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economists, sociologists, political scientists, and social workers leading a great army of citizens who sensed, without being able to point out, the inequalities of the old system.
It is oftentimes assumed that all that made for social progress was represented by the sociologists, economists, and their allies, and that the bench and bar represented everything opposed to social progress. In my judgment this is an unjustifiable assumption and discloses a lack of appreciation of the nature of the controversy, which we shall now proceed to examine.
No impartial observer can fail to note the fact that the industrial revolution occurred in a period when emphasis was placed almost entirely upon rights of person and property. It was assumed that if all persons were given the greatest amount of freedom consistent with a like amount of freedom on the part of others, a social millenium would be reached. Superficially, at least, it seems true that invention has been most productive in those countries where the individual enjoys the greatest amount of personal freedom. The increase in personal freedom which resulted from the application of steam, electricity, and gas to the processes of production, and all the great advances in chemistry, physics, biology, and other sciences was in some degree, at least, the product of the age of individualism. It was the application of these inventions and discoveries to the business of living that has been the dominant factor in our social progress. Under such circumstances individualism became a thoroughly established concept, not only in the minds of lawyers, judges, and government officials, but in the minds of people generally, so that down to the time of the Civil War we find almost no exercise of the police by governments, state or federal, which limited to any considerable degree the freedom and activities of individuals. It took decades of argument and persuasion to bring to the attention of the people generally the necessity for a change in attitude in order that the life of the people might be adapted to changed and rapidly changing conditions. The primary demand of the social program was that limitations be placed upon personal and property rights in the interest of the general welfare. On the other hand it seemed inconceivable to the supporters of the old order that the general welfare could be promoted by limiting the dominant factor in the development of the new order out of the old. They therefore resisted to the last ditch any impairment of the right of the individual to exercise his powers in advancing his personal interests and in acquiring property. The supporters of the old order had their minds fixed upon one thing-the destruction of political privilege and assumed that when that was done the problem was solved. They refused to recognize the fact that economic privilege might bring with it consequences as detrimental to the general welfare as they deemed political privilege to be.
In the main, what those in favor of social advance demanded was that there be lifted out of the realm of obedience to the unenforceable a large section of human action, and that it be transferred to the field of positive law. They did not propose thereafter to limit their efforts to the enactment of criminal statutes
forbidding under penalty what was harmful, but it was proposed that individual actions should be limited and guided by the commands of the state. This was a far-reaching proposal. Its advocates saw in it possibilities of a great social advance. Its opponents felt that it was fraught with great potentialities for evil. The result has been a vastly increased amount of so-called "social" legislation. Recent decisions of the Supreme Court of the United States and of courts of last resort in the various states have sustained limitations upon the freedom of the individual that fifty or a hundred years ago would have been thought revolutionary. As a consequence there has been an increasing exercise by legislatures of the police power, in order to advance the general welfare by further limiting and guiding the individual, until today there is a general outcry against the enactment of more legislation along these lines. This protest proceeds without very much reference to the merits of the question, and generally from feeling rather than reason. No thoughtful student of the law can deny that the rapid shift from the agricultural to the industrial and commercial order has made necessary a vast amount of legislation, most of which was justified by the necessity of protecting the individual and advancing the general welfare: laws relating to sanitation, hours of labor, safe place of employment, child labor, foods, markets, public utilities, and innumerable kindred subjects.
Although limitations were placed upon what were thought to be the inalienable rights of the individual, nevertheless these limitations operated to advance the interest of the individual as well as promote the general welfare. The failure of many on both sides to realize that law might at one and the same time do both things produced much of the bitterness engendered in the controversy between the radicals, as those are called who support the line of social advance, and the conservatives, who are committed to the maintenance of the status quo. A part of the opposition to the so-called "social" or "welfare" laws is due to the fact that there are, in every field of human action, fundamentalists. It is not to be doubted that there will soon be, among social workers, fundamentalists who will resist innovations. It may be that that time has already arrived. We all build our thought-structure around certain fundamental concepts. If we are successful in our respective lines of endeavor we regard these fundamental ideas as thoroughly proved and established, and any attempt to modify or change them is an attempt to modify or change our whole outlook on life, and, oftentimes, life itself. It is very difficult for persons past middle age to modify these fundamental concepts, because it requires a re-examination of all the premises upon which they have based their lives. Those who are willing, in pursuit of social advance, to sail an uncharted sea have little patience with those who wish to remain in sight of established landmarks. Fundamentalism is not peculiar to any one group, time, or place.
It is quite apparent that there is a social loss rather than a social gain when the promoters of social advance are too successful, when too much is taken out of the field of obedience to the unenforceable at one time and placed in the field
of positive law; for it has often occurred that in the enthusiasm of the moment laws have been enacted intended to advance the general welfare which have had the opposite effect. Social workers in their desire to achieve results speedily have resorted to short cuts and have ignored the necessity of organizing and informing of public opinion; for instance, in a western state the enactment of a very thoroughly considered law relating to probation has resulted in a stalemate. Officials created under the terms of the act have brought to the administration of the law preconceived notions which have limited its effect, dwarfed its accomplishment, while at the same time they have stood in the way of unofficial support of an admittedly worth-while program. It is quite probable that the general public will regard this as a failure of probation.
A law which establishes a higher standard for some of the members of a group quite likely lowers it for others. Dance-hall legislation in the state of Wisconsin is in point. The law requires that certain supervisors shall be appointed who are required to be present at public dances. Persons are appointed who have a minimum standard, volunteer chaperonage is done away with, and upon the whole the effect has been to lower, rather than raise, standards. If a real advance is to be achieved society must start from where it is. Demands that large areas be taken out of the domain of obedience to the unenforceable should be examined with care and caution because, as has been pointed out, when the sanction of the positive law is substituted for sanctions of obedience to the unenforceable a net loss often results.
One of the most interesting and instructive articles that has appeared in many years was the answers made in reply to the question propounded recently as to "Where Are the Pre-War Radicals?" And indeed, where are they? It is impossible to tell by perusing their replies. Some of the things for which they stood have become permanent parts of institutions. Other things for which they stood have long ago passed into the discard and are no longer advocated by anybody. As a matter of fact, a radical, by the mere lapse of time, is quite likely to become a conservative. He builds his thought-structure around certain assumptions and finds it quite as difficult to re-examine and revise his premises as does his conservative brother. James, in one of his asides, says that any man over forty years of age who radically changes his religion, his politics, or his economics becomes an object of suspicion and the public wonders what he wants.
Law has a definite, ascertainable, and measurable relation to social progress. The statute is a proper and necessary instrumentality which must be employed if social advance is to be secure and made certain, but assaults upon the existing order are not justified merely because they are enacted into laws. To be justifiable they must have an objective which is demonstrably better than the thing which is assaulted. Statutes which do not meet the situation quickly become obsolete. They are legislative misfits and are not incorporated into the social structure, and are oftentimes in violation of constitutional limiThe Survey, January 1, 1926. The Survey, February 1, 1926.
tations. Nearly every time that courts hold such a statute unconstitutional it is assumed in some quarters to be because the court is socially blind, deaf, and dumb. The younger and more inexperienced the assailant, the more certain he is that the court is composed of a lot of doting old men who cannot see, feel, or hear.
A writer who no doubt believes himself to be a supporter of an advanced social program recently made the following statement: "Therefore it is that the decisions of the court must be subject to relentless scrutiny to save them from pedantry and sterility as the unconscious rationalization of the economic and social biases of the individual justices." This writer's idea of the judicial process seems to be that when a judge prepares to render a decision in a case, particularly one involving social issues, he goes into a trance, his various biases, prejudices, and preconceptions, legal, economic, and social, effervesce, and the result is a judicial decision. Whether the decision is to be found in the escaping gas or in the residuum he does not indicate.
Just what is it that a judge of a court of last resort is called upon to do when he must render a decision involving constitutional limitations? A complete answer, of course, would involve a treatise on constitutional law. It may be said to begin with that fundamentally the controversy as to the extent of judicial power is a conflict between the parliamentary and the constitutional ideas of government. Those who believe that the legislature should be supreme and the court subordinate to the legislature believe in a parliamentary government. Those who believe that limits should be set to the powers of the legislature, and that as a necessary and inevitable consequence some tribunal must be set up to determine when, in a particular instance, the legislature has transgressed the constitutional mandate, believe in a constitutional form of government. This is no time or place to debate the merits of these two ideas. The judge is an officer of a constitutional government and is in the very nature of things, as well as by his solemn oath, obliged to support it. It is no part of his duty as a judge to pass upon the relative merits of the two systems, or by decision to attempt to supplant the one with the other.
The men who framed the federal Constitution had had very unpleasant experiences with parliamentary power. While the Declaration of Independence is in terms directed against George III, the matters set forth in the body of the declaration relate almost entirely to what the Colonials regarded as parliamentary usurpation. There cannot be the slightest doubt that the framers of the Constitution were more unanimous with respect to placing limitations upon the power of the legislative branch than they were in almost any other particular. It was practically unanimously agreed that there should be limitations. The debates related to the extent of the limitations to be imposed, and the Constitution was approved upon the express understanding that further limitations commonly known as the bill of rights were to be incorporated by amendments to be adopted as speedily as possible. That understanding was carried out by
the adoption of the first ten amendments to the constitution. Remembering that in the philosophy of that day the protection of the rights of the individual was deemed to be socially most important, and that the right of individuals could be secured only by so limiting legislative power, that individual freedom could not be unwarrantably invaded at the behest of special interests, it is not difficult to understand the attitude of courts when called upon to determine when the limits of legislative power under the Constitution had been passed. As a matter of fact, so strong was the tradition of individualism that legislatures themselves, down to the time of the Civil War, did not attempt, except in very few instances, any exercise of what is commonly called the police power. Every exercise of the police power involves limitation upon the freedom of individuals, usually of a class of individuals. It may at the same time increase the total amount of freedom enjoyed by the whole people. Every law that does away with oppression limits the freedom of the oppressor and increases that of the oppressed.
When legislatures, in response to popular demand and in recognition of the fundamental changes that were taking place in our society, commenced in the exercise of an undoubted power to limit the freedom of the individual in the interest of the general welfare, the conflict began. It has continued and will continue indefinitely, because in a time of transition it is practically impossible to maintain an equilibrium between contending social forces.
In the beginning constitutions were intended to conserve a social theory because it was believed it made for social progress. The forward-looking program of that day is now being supplanted or modified by one better adapted to a complex and intricate society, the faintest glimpses of which never reached the minds of the men who framed our early constitutions. A very strong presumption in favor of the validity of legislative enactments prevails in every court in this country, yet it is thought by some that judges go out of their way to seek pretexts for declaring laws unconstitutional. Legislatures, however, are continually transcending clear constitutional limitations. In many states there is a constitutional provision that no legislative act shall become effective until after a specified time has elapsed from its enactment, "except in cases of emergency," and in cases of emergency that fact is to be declared in the act itself. The word "emergency" has a well understood meaning in the law, yet in one western state, in one legislative session, out of 200 acts, 155 were made to take effect at once by a recital that an emergency existed therefor, although no emergency in fact existed.
It is contended by many that the failure of the present Congress to reapportion the congressional districts in accordance with the last census is a clear violation of a constitutional mandate. It is quite obvious that political expediency in this instance is more persuasive than the constitutional mandate. A similar situation exists in the state of Illinois, where the legislature refused to redistrict the state because it would disturb the existing balance between Chicago and the remainder of the state. Hundreds of other instances might be cited of what