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! 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