J K 
 
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 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! 
 
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