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 coordinate 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.