreme Court.
After mentioning that the principle of limited power in the legislature, with judicial review, had been at work in some of the American States before the Constitution was written, and in some of the Colonies before the Declaration of Independence, and that anyway the doctrine might be old (though he did not point it out elsewhere), he said that the novelty of the American method is "a Supreme or Rigid Constitution reserving the ultimate power to the people, and limiting in the same measure the power of the legislature [Congress]." Then he added:
It is nevertheless true that there is no part of the American system which reflects more credit on its authors or has worked better in practice. It has the advantage of relegating questions not only intricate and delicate, but peculiarly liable to excite public passions, to the cool, dry atmosphere of judicial determination.
In another work (1 Studies in Hist. and Jurisp. 428) Bryce, discussing the judicial system which Australia built on ours, said:
In working out the provisions of the Constitution by an expansive interpretation, continuous but large-minded, it may render to Australia services not unworthy to be compared with those which America has gratefully recognized.
Professor A. V. Dicey of Oxford University, a great authority in constitutional law, paid like tribute to the judicial philosophy of our forefathers. In the "Law of the [British] Constitution" Dicey, dealing with the supremacy of the Parliament of England over courts and other departments, had this to say of the American mechanism of Government:
The Federal Judiciary, on the other hand, are co-ordinate with the President and with Congress, and cannot without a revolution be deprived of a single right by President or Congress.
That refers to the breaking by our Constitution of the power of Government into three grand divisions and the apportioning of it, under specifications and limitations, to the Legislative Department (the Congress), the Executive Department (the President), and the Judicial Department (the Supreme Court and inferior courts of the Nation), each of which is to keep out of the sphere of the others, with the courts for determining, upon the suit of a citizen, whether the Legislative Department or the Executive has transgressed a constitutional boundary and thereby deprived him of a right. For, as Madison wrote in "The Federalist" (No. 48), "a mere demarcation on parchment of the constitutional limits of the several Departments is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands."
Notice that expression of the general fear in Madison's time of the concentration of the powers of government. It should be a fear to-day.[1]
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[1] In the natural course of the growth of the country power and forces will mass in Washington without the aid of amendments to the Constitution or legislation creating new bureaus, such as the defeated child-labor amendment would have established, and such as the unconstitutional Act of Congress for the Promotion of the Welfare and Hygiene of Maternity and Infancy of 1921 (renewed in 1927) has set up. For example, it requires a whole page of the annual report of the Secretary of the Interior merely to enumerate the different activities which, with the growth of the country, have come under his charge. Another illustration of the natural growth of departments of the Government at Washington is offered by this tabular history of the Interstate Commerce Commission:
| Year | No. of Members | No. of Employes | Expenses | No. of Cases | No. of Reports | No. of Hearings |
| 1887 (created) | 5 | 11 | $ 113,000 | 82 | ||
| 1906 | 7 | 221 | 385,556 | 32 | 73 | |
| 1910 | 577 | 1,178.208 | ||||
| 1916 | 4,851,522 | |||||
| 1917 | 9 | 836 | ||||
| 1920 | 11 | 1796 | 5,186.960 | 1137 | ||
| 1927 | 6.153.157 | 1776 | 1439* | 1600 | ||
| 1928 | 2617 | 7,811,314† |
* Includes finance and valuation as well as rates.
† Appropriation made.
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There must be some way to enforce obedience to the limitations laid down in the Constitution. On this Dicey says:
The legal supremacy of the Constitution is essential to the existence of the state. The glory of the founders of the United States is to have devised or adopted arrangements under which the Constitution became in reality as well as name the supreme law of the land. This end they attained by adherence to a very obvious principle, and by the invention of appropriate machinery for carrying this principle into effect.... The legal duty, therefore, of every judge, whether he act as a judge of the State of New York or as a judge of the Supreme Court of the United States, is clear. He is bound to treat as void every legislative act, whether proceeding from Congress or the State legislatures, which is inconsistent with the Constitution of the United States.
Dicey says further:
The power, moreover, of the courts which maintains the articles of the Constitution as the law of the land, and thereby keeps each authority within its proper sphere, is exerted with an ease and regularity which has astounded and perplexed continental critics.
Those quotations are enough to show that to the mechanism of our constitutional judicial system, and generally to its operation, the best minds abroad, as well as those at home, have given fullest approbation.
It is with exceptional, not general, conditions that this chapter is to deal.
The inquiry is whether the courts have stood firmly for the Liberty of the Man against the pressure of legislatures, "blocs," and public sentiment, as Chief Justice Marshall stood against President Jefferson and all the forces of his administration in their purpose to destroy Aaron Burr, when he, sitting as a trial judge at Richmond, directed the jury that they must bring in a verdict for the defendant because the evidence offered against him by the Government did not come up to the requirement of the Constitution as to proof of a charge of treason. Marshall was hanged in effigy for this. But that contributed to his immortality.[1]
[1] See Norton's "The Constitution of the United States: Its Sources and Its Application," p. 149.
Thirty-six years ago Judge John F. Dillon, formerly Chief Justice of the Supreme Court of Iowa and afterward a judge of the United States, lecturing before the Law School of Yale University and addressing himself to the constitutional provisions written for the protection of Life, Liberty, and Property, sensed the situation which has since developed and which is to be dealt with here:
The value, however, of these constitutional guarantees wholly depends upon whether they are fairly interpreted and justly and with even hand fully and fearlessly enforced by the courts....
If there is any problem which can be said to be yet unsettled, it is whether the Bench of this country, State and Federal, is able to bear the great burden of supporting under all circumstances the fundamental law against popular, or supposed popular, demands for enactments in conflict with it. It is the loftiest function and the most sacred duty of the judiciary — unique in the history of the world — to support, maintain and give full effect to the Constitution against every act of the legislature or the executive in violation of it. This is the great jewel of our liberties. We must not, "like the base Judean, throw a pearl away richer than all his tribe." This is the final breakwater against the haste and passions of the people — against the tumultuous ocean of democracy. It must at all costs be maintained.[1]
[1] Dillon's "Laws and Jurisprudence of England and America," p. 214.
It is not unlikely that Judge Dillon there had in mind the case of Mugler v. Kansas (123 U. S., 623), decided by the Supreme Court of the United States (1887) four years earlier, upholding an absolute prohibitory law of that State and the constitutional provision under which it was enacted. It is that decision and the judicial pronouncements which preceded it and to which it has given rise that are to receive examination here.
By an absolute prohibitory law is meant one which takes no account of the rights and liberties of those persons who are not constitutional subjects of the police power of the State: who are competent to use as a beverage what has been recognized at least since the time that Jesus made wine as unobjectionable drinks when taken in moderation, and who have, therefore, the indubitable right to purchase, carry, and consume them.
The police power, which has to do with the health, safety, morals, and general well-being of the people, as well as the detection and punishment of crime, has in later prohibitory laws (though not in some earlier regulations) classed with the weak and unfortunate who use liquor to excess to the damage of themselves, their families and society, and who should therefore receive from the State every reasonable protection, the competent and strong who need no help from legislatures, and who do not contribute to the delinquency of inebriates. It has put the inebriate and the sober in one classification and treated them accordingly.
Of course, the strong and competent must yield convenience (not right) when reasonably necessary for the help of the weak. Regulation for the behoof of one cannot work deprivation of right or property to another. As the great Chief Justice Shaw of Massachusetts said fifty years ago in passing on a regulation of voting, that while some ordering is proper, nevertheless "such a construction would afford no warrant for such an exercise of legislative power as, under the pretense and color of regulation, should subvert or restrain the right itself."
That difference between regulating, for the good of society, the use of rights, and destroying the rights, the great question in all prohibitory laws, seems not to have been clearly comprehended from the Mugler case down. True, in the Mugler case, as will be seen more fully, the Supreme Court said that there is a limit to the scope of the police power of the State, but the holding contradicted that, for it sustained absolute prohibition, which means that it disregarded the right of a competent person to use a beverage without harm to society or himself.
That right or Liberty cannot be constitutionally destroyed. The enjoyment of it may be very much restricted (as in the closing of all public places and other pitfalls) for the welfare of others and the general good of society, but it cannot be destroyed.
And it is probable that the decision of the Supreme Court of Kansas in 1883 in the Mugler case (29 Kansas, 252), and a decision of a Federal Court (26 Fed., 289) in that State in 1885, both holding that the State possessed power to prohibit absolutely the manufacture and sale of intoxicating liquors for beverage purposes, with total indifference to and disregard for the rights of those competent to use liquor in moderation without harm to the weak or to society in general, were in the mind of Judge Thomas M. Cooley, the foremost constitutionalist of his day, when he used this language before the Bar of South Carolina in 1886:
The habit of mind which consents to the doing of constitutional wrong when it is supposed some temporary good may be accomplished, should be recognized as a foe to constitutional limitations, and securities, and should, therefore, at any cost, be corrected.
Bryce, whose manuscript had gone to the printer before Mugler v. Kansas was decided, saw clearly the difficulties attending the Supreme Court and the need of support for it from an educated public mind:
The Supreme Court is the living voice of the Constitution — that is, of the will of the people expressed in the fundamental law they have enacted. It is therefore, as some one has said, the conscience of the people, who have resolved to restrain themselves from hasty or unjust action by placing their representatives under the restriction of a permanent law. It is the guarantee of the minority, who, when threatened by the impatient vehemence of the majority, can appeal to this permanent law, finding the interpreter and enforcer thereof in a court set high above the assaults of faction.
To discharge these momentous functions the court must be stable even as the Constitution is stable. Its spirit and tone must be that of the people at their best moments. It must resist transitory impulses, and resist them the more firmly the more vehement they are. Entrenched behind impregnable ramparts, it must be able to defy at once the open attacks of the other departments of the government, and the more dangerous, because impalpable, seductions of popular sentiment.
That is a great passage. It presents inferentially the strongest argument for the thorough education of the people in their constitutional philosophy.
Bryce offered no criticism of importance, save that he thought that the Supreme Court had given some ground. It was the Legislative Department (Congress) that he criticized, and very justly. Looking back over the operations of the three Departments, he concluded:
At this moment there is nothing to show that any one Department is gaining on any other. The Judiciary, if indeed the judges can be called a political department, would seem to have less discretionary power than seventy years ago, for by their own decisions they have narrowed the scope of their discretion, determining points which, had they remained open, the personal impulses and views of the Bench might have room to play.
Congress has been the branch of the government with the largest facilities for usurping the powers of the other branches, and probably with the most disposition to do so. Congress has constantly tried to encroach both on the Executive and on the States, sometimes, like a wild bull driven into a corral, dashing itself against the imprisoning walls of the Constitution.
What Bryce saw was a realization of the warning (now a prophecy unhappily realized) of Madison in "The Federalist" (No. 48) respecting the tendency of the Congress:
It is against the enterprising ambition of this department that the people ought to indulge all their jealousy and exhaust all their precautions.
Among the mass of people to-day, who are wholly uneducated in constitutional principles, it is erroneously believed that as the members of Congress are elected by the people, what Congress does is an expre