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.1 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 1 Quoted by The Outlook, August 30, 1902, p. 1035. 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 coördinate 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.1 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." 2 III 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, 1 Goodnow, Social Reform and the Constitution, p. 345. 2 Ibid. pp. 313-344. 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. 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 indorsing 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 coöperation 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 23 cases.1 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 1900.2 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 1 Oberholtzer, Ellis Paxson, The Referendum, Initiative and Recall in America, p. 506. 2 Haynes, George H., Political Science Quarterly, March, 1913. 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,' ," 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 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. 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.3 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." The amendment of the constitution of Illinois is especially difficult. A two-thirds vote of each house is necessary to propose 1 Beard, Charles A., An Economic Interpretation of the Constitution of the United States, p. 324. Thorpe, Francis Newton, The Federal and State Constitutions of the United States. 4 Lewis, William Draper, "A New Method of Constitutional Amendment by Popular Vote," Annals of the American Academy of Political and Social Science, p. 322. 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.1 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. One is reminded of the celebrated Lecompton constitution whch 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." 3 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 Workmen'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." 4 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.' 5 LAW IN BOOKS AND LAW IN ACTION BY ROSCOE POUND, OF THE HARVARD LAW SCHOOL (From the American Law Review, January-February, 1910, Vol. XLIV, pp. 12-36) When Tom Sawyer and Huck Finn had determined to rescue Jim by digging under the cabin where he was confined, it seemed to the uninformed lay mind of Huck Finn that some old picks the boys had 1 Thorpe, Francis Newton, op. cit. See an interesting series of newspaper articles by Arthur M. Evans, in The Chicago Record-Herald during November and December, 1913. Debates of Lincoln and Douglas, op. cit. p. 109. 4 The American Journal of Sociology, Vol. XVIII, 1913, pp. 606–612. 5 Professor Roscoe Pound, The American Journal of Sociology, Vol. XVIII, 1912, p. 339. |