Popular Science Monthly/Volume 84/May 1914/The Struggle for Equality in the United States VI

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The Courts and Property. III

The framers of the constitution were fearful of democracy and entertained serious misgivings concerning the essential goodness of man. In theology, many of them accepted the doctrine of original sin, total depravity, infant damnation and the final perseverance of the saints. In politics, they distrusted the masses, favored a restricted suffrage, provided an electoral college for the choice of president, left the election of United States senators to the legislatures of the several states, contrived the system of checks and balances and established an appointive judiciary with power to set aside an act of Congress. The constitution was the work of the "solid, conservative, commercial and financial interests of the country" who feared legislative tyranny and whose solicitude never lost sight of the safety of property. For a long time, however, the guaranties of property in the constitution were never seriously put to the test. The one noteworthy exception was property in slaves which the constitution failed to protect. Until recently the ownership of property was widely diffused, and because of the abundance of fertile land the man without property to-day stood an excellent chance of becoming an owner to-morrow. There was no wage-earning class destined to remain such to the end of its life. For a time the scarcity of men willing to work for hire handicapped the development of manufactures. It has not been the distinctive features of our form of government so much as our environment that has given us peace with plenty.

It does not follow consequently that our governmental and economic systems, under the conditions which obtain to-day, are proof against socialism. The institution of private property depends upon the general consensus of opinion which varies from age to age. It is a common error to suppose that whatever is always will be. Take the right of a man to interfere with the business of another by normal competition, by way of illustration. This is regarded as a matter of course to-day, but there was a time when the right to engage in a given trade was restricted to the members of a certain guild, and a man was not at liberty to enter any pursuit be might elect. The individual's position in the social order was determined by the status into which he happened to be born and not by competition. Accordingly, the courts in place of upholding the right of competition as at present were once inclined to look upon it with disfavor.[1] Likewise, property rights are no more absolute than is the right of competition. Slave property, once nation-wide, became sectional and then disappeared altogether. Property in general depends as much upon considerations of social utility as property in slaves. For a long time it was restricted to movables. At first it included only weapons and ornaments. Gradually it came to include domestic animals. The ownership of land was vested in the community and not in private hands until comparatively recent times. The powers and franchises granted corporations are wholly optional with the several states, and depend upon considerations of social expediency. But for the social will embodied in positive law, there would be no such thing as theft.

At the present time property rights are being modified in various directions. There is a strong tendency to municipalize or nationalize certain industries. In Ireland, the property rights of the large landowners have been abridged by Parliament. Railway and other labor organizations that occupy a strategic position are altering the distribution of the social income and are establishing a sort of joint proprietorship. This is the effect of "full crew bills." According to the committee of railway managers, the demands of the railway employees on the eastern roads at the present time for an advance of wages are equivalent to putting the income of three hundred and forty millions at five per cent, ahead of the first mortage bonds of the roads.[2] The modification of the liability of employers at common law, the enactment of workingmen's compensation acts and more ample provision for playgrounds, art, music and education by taxation and private benevolence point to the growth of collective property. The social obligations resting upon private property are increasing. The abridgment of property rights is reflected in the lighter punishments provided for offenses against property. Imprisonment for debt has been abolished. The branding of thieves and vagabonds has been discarded. Capital punishment for crimes against property no longer exists. Many punishments which appear cruel and unusual in the light of to-day did not appear so at all to our forefathers. As humanitarian considerations have gained ground, private property has lost something of the sanctity in which it was once held.

It is remarkable how quickly even the staunchest defenders of property sometimes face about and demand an abridgment of property rights. All that is needed is some event that brings out clearly the opposition between private and public interests. A strike that ties up the steam roads of the country, or the street railway service of a city, may turn out to be such an event. The anthracite coal strike undoubtedly was. No one would probably accuse so "safe and sane" an organ as The New York Tribune of socialistic learnings, and yet this paper remarked:

The old doctrine that a man may do what he will with his own worked well enough when the life of the community was not dependent on what he did own, but some way or other it does not fit the case when a whole community is under one control. It did not seriously matter if one mine was shut down and its product cut off. The community could allow the owner to say it was his, and his use of it did not concern them. But when all the coal mines are subject to one will, the way that will works is of profound interest to those dependent on it. The mines are at law unquestionably private property. Nobody can go into court and get relief because the mines do not produce the coal he needs. But there is a moral trust—even kings now admit that, even though they rule by divine right, they hold a trust for their people. Prerogative and title are with the operators, but the people must have coal, and if the operators forget the moral obligations attached to their property-holding they will force the substitution of legal for moral obligation in some form or other.[3]

If the public mind veers strongly toward socialism, there are at least three ways by which it may attain its goal. First, private property can be more heavily taxed and more heavily subjected to the police power of the state. All of the machinery required for these purposes already exists. No constitutional change is necessary. Private property is held subject to the right of the state to tax. In addition, in such cities as New York, the building department supervises all structural changes or defects in buildings; the tenement-house department regulates the number of windows required for light and air and all alterations in houses occupied by more than three families, and if its orders are not complied with this department has power to vacate property and lock it up; the fire-department prevention bureau has charge of such matters as fire escapes; the board of health sees that certain sanitary requirements are complied with; the highway department requires abutting owners to keep their sidewalks in repair; the state factory inspectors have supervision of establishments where one or more men are employed, and the street-cleaning department looks after such things as garbage receptacles. An increase in the scrutiny of the public eye in each of these directions is easily conceivable. There is no hard and fast line between "taxation, reasonable regulation and fair payment," on the one hand and confiscation, on the other. The difference is a matter of degree and of opinion.

Secondly, a much more important gateway to socialism stands wide open, namely, the regulation of bequest and inheritance, neither of which is a property right under the federal and state constitutions. So long as public opinion favors private property, laws governing bequest and inheritance similar to those which exist at present will be continued in force. But if public opinion ever turns in disgust from the existing economic system, convinced of the practicability as well as of the desirability of socialism, a change in the laws governing the descent of property will be one of the easiest methods of approach.

In the third place, the position of the federal courts is not impregnable. Save only the Supreme Court, Congress has power to abolish them. This was actually done in 1801 in the case of the "midnight judges." More recently the existence of the Commerce Court has been threatened. There is no way, moreover, of compelling a recalcitrant Congress to make appropriations for the federal courts, and if so disposed the President by failing to appoint or the Senate to confirm could permit even the Supreme Court to die a peaceful death. Jefferson, Jackson and Lincoln showed that a Supreme Court decision is not binding on a coordinate department of the government. The constitution expressly makes the appellate jurisdiction of the Supreme Court subject to such exceptions and regulations as Congress shall make. On one occasion Congress limited the appellate jurisdiction of the court with a view to preventing it from declaring an act of Congress unconstitutional. This action was upheld by the court itself.[4] It is well known also that Congress can pack the court by increasing its membership. Professor Goodnow aptly remarks "that almost all of the great powers which the federal courts possess are theirs only because of the fact that their exercise of these powers has as a whole been satisfactory to the people of the United States."[5]


The main reliance of property owners does not lie in constitutions and courts, but in not violating the sense of fair play. The desire for property is well-nigh universal, and, so long as a fair and open field is maintained, the sense of injustice will have little chance to take root, and the army of property owners, both actual and potential, together with their natural allies among those without property, will be too numerous to be dispossessed. The danger to property does not lie so much in the minds of wily agitators, in the ignorance or depravity of the common man, or in the envy which the poor bear toward the rich as in closing the door of opportunity to the struggling and aspiring masses. So long as a man could homestead a piece of land, there was no social problem such as exists to-day. No self-respecting class whose necessities condemn it to a life of barely requited toil can be expected to rest content without at least the hope of something better. There is no better way to safeguard property than to give every man a fair start and an even chance in life. No class can so ill afford to disregard the forms of law as the owners of property. To throw labor agitators into jail or to railroad them to the penitentiary on trumped up charges, to seize their persons and deport them from the community by an unlawful exercise of force, or to interfere unwarrantably in any way with their freedom of speech, is undisguised anarchy. Those property owners who make undue exactions, who entrench themselves in positions of privilege, who use the state for their own aggrandizement and for the exploitation of the weak, or who stand out against much needed reforms, are among the worst enemies of their class.

The sooner employers abandon all pretensions to being a superior class appointed by Providence to look after the interests of labor, the better it will be for the property-owning class.

The rights and interests of the laboring man will be protected and cared for, not by labor agitators, but by the Christian men to whom God in his infinite wisdom has given control of the property of the country.

These are the words of the leading spokesman of the coal operators during the anthracite strike of 1902. They betray a feudalistic frame of mind, and they did more to undermine the right of private property than the numerous acts of violence committed by lawless strikers in the coal fields. It is nothing less than amazing that so astute a business man should have made so glaring a mistake. The divine right of property to rule is no less objectionable than is the divine right of kings. It ill becomes a spokesman of capital to uphold a monopoly in a necessary of life while refusing to treat with a combination of labor, or to lay the responsibility for his own mistakes at the door of Providence. The industrial leadership of the country is in dire need of men of broad intelligence and sympathy, men who are not blinded by class interest and who have a due sense of social responsibility.

Changes in our fundamental law can not be indefinitely postponed by a difficult mode of amendment. In the long run the effect is to irritate the public mind and to accentuate such changes. Until the constitution of Ohio was overhauled in 1912, no amendment could be added unless it received a majority of all the votes cast at an election. Every vote that was not cast for an amendment counted against it. Hence, it was next to impossible to amend the constitution. It is true that several amendments were added during the early part of the last decade. The veto power was given the governor, and the double liability of stockholders in certain domestic corporations was withdrawn. But this was done by the Republican and Democratic parties endorsing the amendments and placing the word "Yes" opposite them on the state tickets. As a result of this strategy, large numbers of uninformed and indifferent voters voted for the amendments. It was only on very rare occasions, however, that the cooperation of the machines of both parties could be secured in this way. The pressure for constitutional tinkering, therefore, increased until sweeping changes were made when the opportunity offered.

On 240 out of the 472 constitutional questions submitted to the voters of the several states in the decade ending with 1908, the vote was less than fifty per cent, of the vote for candidates. In 1910 the vote in Oregon rose to seventy or more per cent, in but 14 out of 32 cases.[6] The heavy handicap of requiring a majority of the total vote cast at an election to adopt an amendment is, therefore, apparent. As a result of this requirement, not a single amendment was added to the constitution of Oregon in the forty-three years ending with 1900.[7] It is possible that both California and Oregon have more recently gone to the other extreme and have made it too easy to amend their constitutions, but a mode of amendment that is practically prohibitory is beyond doubt unsound. Political machinery that compels deliberation and prevents hasty and precipitate action is of the utmost importance to the success of democracy. The formation of public opinion on any question requires time for discussion. The disposition to weigh evidence needs encouragement. Every precaution necessary to both sides of a question having a hearing should be taken. "Tried expedients," "verified conclusions," "traditional beliefs" should not be abandoned without mature deliberation. But when the checks upon the popular will exceed what is necessary to these ends, they not only cease to serve a useful purpose, but become obstructive. Discussion which is stopped at the outset from changing social conditions is useless. When the door to orderly change is closed, the only remaining alternative is revolution.

If the federal constitution were less rigid, both life and property would probably be more secure. A more flexible instrument would not hold things in a vise-like grip, but would permit changes in governmental policy with less social tension. The constitution as it stands leads the courts to make forced interpretations, makes for obstructive delay in the righting of grievances, and pens up the ferment of society until it sometimes threatens the social order. It has discouraged the existence of a party committed to any cause that requires a constitutional amendment. It has helped to make our political contests largely scrambles for offices. So far as principles are concerned, the difference between our leading parties has usually been so slight that it has been very difficult to distinguish between them. In such a humanitarian and democratic age as the present, a constitution that is "based upon the concept that the fundamental private rights of property are anterior to government and morally beyond the reach of popular majorities,"[8] and that is at the same time so difficult to amend is out of keeping with the times. So scholarly a man and conservative a thinker as Professor Monroe Smith maintains that

sooner or later. . . it will be generally realized that the first article in any sincerely intended progressive program must be the amendment of the amending clause of the Federal Constitution.[9]

In Kentucky, not more than two amendments can be submitted at a time; in Arkansas, Kansas and Montana, not more than three at a time. In New Jersey and Pennsylvania, no amendment or amendments can be submitted oftener than once in five years; in Tennessee, not oftener than once in six years, and in Vermont, not oftener than once in ten years. A number of states require a majority of those voting at an election for the adoption of an amendment. In these states, a majority of those voting for and against an amendment does not necessarily suffice.[10] No less than forty amendments that have been added to the constitution of Michigan would have failed to carry if this requirement had been in force.[11] In Wyoming, a majority of the qualified electors, whether voting or not is required. In Pennsylvania, an "amendment must be passed by two successive legislatures before it can be voted on by the people, and the legislature meets only on alternate years.[12] The amendment of the constitution of Illinois is especially difficult. A two thirds vote of each house is necessary to propose an amendment. Not more than one article at a time can be amended, and the same article not oftener than once in four years. Finally, a majority of those voting at an election is required to adopt an amendment.[13] As a result, many reforms that depend upon amending the constitution are practically at a standstill. The advocates of different amendments block each other. The friends of the initiative and the referendum prevent the reform of the general property tax and vice versa. Each demands the right of way. In the meantime, the reorganization of the judiciary, the short ballot, the abolition of minority representation in the legislature and home rule for cities are obliged to wait.[14] One is reminded of the celebrated Lecompton constitution which was nearly foisted upon the people of Kansas. In providing for its own amendment, it declared: "But no alteration shall be made to affect the right of property in the ownership of slaves."[15]

One might suppose that the constitution of New York is particularly difficult to amend, judging from the amount of criticism which the highest court of the state has excited in recent years. This, however, is not the case. The constitution has been amended on numerous occasions since its adoption in 1894. New York is suffering from the archaic condition of its judicial mind rather than from the rigidity of its constitution. Professor Walter F. Willcox has noted that the court of appeals, in holding the Workman's Compensation Act unconstitutional, substituted its own assumptions for the facts. In the face of statistical evidence to the contrary, the court held that the statute "does nothing to conserve the health, safety or morals of the employees."[16] Such an attitude of mind is unscientific and until it is corrected no mode of amending the constitution, however facile, can prevent salutary measures from being held up for a time by the courts. "A master of legal history tells us that taught law is tough law. Certainly it is true that our legal thinking and legal teaching are to be blamed more than the courts for the want of sympathy with social legislation which has been so much in evidence in the immediate past. One might almost say that instead of recall of judges, recall of law teachers would be a useful institution. At any rate, what we must insist upon is recall of much of the juristic and judicial thinking of the last century."[17]


Some Pitfalls of Reformers

If property owners now and then stand in their own light, reformers sometimes act with more zeal than sense. The prevailing spirit is too often given to destructive criticism and too little to constructive work. It is too impatient to attain its ends quickly, and relies too little upon the slow-going processes of education. It is too prone to attribute human failure to an unfavorable environment and too little given to laying it at the door of bad heredity. It attaches too much importance to raising wages and too little to stopping leakages, utilizing wastes, and teaching people how to make better use of the resources they already have. It too often imputes improper motives to its opponents. It is occasionally unmindful that there may be honest differences of opinion concerning the wisdom of the remedies which it proposes. It is either too penurious or not sufficiently alive to extravagance in the use of the public money. It has been known to wink at the lawlessness of organized labor while denouncing the lawlessness of capital, or vice versa. It at times needlessly alienates the sympathy of those without whose support it can not succeed. It now and then contents itself with securing the enactment of a statute, forgetful that the laws have no power to enforce themselves. An aroused public opinion is sometimes lulled to sleep by an act of the legislature, and inspectors who do not inspect occasionally give the community a sense of fancied security. Those opposed to a larger measure of social control have been known to withdraw their opposition on the ground that public opinion will not long demand its enforcement. For these and other reasons, the fossilized opponents of reform occasionally render the world a much needed service by calling reformers to account and pointing out their mistakes.

A despotism which secures order, property, and industry, which leaves liberty of religion and of private life unimpaired, and which enables quiet and unobtrusive men to pass through life untroubled and unmolested, will always appear to many very preferable to a democratic republic which is constantly menacing, disturbing, or plundering them.[18]

These words suggest that the progressive who is true to the interests of mankind is not invariably the foe of property. On the contrary, it occasionally becomes his duty to defend the right of property against its misguided opponents. The abolition of slavery does not justify a crusade against property in general. Human chattels and property in other things do not logically go together. From a social point of view, the two are inconsistent, for the slave has neither the incentive nor the opportunity to become a proprietor. The ownership of one's self is the first prerequisite to the ownership of other things. The total abolition of property rights, or even their drastic curtailment, would promote equality of a certain kind, but it would be equality upon a low level of misery. The lapse of one hundred and twenty-five years has rendered the constitution in some respects unsuited to current needs, but this should not blind us to the fact that the men of substance who brought about its adoption served their day and generation well. They were the real progressives of their time, though some of their work needs revision. Likewise, the opponents of wholesale reductions in railway rates have at times best served the people. Beyond doubt, also, there have been few worse enemies of the ideal of equality than the paper money inflationists who have flourished from time to time. The man who in the midst of turbulence and disorder restores the conditions of orderly industry with a firm hand is the friend not only of property but of labor. But a still better friend of both is he who not only restores order, but who in addition prevents the recurrence of disorder by correcting the conditions out of which it sprang.

The cause of progress commonly enlists the services of the more public-spirited portion of the community. The opponents of the liquor traffic, for example, are undoubtedly less influenced by mercenary considerations than are the liquor interests. It is well to bear in mind, however, that those who take the side of reform at any time are not always such disinterested patriots as one might suppose. Many men engage in politics not for what they can make out of it in questionable ways, but for the love of the game and to gratify the sense of power, and are quite as likely to be found on the side of human rights as on the side of those who have some pecuniary interests to subserve. As any cause gains in prestige, it tends to attract more and more of this class. Moreover, some humanitarian movements are well financed and consequently attract a considerable number of those in whom sordid considerations outweigh everything else. The men and women who espoused the anti-slavery cause at the outset were actuated by high principles, though doubtless some found in the opportunity for notoriety meat for their souls. But when the cause of human freedom became linked with the preservation of the Union and was financed by the government, not only the patriotic and those of high principle enlisted in the public service, but an army of camp followers, cormorants of all kinds and the unscrupulous took advantage of a public calamity to feather their own nests.

"I attribute much of whatever I have accomplished," said a well-known social reformer, "to the fact that I have always been known as a conservative." In like manner, so long as the spirit of progress keeps within the bounds of moderation its future is assured, and neither the opposition of reactionaries nor hostile court decisions can do more than obstruct for a time its way. By the exercise of patience, two amendments have been added to the constitution. If these amendments had failed of adoption, practically the same ends could have been attained in other ways. In the matter of an income tax, the Supreme Court could have been given a chance to reverse itself, or a slightly different law could have been passed which the court might have upheld. More easily still, a substantial part of what was wanted could have been obtained by an excise tax upon corporate and certain other incomes. This device was actually used in passing the Corporation Tax. In regard to the popular election of United States senators, the battle had been largely won in other ways before the constitution was formally amended. If a workingmen's compensation act is held unconstitutional by the highest court of a state, it is possible to amend the state constitution or to pass a law after the fashion of some other state that may pass muster in the courts. If rebuffed by such a decision as in the bake-shop case, it is only necessary to wait and try again when death has recalled enough justices of the Supreme Court to reconstitute its membership. The right, nay more, the duty to criticize the decisions of the courts should, however, never be forgotten. Without criticism it is well-nigh useless to wait with patience. Neither should any one shrink from proposing ideas which may frighten timid souls if reasonably sure of his ground. Many a good suggestion has been rejected only to be accepted later when it is understood. Besides, the saving grain of truth in many an idea that appears crude can only be brought out by discussion, and this can never come about if the idea is kept in a closet and never advanced. The progressive spirit fails of one of its chief missions when it ceases to be educative.

It is sometimes argued that the power of judicial veto ought not to exist in a democratic country. In regard to an absolute veto, the argument is conclusive. Any court decision that for all time stands in the way of what the people want, or that needlessly hampers the popular will, is inconsistent with self-government. But a suspensory veto that can be overcome after due deliberation by amending the constitution is entirely in keeping with democratic institutions. The right of the people to impose such a limited veto upon their representatives and upon the impulses of a temporary majority is as much a part of their prerogatives as anything else. Moreover, the willingness of the people of any country to adopt a written constitution and to invest in the courts the function of seeing that it is not overridden by the caprice of the moment is one of the surest signs of their capacity to govern themselves. The fact that the judicial veto does not exist in England and other important nations does not prove that it can be safely dispensed with here. Any institution that is so closely interwoven with the warp and woof of a political system as is the power of judicial veto can not be safely thrown overboard at a moment's notice. There is probably no charge that can justly be brought against the courts that can not be met by remedies that leave them the power of a suspensory veto, such as enlightened criticism, an elevation in the character of the bench, and setting the courts free from the letter of the law that killeth and from too abject an adherence to judicial precedent. Especially should impracticable methods of amending our organic law be avoided. The case of our highest court is particularly hopeful. In the words of James Bryce:

The Supreme Court feels the touch of public opinion. Opinion is stronger in America than anywhere else in the world, and the judges are only men. To yield a little may be prudent, for the tree that can not bend to the blast may be broken. There is, moreover, this ground at least for presuming public opinion to be right, that through it the progressive judgment of the world is expressed. Of course, whenever the law is clear, because the words of the constitution are plain or the cases interpreting them decisive on the point raised, the court must look solely to those words and cases, and can not permit any other considerations to affect its mind. But when the terms of the constitution admit of more than one construction, and when previous decisions have left the true construction so far open that the point in question may be deemed new, is a court to be blamed if it prefers the construction which the bulk of the people deem suited to the needs of the time?[19]

The moment progressives offend good sense, they may expect to be deserted by large numbers of their devotees. Take the movement for the free coinage of silver. There is no doubt that the country acted wisely when it rejected "free silver." But it is equally true that the silver propaganda set back the cause of social and industrial reform for nearly ten years. It accentuated and prolonged the hard times following the panic of 1893 until the country was so intent upon the recovery of prosperity that it was almost indifferent to anything else. Many individuals took advantage of the lack of public vigilance to grab franchises, to enact an excessively high protective tariff, and to organize industrial combinations on a scale that ended in startling the financial world, unsettling business, and in reawakening the sense of public duty in the mass of self-seeking individuals. One of the most common pitfalls into which many men fall is that of pandering to the popular caprice of the moment. He who says the pleasing thing rather than the truth as he sees it is something less than a reformer. The trend of public opinion is entitled to respectful consideration. An overweening confidence in one's own judgment should be avoided. The mind that is proof against criticism or that is indifferent to the opinions of others has ceased to grow. On the other hand, an earnest attempt should be made to set the majority right if it is wrong. Practically every good cause at the outset has been championed by a small minority. The hanging of witches was once a matter of course. The opponents of slavery for a long time hardly dared speak their minds. The opponent of inflation in many states after the Civil War had no political future. It is only a short time since the higher education of women was held in low esteem. He who sets his own popularity above his sense of public duty lacks the moral courage necessary to right the wrongs of the world. The man of fearless and independent judgment occasionally lives long enough to receive the plaudits of his countrymen, but many men who have done the world the greatest service have never had their praises sung until long after they were dead. The fact that a man holds this or that office may indicate nothing more than that he is a calculating time-server.

(To be continued.)

  1. Bruce Wyman, "Control of the Market," pp. 11-12.
  2. The Commercial and Financial Chronicle, July 12, 1913, p. 76.
  3. Quoted by The Outlook, August 30, 1902, p. 1035.
  4. Goodnow, op. cit., p. 345.
  5. Ibid., pp. 343-344.
  6. Ellis Paxson Oberholtzer, op. cit., p. 509.
  7. George H. Haynes, op. cit., p. 24.
  8. Charles A. Beard, "An Economic Interpretation of the Constitution of the United States," p. 324.
  9. Op. cit., p. 673.
  10. Francis Newton Thorpe, "The Federal and State Constitutions of the United States."
  11. John A. Fairlie, op. cit., p. 149.
  12. William Draper Lewis, op. cit., p. 322.
  13. Francis Newton Thorpe, op. cit.
  14. See an interesting series of newspaper articles by Arthur M. Evans, in The Chicago Record-Herald during November and December, 1913.
  15. "Debates of Lincoln and Douglas," op. cit., p. 109.
  16. The American Journal of Sociology, Vol. 18, 1913, pp. 606-612.
  17. Professor Roscoe Pound, The American Journal of Sociology, Vol. 18, 1912, p. 339.
  18. Lecky, op. tit., Vol. 1, pp. 259-260.
  19. "The American Commonwealth," edition of 1910, Vol. 1, p. 274.