INDIVIDUAL LIBERTY AND THE CONSTITUTION

The eighteenth-century conception of liberty was the outgrowth of the political conditions of that time. Government was largely in the hands of a ruling class who were able to further their own interests at the expense of the many who were unrepresented. It was but natural under these circumstances that the people should seek to limit the exercise of political authority, since every check imposed upon the government lessened the dangers of class rule. The problem which the advocates of political reform had to solve was how to secure the largest measure of individual liberty compatible with an irresponsible government. They were right in believing that this could be accomplished only by building up an elaborate system of constitutional restraints which would narrowly limit the exercise of irresponsible authority. Individual liberty as they understood the term was immunity from unjust interference at the hands of a minority.

This was a purely negative conception. It involved nothing more than the idea of protection against the evils of irresponsible government. It was a view of liberty adapted, however, to the needs of the time and served a useful purpose in aiding the movement to curb without destroying the power of the ruling class. Any attempt to push the doctrine of liberty farther than this and make it include more than mere immunity from governmental interference would have been revolutionary. The seventeenth and eighteenth century demand was not for the abolition, but for the limitation of irresponsible authority. It was not for popular government based upon universal suffrage, but for such modifications of the system as would give to the commercial and industrial classes the power to resist all encroachments upon their rights at the hands of the hereditary branches of the government. The basis and guarantee of individual liberty, as the term was then understood, was the popular veto such as was exercised through the House of Commons. This conception of liberty was realized for those represented in any coÖrdinate branch of the government wherever the check and balance stage of political development had been reached.

The American revolution, which supplanted hereditary by popular rule, worked a fundamental change in the relation of the individual to the government. So far at least as the voters were concerned the government was no longer an alien institution—an authority imposed upon them from above, but an organization emanating from them—one in which they had and felt a direct proprietary interest. It was no longer a government in which the active principle was irresponsible authority, but one which rested upon the safe and trustworthy basis of popular control.

The overthrow of monarchy and aristocracy necessitated a corresponding change in the idea of liberty to make it fit the new political conditions which had emerged. In so far as government had now passed into the hands of the people there was no longer any reason to fear that it would encroach upon what they regarded as their rights. With the transition, then, from class to popular sovereignty there was a corresponding change in the attitude of the people toward the government. They naturally desired to limit the authority and restrict the activity of the government as long as they felt that it was irresponsible; but as soon as they acquired an active control over it, the reason which formerly actuated them in desiring to limit its powers was no longer operative. Their ends could now be accomplished and their interests best furthered by unhampered political activity. They would now desire to remove the checks upon the government for the same reason that they formerly sought to impose them—viz., to promote their own welfare.

This tendency is seen in the changes made in the state constitutions at the beginning of the American revolution. As shown in a previous chapter, they established the supremacy of the legislative body and through this branch of the government, the supremacy of the majority of the qualified voters. We have here a new conception of liberty. We see a tendency in these constitutional changes to reject the old passive view of state interference as limited by the consent of the governed and take the view that real liberty implies much more than the mere power of constitutional resistance—that it is something positive, that its essence is the power to actively control and direct the policy of the state. The early state constitutions thus represent a long step in the direction of unlimited responsible government.

This, as we have seen, was the chief danger which the conservative classes saw in the form of government established at the outbreak of the Revolution. They were afraid that the power of the numerical majority would be employed to further the interests of the many at the expense of the few, and to guard against such a use of the government they sought to re-establish the system of checks. The Constitution which restored the old scheme of government in a new garb also revived the old conception of individual liberty. There is, however, one important difference between the eighteenth-century conception of liberty and that which finds expression in our constitutional literature. Formerly it was because of the lack of popular control that the people generally desired to limit the authority of the government, but the framers of the Constitution wished to bring about the limitation of governmental functions because they feared the consequences of majority rule. Formerly the many advocated the limitation of the power of king and aristocracy in the interest of liberty; now the few advocate the limitation of the power of the many for their own protection. With the abolition of monarchy and aristocracy the attitude of the few and the many has been reversed. The aristocratic and special interests that formerly opposed the limitation of political activity when they were predominant in the government, now favor it as a protection against the growing power of the masses, while the latter, who formerly favored, now oppose it. The conservative classes now regard the popular majority with the same distrust which the liberals formerly felt toward the king and aristocracy. In fact, the present-day conservative goes even farther than this and would have us believe that the popular majority is a much greater menace to liberty than king or aristocracy has ever been in the past.

"There can be no tyranny of a monarch so intolerable," says a recent American writer, "as that of the multitude, for it has the power behind it that no king can sway."[176] This is and has all along been the attitude of the conservative classes who never lose an opportunity to bring the theory of democracy into disrepute. The defenders of the American Constitution clearly see that unless the fundamental principle of popular government is discredited the system of checks can not survive.

There is no liberty, we are told by the present-day followers of Alexander Hamilton, where the majority is supreme. The American political system realizes this conception of liberty mainly through the Supreme Court—an organ of government which interprets the Constitution and laws of Congress and which may forbid the carrying out of the expressed will of the popular majority. It necessarily follows that the authority which can thus overrule the majority and enforce its own views of the system is an authority greater than the majority. All governments must belong to one or the other of two classes according as the ultimate basis of political power is the many or the few. There is, in fact, no middle ground. We must either recognize the many as supreme, with no checks upon their authority except such as are implied in their own intelligence, sense of justice and spirit of fair play, or we must accept the view that the ultimate authority is in the hands of the few. Every scheme under which the power of the majority is limited means in its practical operation the subordination of the majority to the minority. This inevitable consequence of the limitation of popular rule is not alluded to by the advocates of checks and balances, though it is obvious to any careful student of the system.

It would, however, do injustice to the intelligence of those who champion the scheme of checks and balances to give them credit for any real sympathy with the aims and purposes of democracy. Individual liberty as guaranteed by majority rule was not the end which the framers of the Constitution had in view, nor is it the reason why the present-day conservative defends their work. The Constitution as originally adopted did not contain that highly prized guarantee of personal liberty which democracy everywhere insists upon. The failure to make any provision for freedom of the press should be regarded as a significant omission. This, however, was not an essential part of the Federalists' scheme of government, which aimed rather to protect the property and privileges of the few than to guarantee personal liberty to the masses. This omission is the more noteworthy in view of the fact that this guarantee was at that time expressly included in a majority of the state constitutions, and that the temper of the people was such as to compel its speedy adoption as an amendment to the Federal Constitution itself.

Liberty, as the framers of the Constitution understood the term, had to do primarily with property and property rights. The chief danger which they saw in the Revolutionary state governments was the opportunity afforded to the majority to legislate upon matters which the well-to-do classes wished to place beyond the reach of popular interference. The unlimited authority which the state government had over taxation and its power to restrict or abridge property rights were viewed with alarm by the wealthy classes, who felt that any considerable measure of democracy would be likely to deprive them of their time-honored prerogatives. To guard against this danger the Constitution sought, in the interest of the classes which dominated the Federal Convention, to give the widest possible scope to private property. It prohibited private property in nothing—permitting it, as originally adopted, even in human beings. It may be said without exaggeration that the American scheme of government was planned and set up to perpetuate the ascendency of the property-holding class in a society leavened with democratic ideas. Those who framed it were fully alive to the fact that their economic advantages could be retained only by maintaining their class ascendency in the government. They understood the economic significance of democracy. They realized that if the supremacy of the majority were once fully established the entire policy of the government would be profoundly changed. They foresaw that it would mean the abolition of all private monopoly and the abridgment and regulation of property rights in the interest of the general public.

The Constitution was in form a political document, but its significance was mainly economic. It was the outcome of an organized movement on the part of a class to surround themselves with legal and constitutional guarantees which would check the tendency toward democratic legislation. These were made effective through the attitude of the United States courts which, as Professor Burgess says, "have never declined jurisdiction where private property was immediately affected on the ground that the question was political."[177]

"There can be no question that the national government has given to the minority a greater protection than it has enjoyed anywhere else in the world, save in those countries where the minority is a specially privileged aristocracy and the right of suffrage is limited. So absolute have property rights been held by the Supreme Court, that it even, by the Dred Scott decision, in effect made the whole country a land of slavery, because the slave was property, and the rights of property were sacred."[178]

In carrying out the original intent of the Constitution with reference to property the courts have developed and applied the doctrine of vested rights—a doctrine which has been used with telling effect for the purpose of defeating democratic reforms. This doctrine briefly stated is that property rights once granted are sacred and inviolable. A rigid adherence to this policy would effectually deprive the government of the power to make the laws governing private property conform to social and economic changes. It would disregard the fact that vested rights are often vested wrongs, and that one important, if not indeed the most important, task which a government by and for the people has to perform is to rectify past mistakes and correct the evils growing out of corruption and class rule. A government without authority to interfere with vested rights would have little power to promote the general welfare through legislation.

The adoption of the Constitution brought this doctrine from the realm of political speculation into the arena of practical politics. The men who framed and set up our Federal government were shrewd enough to see that if the interests of the property-holding classes were to be given effective protection, it was necessary that political power should rest ultimately upon a class basis. This they expected to accomplish largely through the judicial veto and the power and influence of the Supreme Court. The effect of establishing the supremacy of this branch of the government was to make the legal profession virtually a ruling class. To their charge was committed under our system of government the final authority in all matters of legislation. They largely represent by virtue of their training and by reason of the interests with which they are affiliated, the conservative as opposed to the democratic influences. The power and influence exerted by lawyers in this country are the natural outgrowth of the constitutional position of our Supreme Court. Its supremacy is in the last analysis the supremacy of lawyers as a class and through them of the various interests which they represent and from which they derive their support. This explains the fact so often commented on by foreign critics, that in this country lawyers exert a predominant influence in political matters.

We are still keeping alive in our legal and constitutional literature the eighteenth-century notion of liberty. Our future lawyers and judges are still trained in the old conception of government—that the chief purpose of a constitution is to limit the power of the majority. In the meantime all other democratic countries have outgrown this early conception which characterized the infancy of democracy. They have in theory at least repudiated the eighteenth-century doctrine that the few have a right to thwart the will of the many. The majority has in such countries become the only recognized source of legitimate authority. "There is no fulcrum outside of the majority, and therefore there is nothing on which, as against the majority resistance or lengthened opposition can lean."[179] This statement was made with reference to France, but it would apply as well to England, Switzerland, and all other countries in which the principle of majority rule has received full recognition.

On the other hand American constitutional and legal literature still inculcates and keeps alive fear and distrust of majority rule. The official and ruling class in this country has been profoundly influenced by political ideas which have long been discarded in the countries which have made the most rapid strides in the direction of popular government. The influence which our constitutional and legal literature, based as it is upon a profound distrust of majority rule, has had upon the lawyers, politicians, and public men of this country can hardly be overestimated. It is true that many who have been most influenced by this spirit of distrust toward popular government would be unwilling to admit that they are opposed to majority rule—in fact, they may regard themselves as sincere believers in democracy. This is not to be wondered at when we consider that throughout our history under the Constitution the old and the new have been systematically jumbled in our political literature. In fact, the main effort of our constitutional writers would appear to be to give to the undemocratic eighteenth-century political ideas a garb and setting that would in a measure reconcile them with the democratic point of view. The natural and inevitable result has followed. The students of American political literature have imbibed the fundamental idea of the old system—its distrust of majority rule—along with a certain sentimental attachment to and acceptance of the outward forms of democracy. This irreconcilable contradiction between the form and the substance, the body and the spirit of our political institutions is not generally recognized even by the American students of government. Constitutional writers have been too much preoccupied with the thought of defending and glorifying the work of the fathers and not enough interested in disclosing its true relation to present-day thought and tendencies. As a consequence of this, the political ideas of our educated classes represent a curious admixture of democratic beliefs superimposed upon a hardly conscious substratum of eighteenth-century doctrines. It is this contradiction in our thinking that has been one of our chief sources of difficulty in dealing with political problems. While honestly believing that we have been endeavoring to make democracy a success, we have at the same time tenaciously held on to the essential features of a political system designed for the purpose of defeating the ends of popular government.