the common rights of man as derived from his Creator, no doubt, and an
implication that the specific prerogatives of rulers are not of divine
origin. But there is no denial that the institution of government among
men has a divine sanction. On the contrary, such a sanction is
distinctly implied in the statement that government is necessary for the
security of rights divinely given. There is no assertion of the divinity
or even the superiority of any particular form of government, republican
or democratic. On the contrary, "just powers" are recognized as
derivable from the consent of the people. According to this view, a
happy and consenting people under George III or Louis XVI would be as
rightly and lawfully governed as a happy people under a congress and a
president.
And what have we here in the way of social theory? An assertion of
equality, no doubt, and a very flat-footed and peremptory assertion.
"All men are created equal." But equal in what? In strength, in
ability, in influence, in possessions. Not a word of it. The assertion
of such a thing in an assembly which contained men as different as
George Washington, with his lofty stature and rich estate, and Samuel
Adams, for whose unimpressive person his friends were sometimes obliged
to supply lodging and raiment, would have been a palpable absurdity.
"But," says Professor Wendell, "the Declaration only asserts that men
are created equal, not that they must remain so." Not at all. It implies
that what equality exists by creation ought to remain by protection. It
is, and ought to be, inalienable.
But what is that equality? Not of person; for that would be to say that
all men are alike, which is evidently false. Not of property; for that
would be to say that all men are on a level, which never has been true,
and, whether it is desirable or not, probably never will be true. The
equality which is asserted among men refers simply to the rights which
are common to men: life, liberty, and the pursuit of happiness. Here
government must make no distinctions, no exceptions. Here the social
order must impose no arbitrary and unequal deprivations and barriers.
The life of all is equally sacred, the liberty of all must be equally
secure, in order that the right of all to pursue happiness may be
equally open.
_Equality of opportunity_: that is the proposition of the Declaration of
Independence. And when you come to look at it closely, it does not seem
at all unreasonable. For it proposes no alteration in the laws of the
universe,--only a principle to be observed in human legislation. It
predicts no Utopia of universal prosperity,--only a common adventure of
equal risks and hopes. It has not the accent of that phrase, "Liberty,
equality, fraternity, or death," which Chamfort translated so neatly,
"Be my brother or I will kill you." It proceeds rather upon the
assumption that fraternity already exists. It says, "We are brothers;
therefore let us deal squarely with one another." It is, in fact,
nothing more and nothing less than the voice of the spirit of fair play
speaking gravely of the deepest interests of man. Here, in this game of
life, it says, as we play it in America, the rules shall be the same for
all. The penalties shall be the same for all. The prizes, so far as we
can make it so, shall be open to all. And let the best man win.
This, so far as I can see it, or feel it, or comprehend it, is the sum
total of democracy in America.
It is not an abstract theory of universal suffrage and the infallibility
of the majority. For, as a matter of fact, universal suffrage never has
existed in the United States and does not exist to-day. Each State has
the right to fix its own conditions of suffrage. It may require a
property qualification; and in the past many States imposed this
condition. It may require an educational qualification; and to-day some
States are imposing this condition. It may exclude the Chinese; and
California, Oregon, and Nevada make this exclusion. It may admit only
natives and foreigners who have been naturalized, as the majority of the
States do. It may admit also foreigners who have merely declared their
intention of becoming naturalized, as eleven of the States do. It may
permit only men to vote, or it may expressly grant the suffrage to every
citizen, male or female, as Idaho, Wyoming, Colorado, and Utah do. The
only thing that the law of the nation says upon the subject is that when
citizenship is established, the right to vote shall not be denied or
abridged on account of race, colour, or previous condition of servitude.
It is entirely possible, therefore, that within this condition, suffrage
should expand or contract in the United States according to the will of
the people. Woman suffrage might come in next year without the change of
a word in the Constitution. All that would be necessary would be a
change in the mind of the women, the majority of whom at present do not
want to vote, and would not do it if you paid them. On the other hand,
educational and property qualifications might be proposed which would
reduce the suffrage by a quarter or a third; but this, again, is not
likely to happen. The point is that suffrage in America is not regarded
as a universal and inalienable human right, but as a political privilege
granted on the ground of fair play in order to make the rights of the
people more secure.
The undeniable tendency has been to widen the suffrage; for Americans,
as a rule, have a large confidence in the reasonableness of human
nature, and believe that public opinion, properly and deliberately
ascertained, will prove to be a wise and safe guide. But they recognize
that a popular election may not always represent public opinion, that a
people, like an individual, may and probably will need time to arrive at
the best thought, the wisest counsel.
President Grover Cleveland, a confirmed and inflexible Democrat, but not
an obstreperous or flamboyant one, often said to me, "You can trust the
best judgment of the rank and file, but you cannot always reach that
best judgment in a hurry." James Russell Lowell said pretty much the
same thing: "An appeal to the reason of the people has never been known
to fail in the long run." _The long run_,--that is the needful thing in
the successful working of popular suffrage. And that the Americans have
tried to gain by the division and distribution of powers, by the
interposition of checks and delays, by lodging extraordinary privileges
of veto in the hands of governors of States, and of the President of the
United States. In short, by making swift action difficult and sudden
action impossible, they have sought to secure fair play, even from the
crowd, for every man and every interest.
There are some of us who think that this might have been done more
easily and more certainly if the bounds of suffrage had not been made so
wide. We doubt, for example, whether a group of day-labourers coming
from Italy with their _padrone_ are really protected in their natural
rights by having the privilege of a vote before they can understand the
language of the land in which they cast it. So far from being a
protection, it seems to us like a danger. It exposes them to the
seductions of the demagogue and to the control of the boss.
The suffrage of the ignorant is like a diamond hung round the neck of a
little child who is sent out into the street: an invitation to robbers.
It is like a stick of dynamite in the hands of a foolish boy: a prophecy
of explosion.
There are some of us who think that "coming of age" might be measured by
intelligence as well as by years; that it would be easier to get at the
mind of the people if the vote were cast by the people who have minds;
that a popular election would come nearer to representing public opinion
if there were some way of sifting out at least a considerable part of
those electors who can neither read nor write, nor understand the
Constitution under which they are voting.
But whatever may be the thoughts and wishes of the more conservative
Americans upon this subject, two things are certain. One is that the
privilege of voting is a thing which is easy to give away and very hard
to take back. The other sure thing is that the Spirit of America will
never consent to any restriction of the suffrage which rests upon
artificial distinctions, or seems to create ranks and orders and estates
within the body politic. If any conditions are imposed, they must be the
same for all. If the privilege should be in any way narrowed, it must
still be open alike to all who will make the necessary effort to attain
it. This is fair play; and this, so far as the suffrage and popular
sovereignty are concerned, is what American democracy means. Not that
every man shall count alike in the affairs of state, but that every man
shall have an equal chance to make himself count for what he is worth.
Mark you, I do not say that this result has been fully accomplished in
the United States. The machinery of parties interferes with it. The
presentation of men and of measures from a purely partisan point of
view interferes with it. In any national election it is reasonably sure
that either the Republican party or the Democratic party will win. The
policies and the candidates of both have been determined in committee or
caucus, by processes which the ordinary citizen does not understand and
cannot touch. But what if he does not like the results on either side?
What if neither party seems to him clear or consistent or satisfactory?
Still he must go with one or the other, or else be content to assert his
individuality and lose his electoral efficiency by going in with one of
the three or four little parties which stand for moral protest, or
intellectual whim, or political vagary, without any possible chance of
carrying the election.
A thoughtful man sometimes feels as if he were almost helpless amid the
intricacies of the system by which his opinion on national affairs is
asked. He sits with his vote in his hand as if it were some strange and
antiquated instrument, and says to himself, "Now what, in heaven's name,
am I going to do with this?"
In the large cities, especially, this sense of impotence is likely to
trouble the intelligent and conscientious American. For here a species
of man has developed called the _Boss_, who takes possession of the
political machinery and uses it for his own purposes. He controls the
party through a faction, and the faction through a gang, and the gang
through a ring, and the ring by his own will, which is usually neither
sweet nor savoury. He virtually owns the public franchises, the public
offices, the public payroll. Like Rob Roy or Robin Hood, he takes
tribute from the rich and distributes it to the poor,--for a
consideration; namely, their personal loyalty to him. He leads his
followers to the polls as a feudal chief led his retainers to battle.
And the men whom he has chosen, the policies which he approves, are the
ones that win.
What does this mean? The downfall of democracy? No; only the human
weakness of the system in which democracy has sought to reach its ends;
only the failure in duty, in many cases, of the very men who ought to
have watched over the system in order to prevent its corruption.
It is because good men in America too often neglect politics that bad
men sometimes control them. And, after all, when the evil goes far
enough, it secretes its own remedy,--popular discontent, a reform
movement, a peaceful revolution. The way is open. Speech is free. There
is no need of pikes and barricades and firebrands. There is a more
powerful weapon in every man's hand. Persuade him to use it for his own
good. Combine the forces of intelligence and conscience, and the city
which sees its own interest will find out how to secure it.
But the trouble, with such a mass of voters, is to produce this
awakening, to secure this combination of better forces. It is a trouble
which Americans often feel deeply, and of which they sometimes complain
bitterly. But after all, if you can get down to the bottom of their
minds, you will find that they would rather take their trouble in this
form than in any other. They feel that there is something wholesome and
bracing in the idea that people must want good government before they
can get it. And for the sake of this they are willing, upon the whole,
and except during intervals, to give that eternal vigilance which is the
price of fair play.
It is not, however, of democracy as it has taken shape in political
forms that I would speak; but rather of democracy as a spirit, a
sentiment existing in the soul of the American people. The root of it is
the feeling that the openings of life, so far as they are under human
control, ought to be equal for all. The world may be like a house of
many stories, some higher, some lower. But there shall be no locked
doors between those stories. Every stairway shall be unbarred. Every man
shall have his chance to rise. Every man shall be free to pursue his
happiness, and protected in the enjoyment of his liberty, and secure in
the possession of his life, so far as he does not interfere with others
in the same rights.
This does not mean that all shall be treated alike, shall receive the
same rewards. For, as Plato says, "The essence of equality lies in
treating unequal things unequally." But it means what the first Napoleon
called _la carrière ouverte aux talents_. Nay, it means a little more
than that. For it goes beyond the talents, to the mediocrities, to the
inefficiencies, and takes them into its just and humane and unprejudiced
account. It means what President Roosevelt meant when he spoke of "_the
square deal for everybody_." The soul of the American people answered to
his words because he had expressed one of their dominant ideals.
You must not imagine that I propose to claim that this ideal has been
perfectly realized in America. It is not true that every man gets
justice there. It is not true that none are oppressed or unfairly
treated. It is not true that every one finds the particular stairway
which he wishes to climb open and unencumbered. But where is any ideal
perfectly realized except in heaven and in the writings of female
novelists? It is of the real desire and purpose, the good intention, the
aim and temper of the American people, that I speak. And here I say,
without doubt, the spirit of fair play has been, and still is, one of
the creative and controlling factors of America.
If you should ask me for the best evidence to support this statement, I
should at once name the Constitution and the Supreme Court of the United
States. Here is an original institution, created and established by the
people at the very birth of the nation, peculiar in its character and
functions, I believe, to America, and embodying in visible form the
spirit of fair play.
The laws under which a man must live in America are of three kinds.
There is first the common law, which prevails in all the States except
Louisiana, which is still under the Napoleonic Code. The common law,
inherited from England, is contained in the mass of decisions and
precedents handed down by the duly established courts from generation to
generation. It is supposed to cover the principles which are likely to
arise in almost all cases. But when a new principle appears, the judge
must decide it according to his conscience and create the legal right.
The second source of law is found in statutes of the United States
enacted by Congress, in the constitutions of the different States, and
in the statutes enacted by the State legislatures. Here we have definite
rules and regulations, not arising out of differences or disputes
between individuals, but framed on general principles, and intended to
cover all cases that may arise under them.
The third source of law is the Constitution of the United States, which
is supreme and sovereign over all other laws. It is the enactment of the
whole people. Congress did not create it. It created Congress. No
legislation, whether of a State or of the nation, can impair or
contravene its authority. It can only be changed by the same power which
made it,--the people of the United States, expressing their will, first
through a two-thirds majority of the national House and Senate, and then
directly through the vote of three-fourths of the forty-six States.
Any statute which conflicts with the Constitution is invalid. Any State
constitution which fails to conform to it is, in so far forth,
non-existent. Any judicial decision which contradicts it is of no
binding force. Over all the complexities of legislation and the
perplexities of politics in America stands this law above the laws, this
ultimate guarantee of fair play.
The thing to be noted in the Constitution is this: brief as it is for
the creative document of a great nation, it contains an ample _Bill of
Rights_, protecting every man alike. The Constitution, as originally
framed in 1787, had omitted to do this fully, though it prohibited the
States from passing any law to impair the validity of contracts, from
suspending the writ of habeas corpus in time of peace, and from other
things contrary to the spirit of fair play. But it was evident at once
that the Constitution would not be ratified by a sufficient number of
the States unless it went much farther. Massachusetts voiced the Spirit
of America in presenting a series of amendments covering the ground of
equal dealing with all men in the matters most essential to individual
freedom and security. In 1790 these amendments, numbered from I to X,
were passed by Congress, and in 1791 they became part of the
Constitution.
What do they do? They guarantee religious liberty, freedom of speech and
of the press, and the right of popular assembly and petition. They
protect every man, in time of peace, from criminal indictment except by
a grand jury, from secret trial, from compulsion to testify against
himself, from being tried again for an offence of which he has been once
acquitted, and from the requisition of excessive bail and the infliction
of cruel or unusual punishments. They guarantee to him the right to be
tried by an impartial jury of his peers and neighbours in criminal cases
and in all suits under common law when the amount in controversy exceeds
twenty dollars in value. They protect his house from search except under
legal and specific warrant, and his property from appropriation for
public use without just compensation. They assure him that he shall not
be deprived of life, liberty, or property without due process of law.
The remarkable thing about these provisions for fair play is not so much
their nature as the place where they are put. In England there is a Bill
of Rights, embodied in various enactments, which covers pretty much the
same ground. But these, as Mr. James Bryce says, "are merely ordinary
laws, which could be repealed by Parliament at any moment in exactly the
same way as it can repeal a highway act or lower the duty on tobacco."
But in America they are placed upon a secure and lofty foundation, they
are lifted above the passing storms of party politics. No State can
touch them. No act of Congress can touch them. They belong to the law
above laws.
Nor is this all. A supreme tribunal, coördinate with the national
executive and legislature, independent and final in its action, is
created by the Constitution itself to interpret and apply this supreme
law. The nine judges who compose this court are chosen from the highest
ranks of the legal profession, appointed by the President, and confirmed
by the Senate. They hold office for life. Their court room is in the
centre of the national Capitol, between the wings appropriated to the
Senate and the House.
It is to that quiet chamber, so rich, so noble in its dignity and
simplicity, so free from pomp and ostentation, so remote from turmoil
and confusion, so filled with the tranquil glory of intelligence and
conscience, so eloquent of confidence in the power of justice to
vindicate itself,--it is to that room that I would take a foreigner who
asked me why I believe that democracy in America has the promise of
endurance. Those nine men, in their black judicial robes (the only
officials of the nation who have from the beginning worn a uniform of
office), are the symbols of the American conscience offering the
ultimate guarantee of fair play. To them every case in law and equity
arising under the Constitution, treaties and laws of the United States,
every case of admiralty and marine jurisdiction, every case between
citizens of different States, or between two States, every case in which
the United States itself is a party, may be brought for final decision.
For more than a hundred years this court has discharged its high
functions without a suspicion of corruption or a shadow of reproach.
Twenty-one times it has annulled the action of Congress and declared it
_ultra vires_. More than two hundred times it has found that State
statutes were contrary to the Constitution and therefore practically
non-existent. And these decisions are not made in the abstract, on
theory, but in the concrete, on actual cases when the principle of fair
play under the Constitution is at stake.
Let me illustrate this. In 1894 a law was passed by Congress taxing all
incomes over a certain sum at certain rates. This was, in effect, not a
tax based proportionally upon population, but a special tax upon a part
of the population. It was also a direct tax levied by the national
legislature. There was no necessity of discussing the abstract question
of the wisdom or righteousness of such taxation. The only question was
whether it was fair play under the Constitution. A citizen of New York
refused to pay the tax; the case was brought to the Supreme Court and
argued by Mr. Choate, the late American Ambassador to Great Britain. The
court held that Congress had no power to impose such a tax, because the
Constitution forbids that body to lay any direct tax, "unless in
proportion to the census." By this one decision the income-tax law
became null, as if it had never been.
Again, a certain citizen had obtained from the State of Georgia a grant
of land upon certain terms. This grant was subsequently repealed by the
State by a general statute. A case arose out of the conveyance of this
land by a deed and covenant, and was carried to the Supreme Court. The
court held that the statute of the State which took the citizen's land
away from him was null, because it "impaired the obligation of a
contract," which the Constitution expressly forbids.
Again, in 1890, Congress passed a measure commonly called the Sherman
Anti-Trust Act, declaring "every contract, combination in the form of
trusts or otherwise, or conspiracy in restraint of trade or commerce
among the several States" to be illegal. This was undoubtedly intended
to prevent the merger of railroads and manufacturing concerns into
gigantic trusts with monopolistic powers. The American spirit has always
understood liberty as including the right of the citizen to be free in
the enjoyment of all his faculties, to live and work where he will, and
in so doing to move freely from State to State. So far as the trusts
were combinations in restraint of this right, the statute properly
declared them illegal, and the Supreme Court so interpreted and applied
it. But it soon became evident that combinations of labour might
restrain trade just as much as combinations of capital. A strike or a
boycott might paralyze an industry or stop a railroad. The Supreme Court
did not hesitate to apply the same rule to the employees as to the
employers. It held that a combination whose professed object is to
arrest the operation of railroads whose lines extend from a great city
into adjoining States until such roads accede to certain demands made
upon them, whether such demands are in themselves reasonable or
unreasonable, just or unjust, is certainly an unlawful conspiracy in
restraint of commerce among the States.
Again and again the Supreme Court has interfered to prevent citizens of
all the States from being deprived by the action of any State of those
liberties which belong to them in common. Again and again its decisions
have expressed and illustrated the fundamental American conviction which
is summed up in the strong words of Justice Bradley: "The right to
follow any of the common occupations of life is an inalienable right."