States in its reception of the brief filed by Mr. Louis D. Brandeis
on behalf of the constitutionality of an Oregon statute limiting
woman’s work to ten hours a day. Besides decisions, he included the
legislation of many States and of European countries. Then follow
extracts from over ninety reports of committees, bureaus of statistics,
commissioners of hygiene, inspectors of factories, both in this country
and in Europe, to the effect that long hours of labour are dangerous
for women, primarily because of their special physical organization.
Following them are extracts from similar reports discussing the general
benefits of shorter hours from the economic aspect of the question.
Justice Brewer said:
“The legislation and opinions referred to in the margin may not
be, technically speaking, authorities, and in them is little or
no discussion of the constitutional question presented to us for
determination, yet they are significant of a widespread belief
that woman’s physical structure, and the functions she performs in
consequence thereof, justify special legislation restricting or
qualifying the conditions under which she should be permitted to
toil. Constitutional questions, it is true, are not settled by even
a consensus of present public opinion, for it is a peculiar value of
a written constitution that it places in unchanging form limitations
upon legislative action, and thus gives a permanence and stability
to popular government which otherwise would be lacking. At the same
time, when a question of fact is debated and debatable, and the extent
to which a special constitutional limitation goes is affected by the
truth in respect to that fact, a widespread and long continued belief
concerning it is worthy of consideration. We take judicial cognizance
of all matters of general knowledge.” (Muller _v._ Oregon, 208 U. S.
412, 420, 1907.)
The decision displays two qualities which are characteristic of the
winning counsel since his elevation to the bench; it keeps its eye
on the object instead of devoting itself to abstract conceptions,
and it emphasizes the interest of society in new forms of protection
against poverty, disease, and other evils. To these social interests,
the property of the individual must often be partly sacrificed and in
recent years we have seen the courts upholding the guarantee of bank
deposits, State regulation of insurance rates, and suspension of the
right of landlords to recover unreasonable rents or dispossess their
tenants. All this would have been regarded as impossible fifty years
ago.
These extensions of governmental power over property have been
accompanied by legislation severely restricting freedom of discussion
of still more radical types of State control. It is argued that the
right of free speech must face limitation like the right of the
landlord. The true policy is exactly the opposite. Not only is it
unjust for the State to carry out one form of confiscation while
severely punishing the discussion of another form, but in an age of
new social devices the widest liberty for the expression of opinion
is essential, so that the merits and demerits of any proposed plan may
be thoroughly known and comparisons made between it and alternative
schemes, no matter how radical these alternatives may be. A body of law
that was determined to stand still might discourage thought with no
serious damage; but law which is determined to move needs the utmost
possible light so that it may be sure of moving forward.
No one has expressed so well the new importance of social interests,
and the value of freedom of speech; no one, indeed, has expressed so
nobly the task and hopes of American Law, as the man of whom it is said
that among the long list of American judges, he seems “the only one
who has framed for himself a system of legal ideas and general truths
of life, and composed his opinions in harmony with the system already
framed.” (John H. Wigmore, “Justice Holmes and the Law of Torts,” 29
Harv. L. Rev. 601.) Yet no one has been more cautious than Justice
Holmes in warning us not to expect too much from law.
“The law, so far as it depends on learning, is indeed, as it has
been called, the government of the living by the dead. It cannot be
helped, it is as it should be, that the law is behind the times. As law
embodies beliefs that have triumphed in the battle of ideas and then
have translated themselves into action, while there is still doubt,
while opposite convictions still keep a battle front against each
other, the time for law has not come; the notion destined to prevail is
not yet entitled to the field.” (“Collected Legal Papers,” 138, 294.)
It is the work of the present generation of American lawyers to be sure
that the right side wins in the many conflicts now waging. We cannot
be certain that the law will make itself rational, while we remain as
inactive as in the past, absorbed in our own routine, and occasionally
pausing to say, “All’s right with the world”; for, to quote Holmes
once more, “The mode in which the inevitable comes to pass is through
effort.”
ZECHARIAH CHAFEE, JR.
EDUCATION
If Henry Adams had lived in the 13th century he would have found
the centre of a world of unity in the most powerful doctrine of the
church, the cult of the Virgin Mary. Living in the 19th century he
sums up his experience in a world of multiplicity as the attempt to
realize for himself the saving faith of that world in what is called
education. Adams was not the first to be struck with the similarity of
the faiths of the mediæval and the modern world. This comparison is
the subject of an article by Professor Barrett Wendell published in
the _North American Review_ for 1904 and entitled “The Great American
Superstition”:
“Undefined and indefinite as it is, the word education is
just now a magic one; from the Atlantic to the Pacific, it
is the most potent with which you can conjure money out of
public chests or private pockets. Let social troubles declare
themselves anywhere, lynchings, strikes, trusts, immigration,
racial controversies, whatever you chance to hold most
threatening, and we are gravely assured on every side that
education is the only thing which can preserve our coming
generations from destruction. What is more, as a people we
listen credulously to these assurances. We are told, and we
believe and evince magnificent faith in our belief, that our
national salvation must depend on education.”
Professor Wendell goes on trenchantly to compare this reigning modern
faith with that in the mediæval church. He calls attention to the
fact that whereas the dominant architectural monuments of the Old
World are great cathedrals and religious houses, implying the faith
that salvation could be assured by unstinted gifts to the church,
in our modern times the most stately and impressive structures are
our schools, colleges, and public libraries, many of them, like the
cathedrals, erected by sinners of wealth in the pursuit of individual
atonement and social salvation. “Ask any American what we shall do to
be saved, and if he speak his mind he will probably bid us educate our
fellow-men.” He might have extended his comparison to the personal
hierarchy of the two institutions, for at the time of his article
the President of Harvard spoke to the people of the United States
with the voice of Innocent III, surrounded by his advisers among
university presidents and superintendents gathered like Cardinal
Archbishops, in the conclave of the National Education Association,
of which the Committee of Ten was a sort of papal curia. Although
the educational papacy has fallen into schism, the cities are still
ruled by superintendents like bishops, the colleges by president and
deans, like abbots and priors, and the whole structure rests on a vast
population of teachers holding their precarious livings like the parish
priests at the will of their superiors, tempered by public opinion.
Indeed, Professor Wendell is struck by the probability that as European
society was encumbered by the itinerant friars, so America will have
“its mendicant orders of scholars--the male and female doctors of
philosophy.” But it is his main theme which concerns us here, that “the
present mood of our country concerning education is neither more nor
less than a mood of blind, mediæval superstition.”
The difference between faith as religion and as superstition may be
hard to define, the terms having become somewhat interchangeable
through controversy, but in general we should doubtless use the
pragmatic test. A vital and saving faith which actually justifies
itself by results is religion; a faith which is without constructive
effect on character and society, and is merely fanciful, fantastic,
or degrading we call superstition. The old education which America
brought from England and inherited from the Renaissance was a
reasonable faith. It consisted of mathematics, classics, and theology,
and while it produced, except in rare instances, no mathematicians,
classical scholars, or theologians, it trained minds for the learned
professions of those days and it gave the possessors of it intellectual
distinction, and admitted them to the society of cultivated men
everywhere. Its authority was largely traditional, but it worked in
the world of that day much as the thirty-three Masonic degrees do in
the world of Masonry. It may properly be called a religion, and in its
rigid, prescribed, dogmatic creed it may be compared to the mediæval
theology. At any rate, it suffered the same fate and from the same
cause. Its system was too narrow for the expanding knowledge and the
multiplying phenomena of the advancing hour. It failed to take account
of too many things. The authority of tradition, by which it maintained
its position, was challenged and overthrown, and private judgment was
set in its place.
Private judgment in education is represented by the elective system;
President Eliot was the Luther of this movement and Harvard College his
Wittenberg. Exactly as after the Reformation, however, the attitudes of
assertion and subservience in spiritual matters continued to manifest
themselves where the pope had been deposed, in Geneva and Dort and
Westminster, so in spite of the anarchy of the elective system the
educational function continues to impose itself in its traditional
robes of authority, and to be received with the reverence due to long
custom. And in this way education in America from being a saving faith
has become an illusion. The old education, its authority challenged,
its sway limited, and nobody caring whether its followers can quote
Latin or not, is in the position of the Church of Rome; the so-called
new education, uncertain in regard to material and method, direction
and destination, is like the anarchic Protestant sects. Neither
possesses authority; the old system has lost it, and the new ones have
never had it. They are alike in depending upon the blindness of the
masses which is superstition.
Although the generalization remains true that the mood of America
toward education is a mood of superstition, there are certain forms
of education operative in America to-day which approve themselves by
performance and justify the reasonable faith in which they are held.
The argument in favour of the elective system, by force of which it
displaced the prescribed classical course, was that it was necessary to
give opportunity for specialization. This opportunity it has given, and
in certain directions the results produced by American institutions
are of high value. Our scientific education is the most advanced, and
in the professions which depend upon it, engineering and medicine, our
product doubtless “compares favourably” with that of Europe. These
facts cannot be cited, however, as a valid reason for the American
faith in education as a whole. It is recognized to-day that progress
in natural science has far outrun that in politics, social life,
culture--therein lies the tragedy of the world. A few men of science
have a knowledge of the means by which the human race can be destroyed
in a brief space--and no statesmen, philosophers, or apostles of
culture have the power to persuade the human race not to permit it to
be done.
In another direction a great increase of specialization has taken
place--in the preparation for business. Our colleges of business
administration rival our scientific schools in the exactness of their
aim, and the precision of their effort. Here again, however, it may
be questioned whether their success is one to justify belief in the
educational process as a whole. The result of such specialization
upon the business organization of society can hardly be to arouse a
critical, and hence truly constructive, attitude in regard to the
whole economic problem; it is nearly certain to promote a disposition
to take advantage of the manifest shortcomings of that organization
for individual successful achievement. Whether society as a whole will
profit by the efforts of such experts as our business colleges are
turning out remains to be seen. Whether we are wise in strengthening
the predatory elements which put a strain on the social organization,
at a time when the whole structure is trembling, is open to question.
Here again the faith of America in education as social salvation is not
justified by individual results, however brilliant and fortunate.
The value of the specialist to society is unquestionable, but he
alone will not save it. Such salvation must come from the diffusion
and validity of the educational process as a whole, from the men and
women of active intelligence, broad view, wide sympathy, and resolute
character who are fitted as a result of it to see life steadily and
see it whole, reason soundly to firm conclusions in regard to it, and
hold those decisions in the face of death. The specialist indeed may
be considered a necessary subtraction from the general social army, a
person set apart for special duty, whose energies are concentrated and
loyalties narrowed. We expect him to die, if need be, in maintaining
that the world moves, but not for freedom of thought in the abstract.
It is by the generally trained, all-round product of our education that
the system must be judged. And what do we find?
The general student, it appears, tends to be the product of as narrow
a process as the specialist, but not as deep. As the demands of
specialization become more exacting, its requirements reach farther and
farther back into the field of general education, and more and more of
the area is restricted to its uses. The general student in consequence
becomes a specialist in what is left over. Moreover, he exercises his
right of private judgment and free election along the path of least
resistance. Laboratory science he abhors as belonging to a course of
specialization which he has renounced. The classics and mathematics, to
which a good share of our educational machinery is still by hereditary
right devoted, he scorns as having no _raison d’être_ except an outworn
tradition. With the decline of the classics has gone the preliminary
training for modern languages, which the general student usually
finds too exacting and burdensome, and from the obligation of which
colleges and secondary institutions also are now rapidly relieving
him. We boasted in the late war that we had no quarrel with the German
language, and yet by our behaviour we recognized that one of the fruits
of victory was the annihilation of at least one foreign speech within
our borders. The general student is thus confined, by right of private
judgment of course, to his own language and literature, and such
superficial studies in history and social science as he can accomplish
with that instrument alone. His view is therefore narrow and insular.
His penetration is slight. He is, in short, a specialist in the obvious.
Not only does the general student tend to be as restricted in
subject-matter as the specialist, but he lacks the training in
investigation, reasoning, and concentration which the latter’s
responsibility for independent research imposes. The definition of
the aim of general education on which Professor Wendell rested his
case for the old curriculum in the article quoted above, is “such
training as shall enable a man to devote his faculties intently to
matters which of themselves do not interest him.” Now clearly if the
student persistently chooses only the subjects which interest him,
and follows them only as far as his interest extends, he escapes all
training in voluntary attention and concentration. In his natural
disposition to avoid mental work he finds ready accomplices in his
instructors and text-book writers. They realize that they are on trial,
and that interest alone is the basis of the verdict. Accordingly they
cheerfully assume the burden of preliminary digestion of material,
leaving to the student the assimilation of so much as his queasy
stomach can bear. One way in which the study of English literature or
history can be made a matter of training in criticism and reasoning
is to send the student to the sources, the original material, and
hold him responsible for his conclusions. He may gain a wrong or
inadequate view, but at any rate it is his own, and it affords him a
solid basis for enlargement or correction. Instead of this the student
is invited to a set of criticisms and summaries already made, and is
usually discouraged if by chance he attempts a verification on his own
account. The actual reading of Shakespeare, Bacon, Milton, Swift, Burke
will give the student at least a certain training in concentration;
but this is hard, slow, and dry work. It is much easier and more
comprehensive, instead of reading one play of Shakespeare, to read
_about_ all the plays, including the life of the author, his dramatic
art, and some speculations in regard to the Elizabethan stage. It
was William James who pointed out the difference between _knowledge
about_ and _acquaintance with_ an author. The extent to which we have
substituted for the direct vision, with its stimulating appeal to
individual reaction, the conventional summary and accepted criticism,
the official formula and the stereotyped view, is the chief reason for
the ready-made uniformity of our educated product.
The pioneer democracy of America itself is responsible for a method of
instruction typically American. The superstitious faith in education
was the basis of a system whereby many busy, middle-aged persons whose
early advantages had been limited, by means of attractive summaries,
outlines, and handbooks, could acquaint themselves with the names of
men, books, and events which form the Binet-Simon test of culture,
and enable the initiate to hold up his head in circles where the best
that has been thought or said in the world is habitually referred to.
This method is carried out in hundreds of cultural camp-meetings every
summer, by thousands of popular lectures, in countless programmes of
study for women’s clubs. Unfortunately it is coming to be not only the
typical but the only method of general education in America. Chautauqua
has penetrated the college and the university. Better that our fathers
had died, their intellectual thirst unsatisfied, than that they had
left this legacy of mental soft drinks for their children.
Thus far I have had the college chiefly in mind, but the same
observations apply equally to the secondary school. The elective system
has made its way thither, and indeed one of the chief difficulties of
organizing a college curriculum for the general student which shall
represent something in the way of finding things out, of reasoning from
facts to conclusions, and of training in voluntary attention, is that
of determining any common ground on the basis of previous attainment.
Not only the elective system but the Chautauqua method has largely
permeated our high schools. The teachers, often on annual appointment,
more than the college instructors, with comparative security of tenure,
are dependent on the favour of pupils, a favour to be maintained in
competition with dances, movies, and _The Saturday Evening Post_, by
interesting them. It is therefore a common thing for teachers to repeat
in diluted form the courses which they took in college--and which in
the original were at best no saturate solutions of the subject. The
other day, on visiting a class in Shakespeare at a Y.M.C.A. school,
I ventured to suggest to the teacher that the method used was rather
advanced. “Ah, but my daughter at high school,” he said, “is having
Professor Blank’s course in the mediæval drama.” Now such a course
intended for graduate students investigating sources, influences,
and variations among saints’ plays and mystery plays, could have no
educational value in material or method for a high-school pupil, but
it was, no doubt, as interesting as a Persian tale.
Inasmuch as the colleges and the secondary schools are both uncertain
as regards the meaning and aim of general education, it is not
surprising to find the grade schools also at sea, their pupils the
victims both of meaningless tradition and reckless experiment. The
tradition of our grade schools, educational experts tell us, was
brought by Horace Mann from Prussia. There the _Volkschule_ was
designed for the children of the people, who should be trained with a
view to remaining in the station in which they had been born. At least,
it may be conceded, the German designers of the system had a purpose
in mind, and knew the means to attain it; but both purpose and means
are strangely at variance with American conditions and ideals. Other
experts have pointed out the extraordinary retarding of the educational
process after the first years, when the child learns by a natural
objective method some of the most difficult processes of physical
life, accomplishing extraordinary feats of understanding and control;
and some of the most hopeful experiments in primary education look
toward continuing this natural method for a longer time. At present the
principle of regimentation seems to be the most important one in the
grade school, and as the pace is necessarily that of the slowest, the
pupils in general have a large amount of slack rope which it is the
problem of principals and teachers to draw in and coil up. Altogether
the grade school represents a degree of waste and misdirection which
would in itself account for the tendencies toward mental caprice or
stagnation which are evident in the pupils who proceed from it.
Thus the parallel which Professor Wendell established between our
educational system and the mediæval church would seem to have a certain
foundation. In the colleges, as in the monasteries, we have a group
of ascetic specialists, sustained in their labours by an apocalyptic
vision of a world which they can set on fire, and in which no flesh can
live; and a mass of idle, pleasure-loving youth of both sexes, except
where some Abbot Samson arises, with strong-arm methods momentarily
to reduce them to order and industry. In the high schools, as in the
cathedrals, we have great congregations inspired by the music, the
lights, the incense, assisting at a ceremony of which the meaning is
as little understood as the miracle of the mass. In the grade schools,
as in the parish churches, we have the humble workers, like Chaucer’s
poor parson of the town, trying with pathetic endeavour to meet the
needs and satisfy the desires of their flocks, under conditions of
an educational and political tyranny no less galling than was the
ecclesiastical.