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CHAPTER VII
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.

CHAPTER VIII
WHAT IS A CONSTITUTION?

The nature of the constitution and the dependence of the minority thereon and hence the necessity for an independent judiciary discussed and illustrated.

A constitution is little less than a firm and binding contract between the majority and the minority, entered into for the sole protection of the minority, with regularly constituted courts to enforce its provisions.

The Supreme Court of the United States, from which every root of the Judiciary Department – one of the three coordinate branches of government – derives its vitality, is our only continuing and unchanging bulwark of liberty.

The executive branch, from President down through all the departments, State, Treasury, War and Navy, is liable to radical change on the fourth day of March every four years. Either house and both houses of Congress frequently change in partisan complexion at a single election. The Supreme Court, the members of which hold by life tenure, remains, theoretically, at least, unchanged.

Unless the people undermine their liberties by “effecting in the forms of the Constitution alterations which will impair the energy of the system,” which Washington warned against, or unless some executive corrupts the personnel of the Supreme Court by filling vacancies with socialists, or other revolutionary elements, Anglican liberty, the hope of the world, is secured in America against everything except bolshevism. With respect to the courts, Washington’s famous order is pertinent: “Place none but Americans on guard tonight.”

WHO IS AN AMERICAN?

Who is an American, worthy to be placed on guard tonight? Is he American born? He may be, and he may have been born beneath any flag and under any sky. An American is one who believes in and is ready to defend this republic. To be ready to defend our territory, or even our flag, is not enough.

Though we continue our socialistic bent and either undermine or overthrow our form of government through peaceful evolution or forceful revolution, with sword or by ballot, the land will remain. The rains will water it, the sun warm it, human life will exist, the Stars and Stripes will still float, but, except from the map, America will be gone forever.

America is more than fertile fields, more than bursting banks, more than waving flags. The America in which one must believe, and for which he must sacrifice, is constitutional liberty and justice according to law, guaranteed and administered by three coordinate branches of government. Just in proportion as we weaken the energy of the system through changes in the Constitution – which Washington so earnestly warned against – we undermine what thus far no one has succeeded in overthrowing.

I repeat, three coordinate branches of government with no subordinate branch! In the America which the world knows, and which we love, laws must be enacted by the legislative branch, and not by the executive or by the proletariat. Laws must be interpreted by an independent judiciary, fearless and unrecallable except by impeachment. And these laws, whose scope is limited by the Constitution, must be administered by the executive and not by the legislative branch. Congress has no more right to direct the manner of execution of its acts than the president has to direct or coerce the nature of its acts. Let each coordinate branch keep hands off the sacred prerogatives of the other. That’s America! And the man who defends her traditions and her institutions, regardless of his nativity, is an American who can safely be placed on guard tonight.

AN ACTUAL MENACE

On February 3, 1919, an editorial writer who has testified that he has six million or more readers, quoted Samuel Gompers, president of the American Federation of Labor, as saying:

“I mean that the people propose to control their government and do not intend any longer to have the governing power exercised by judges on the bench.”

And the editor correctly adds:

“This is as near to an American revolutionary statement as has ever come from a man as important officially as Mr. Gompers.”

Thus the issue is sharply drawn. This organization, if its president has been correctly quoted, intends to abolish one of our coordinate branches of government, to-wit, the courts.

What have the courts done to justify such a radical change in our form of government? When the government was organized the Fathers thought wise to make express provision that no class should ever become the special favorite of legislation. The Constitution forbids class legislation and the courts enforce it. Unless labor union people demand special exemptions from obligations to which all others are amenable, or special privileges denied to others, why do they officially make the revolutionary announcement that the courts are to be abolished? Yet this very thing has the approval of this most widely known and best-paid editorial writer in the world. Pressed in a corner, I presume both would claim that their only desire is to compel the courts promptly to observe popular sentiment instead of studying legal principles and, to that end, propose to subject judges to some kind of recall. And they would doubtless justify all this by the hackneyed phrase, “the people can be trusted.”

Thus they follow Rousseau and Robespierre. The former declared, “The general will, the public will, is always right.” The latter said, “The people is infallible.”

A case that well illustrates this “popular infallibility” as taught by Rousseau and Robespierre, as well as by their present day disciples, occurred in a certain county in Iowa, not fifty miles from my home. A person charged with second degree murder sought his constitutional right of a fair and impartial trial. He made application for a change of venue, alleging that his case had been prejudged and that because of the existing prejudice he could not obtain a fair trial within that county. Five citizens, the minimum requisite number, supported his motion by their affidavits. Promptly, two hundred most reputable citizens filed counter affidavits alleging that there was no prejudice whatever. The judge believed the five. It is probable that he discerned evidence of prejudice in the eagerness with which the two hundred sought to have the case tried in their midst. A change of venue was granted, and that night these two hundred liberty-loving citizens decided they would “no longer have the governing power exercised by judges on the bench,” broke open the jail, hung the accused and would have done violence to the judge if he had not been spirited away.

If you want the opposite view of “popular infallibility,” so you may the better determine for yourself, listen to Colonel Henry Watterson, a democrat of the old school and an American always, in the Brooklyn Eagle of February 1, 1919:

“The people,” says Colonel Watterson, “en masse constitute what we call the mob. Mobs have rarely been right – never, except when capably led. It was the mob of Jerusalem that did the unoffending Jesus of Nazareth to death. It was the mob in Paris that made the Reign of Terror. From that day to this, mobs have seldom been tempted, even had a chance to go wrong, that they have not gone wrong. ‘The people’ is a fetish. It was the people misled, who precipitated the South into the madness of secession and the ruin of a hopelessly unequal war of sections. It was the people, backing if not compelling, the Kaiser, who committed hari-kari for themselves and their empire in Germany. It is the people, leaderless, who are now making havoc in Russia. Throughout the length and breadth of Christendom in all lands and ages, the people, when turned loose, have raised every inch of hell to the square inch they were able to raise, often upon the slightest pretext, or no pretext at all.”

OFFICIAL TIMIDITY AND ITS EFFECTS

In some, perhaps most of the states, candidates for either House of Congress, knowing in advance that if, by investigation and by listening to arguments pro and con, they arrive at conclusions based on knowledge that differ from the impressions of their constituents based on prejudice, they will never be returned, make more or less formal announcement that, if elected, they will study no question but, when ready to vote, will inquire of those who have had neither opportunity nor desire to inform themselves, and vote as directed. We pay congressmen and senators of this type – just the same as statesmanlike representatives – seven thousand, five hundred dollars a year, and they vote as they are told to vote. If I am correctly informed, in some states men have been found who will vote as they are instructed for considerably less money even than that.

While the bill was pending to declare war against Germany, I called upon a Congressman who, without question, is the ablest man from his state. He had written to lawyers, bankers, farmers and labor men in his district, asking how he should vote on that momentous question. He handed me a package of replies he had received. I returned them and asked: “Do you agree with the President that Germany is already making war upon the United States?” “Yes,” he replied, “she has waged war against us for more than two years.” “Do you think your constituents know better than you what should be done?” His up-to-date reply was: “My constituents know nothing whatever about it, but I want to be re-elected.”

But not every congressman is that subservient. A certain well-known representative of a strongly German district in Ohio explained his support of the declaration of war in this language:

“If I were to permit any solicitude for my political future to govern my action, I might hesitate, but, gentlemen of the House, the only interest to which I give heed tonight is the interest of the American people; the only future to which I look is the future of my country.”

A few years ago a bill was pending to revise the tariff and a member of Congress from a certain industrial district arose and informed the House that he had written to several labor men in his district and asked them how he should vote and that he had received a telegram saying, “Vote for the bill.” He obeyed. This member did not profess to vote his convictions. In fact, he did not claim to be troubled with convictions. And I submit that if a man is to vote the sentiment of his district, rather than his judgment, it is foolish to waste the time of men of judgment by sending them to Congress. It would be more appropriate and in far better taste to send men who have nothing else to do. A thousand dollars a year ought to be enough for a man who bears no responsibility except to listen well, especially if he be of a caliber willing to act as a “rubber stamp” for the people at home.

Right here I want to venture an opinion, asking no one to agree with me: The gravest danger that confronts the United States of America, or that has confronted her in the last decade, has not been the armed forces against which we sent our brave boys in khaki, but in the fact that there are hundreds of representatives, and thousands of ambitious politicians, who cannot be purchased with the wealth of Croesus, but who will vote for anything and everything if by so doing they can advance their political fortunes.

Bolshevism would be crushed and the red flag of anarchy would be no longer flaunted in the face of Freedom, were it not for this timidity inspired by those who insist that their representatives shall have no discretion and no responsibility except as clerks for an irresponsible populace. This is the doctrine taught in Rousseau’s “Social Contract,” which Robespierre read every day and which furnished the inspiration for the French Revolution. His scheme was “pure democracy, unchecked, unlimited and undefiled by political leadership or political organization.”

Marat declared: “In a well regulated government the people as a body is the real sovereign; their deputies are appointed solely to execute their orders. What right has the clay to oppose the potter?” Again, he says: “It is a sacred right of constituents to dismiss their representatives at will.” And again: “Reduce the number of deputies” (corresponding to our members of Congress) “to fifty; do not let them remain in office more than five or six weeks; compel them to transact their business during that time in public.”

This spirit of “pure democracy” which Washington, with prophetic eye, saw and warned against, wrought its natural and legitimate ruin in France, is responsible for conditions now existing in Russia and affords the greatest menace to civilization that the world has ever seen. I do not consider Washington a pessimist when, near the close of his “Farewell Address” with heart full of apprehension, he uttered these words:

“In offering to you, my countrymen, these counsels of an old and affectionate friend, I dare not hope they will make the strong and lasting impression I could wish; that they will control the usual current of the passions, or prevent our nation from running the course which hitherto has marked the destiny of nations.”

Someone has declared life to be “one succession of choices.” The choice presented today is: Heed the warnings and return to the teachings of Washington; or go with Rousseau and Robespierre and enter the port towards which we are unmistakably headed – the port where lie the rotting timbers of all previous republics. Representative government and direct government are inherently incompatible. They are absolutely antagonistic.