(navigation image)
Home American Libraries | Canadian Libraries | Universal Library | Community Texts | Project Gutenberg | Children's Library | Biodiversity Heritage Library | Additional Collections
Search: Advanced Search
Anonymous User (login or join us)
Upload
See other formats

Full text of "Liberty under law [electronic resource] : an interpretation of the principles of our constitutional government"

J K 

7^ 






m\ 



ill 



LIBERTY.il. 



IIR LAW 



N iNTlsRPKB'i^ATION OF THE PRINCIPLES 



OF OUR CONSTrrUTIONAL GOVERNMENT BY 



Wi:LLIA2d HOWARD TAFT 



UC-NRLF 





B 3 b3T TM3 




With the Compliments of 

YALE UNIVERSITY LIBRARY 

NEW HAVEN, CONN., U. S. A. 



LIBERTY UNDER LAW 

• • 

THE CUTLER LECTURE 
FOR 1921 



LIBERTY UNDER LAY/ 

AN INTERPRETATION OF THE 
PRINCIPLES OF OUR CONSTI- 
TUTIONAL GOVERNMENT 

BY 
WILLIAM HOWARD TAFT 




NEW HAVEN: PUBLISHED FOR 
THE UNIVERSITY OF ROCHESTER 
BY THE YALE UNIVERSITY PRESS 

LONDON • HUMPHREY MILFORD • OXFORD UNIVERSITY PRESS 

MDCCCCXXII 



T3 



Copyright 1922 by 
Yale University Press 



THE CUTLER LECTURES 



ESTABLISHED IN 

THE UNIVERSITY OF ROCHESTER 

BY JAMES GOOLD CUTLER 



It appears to me that the most useful contribution 
which I can make to promote the making of democ- 
racy safe for the world (to invert Mr. Wilson's apho- 
rism) is to found in The University of Rochester, a 
course of lectures, designed to promote serious con- 
sideration, and consideration by as many people as 
possible, of certain points fundamental, and there- 
fore vital, to the permanence of constitutional gov- 
ernment in the United States. 

My basic proposition is that our political system 
breaks down, when and where it fails, because of 
lack of a sound education of the people for whom and 
by whom it is intended to be carried on : 

(a) In its principles ; 

(b) In its historical development as illustrating 
the application of it to and under changing condi- 
tions, and 

(c) In those moral standards, perhaps best to be 
developed in religious teaching but not safely to be 
separated entirely from University work. 

FROM MR. cutler's LETTER TO THE PRESIDENT OF THE 
UNIVERSITY 



4G8639 



LIBERTY UNDER LAW 

AN INTERPRETATION OF THE 
PRINCIPLES OF OUR CONSTI- 
TUTIONAL GOVERNMENT 



Mr. Cutler, the public-spirited donor 
of this Lecture Foundation, in the letter 
establishing it, expressed the view that 
where our political system shows weak- 
ness, it fails for lack of sound education 
of our people: 

(1) In the principles of our Constitu- 
tional Government; 

(2) In the history of its development 
and its application to changing condi- 
tions, and 

(3) In the moral standards best de- 
veloped in religious teaching and not 
safely to be separated from university 
work. He, therefore, concluded that the 
most useful contribution he could make, 
to render democracy safe for the world, 
was to found a course of lectures to pro- 



8 l.[BEIiTY UNDER LAW 

mote serious consideration by as many- 
people as possible of the fundamental 
and vital elements of permanence in the 
Constitutional Government in the United 
States. I am proud to have been selected 
as the first speaker in this course. 

Accepting the language of the gift as 
the text for this opening lecture, we must 
examine what is the true nature of our 
Constitutional Government as a means of 
judging what is needed to preserve it. 

The Constitution of the United States 
was not born as Minerva is said to have 
been, full armed from the brain of Jove. 
No great and abiding institution ever is. 
It was the first written constitution of an 
independent nation which, after creating 
its governmental organization and the 
agencies by which it was to be carried on, 
imposed on those agencies effective limita- 
tions of their powers by creating machin- 
ery for enforcing most of them. It recog- 
nized the ultimate power in the people of 
the United States and in their name pro- 



LIBERTY UNDER LAW 9 

ceeded to frame restrictions upon them- 
selves as to how they might exercise their 
power through their appointed or elected 
agencies. In independent nations, this was 
a new conception; but it was not a long 
step from the kind of popular - govern- 
ment which the colonies, the predecessors 
of the states, had had in exercising their 
powers under royal charters. Here the 
framers of the Federal Constitution 
found the suggestion of a written and de- 
fined form of government and of the en- 
forcement of the limitations of its power. 
Whenever they departed from their 
charters, the British Government held 
such departures of no effect. It was easy 
with this experience for the people who 
were the makers of the new nation to take 
the steps, first, of prescribing in written 
compact the character of the government 
to be formed, and, second, of imposing on 
themselves the formal restraints by which 
they should be made to keep within the 
terms of that compact. 



10 LIBERTY UNDER LAW 

The second feature of the Constitution 
having a novel aspect was its federal 
character. This was forced on the Con- 
vention. The Revolution had been won by 
the states who had succeeded the colonies 
and who, after winning independence, 
lived along from 1783 to 1787 under the 
weak articles of the Confederation in re- 
lations and conditions going from bad to 
worse until, in spite of the bitter jealousies 
between them, they joined in an effort to 
improve the loose bond which the articles 
furnished. The states would not merge 
themselves in one government and the 
federation plan was adopted to retain 
local self-government and sovereignty in 
the states and yet to create out of the 
people of the states a nation having all 
needed functions for national purposes, 
and presenting a unit front to the world 
in international matters. There had been 
federations before, but never one in which 
the central government was so clearly 



LIBERTY UNDER LAW 11 

national, and had its life and being so 
directly in all the people. 

The third feature of the Government 
under the Federal Constitution was its 
purely representative character. It vested 
the ultimate power in the people, but it 
secured to them the exercise of that power 
only through representatives. The selec- 
tion of the President was not put directly 
in the people but in an electoral college, 
members of which were to be appointed 
by the states in any way a state thought 
fit. The Senate was made up of two repre- 
sentatives from each state, large and 
small, and was not to be directly elected 
by the people but by the state legislatures. 
The House of Representatives was the 
only branch of the Government whose 
members were to be chosen directly and 
in numerical proportion by the people. 
The judges were to be appointed by the 
President and so were all the executive 
subordinates of the President. It is true 
that since the Constitution was adopted, 



12 LIBERTY UNDER LAW 

the Electoral College, which was created 
in order that its members might exercise 
their judgment as to the man to be se- 
lected as President, has in fact lost this 
power and is only an instrumentality for 
registering the people's vote as between 
previously ascertained candidates with a 
weight proportioned to the population of 
the states. The members of the Senate, 
too, are now directly elected by the 
people. 

The slightest study of the history of the 
framing of the Constitution shows that 
the members of the Convention in large 
majority thought that the permanence 
and safety of the new government re- 
quired provisions which should prevent a 
change of policy to meet every temporary 
wind of popular passion. The checks and 
balances between the popular will and its 
ultimate control created by our Federal 
Constitution are greater than with most 
popular governments. The rigid term of 
four years, by which the Executive re- 



LIBERTY UNDER LAW 13 

mains in power no matter how strongly 
the people may give their verdict against 
him in the mid-term Congressional elec- 
tion, the six-year term of each of the 
Senators, arranged in three classes, so 
that only one-third of the Senate can be 
changed every two years, and even the 
certain full tw^o years of each House 
of Representatives, however great the 
change in popular sentiment in a year, 
all make a contrast to what is called Re- 
sponsible Government, like that in Great 
Britain, France, Canada, and other coun- 
tries. Certainly, we are not a pure democ- 
racy governing by direct action, and the 
great men who framed our fundamental 
law did not intend that we should be. 

The Constitution makers had it in mind 
to secure individual liberty, the right of 
personal and religious freedom, of prop- 
erty, and the pursuit of happiness. These 
include the right of labor and of contract, 
and the protection against deprivation of 
any of them save by due process of law. 



14 LIBERTY UNDER LAW 

This protection was granted primarily 
against the National Government and 
many forms are made sacred in the ad- 
ministration of federal justice which Con- 
gress cannot transgress or ignore. In the 
Constitution as originally adopted not 
much federal protection was afforded 
against state action infringing individual 
liberty of the individual except that the 
states were forbidden to pass laws im- 
pairing the obligations of a contract ; but, 
as a result of the Civil War, the desire to 
protect the negro in his new freedom led 
to the adoption of the thirteenth, four- 
teenth and fifteenth amendments, by 
which many individual rights were put 
under federal protection as against a 
violation of them by the state executives, 
legislatures and courts. The Federal 
Constitution today, therefore, guards a 
man in the enjoyment of his personal 
liberty, his property and his pursuit of 
happiness, whether violated by the Fed- 
eral or State Government. Thus are pre- 



LIBERTY UNDER LAW 16 

served to the individual that liberty of 
action and that equality of opportunity 
which it took a thousand years of struggle 
to secure from monarchy and aristocracy. 
The judicial branch of the Federal Gov- 
ernment is vested with the final duty and 
power of making effective this protection 
of the individual in his right against the 
sovereign people. 

The last feature of our Constitutional 
Government which we need notice is the 
machinery for its amendment. To change 
it, two-thirds of each House of Congress, 
and the legislatures of three-fourths of 
the states must concur. This is not a 
referendum to the people. It is a referen- 
dum to the people's representatives. We 
may reasonably infer that the framers of 
the Constitution did not intend to have 
our fundamental law amended by any 
temporary wave of popular frenzy. 

When the Constitution was adopted, 
the proportion of the electorate to the 
whole population was much smaller than 



16 LIBERTY UNDER LAW 

it is now. "We the people," who ordained 
and estabhshed the Constitution, were not 
more than 150,000 voters in the thirteen 
states which had then a population of 
four million, including men, women and 
children. This was due to the required 
qualifications for voting which, in many- 
states, included not only the ownership of 
property but also religious conformity, 
and excluded women, children and slaves. 
The steady trend since that day has been 
toward an enlargement of the electorate, 
so that today we are a much more popular 
government than we were under Wash- 
ington. Property and religious qualifica- 
tions have all disappeared. The greater 
the number of the governed who can take 
part in the Government, the juster it is 
likely to be to each group or class, and so 
the stronger and more permanent it will 
become, assuming that all are sufficiently 
intelligent to know what their interests 
are. A small ratio of voters to the popula- 
tion does not necessarily, however, make 



LIBERTY UNDER LAW 17 

an aristocracy. It was not true, for in- 
stance, that in the past women had no 
voice in the Government. They did have. 
They were represented by the men of their 
family and were willing to be so repre- 
sented. Their identity with their hus- 
bands, fathers and brothers in the interest 
of the family unit was such that they felt 
that their interest was protected by their 
male voters. But the spread of education 
and knowledge of affairs among them, the 
increase of those who had no male voters 
to act for them, and the pressure on them 
to earn a separate livelihood, were circum- 
stances giving many of them a conscious- 
ness of misrepresentation which led to the 
demand that has been heard. Minors are 
not allowed to vote because their imma- 
turity unfits them to vote discreetly and 
wisely, and the identity of their interest 
with that of their parents secures them 
protection in the franchise of their par- 
ents. Alien residents are not allowed to 
vote because their allegiance to another 



18 LIBERTY UNDER LAW 

country deprives them of that abiding 
loyalty to this which should be present as 
a controlling influence upon every voter. 
By the fifteenth and nineteenth amend- 
ments we have so increased the ratio of 
those entitled to vote to the whole popu- 
lation that it is now two-fifths of all in- 
stead of one twenty-fifth as it was when 
the Constitution was adopted. The fif- 
teenth amendment has been nullified in 
eleven Southern states so that at least a 
million colored voters do not vote, and in 
all parts of the country many of all colors 
and sexes who can vote do not exercise the 
privilege. Probably a fourth of the popu- 
lation now vote in a Presidential election. 
This leaves three-fourths of those who are 
governed who do not take voting part in 
the Government. Yet we have the widest 
franchise possible. It is well to bear this 
in mind when we are discussing practical 
government. We must understand that 
the purest democracy with the widest pos- 
sible franchise must still be a representa- 



LIBERTY UNDER LAW 19 

tive government in the sense that one- 
fourth must always speak for three- 
fourths of the governed in determining 
the course of that government. Moreover, 
we must know that even under the most 
liberal franchise, a majority and more of 
the governed have to obey laws they take 
no part in making and the minority have 
to obey laws they oppose. The theory that 
in self-government men need obey only 
the laws they make is unsound in fact and 
vicious in its justification for lawlessness. 
There is no form of government the suc- 
cessful operation of which needs so much 
implicit obedience to law, whether agree- 
able or not, as a democracy. 

Even with the expansion of the elec- 
torate from the one twenty-fifth to one- 
fourth of the people, the Federal Consti- 
tution is still substantially intact and 
works smoothly and effectively to accom- 
plish the purpose of its f ramers and to de- 
fend us all against the danger of sudden 
gusts of popular passion and to secure for 



20 LIBERTY UNDER LAW 

us the delay and deliberation in political 
changes essential to secure considered 
action by the people. 

Ours is the oldest popular government 
in the world, and is today the strongest 
and most conservative. It is not an oli- 
garchy or an aristocracy under the guise 
of Repubhcan forms, and it never was. 
The people do rule and always have ruled 
in the United States. They have their will 
but they have it after a wholesome delay 
and deliberation which they have wisely 
-V'' forced themselves to take under the re- 
strictions of a Constitution which, adopted 
by however small popular vote, they have 
fully approved by more than one hundred 
and thirty years of acquiescence. It is this ; 
voluntary self-restraint that has made 
their Government permanent and strong;:^ 
It is a fundamental error to seek quick 
action in making needed changes of policy 
or in redressing wrong. Nations live a 
long time, and a year or five years are a 
short period in that life. Most wrongs can 



LIBERTY UNDER LAW 21 

be endured for a time without catastrophe. 
Reforms that are abiding are achieved 
step by step. It is better to endure wrongs 
than to effect disastrous changes in which 
the proposed remedy may be worse than 
the evil. Often things denounced as wrongs 
are not so. It needs attention and delibera- 
tion to decide first that a wrong exists, and 
second, what is the right remedy. A popu- 
lar constituency may be misled by vigor- 
ous misrepresentation and denunciation. 
The shorter the time the people have to 
think, the better for the demagogue. One 
of the great difficulties in carrying on 
popular government is in getting into the 
heads of the intelligent voters what the 
real facts are and what reasonable deduc- 
tions should be made from them. Any 
reasonable suspension of popular action 
until calm public consideration of reliable 
evidence can be secured is in the interest 
of a wise decision. That at least was what 
our forefathers thought in making our 



22 LIBERTY UNDER LAW 

Federal Government and the result has 
vindicated them. 

Many contrast our system with the 
ParHamentary Government to the dis- 
paragement of ours. I venture to think 
that sober-minded people in countries with 
responsible governments, as they are 
called, are beginning to note in these days 
of dangerous and demoralizing class con- 
sciousness the advantage of our system by 
which changes in government are delayed 
to respond to the real voice of the sober 
majority over one in which the tenure of 
a ministry in power is temporary and 
insecure, and in which changes of minis- 
try follow in rapid succession. Such quick 
changes do not make for steady steering 
of the ship of state and create a doubt as 
to the future. 

The effect of the War has been to shake 
dynasties to ruin. Those which have fallen 
deserved to fall. The Central European 
rulers merited what has come to them be- 
cause they plotted to fasten upon the 



LIBERTY UNDER LAW 23 

world the tj^ranny of military control. 
The Russian autocracy fell because the 
War gave the oppressed Russian people in 
all their suffering the chance to rid them- 
selves of an abominably unjust rule. Yet 
in the ruins of these empires we have lost 
the equilibrium of obedience to law. It 
could not be otherwise. In the slow tran- 
sition to well-ordered governments which 
shall succeed them, enemies of society, 
plotters of anarchy, destroyers of the 
bases upon which modern civilization has 
been built, have seized opportunity to 
array the lowest, the most ignorant, the 
most ill-conditioned against the intelligent, 
and the responsible. These latter are the 
saving part of all society and the hope of 
the world's progress. Yet it is sought to 
take away their beneficent leadership and 
influence, to end personal liberty and the 
right of property, and to establish a 
bloody tyranny of the proletariat under 
the control of a few misguided and cruel 
zealots. The Bolshevists in Russia have 



24. LIBERTY UNDER LAW 

established themselves in power, have 
spread their propaganda aggressively in 
other countries and seek to concentrate 
into a moving and destructive force the 
unrest and dissatisfaction that the neces- 
sary upset of economic conditions and 
its accompanying hardships have created 
nearly everywhere. By dint of blatant 
lying, the utter failure of the Bolshe- 
vist rule to bring comfort or content- 
ment to the masses of the people has 
been concealed somewhat from the dis- 
contented elsewhere, but it will out. Still, 
danger from the spirit which gave Bol- 
shevism birth and life, continues through- 
out the world. We have it here but in less 
dangerous force than anywhere else. It 
is noisy here. It needs watching. It should 
be restrained. It may break out injuri- 
ously because modern lethal instruments 
give one man or a small group of men 
much greater power of local destruction 
than ever before, but the solid patriotism, 
conservatism and adherence to our sys- 



LIBERTY UNDER LAW 26 

tern of government will make such attacks 
only futile waves against a stone wall. It 
is at such a time that the valuable rigidity 
of our changes in administration and our 
intervening representative agency, inter- 
preting and enforcing the popular will, 
have their greatest value. 

Our Constitution has been called too 
individualistic. It rests on personal liberty 
and the right of property. In the last 
analysis, personal liberty includes the 
right of property as it includes the right 

of contract and the right of labor. Our \ 

primary conception of a free man is one /lx 
who can enjoy what he earns, who can 
spend it for his comfort or pleasure if he ^ 
would, who can save it and keep it for his 
future use and benefit if he has the fore- 
sight and self-restraint to do so. This is 
the right of property. Upon this right 
rests the motive of the individual which 
makes the world materially to progress. 
Destroy it and material progress ceases. 
Until human nature becomes far more 



/ 



26 LIBERTY UNDER LAW 

exalted in moral character and self-sacri- 
fice than it is today, the motive of gain is 
the only one which will be constant to 
induce industry, saving, invention and 
organization, which will effect an increase 
in production greater than the increase in 
population. Indeed without it, production 
will decrease and so will the population, 
because starvation and disease will reduce 
it. With material progress, advance is pos- 
sible in education and intelligence, in art, 
in morality and religion, in the spiritual. 
To such advance we must look for the 
antidote for the poison of crass material- 
ism, of the selfish and cruel pursuit of 
wealth, of the ignoble lassitude of luxury 
and the evils of plutocracy. But these evils 
must not blind us, as they do blind many 
. . well-intentioned, dreamy reformers, to the 
^ fact that personal liberty and the right of 
property are indispensable to any possible 
useful progress of society. 

The experiment which the Bolsheviki 
have been making in Russia has been hard 



LIBERTY UNDER LAW 27 

upon the poor Russian people; but as a 
lesson to the world on the futility of com- 
munism, and of the destruction of prop- 
erty rights as a means of promoting better 
social conditions and greater comfort 
among the proletariat, it is very valuable. 
It is not being lost upon our workingmen. 
It is gratifying to find Mr. Gompers 
denouncing Bolshevism. 

Our Government, our politics, and our --j 
society are not perfect, and abuses in one 
form or another persist that need aboli- 
tion. In the period of enormous expansion 
of our country's prosperity during the 
closing twenty years of the last century, 
the politics of the country bade fair to 
pass into corporate control. The railroads 
then defied attempts to regulate them. 
Presidential campaigns were largely con- 
ducted on contributions from great cor- 
porations. Congress, legislatures, city 
councils and local authorities were under 
strong suspicion of yielding unduly to 
corporate influence. The situation called 



28 LIBERTY UNDER LAW 

for a movement to drive corporations out 
of polities. Such a movement was under- 
taken and was successfuL Accompanying 
it, however, was a demand for a change in 
our governmental system to prevent a 
recurrence of the evil. Direct and purer 
democracy, it was said, would be a perma- 
nent cure. It was urged that the repre- 
sentative system was at fault. The people 
as a mass must be given freedom to act at 
once and directly upon any evil in govern- 
ment. This was to be done by the Referen- 
dum, the Initiative, and the Recall. 
Through these, any one could initiate re- 
form legislation and the people could pass 
it without trusting to the sense of duty of 
a legislature or a council. Through these, 
the people might end the official authority 
and life of an unsatisfactory public offi- 
cial. Moreover, the courts were to be sub- 
jected to direct supervision of the people, 
who might, after an unsatisfactory deci- 
sion by a court, reverse the judgment by 
vote and in the same manner remove the 



LIBERTY UNDER LAW 29 

judge from office. Nearly related to these 
new plans for popular government was 
the general primary, by which the repre- 
sentative system was abolished in party 
organization for the selection of party 
candidates and they were to be chosen by 
the votes of the people in a preliminary 
election. 

After a decade or more of trial and test 
by actual experience, this adoption of so- 
called "purer" democracy has not been a 
success. It has been enormously expensive. 
The number of those voting on proposed 
statutes has been so much less than those 
voting for candidates at the same elec- 
tions and, when the submission has been 
at a special election, the total vote has 
been so small as to show that voters do 
not think themselves fitted to express an 
opinion on legislation which should be 
discussed and adopted by men elected for 
the purpose to a legislative body. The Re- 
call has not been much used and has only 
served to rob officials subject to it of that 



30 LIBERTY UNDER LAW 

courage of action needed to do good work. 
Recall of judicial decisions and of judges 
has not been used at all. This reform died 
"a-borning." The general primary has 
had a wide trial, but no one intimate with 
its working and results can be enthusiastic 
over it. Legislatures filled with men who 
have noted its effect would like to repeal 
the general primary laws and restore the 
party convention, but they do not dare 
to do so lest their opponents make pohti- 
cal capital out of it. They know that it has 
vastly increased the expense of elections. 
It has made two necessary. It has not only 
cost the public a heavy outlay; but, what 
is worse, it has made impossible as a candi- 
date for an elective office every one who is 
not the choice of the machine or is not 
independently wealthy. No one can afford 
to be a candidate unless he can count upon 
the support of the regular party organi- 
zation or unless he can create a personal 
organization, and that costs much money. 
It has not destroyed, it has strengthened 



LIBERTY UNDER LAW 31 

the control of the machine; but it has 
taken from it an obligation of responsi- 
bility. In this state, you have an informal 
extra-legal preliminary convention to 
avoid some of the abuses of the general 
primary. It is to be hoped that this mas- 
queraded means of neutralizing the pri- 
mary may yield to a courageous repeal of 
the law. There is no reason why the con- 
vention and the selection of delegates to 
it may not be surrounded with the same 
safeguards against corruption as a pri- 
mary. We shall then have restored the 
opportunity for discussion and delibera- 
tion in the selection of party candidates. 
The greatest evil the primary has done 
is the destruction of party responsibility 
for the fitness of candidates and of party 
discipline. In many states, men who are 
not loyal members of the party are en- 
abled to take part in the primary and to 
seek to become candidates on the party 
ticket. Democratic voters in a Republican 
primary have not infrequently been able 



32 LIBERTY UNDER LAW 

to foist on to the Republican party ticket 
a weak candidate whom the strong Demo- 
cratic candidate can easily defeat, and vice 
versa. Factions who are not regular party 
supporters at all have put their own men 
on the regular party ticket and destroyed 
party solidarity. These things are impos- 
sible in a convention system. Moreover, 
the convention is needed to declare party 
principles. To have them declared by the 
candidates, as is often done under the 
primary system, is to put a premium on 
trimming and still further to impair the 
responsibility and utihty of parties. 

In my college days, I was wont to think 
of parties and partisanship as a necessary 
evil and something which ought to be 
abolished, if possible, and of the man who 
held himself aloof from party as the model 
to be followed. Washington, in his fare- 
well address, deplores party and faction, 
and evidently hoped for a fading out of 
party in the carrying on of the Govern- 
ment. I am satisfied, after considerable 



LIBERTY UNDER LAW 33 

opportunity for observation, that two 
great parties are the greatest aids to the 
successful administration of popular gov- 
ernment. Without them, the proper inter- 
pretation of the popular will into effective 
governmental action becomes very diffi- 
cult. The division of voters into small ^. 
groups with no majority control by any i rL^^ 
one paralyzes a government into doing J •■ 
nothing, into weak compromises, into a v^^ 

hand-to-mouth life. Division into groups 3 

means parties based on class and faction. 
It means the willingness of each to sacri- 
fice the general interest of the country to 
the achievement of a particular object. 
Parties based on class cleavage are inimi- 
cal to broadly patriotic government for 
the benefit of all the people. Two great 
parties mean a cleavage down through all 
the strata of society, the wealthy, the edu- 
cated, the moderate circumstanced, the 
business men, the workingmen, and the 
farmers. The group system tends to par- 
ties with a horizontal cleavage of the 



\ 



34 LIBERTY UNDER LAW 

strata of society and we find the farmers 
in one party, the workingmen in another, 
the business men in another, the manufac- 
turers in another, each contending for its 
special interest and ignoring the welfare 
of society as a whole. Normal party feel- 
ing in one of two great parties tends to 
neutralize this class and selfish spirit, and 
prompts a consideration of the interest of 
all classes of the people represented in the 
party. One great party makes the other 
better by its criticism and opposition. ,. 
Each puts the other on its good behavior; 
but when there are many small groups, 
each for itself and its selfish object, there 
is no considerable stimulus to good be- 
havior on the part of any group. The 
group system is the opportunity of the ^ 
sociahst, the radical, the communist. It is 
the hope of the crank extremist. In every 
district where, though small in number, a 
group can exercise a balance of power, it 
bends the legislator to its will by threats. 
With no sense of responsibility as to gen- J 



LIBERTY UNDER LAW 35 

eral policies and the common good, it 
pushes its purpose. It thus sometimes hap- 
pens that legislation is secured which the 
majority of the people would not favor on 
its merits but for which a comparatively 
small minority is willing to sacrifice 
everything. 

I do not wish to deprecate the course of 
those broad-minded citizens of intelligent 
discrimination and patriotic purpose who, 
on grounds of general welfare, sometimes 
support one party and sometimes the 
other. They are essential in our system. 
They throw the election one way or the 
other as they vote. They do not exercise 
influence within the party but they have a 
most wholesome influence from without. 
But experience has shown that in normal 
times, under natural impulses, many men 
attach themselves to one or the other of 
the great parties. That is, for the reason 
stated, a good thing. A great party is of 
necessity broad in its view of the country's 
welfare and from selfish motives some- 



36 LIBERTY UNDER LAW 

what careful in meeting its responsibility. 
Those who make up its rank and file in- 
sensibly acquire the same point of view. 
One of the essential aids to successful 
popular government is great leaders, and 
confidence in them is stimulated by the 
existence of parties. 

I concede the evils which arise from 
hidebound partisanship at times. I am 
not blind to the motives of fancied politi- 
cal expediency which lead such parties 
into promotion of measures which are not 
best adapted to the needs of the country. 
They often put men in power who are 
neither the ablest nor the highest-minded 
of men available. They often trim when 
they should be courageous to meet an 
issue. But what I am pressing on you is 
that, constituted as they are of all sorts 
and conditions of men, they are much 
more likely to be American in their view 
and purpose, much more likely to be con- 
siderate of the whole country, and much 
less likely to be narrowly moved by the 



LIBERTY UNDER LAW 87 

ambition of a selfish faction than the small 
"one-idea'd" group of whose dangerous 
purposes I have spoken. 

Allegiance to a party should never lead 
one consciously to countenance wrong or 
injury to the public weal; but as we note 
the live dangers to our Republic, we are 
forced to admit that excessive partisan- 
ship is not now one of them, and that the 
institution and maintenance of great par- 
ties is an antidote for class consciousness 
and selfish factional diversion of national 
funds and energy into class preferment 
and away from the general good. We are 
still healthy. Organized labor seeks politi- 
cal ends at times. Often it presses for use- 
ful legislation and secures it. Then it seeks 
to defeat legislators and others who have 
not bent the knee to its class demands. It 
is gratifying to note that the leaders do 
not control the labor vote and that many 
workingmen refuse when they enter the 
voting booth to bear a class label. They are 
Republicans or Democrats. They look at 



88 LIBERTY UNDER LAW 

the election from a broad American stand- 
point and vote their judgment. The man 
who carries the labor vote in his pocket 
is a bogy. Nor will the women constitute 
themselves a political party. No party can 
live founded on sex alone, now that sex is 
eliminated as a basis for political discrimi- 
nation. Women voters will now become 
Democrats or Republicans as they ought 
to be, and will be guided by general 
country- wide considerations in the casting 
of their ballots. 

The welfare of the community has been 
emphasized in modern days, and the ruder 
Anglo-Saxon doctrine of individual inde- 
pendence and every man for himself has 
properly yielded to a sense of greater re- 
sponsibility of the community for its 
members. With this has come a greater 
qualification of the enjoyment of indi- 
vidual rights of liberty and property in 
the interest of the conmiunity as a whole. 
There was always such a qualification 
recognized by the courts and enforced by 



LIBERTY UNDER LAW 39 

the Government, but the change in our 
social and physical conditions of life has 
emphasized it and enlarged it to conform 
to that change. As population has grown 
and great masses of people are concen- 
trated in small areas, greater health pre- 
servatives are necessary, more careful 
provision for feeding the people from 
long distances has to be made, and all the 
machinery for maintaining them in com- 
fort becomes more complicated, and the 
preservation of free currents of this kind 
becomes more important and a matter of 
government responsibility. 

The right of property and the right of 
labor, when used in great combinations, 
have furnished means of extortion, op- 
pression, and obstruction which Congress 
has passed laws to restrain and punish, 
and the courts have sustained such laws. 

Social groups in a great community be- 
come more interdependent. One member 
cannot be as independent of another as 
when they lived in a wilderness miles 



40 LIBERTY UNDER LAW 

apart. Our constitutional system has been 
easily elastic in these regards, and courts 
have not failed to apply it to conform to 
the needs of the community. These chang- 
ing conditions have led some reformers to 
condemn what they call the excessive indi- 
vidualism of the Constitution. I confess I 
do not follow them. The rights of personal 
liberty and of property as protected by 
the courts are not obstructive to any rea- 
sonable qualification of these rights in the 
interest of the community. Indeed we may 
well question whether the paternalistic 
enthusiasm of such reformers has not gone 
too far. The strength of the American in 
the past has been in his independence and 
self-reliance. He asked only an equal 
chance with others and was content to 
abide the results of his own efforts. It was 
this spirit which carried our country on to 
its present marvellous development. A 
weakening sense of dependence on the 
Government, on the one hand, andi an 
excessive confidence that legislation can 



u 



LIBERTY UNDER LAW 41 

do anything, on the other, have had a dan- 
gerous tendency to minimize this inde- 
pendence and self-reliance and have pro- 
duced tons of statutory laws under which 
public money is wasted in futile attempts 
at their execution, and respect for all laws 
is injured by the ineffectiveness of so 
many. This disease of excessive legisla- 
tion has been rendered more epidemic by 
the outbreak for pure democracy in the 
form of the Referendum and the Initiative. 
Through them private citizens, who con- 
ceive a panacea, can, by securing the nec- 
essary subscribers to a petition, impose 
upon a suffering public the obligation and 
cost of passing on the ill-digested product 
of ignorant, impracticable, but active and 
enthusiastic minds. Legislators learn that 
their industry and public service are meas- 
ured by the glorious objects recited in the 
titles of their bills rather than by the 
practical working of them as laws for 
good. Hence their fecundity in bills and 
their eagerness in pressing them into law. 



42 LIBERTY UNDER LAW 

The amount of us eless le gislation in the 
states of this country is appalling and is 
one of the most distressing signs of the 
times. 
I The lesson must be learned, expensive 
as it is proving to be, that there is only a 
limited zone within which legislation and 
governments can accomplish good. We 
cannot regulate beyond that zone with 
success or benefit. Governments are not 
adapted to do business as are individuals 
prompted by their gain in economy and 
efficiency, and should not be so burdened. 
^j^ ^^ Failures in government ownership and 
operation of enterprises, normally and 
legitimately adapted to private conduct, 
confront us on every side and should 
teach us their lesson. 

If we do not conform to human nature 
in legislation we shall fail. We can waste 
money in helping individuals to a habit of 
dependence that will weaken our citizen- 
ship. We can, by passing laws which can- 
not be enforced, destroy that respect for 



LIBERTY UNDER LAW 43 

laws and habituated obedience to law 
which has been the strength of people of 
English descent everywhere. 

We must stop attempting to reform 
people by wholesale. It is the individual 
upon whom our whole future progress 
depends. In giving and securing scope for 
his ambition, energy, and free action our 
constitutional system has its chief merit, 
whatever would-be reformers say. 

It goes without saying that if the gov- 
ernment of the people would save itself 
it must secure to the individual person the 
education indispensable to his exercise of 
wide and wise discretion as a constituent 
member of the government. Our public 
school system is one of the foundation 
rocks of our community and, in theory at 
least, has always been declared by us to 
be so. It is not possible to give every man 
and woman a university education or even 
a secondary education, but it is possible to 
give him a thorough primary or common 
school education upon which, in the uni- 



44 LIBERTY UNDER LAW 

versity of his life experience, he can build, 
as many of our greatest men have builded 
before him. We have always prided our- 
selves on our public schools; but we had 
a great shock to that pride when we exam- 
ined the statistics of illiteracy revealed by 
the rigid examination of men enlisted or 
drafted into the army for the late war. 
We found a most distressing number of 
men who could not read or write among 
the native whites, of our citizenship. It is 
notorious, too, that our teachers are not 
properly paid, and that, therefore, they 
are not properly prepared to teach. We 
have a heavy task before us but we must 
do it. Not only is there this large number 
of native whites but the negroes and the 
foreign born greatly increase the number 
needing especial attention. It is so great 
a work that the agency of the National 
Government must be invoked to help in 
some practical and unobstructing way. In 
the wealthier states such aid is unneces- 
sary, but in the states where illiteracy is 



LIBERTY UNDER LAW 45 

more prevalent, public funds are not so 
available from state resources, and na- 
tional assistance may be properly ex- 
tended. The standard of agriculture in 
this country has been distinctly raised by 
the work of the Federal Agricultural 
Department although the Federal gov- 
ernment has no constitutional control of 
agriculture. Why may we not have the 
standard of thoroughness improved in the 
common school system by federal activity 
even though the Central Government has 
no direct authority in matters of educa- 
tion? 

With the native born as well as with the 
foreign born we must inculcate American- 
ism in its true sense. The greatness of the 
country, the good it does its citizens, the 
freedom it secures them, the equality of 
opportunity evident in the success of the 
humblest born and the leadership of the 
self-made, must all be enforced as a basis 
of grateful love of the country. But more 
than all should be pressed into the mind 



46 LIBERTY UNDER LAW 

and soul of each boy and each girl that he 
or she is the country and that as he or she 
shall pursue an honest independent indus- 
trious moral life, he or she will be making 
for a greater America. 

The great war relieved the minds of 
many who had come to think that our 
great prosperity and our increase in 
wealth and the spread in all classes of 
creature comforts to the point of making 
former luxuries necessities, had sapped 
the foundations of love of country and the 
spirit of patriotic self-sacrifice in our 
youth. The great world struggle evoked 
the spirit of '76 and '61 from the young 
men and women of our country in a thrill- 
ing way and the selfishness and love of 
comfort disappeared in the triumphant 
energy and courage and effectiveness of 
Young America. Now we have had a 
reaction. Now the shallows are murmur- 
ing again. Now the pro-German and the 
Irish Extremist occupy the stage with "an 
other worldliness" seeking to disturb our 



LIBERTY UNDER LAW 47 

friendly relations with our allies. Such 
manifestations are misleading as to the 
real sentiment of the country while the 
deeps remain dumb. The Reds are again 
making night hideous with their threats 
and their prognostications of evil, and 
their attempts to stir class feeling and in- 
jurious discontent. Therefore, it is that 
in our public education, class conscious- 
ness and "other worldliness" should be 
fought at every turn. The breaking down 
of the fancied class barriers by the energy, 
ability, and independence of the humblest 
should be the text of every homily. So, too, 
should be the welfare of the United States 
and its responsibility to its fellow mem- 
bers of the family of nations. The les- 
son of obedience to law and government 
and political self-restraint and discipline 
should be an easy one to teach in schools 
and to exemplify. Respect for authority 
can be lost by lack of discipline and can be 
strengthened by its exercise. Liberty, 
abiding for each person, is impossible un- 



48 LIBERTY UNDER LAW 

less it be ordered liberty. Without law and 
conformity to it, we shall have license and 
not law, and anarchy, inequality and 
tyranny, and not liberty. In no respect do 
the lovers of America feel more concern 
than in the outbursts of lawlessness, not 
so much in personal crime, but in the 
manifestation of the mob spirit and indif- 
ference to the enforcement of law. Why 
can we not surround our youth with the 
atmosphere of respect for, and obedience 
to, authority? That is self-government. 
Without it, popular government is a fail- 
ure, and our constitutional system is a 
hollow mockery. 

Not only is education necessary but 
even more essential is moral training — 
a sense of responsibility for what we do — 
a standard of action which satisfies con- 
science. It can hardly be separated from 
religion. It is unfortunate that we cannot 
well unite religion and moral training in 
the instruction in our public schools. Men 
may be moral and not be religious, but 



LIBERTY UNDER LAW 49 

they are exceptions. Religion is the great 
stay of morahty. It is the conscious study 
and feeling of responsibility to God. It is 
a dwelling on our relations and duties to 
God. As Matthew Arnold puts it, it is our 
relation to the Being, not ourselves, who 
makes for righteousness. Its corner stone 
is unselfishness. It is the antidote for class 
hatred. It makes for the love of human 
kind. It prompts patriotism. It lifts one 
out of the sordid view of things. It broad- 
ens our horizon. It reveals true American- 
ism. And it reconciles individual freedom 
and responsibility with respect for Divine 
Authority. That is why the anarchist and 
the Bolshevist will have nothing of reli- 
gion. The churches of the community are 
the great and useful agencies for stimulat- 
ing religion and its practices. They need 
encouragement. Every university should 
encourage its students to the worship of 
God. Look over the world's history and 
tell me the nations who deserved well of 
the human race for their progress, and you 



50 LIBERTY UNDER LAW 

will find that religion was the moving 
cause of their effort, their sacrifice and 
their success. As long as the United States 
remains a religious nation, there is no 
danger of the corrosion of Bolshevism, 
Communism or any destructive and cruel 
cult. Christian civilization rests ultimately 
on the inspiration of the religious spirit. 
It is that which will render innocuous and 
neutralize the evil effect of the selfishness 
which is necessary to give energy and 
thrift and industry to material progress. 
It is that spirit which sweetens life with 
the love of family, of country, and of 
God. It is the preservation of this spirit 
of the fatherhood of God and the brother- 
hood of man upon which we most depend 
for the maintenance of useful constitu- 
tional government. 

I have thus tried to follow the text of 
the donor of this Foundation. I have at- 
tempted to give the essence of our consti- 
tutional system and to describe how it uses 
democracy to attain the welfare of the 



LIBERTY UNDER LAW 61 

people and the greatest good for the 
greatest number. I have pointed out the 
errors, as I conceive of them, of many- 
earnest supporters of what they call pure 
democracy, chiefly in forgetting that 
democracy is but a means to an end, just 
as liberty is. The end is the happiness of 
all individuals. To be useful, democracy 
and liberty must be regulated to attain 
this end and not to defeat it. I have em- 
phasized the dangers against which we 
must guard our noble state and civiliza- 
tion, and have urged improved education 
and stimulated religion as most impor- 
tant agencies in defending against those 
dangers. 

I am an optimist. I believe profoundly 
in our constitutional system and its value 
to us, because I believe it is the expression, 
accurate and responsive, of our American 
people. As it has preserved our liberties 
and happiness in the past, so may it serve 
us in our greater difficulties and achieve- 
ments of the future! 



PRINTED IN THE UNITED STATES OF AMERICA 



RETURN TO the circulation desk of any 
University of California Library 
or to the 
NORTHERN REGIONAL LIBRARY FACILITY 
BIdg. 400, Richmond Field Station 
University of California 
Richmond, CA 94804-4698 

ALL BOOKS MAY BE RECALLED AFTER 7 DAYS 

• 2-month loans may be renewed by calling 
(510)642-6753 

• 1-year loans may be recharged by bringing 
books to NRLF 

• Renewals and recharges may be made 4 
days prior to due date. 

DUE AS STAMPED BELOW 

MAY 2 2000 



12,000(11/95) 



U.C. BERKELEY LIBRARIES 



CD3^3SD77M 




4S8639 



• ->IM« 



UNIVERSITY OF CALIFORNIA LIBRARY