CONSTITUTIONAL LIBERTY
The necessity for organized government and organized justice as
a guarantee of constitutional liberty is sought to be shown.
Plato’s dream, Macaulay’s dire prediction and a threat.
A democratic form of government precludes the possibility of
constitutional liberty. Constitutional liberty does exist in what
Professor Giddings calls a “democratic state,” but cannot in what the
same author calls a “democratic form of government.” His admittedly
correct differentiation cannot be too often repeated.
“A democratic state,” says this high authority, “is popular
sovereignty,” while “a democratic form of government is the actual
decision of every question of legal and executive detail by a direct
popular vote.”
I grant the formality of a constitution may exist under a democratic
form of government, but where all functions of government are exercised
directly by the people, necessarily there can be no tribunal to enforce
the provisions of a constitution. Let me illustrate.
Suppose, if you will, that an uninhabited island has been discovered,
and a government is about to be formulated preliminary to its
occupation. Undoubtedly, we would agree that the sovereignty of the
island should be vested in the people. This, according to Professor
Giddings, would make it a “democratic state.” The next question would
be whether this sovereignty would be exercised directly or through
representatives. Shall it be a democratic form of government, or a
republican form of government?
Someone would propose that a majority should rule. If I were present, I
would promptly suggest that the rights of majorities always have been,
and always will be, secure. Minorities, not majorities, need
protection. I would ask what protection is to be given me, or anyone
who may prove an undesirable citizen. Will we be thrown into jail and
kept there indefinitely, without trial and without knowing the cause of
our incarceration? Such wrongs were common for centuries and are
perpetrated by bolshevists, and defended by socialists today. Very
likely the assembly would then promise a speedy trial, with right to
summon witnesses, and to be confronted by one’s accusers, and other
safeguards of liberty such as are now guaranteed in the Constitution of
the United States, and that of every state.
But this would not satisfy me. I would ask “How do I know that this
promise will be kept?” Then, doubtless, the right to a writ of _habeas
corpus_ would be promised. And this would not satisfy me. I would ask:
“By whom will it be issued, and by whom enforced?” Before we were
through, it is quite probable we would create a tribunal, clothe it
with greatest dignity, segregate it from the affairs of business and
safeguard it against political influence, and for want of a better
name, we would call it “The Supreme Court of the Island.” This court
would be clothed with authority to grant and enforce not only writs of
_habeas corpus_ but any and all other orders and decrees and judgments
necessary to protect the minority, even though a minority of one, in
his every constitutional right.
TREASON AS AN ILLUSTRATION
Treason is the only crime defined in the Constitution. Prior to the
year 1352 there was great uncertainty in England as to what constituted
treason, and Parliament, for the purpose of restraining the power of
the Crown to oppress the subject by arbitrary construction, passed, in
that year, what is commonly known as the “Statute of Treason.” All acts
that might be construed treasonable were classified under seven
branches. The framers of the Constitution, desiring to protect the
minority, chose only one of the seven and placed a perpetual bar
against any other act being made treason, and further safeguarded the
minority by defining the only basis of conviction. Section 3, Article
III, is as follows:
“Treason against the United States shall consist only in levying war
against them, or in adhering to their enemies, giving them aid and
comfort. No person shall be convicted of treason unless on the
testimony of two witnesses to the same overt act, or on confession in
open court.”
Now, suppose confiscationists, whether styling themselves socialists,
bolsheviki, single-taxers, or non-partisan leaguers, shall get control
and, by referendum, extend the scope of treason to include such
offenses as claiming title to real estate, which all the breed insist
rightfully belongs to the people _en masse_. Far less degrees of what
they consider “crime” were made punishable by death when democracy went
mad in France. Of what use would the express provisions of the
Constitution be if the power to recall decisions, as well as the judges
who render them, is to be exercised by the mass?
Leave it to the people to afford protection from the people and you
might just as well abolish all constitutional guarantees. Were the
people _en_ _masse_ to make the laws, _en masse_ to interpret the laws,
and _en masse_ to enforce the laws, the individual would have no rights
that the people _en masse_ would be bound to respect.
SOVIET RUSSIA AND AMERICAN REVOLUTION
In a widely circulated pamphlet, “A Voice Out of Russia,” the author
speaks of “a certain divine sense in which the Russian revolution
parallels the revolt of the thirteen American colonies, and in which
the proletariat of Russia is striving to accomplish for his world much
the same ideals which our forefathers laid down for theirs. There was,”
he says, “more of the spirit of the people, more of faith and
dependence in the proletariat, in American revolutionary doctrines,
than we seem disposed to admit today; and by the same token, it is
because we have lost our sense of fundamental democracy that we do not
care to admit it.”
“Fundamental democracy” is the correct term. But we have not lost it.
We are simply in danger of getting it. It is exactly what the Fathers
sought to eliminate and prevent.
On the next page of the pamphlet, the author says: “The writers of the
American Constitution certainly strove to do away with the artificial
complexities of politics, and to bring every function of government
within the grasp and comprehension of the whole electorate.”
I submit that that is exactly what the framers of the Constitution did
not seek to do. They created representative government and sought to
guard against direct government. The author quoted, and every other
teacher of revolution, either by peaceful or violent means, is seeking
to establish direct government. When they use the word “democracy,”
they use it in its dictionary sense. They use it as Rousseau,
Robespierre, Lenine, Trotsky and a very large number of others,
including some widely known Americans, use it. Why do liberty-loving
Americans seek to divorce the word “democracy” from its original
meaning and popularize the greatest enemy liberty has ever known?
PLATO’S DREAM
One of the best and most conservative newspapers in the United States
printed late in 1918 a carefully written editorial under the above
title, from which I quote a few disconnected sentences, italicizing the
most important:
“Twenty-five hundred years ago in Athens, Plato, the philosopher, who
is called the ‘father of idealists,’ framed the structure of an ideal
government among men, in the form of a republic. ... When the dust of
Plato was gathered into a Grecian urn, his dream did not die. The
generations harbored and treasured it. Time after time, and in place
after place, republics were formed. Men gave their blood and their
lives to realize the dream of Plato. But always might prevailed over
them. Only America endured to make the dream come true. In these times
there are numerous republics but there is not one among them that does
not owe its existence to the example and the influence of the United
States. Were our republic to crumble, every other on earth would
crumble with it.... Since the adoption of the Constitution in 1789, one
hundred and thirty years have passed and _during that time America has
met and overcome every trial to which the ideal republic could possibly
be subjected_. It has answered every argument against a republican form
of government advanced by the most stubborn objectors.”
The foregoing is historically correct except the last two sentences.
America has stood every test except that which ruined every other
republic. It has not yet encountered _direct government_, towards which
we seem radically tending. It has not withstood what Lord Macauley, a
century ago, predicted would prove our overthrow. He declared the
republic was “all sail and no ballast.” He predicted great speed for a
period; but he warned against the day when those who did not have
breakfast and did not expect dinner would elect our congress and our
president. The demagogue would be abroad in the land and he would say:
“Why do these have and you suffer?”
“Your republic will be pillaged and ravaged in the 20th century, just
as the Roman Empire was by the barbarians of the fifth century, with
this difference, that the devastators of the Roman Empire, the Huns and
Vandals, came from abroad, while your barbarians will be the people of
your own country, and the product of your own institutions.”
If “Coxie’s army” had been led by Eugene Debs, or any one of more than
a score whose names are revered by many, instead of by a patriotic
American, every mile of the road over which it traveled would have
reeked with human gore. Had it resorted to bloodshed at that time,
however, it would not have proceeded far. But socialism has made great
progress since 1895.
Speaking before a Senate committee early in January of this year, the
president of the American Federation of Labor is reported to have said:
“The people will not countenance industrial stagnation after the war.
There can be no repetition in the United States of the conditions that
prevailed from 1893 to 1896 when men and women were hungry for the want
of employment.”
The same veiled threat has been uttered repeatedly by men high in
official position.
Are we face to face with a condition and not a theory? Will laborers
revolt if they fail to secure employment, or when compelled to accept a
lesser wage? Will farmers turn anarchist if they can find no market for
their crops, or when compelled to accept a lesser price? Will bankers
become bomb throwers if unloanable funds accumulate? No, America has
not withstood every trial to which she can possibly be subjected. The
supreme menace stands today with gnashing teeth, glaring into our faces.