THE NECESSITY OF CONSTITUTIONAL LIMITATIONS UPON THE POWERS OF THE
GOVERNMENT. BILLS OF RIGHTS
It should be evident that the division and distribution of
governmental powers among different depositaries will not alone
prevent encroachments by the governing power upon the liberty of the
subject. The executive department in performing only executive
functions can, in the absence of other checks, act oppressively. The
legislative department, especially, without exceeding the legislative
function, can in many ways and in excessive degrees oppress the
individual by unnecessary restrictions of personal liberty, by
unnecessary exactions, by arbitrary discriminations. The theory of
representative government is that the legislature will be a body of
men who will regard themselves as entrusted with important powers to
be exercised deliberately and wisely for the welfare of the whole
commonwealth and not for any one or more classes or interests,--who
will regard themselves not as mere delegates or proxies, but as
representatives, like the directors of a corporation, to form and act
upon their own judgment after investigation and reflection. Experience
has shown, however, that members of the legislature do not always nor
generally act upon that theory. They seem to be inoculated with the
bacillus of irrepressible activity, the desire continually to be
proposing new laws, new restrictions, new exactions. If the laws
enacted prove difficult of enforcement by reason of their interference
with what individuals feel to be their rights, then new and oppressive
methods of enforcement are devised, still further restricting liberty
and equality. I have seen it stated that in the first ten days of the
session of the Massachusetts legislature this present year over a
thousand laws were proposed. Further, the members of the legislature
are beset by constituents and others to favor legislative measures for
their own special benefit, or that of their association, or of their
locality. One result is that during every legislative session the
ordinary citizen is dreading oppressive legislation and feels relieved
when the session is over.
When we consider the wide, almost unlimited range of the legislative
function, and the power and tendency of legislatures to push that
function to the extreme, it would seem that some check should be put
upon the legislature to prevent its enacting discriminatory laws or
otherwise depriving the individual of some accustomed and cherished
freedom of action. If it be said that public opinion is sufficient
restraint, the answer is that in a democracy, or in a republic with
universal suffrage, the efficient public opinion is practically that
of the majority of the electorate, and it is an acknowledged truism
that the unrestrained majority is even more likely than the few to be
oppressive of the individual. The opinion of the many is more
variable than that of the few, more likely to be swayed by sympathy,
prejudice, and other emotions. Indeed, public opinion sometimes
induces legislatures to enact laws which they themselves feel to be
unwise and tyrannical.
If history and reason show that the happiness of the people as a whole
requires certain individual liberties and rights to be left
undisturbed and that the safety of the people as a whole does not
require the contrary, then in order to secure justice those possessing
the powers of government should be restrained from any acts infringing
those liberties and rights; for, as already stated, justice consists
in the equilibrium between restrictions necessary for the welfare of
the whole people without discrimination, and the freedom of the
individual to serve his own welfare.
I think there are such liberties and rights. The subjects of King John
in the 13th century thought so and compelled the king to guarantee by
the Magna Charta that certain specified rights and liberties should
not be infringed. Again, the subjects of Charles I in the 17th century
had a similar conviction and expressed it in the Petition of Right,
which named some liberties and rights not to be infringed. The king
assented to that much limitation of the royal power. In the same
century, upon the accession of William and Mary, a Bill of Rights was
framed and enacted into law by King and Parliament, naming liberties
and rights of the subject which ought not to be abridged. Succeeding
Kings and Parliaments seem to have respected the provisions of this
Bill of Rights in their legislation for British subjects. Had they
conceded the claim of the people of the American Colonies that they
also were protected by its provisions, the course of our political
history might have been different. As it was, however, the British
government practically held that neither Magna Charta, the Petition of
Right, nor the Bill of Rights restrained it in its dealings with the
Colonies, and this in despite of the protests of some of its most
eminent statesmen. The resolutions of the various Colonial
legislatures and the formal Declaration of Independence recite many
grievous instances of arbitrary action by the government in disregard
of the doctrines of those charters.
So bitter was their experience that, when the people of the various
Colonies came to frame constitutions for "a government of the people,
by the people, and for the people" independent of the British crown
and all other external authority, they very generally insisted that
even such a government should have its powers defined and limited,
that some rights of the individual should be specified which the
government should not infringe nor have the lawful power to infringe.
From their own experience the people were convinced that such
definitions and limitations were necessary for the security of the
individual even under a popular government.
The first step of the representatives of the people of Virginia toward
a declaration of independence of the British crown, and the setting up
an independent government, was the adoption of a declaration of rights
in the individual which no government should infringe. This was
adopted and promulgated sometime before the constitution proper was
framed. The statement was declared to be necessary in order that the
government might be "effectually secured against maladministration."
Similar limitations upon the powers of the government were imposed in
the early constitutions of Massachusetts, New Hampshire, New Jersey,
Delaware, Pennsylvania, Maryland, North Carolina, and South Carolina;
also in the first constitution of Connecticut in 1818, and in the
first constitution of Rhode Island in 1842. The people of New Jersey
in 1844 made the limitations more definite, and the people of Maryland
imposed additional limitations in 1864. The people of New York did not
in their first constitution of 1777 expressly in terms guarantee
individual rights, but they impliedly did so by making the Declaration
of Independence the preamble, and in their constitution of 1821 they
incorporated an explicit statement of individual rights not to be
infringed. The example of the original states in this respect has been
followed by most of the subsequent states of the Union.
In 1778 a convention chosen to draft a constitution for Massachusetts
submitted a draft to the people, who rejected it by a large majority
mainly because it did not contain a "Bill of Rights." To quote from
Harry A. Cushing, a writer on the History of Commonwealth Government
in Massachusetts, "No demand was more general than that for a Bill of
Rights which should embody the best results of experience." In 1780 a
second convention submitted another draft of a constitution containing
the famous Massachusetts Declaration of Rights, and this the people
adopted by a majority of more than two to one. The only objection
urged against the Declaration of Rights was that it did not go far
enough.
In the convention that drafted the Federal Constitution it was
strongly urged that a Bill of Rights should be incorporated in the
draft, but it was deemed, by the majority at least, unnecessary and
even dangerous to make a specific declaration of individual rights,
inasmuch as the federal government contemplated was in its very nature
limited to such powers as were expressly, or by necessary implication,
conferred by the Constitution, and hence to specify certain things the
government should not do might be construed as permitting it to do
anything not so specified. This argument prevailed and the draft
submitted to the states contained no Bill of Rights. Immediately,
however, a storm of objections was raised against it because of the
omission. Despite the arguments of Hamilton and Madison that a Bill of
Rights was unnecessary, ratification was finally obtained only by a
general assurance and understanding that a sufficient Bill of Rights
should be added immediately upon the organization of the new
government. The necessary amendments, therefore, were submitted at the
first session of the new Congress and were unanimously adopted by the
states. Other limitations have since been imposed, notably those in
the XIVth amendment, assuring to every citizen equal consideration in
legislation by the states.
By the Federal Constitution as it now stands the citizen, in time of
peace at least, is guaranteed, among other matters, the protection of
the writ of habeas corpus; freedom from bills of attainder and ex post
facto legislation; freedom of religious belief and worship; freedom of
thought and its expression; freedom peacefully to assemble with others
and petition for redress of grievances; freedom from unreasonable
searches and seizure; the right not to be prosecuted for infamous
crimes except first accused by a grand jury; the right in all criminal
prosecutions to a speedy and public trial by an impartial jury, to be
confronted with the witnesses against him and to have assistance of
counsel; that he shall not be deprived of life, liberty, or property
without due process of law; that his private property shall not be
taken from him even for public use without just compensation; that the
obligations accruing to him under lawful contracts shall not be
impaired; that he shall not be denied the equal protection of the
laws. The guarantees in the state constitutions are generally of the
same nature.
It is difficult to see how any of these guaranties, or such other
guaranties as may be contained in the federal and state constitutions,
prevent legislative or executive action necessary for the welfare of
the people generally. There is certainly an ample field for such
action without overstepping these boundaries. Nevertheless, it is
today urged by some impulsive persons, eager to impose their theories
on the people at once, that all or many of these limitations upon the
powers of government should be removed or disregarded and the majority
of the people allowed unrestricted sway in all matters of
governmental action. Others who do not go so far, yet urge that the
majority should be free to suspend these guaranties temporarily or in
some particular classes of cases. Against this opinion I submit that
after so many centuries of experience of the tendency of all
governments to enlarge their powers over the subject, and of struggles
to limit the powers of government over private rights and to protect
the individual from governmental oppression, the burden of evidence
and of argument is heavily on those who would now advocate unlimited
powers even for the most democratic government. A government directly
by the people is of course in practice a government by a shifting and
often narrow majority of the people. It is not yet demonstrated by
experience or reason that such a government, unlimited, would be as
regardful of individual rights or welfare as a republican form of
government with its checks and balances and constitutional
restrictions. The excesses of the unlimited democracies of ancient
Greece and of the unrestrained democracy of France during and after
the revolution of 1789 and the lynchings in this country do not
contribute to such demonstration.
It is not those who defend our present form of government with its
constitutional guaranties, who resist political action tending to
weaken them, that should be called unprogressive, undemocratic, or
wanting in love of country. Those of our ancestors, English and
American, who fought for these guaranties, who obtained them only
after years of strife, who incorporated them in our federal and state
constitutions and safeguarded them against the varying impulses of the
populace, were not unpatriotic nor unmindful of the welfare of the
people,--were not indifferent to human liberties or human rights.
Neither are they such who today strive to preserve those guaranties
won at such expense of blood and treasure. On the contrary, it is
those who would override these guaranties and revert to the old days
of unlimited governmental power, that are the reactionaries.
It may be admitted that some of these limitations if enforced do now
and then impede and even prevent some governmental action desired by
some group or section of the people, but while action in violation of
these limitations might benefit its sponsors it would necessarily be
at the expense of others. Those who seek such legislation against
others would quickly appeal to these limitations if legislation were
directed against themselves. The noisiest declaimers against these
guaranties fall back for protection upon the constitutional guaranty
of freedom of speech. So long as these barriers are maintained every
individual, no matter how poor and feeble, will be, theoretically at
least, secure in some rights against the attacks of the many. Without
such barriers every individual is at the mercy of an inconstant
majority. Without such barriers justice cannot be said to be secured.
Lord Treasurer Burleigh of Queen Elizabeth's time declared that
England could never be ruined by its kings, but only by its
Parliament. If the safeguards of the federal and state constitutions
are maintained, neither Congress nor the state legislatures can ruin
America. If the American people should ever consent to the removal of
these safeguards they would give evidence of their want of
self-restraint, of their unwillingness and even incapacity to govern
themselves, and would pave the way for the man on horseback as the
French Revolution paved the way for Napoleon. To deprive a single one
of his rightful liberty is to endanger the liberties of all.