Notes on Democracy/Chapter 21
3.
Where Puritanism Fails
Under the pressure of fanaticism, and with the mob complacently applauding the show, democratic law tends more and more to be grounded upon the maxim that every citizen is, by nature, a traitor, a libertine, and a scoundrel. In order to dissuade him from his evil-doing the police power is extended until it surpasses anything ever heard of in the oriental monarchies of antiquity. In many American States—for example, California and Pennsylvania—it is almost a literal fact that the citizen has no rights that the police are bound to respect. These awful powers, of course, are not exercised against all citizens. The man of influence with the reigning politicians, the supporter of the prevailing delusions, and the adept hypocrite—these are seldom molested. But the man who finds himself in an unpopular minority is at the mercy of the Polizei, and the easiest way to get into such a minority is to speak out boldly for the Bill of Rights. Men have been clubbed and jailed in Pennsylvania for merely mentioning it; scores have been jailed for protesting publicly against its violation. Here the attack was at least frank, and, to that extent, honest; more often it is made disingenuously, and to the tune of pious snuffling. First an unpopular man is singled out for persecution, and then a diligent search is made, with the police and prosecuting officers and even the courts co-operating, for a law that he can be accused of breaking. The enormous multiplicity of sumptuary and inquisitorial statutes makes this quest easy. The prisoner begins his progress through the mill of justice under a vague accusation of disorderly conduct or disturbing the peace; he ends charged with crimes that carry staggering penalties. There are statutes in many States, notably California, that explore his mind, and lay him by the heels for merely thinking unpopular thoughts. Once he is accused of such heresy, the subsequent proceedings take on the character of a lynching. His constitutional rights are swept away as of no validity, and all the ancient rules of the Common Law—for example, those against double jeopardy and hearsay—are suspended in order to fetch him. Many of the newer statutes actually suspend these safeguards formally, and though they are to that extent plainly unconstitutional, the higher courts have not interfered with their execution. The Volstead Act, for instance, destroys the constitutional right to a jury trial, and in its administration the constitutional prohibition of unreasonable searches and seizures and the rule against double jeopardy are habitually violated. But no protest comes save from specialists in liberty, most of whom are so busy keeping out of jail themselves that their caveats are feeble and ineffective. The mob is always in favour of the prosecution, for the prosecution is giving the show. In the face of its applause, very few American judges have the courage to enforce the constitutional guarantees—and still fewer prosecuting attorneys. As I have said, a prosecuting attorney’s success depends very largely upon his ferocity. American practice permits him an extravagance of attack that would land him in jail, and perhaps even in a lunatic asylum, in any other country, and the more passionately he indulges in it the more certain becomes his promotion to higher office, including the judicial. Perhaps a half of all American judges, at some time or other, have been prosecuting officers. They carry to the bench the habits of mind acquired on the other side of the bar; they seem to be generally convinced that any man accused of crime is ipso facto guilty, and that if he is known to harbour political heresies he is guilty of a sort of blasphemy when he mentions his constitutional rights.
This doctrine that a man who stands in contempt of the prevailing idealogy has no rights under the law is so thoroughly democratic that in the United States it is seldom questioned save by romantic fanatics, robbed of their wits by an uncritical reading of the Fathers. It not only goes unchallenged otherwise; it is openly stated and defended, and by high authorities. I point, for example, to the Right Rev. Luther B. Wilson, who, as a bishop of the Methodist Episcopal Church, occupies an office that is both ecclesiastical and political, and is of dignity and puissance in both fields. Some time ago this Wilson was invited to preach in the Cathedral of St. John the Divine in New York—a delicate acknowledgment of his importance by his rival prelate of the Anglican Church, Monsignor Manning. His sermon, in brief, was a passionate plea for the putting down of heresy, law or no law, Constitution or no Constitution. “Atheism,” he declared, “is not only folly, but to the state a traitor. It does not deserve a place and should not be defended by any specious claim for immunity under the constitutional guaranties of the right of free speech.” This bloodthirsty and astounding dictum, though it came from a Christian ecclesiastic of a rank higher than that attained by Christ Himself, seemed so natural that it attracted no notice whatever. Not a single New York newspaper challenged it; even the Liberal weeklies let it pass as too obvious for cavil. A week or so later it was printed with approbation in all the Methodist denominational organs, and since then many other bishops of that sect have ratified it. The same doctrine is frequently stated plainly by high legal officers, especially when a man accused of political heresy is on trial—usually, of course, for an alleged infraction of the ordinary law. As I have said in a previous chapter, it was applied to atheists, exactly as Bishop Wilson applied it, during the celebrated Scopes trial at Dayton, Tenn. Arthur Garfield Hays, defending Scopes, arose at one point in the proceedings to protest that they were going beyond the bounds of due process—that his client was not getting a fair and impartial trial within the meaning of the Constitution. At once the prosecuting attorney general, Stewart, answered candidly that an atheist had no right to a fair trial in Tennessee, and the judge on the bench, the learned Raulston, approved with a nod. Hays, who is a Liberal, was so overcome that he sank in his place with a horrified gurgle, but the Tennesseans in the courtroom saw nothing strange in Stewart’s reply. They knew very well that, in all the States South of the Potomac, save only Louisiana, Catholics, Negroes and all the persons unable to speak the local dialects fluently shared the disability of atheists. And if they were learned in American law, they knew that anti-Catholics faced the same disability in Massachusetts, like anti-Semites in New York, and that in every State there were classes similarly proscribed. I do not here allude to the natural difficulty that every man of notoriously heterodox ideas must encounter every time he faces a jury, which is to say, twelve men of limited information and intelligence, chosen precisely because of their lack of intellectual resilience. I am speaking of the hostility he must look for in prosecuting officers and judges, and in the newspapers that sit in judgment upon them and largely determine their fortunes. I am speaking of what has come to be a settled practice in American criminal law.
It is difficult, indeed, for democracy to reconcile itself to what may be called common decency. By this common decency I mean the habit, in the individual, of viewing with tolerance and charity the acts and ideas of other individuals—the habit which makes a man a reliable friend, a generous opponent, and a good citizen. The democrat, despite his strong opinion to the contrary, is seldom a good citizen. In that sense, as in most others, he falls distressfully short. His eagerness to bring all his fellow-citizens, and especially all those who are superior to him, into accord with his own dull and docile way of thinking, and to force it upon them when they resist, leads him inevitably into acts of unfairness, oppression and dishonour which, if all men were alike guilty of them, would quickly break down that mutual trust and confidence upon which the very structure of civilized society rests. Where democratic man is so firmly in possession of his theoretical rights that resistance to him is hopeless, as it is in large areas of the United States, he actually produces this disaster. To live in a community so cursed is almost impossible to any man who does not accept the democratic epistemology and the Puritan ethic, which is to say, to any well-informed and self-respecting man. He is harassed in so many small ways, and with such depressing violence and lack of decency, that he is usually compelled to clear out. This fact, in large part, explains the cultural collapse of New England and the marked cultural backwardness of whole regions in the South and Middle West. A man of sound sense, born into the Tennessee hinterland, not only feels lonesome as he comes to maturity; he also feels unsafe. The morons surrounding him hate him, and if they can’t lay him for mere heresy, they will wait their chance and lay him for burning barns, for poisoning wells, or for taking Russian gold. So he departs.
This irreconcilable antagonism between democratic Puritanism and common decency is probably responsible for the uneasiness and unhappiness that are so marked in American life, despite the great material prosperity of the United States. Theoretically, the American people should be happier than any other; actually, they are probably the least happy in Christendom. The trouble with them is that they do not trust one another—and without mutual trust there can be no ease, and no genuine happiness. What avails it for a man to have money in the bank and a Ford in his garage if he knows that his neighbours on both sides are watching him through knotholes, and that the pastor of the tabernacle down the road is planning to have him sent to jail? The thing that makes life charming is not money, but the society of our fellow men, and the thing that draws us toward our fellow men is not admiration for their inner virtues, their hard striving to live according to the light that is in them, but admiration for their outer graces and decencies—in brief, confidence that they will always act generously and understandingly in their intercourse with us. We must trust men before we may enjoy them. Manifestly, it is impossible to put any such trust in a Puritan. With the best intentions in the world he cannot rid himself of the delusion that his duty to save us from our sins—i. e., from the non-Puritanical acts that we delight in—is paramount to his duty to let us be happy in our own way. Thus he is unable to be tolerant, and with tolerance goes magnanimity. A Puritan cannot be magnanimous. He is constitutionally unable to grasp the notion that it is better to be decent than to be steadfast, or even than to be just. So with the democrat, who is simply a Puritan doubly damned. When the late Dr. Wilson, confronted by the case of poor old silly Debs, decided instantly that Debs must remain in jail, he acted as a true democrat and a perfect Puritan. The impulse to be magnanimous, to forgive and forget, to be kindly and generous toward a misguided and harmless old man, was overcome by the harsh Puritan compulsion to observe the letter of the law at all costs. Every Puritan is a lawyer, and so is every democrat.