The Constitution of the United States Part 5

Closely allied to this doctrine of limited governmental powers, even by a majority, is the fourth principle of an independent judiciary.

It is the balance wheel of the Const.i.tution, and to function it must be beyond the possibility of attack and destruction. My country was founded upon the rock of property rights and the sanct.i.ty of contracts. Both the nation and the several States are forbidden to impair the obligation of contracts, or take away life, liberty, or property "without due process of law." The guarantee is as old as Magna Charta; for "due process of law" is but a paraphrase of "the law of the land," without which no freeman could be deprived of his liberties or possessions.

"Due process of law" means that there are certain fundamental principles of liberty, not defined or even enumerated in the Const.i.tution, but having their sanction in the free and enlightened conscience of just men, and that no man can be deprived of life, liberty, or property, except in conformity with these fundamental decencies of liberty. To protect these even against the will of a majority, however large, the judiciary was given unprecedented powers. It threw about the individual the solemn circle of the law. It made the judiciary the final conscience of the nation. Your nation cherishes the same primal verities of liberty, but with you, the people in Parliament, is the final judge. We, however, are not content that a majority of the Legislature shall override inviolable individual rights, about which the judiciary is empowered to throw the solemn circle of the law.

This august power has won the admiration of the world, and by many is regarded as a novel contribution to the science of government. The idea, however, was not wholly novel. As previously shown, four Chief Justices of England had declared that an Act of Parliament, if against common right and reason, could be treated as null and void; while in France the power of the judiciary to refuse efficacy to a law, unless sanctioned by the judiciary, had been the cause of a long struggle for at least three centuries between the French monarch and the courts of France. However, in England the doctrine of the common law yielded to the later doctrine of the omnipotence of Parliament, while in France the revisory power of the judiciary was terminated by the French Revolution.

The United States, however, embodied it in its form of government and thus made the judiciary, and especially the Supreme Court, the balance wheel of the Const.i.tution. Without such power the Const.i.tution could never have lasted, for neither executive officers nor legislatures are good judges of the extent of their own powers.

Nothing more strikingly shows the spirit of unity which the Const.i.tution brought into being than the unbroken success with which the Supreme Court has discharged this difficult and most delicate duty. The President is the Commander-in-Chief of the Army and the Navy and can call them to his aid. The legislature has almost unlimited power through its control of the public purse. The States have their power reinforced by armed forces, and some of them are as great in population and resources as many of the nations of Europe. The Supreme Court, however, has only one officer to execute its decrees, called the United States Marshal; and yet, without sword or purse, and with only a high sheriff to enforce its mandates, when the Supreme Court says to a President or to a Congress or to the authorities of a great-and, in some respects, sovereign-State that they must do this or must refrain from doing that, the mandate is at once obeyed. Here, indeed, is the American ideal of "a government of laws and not of men" most strikingly realized; and if the American Const.i.tution, as formulated and developed, had done nothing else than to establish in this manner the supremacy of law, even as against the overwhelming sentiment of the people, it would have justified the well-known encomium of Mr. Gladstone.

It must be added, however, that in one respect this function of the judiciary has had an unfortunate effect in lessening rather than developing in the people the sense of const.i.tutional morality. In your country the power of Parliament is omnipotent, and yet in its legislation it voluntarily observes these great fundamental decencies of liberty which in the American Const.i.tution are protected by formal guarantees. This can only be true because either your representatives in Parliament have a deep sense of const.i.tutional morality, or that the const.i.tuencies which select them have so much sense of const.i.tutional justice that their representatives dare not disregard these fundamental decencies of liberty.

In the United States, however, the confidence that the Supreme Court will itself protect these guaranties of liberty has led to a diminution of the sense of const.i.tutional morality, both in the people and their representatives. It abates the vigilance which is said to be ever the price of liberty.

Laws are pa.s.sed which transgress the limitations of the Const.i.tution without adequate discussion as to their unconst.i.tutional character, for the reason that the determination of this fact is erroneously supposed to be the exclusive function of the judiciary.

The judiciary, contrary to the common supposition, has no plenary power to nullify unconst.i.tutional laws. It can only do so when there is an irreconcilable and indubitable repugnancy between a law and the Const.i.tution; but obviously laws can be pa.s.sed from motives that are anti-const.i.tutional, and there is a wide sphere of political discretion in which many acts can be done which, while politically anti-const.i.tutional, are not juridically unconst.i.tutional. For this reason, the undue dependence upon the judiciary to nullify every law which either in form, necessary operation, or motive transgresses the Const.i.tution has so far lessened the vigilance of the people to protect their own Const.i.tution as to lead to its serious impairment.

5.

The fifth fundamental principle was a system of governmental checks and balances.

The founders of the Republic were not enamoured of power. As they viewed human history, the worst evils of government were due to excessive concentration of power, which like Oth.e.l.lo's jealousy "makes the meat it feeds on."

This system of checks and balances again ill.u.s.trates that the Const.i.tution is the great negation of unrestrained democracy. The framers believed that a people was best governed that was least governed. Therefore, their purpose was not so much to promote efficiency in legislation as to put a brake upon precipitate action.

Time does not suffice to state the intricate system of checks and balances whereby the legislature acts as a check upon the executive and the executive upon the legislature, and the Supreme Court upon both. When the Republic was small, and its public affairs were few, this system of checks and balances worked admirably, but to-day, when the nation is one of the greatest in the world, and its public affairs are of the most important and complicated character, and often require speedy action, it may be questioned whether the system is not now an undue brake upon governmental efficiency, and does not require some modification to ensure efficiency. Indeed, it is a serious question with many thoughtful Americans whether the growth of the United States has not put an excessive strain upon its governmental machinery.

This system was in part due to the confident belief of the framers of the Const.i.tution in the Montesquieu doctrine of the division of government into three independent departments-legislative, executive and judicial; but experience has shown how difficult it is to apply this doctrine in its literal rigidity. One result of the doctrine was the mistaken attempt to keep the legislative and the executive as far apart as possible. The Cabinet system of parliamentary government was not adopted. While the President can appear before Congress and express his views, his Cabinet is without such right. In practice, the gulf is bridged by constant contact between the Cabinet and the committees of Congress, but this does not wholly secure speedy and efficient co-operation between the two departments. As I speak, a movement is in progress, with the sanction of President Harding, to permit members of his Cabinet to appear in Congress and thus defend directly and in person the policies of the Executive.

This separation of the two departments, which causes so much friction, has been emphasized by one feature of the Const.i.tution which again marks its distrust of democracy, namely the fixed tenure of office. The Const.i.tution did not intend that public officials should rise or fall with the fleeting caprices of a const.i.tuency. It preferred to give the President and the members of Congress a fixed term of office, and, however unpopular they might become temporarily, they should have the right and the opportunity to proceed even with unpopular policies, and thus challenge the final verdict of the people.

If a parliamentary form of government, immediately responsive to current opinion as registered in elections, is the great desideratum, then the fixed tenure of offices is the vulnerable Achilles-heel of our form of government. In other countries the Executive cannot survive a vote of want of confidence by the legislature. In America, the President, who is merely the Executive of the legislative will, continues for his prescribed term, though he may have wholly lost the confidence of the representatives of the people in Congress. While this makes for stability in administration and keeps the ship of state on an even keel, yet it also leads to the fatalism of our democracy, and often the "native hue" of its resolution is thus "sicklied o'er with the pale cast of thought." Take a striking instance. I am confident that after the sinking of the Lusitania, the United States would have entered the world war, if President Wilson's tenure of power had then depended upon a vote of confidence.

6.

The sixth fundamental principle is the joint power of the Senate and the Executive over the foreign relations of the Government.

I need not dwell at length upon this unique feature of our const.i.tutional system, for since the Versailles Treaty, the world has become well acquainted with our peculiar system under which treaties are made and war is declared or terminated. Nothing, excepting the principle of local rule, was of deeper concern to the framers of the Const.i.tution. When it was framed, it was the accepted principle of all other nations that the control of the foreign relations of the Government was the exclusive prerogative of the Executive. In your country the only limitation upon that power was the control of Parliament over the purse of the nation, and some of the great struggles in your history related to the attempt of the Crown to exact money to carry on the wars without a Parliament grant.

The framers were unwilling to lodge any such power in the Executive, however great his powers in other respects. This was primarily due to the conception of the States that then prevailed. While they had created a central government for certain specified purposes, they yet regarded themselves as sovereign nations, and their representatives in the Senate were, in a sense, their amba.s.sadors. They were as little inclined to permit the President of the United States to make treaties or declare war at will in their behalf as the European nations would be to-day to vest a similar authority in the League of Nations. It was, therefore, first proposed that the power to make treaties and appoint diplomatic representatives should be vested exclusively in the Senate, but as that body was not always in session, this plan was so far modified as to give the President, who is always acting, the power to negotiate treaties "with the advice and consent of the Senate." As to making war, the framers were not willing to entrust the power even to the President and the Senators, and it was therefore expressly provided that only Congress could take this momentous step.

Here, again, the theory of the Const.i.tution was necessarily somewhat modified in practical administration, for under the power of nominating diplomatic representatives, negotiating treaties, and in general, of executing the laws of the nation, the principle was soon evolved that the conduct of foreign affairs was primarily the function of the President, with the limitation that the Senate must concur in diplomatic appointments and in the validity of treaties, and that only both Houses of Congress could jointly declare war. This c.u.mbrous system necessarily required that the President in conducting the foreign relations of the Government should keep in touch with the Senate, and such was the accepted procedure throughout the history of the nation until President Wilson saw fit to ignore the Senate, even when the Senate had indicated its dissent in advance to some of his policies at the Versailles Conference.

I suppose that since that conference no part of our const.i.tutional system has caused more adverse comment in Europe than this system. It often handicaps the United States from taking a speedy and effectual part in international negotiations, although if the President and the Senate be in harmony and collaborate in this joint responsibility, there is no necessary reason why this should be so.

I share the view of many Americans that this provision of the Const.i.tution was wise and salutary, especially at this time, when the United States has taken such an important position in the councils of civilization. The President is a very powerful Executive, and his tenure, while short, is fixed. Generally he is elected by little more than a majority of the people, and sometimes through the curious workings of the electoral college system, he has been only the choice of a minority of the electorate. For these reasons, the framers of the Const.i.tution were unwilling to vest in the President exclusively the immeasurable power of pledging the faith, man-power, and resources of the nation and of declaring war. The heterogeneous character of our population especially emphasizes the wisdom of this course, for it would be difficult, if not impossible, for an American President to make an offensive and defensive alliance with any nation or declare war against another nation without running counter to the racial interests and pa.s.sions of a substantial part of the American nation. For better or worse, the United States has limited, but not destroyed, as the world war showed, its freedom to antagonize powerful nations from whose people it has drawn large numbers of its own citizenship. The domestic harmony of the nation requires that before the United States a.s.sumes treaty obligations or makes war such policy shall represent the largely preponderating sentiment of its people, and nothing could more effectually secure this end than to require the President, before making a treaty, to secure the a.s.sent of two-thirds of the Senate and a majority of both Houses of Congress before making war.

While this may lead, as it has in recent years, to temporary and regrettable embarra.s.sments, yet in the long run, it is not only better for the United States, but it is even to the best interests of other nations, for in this way they are safeguarded against the possible action of an Executive with whom racial instincts might still be very influential. In your country, where the Government of the day is subject to immediate dismissal for want of confidence, such power over foreign relations can be safely entrusted to a few men, but in the United States, with its fixed tenures of office, a President could pledge the faith and involve his nation in war against the interests and will of the people. Suppose the President had unlimited power over our foreign relations and that within the next ten years an American, whose parents were born in any European nation, was elected on purely domestic issues, he could, with his a.s.sured four years of power, bring about a new alignment of nations and shake the political equilibrium of the world. The Const.i.tution wisely refused to grant such a power. Hence the provision for the concurrence of the legislative representatives of the nation. At all events, it const.i.tutes a system which, as the last presidential election showed, the American people will not willingly forgo. It is true that this system makes it difficult for the United States to partic.i.p.ate effectively in the main purpose of the League of Nations to enforce peace by joint action at Geneva, but to ask the United States to surrender a vital part of its const.i.tutional system, upon which its domestic peace so largely depends, in order to promote the League, seems to me as unreasonable as it would be to ask your country to abolish the Crown, to which it is sincerely attached as a vital part of its system, as a contribution towards international co-operation. You would not surrender such an integral part of your system, and therefore it is not reasonable to expect a similar sacrifice on our part, even though the meritorious purposes of the League be freely recognized.

I have thus summarized briefly and most inadequately some of the essential principles of the Const.i.tution. I have only been able to suggest very impressionistically what they are and the lessons to be drawn from them. If I were able to deliver a dozen addresses on the subject in this historic Hall and with this indulgent audience I would not scratch even the surface. To understand the Const.i.tution of the United States you must not only read the text but the thousands of opinions rendered in the last 130 years by the Supreme Court in its great task of interpreting this wonderful doc.u.ment. Few doc.u.ments have been the subject of more extended commentaries. The four thousand words have been meticulously examined through intellectual microscopes in judicial opinions, textbooks, and other commentaries which are as "thick as autumnal leaves that strow the brooks in Vallombrosa."

One can say of this doc.u.ment as Dr. Furness, in his variorum edition of Hamlet, says of the words of that character:

"No words by him let fall, no syllable by him uttered, but has been caught up and pondered, as no words except those of Holy Writ."

But what of its future and how long will the Const.i.tution wholly resist the washing of time and circ.u.mstance? Lord Macaulay once ventured the prediction that the Const.i.tution would prove unworkable as soon as there were no longer large areas of undeveloped land and when the United States became a nation of great cities. That period of development has arrived. In 1880 only 15 per cent. of the American population lived in the cities and the remainder were still on the farms. To-day over 52 per cent, are crowded in one hundred great cities. Lord Macaulay added:

"I believe America's fate is only deferred by physical causes. Inst.i.tutions purely democratic will sooner or later destroy liberty or civilization, or both.... The American Const.i.tution is all sail and no anchor."

In this last commentary Lord Macaulay was clearly mistaken. As I have shown, the Const.i.tution is not "purely democratic." It is amazing that so great a mind should have so little understood that more than any other Const.i.tution, that of America imposes powerful restraints on democracy. The experience of a century and a quarter has shown that while the anchor may at times drag, yet it measurably holds the ship of state to its ancient moorings. The American Const.i.tution still remains in its essential principles and still enjoys not only the confidence but the affection of the great and varied people whom it rules. To the latter this remarkable achievement must be attributed rather than to any inherent strength in parchment or red seals, for in a democracy the living soul of any Const.i.tution must be such belief of the people in its wisdom and justice. If it should perish to-morrow, it would yet have enjoyed a life and growth of which any nation or age might be justly proud. Moreover, it could claim with truth, if it finally perished, that it had been subjected to conditions for which it was never intended and that some of its essential principles had been ignored.

The Const.i.tution is something more than a written formula of government-it is a great spirit. It is a high and n.o.ble a.s.sertion, and, indeed, vindication, of the morality of government. It "renders unto Caesar [the political state] the things that are Caesar's," but in safeguarding the fundamental moral rights of the people, it "renders unto G.o.d the things that are G.o.d's."

In concluding, I cannot refrain from again reminding you that this consummate work of statecraft was the work of the English-speaking race, and that your people can therefore justly share in the pride which it awakens. It is not only one of the great achievements of that gens aeterna, but also one of the great monuments of human progress. It ill.u.s.trates the possibilities of true democracy in its best estate. When the moral anarchy out of which it was born is called to mind, it can be truly said that while "sown in weakness, it was raised in power."

To the succeeding ages, it will be a flaming beacon, and everywhere men, who are confronted with the acute problems of this complex age, can take encouragement from the fact that a small and weak people, when confronted with similar problems, had the strength and will to impose restraint upon themselves by peacefully proclaiming in the simple words of the n.o.ble preamble to the Const.i.tution:

"We, the people of the United States, in order to form a more perfect union, establish justice, ensure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Const.i.tution for the United States of America."

Note the words "ordain and establish." They imply perpetuity. They make no provision for the secession of any State, even if it deems itself aggrieved by federal action. And yet the right to secede was urged for many years, but Lincoln completed the work of Washington, Franklin, Madison and Hamilton by establishing that "a government for the people, by the people and of the people should not perish from the earth."

IV. The Revolt Against Authority

"Where there is no vision, the people perish: but he that keepeth the law, happy is he."

PROVERBS xxix. 18.

One of the most quoted-and also mis-quoted-proverbs of the wise Solomon says, as translated in the authorized version: "Where there is no vision, the people perish." What Solomon actually said was: "Where there is no vision, the people cast off restraint." The translator thus confused an effect with a cause. What was the vision to which the Wise Man referred? The rest of the proverb, which is rarely quoted, explains:

"Where there is no vision, the people cast off restraint: but he that keepeth the law, happy is he."

The vision, then, is the authority of law, and Solomon's warning is that to which the great and n.o.ble founder of Pennsylvania, William Penn, many centuries later gave utterance, when he said:

"That government is free to the people under it, where the laws rule and the people are a party to those laws; and all the rest is tyranny, oligarchy and confusion."

It is my present purpose to discuss the moral psychology of the present revolt against the spirit of authority. Too little consideration has been paid by the legal profession to questions of moral psychology. These have been left to metaphysicians and ecclesiastics, and yet-to paraphrase the saying of the Master-"the laws were made for man and not man for the laws," and if the science of the law ignores the study of human nature and attempts to conform man to the laws, rather than the laws to man, then its development is a very partial and imperfect one.

Let me first be sure of my premises. Is there in this day and generation a spirit of lawlessness greater or different than that that has always characterized human society? Such spirit of revolt against authority has always existed, even when the penalty of death was visited upon nearly all offences against life and property. Blackstone tells us (Book IV, Chap. I) that in the eighteenth century it was a capital offence to cut down a cherry tree in an orchard-a drastic penalty which should increase our admiration for George Washington's courage and veracity.

We are apt to see the past in a golden haze, which obscures our vision. Thus, we think of William Penn's "holy experiment" on the banks of the Delaware as the realization of Sir Thomas More's dream of Utopia; and yet Pennsylvania was somewhat intemperately called in 1698 "the greatest refuge for pirates and rogues in America," and Penn himself wrote, about that time, that he had heard of no place which was "more overrun with wickedness" than his City of Brotherly Love, where things were so "openly committed in defiance of law and virtue-facts so foul that I am forbid by common modesty to relate them."

Conceding that lawlessness is not a novel phenomenon, is not the present time characterized by an exceptional revolt against the authority of law? The statistics of our criminal courts show in recent years an unprecedented growth in crimes. Thus, in the federal courts, pending criminal indictments have increased from 9503 in the year 1912 to over 70,000 in the year 1921. While this abnormal increase is, in part, due to sumptuary legislation-for approximately 30,000 cases now pending arise under the prohibition statutes-yet, eliminating these, there yet remains an increase in nine years of over 400 per cent, in the comparatively narrow sphere of the federal criminal jurisdiction. I have been unable to get the data from the State Courts; but the growth of crimes can be measured by a few ill.u.s.trative statistics. Thus, the losses from burglaries which have been repaid by casualty companies have grown in amount from $886,000 in 1914 to over $10,000,000 in 1920; and, in a like period, embezzlements have increased five-fold. It is notorious that the thefts from the mails and express companies and other carriers have grown to enormous proportions. The hold-up of railroad trains is now of frequent occurrence, and is not confined to the unsettled sections of the country. Not only in the United States, but even in Europe, such crimes of violence are of increasing frequency, and a recent dispatch from Berne, under date of August 7, 1921, stated that the famous International Expresses of Europe were now run under a military guard.

The streets of our cities, once reasonably secure from crimes of violence, have now become the field of operations for the foot-pad and highwayman. The days of d.i.c.k Turpin and Jack Sheppard have returned, with this serious difference-that the Turpins and Sheppards of our day are not dependent upon the horse, but have the powerful automobile to facilitate their crimes and make sure their escape.

Thus in Chicago alone, 5000 automobiles were stolen in a single year. Once murder was an infrequent and abnormal crime. To-day in our large cities it is of almost daily occurrence. In New York, in 1917, there were 236 murders and only 67 convictions; in 1918, 221, and 77 convictions. In Chicago, in 1919, there were 336, and 44 convictions.

When the crime wave was at its height a year ago, the police authorities in more than one American city confessed their impotence to impose effective restraints. Life and property had seemingly become almost as insecure as during the Middle Ages.[3]