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amounts to an intentional violation of constitutional limitations by legislatures. In the vast majority of cases where these infractions are brought to the attention of the courts their decision is accepted without question. Only when constitutional limitations are applied in cases involving matters of a controversial nature are criticism and resentment aroused. It is one of the perils of constitutional government that it is much more inflexible than a parliamentary system, and therefore less adaptable to changing conditions. No lawyer of today can doubt the soundness of Chief Justice Taney's decision in the Dred-Scott case, but it did not settle the slavery question. Responsibility for the settlement of questions involving political policy should not be placed upon the courts. Judges are charged with the duty of administering and applying the law as it is, and it is no part of the judicial function to change the law. That field of effort belongs to the legislature.
Nor do the courts pass upon the constitutionality of laws as an abstract question. A court never entertains a question as to the constitutionality of a statute except when its jurisdiction is invoked by an individual citizen claiming that a legislative act has deprived him of a right guaranteed to him by the Constitution, declared to be the supreme law of the land. The court is then, in the discharge of its duty, obliged to say whether or not the claim is true. In the discharge of that duty it exercises its highest function under our form of government.
Take a concrete case, Adkins v. Children's Hospital, 261 U.S. 525. A statute of the District of Columbia fixed a minimum wage for women. Willie A. Lyons, a woman over twenty-one years of age, in good health and in possession of all her faculties, claimed that she was, by the operation of the law, deprived of an opportunity to increase her earnings, and that the employment she sought did her no physical or moral harm, and that because of the statute she was deprived of a constitutional right. A hospital, an employer of women, claimed that it was deprived of its constitutional rights as an employer for similar reasons Addressing itself to this phase of the controversy, the court said:
From the authority to ascertain and determine the law in a given case there necessarily results, in case of conflict, the duty to declare and enforce the rule of the supreme law and reject that of an inferior act of legislation which, transcending the constitution, is of no effect and binding on no one. This is not the exercise of a substantive power to review and nullify acts of Congress, for no such substantive power exists. It is simply a necessary concomitant of the power to hear and dispose of a case or controversy properly before the court, to the determination of which must be brought the test and measure of the law.
The Adkins case, perhaps as well as any other case in the books, illustrates the difficulties confronting a court when a citizen appears claiming that his constitutional rights have been impaired. The right of contract is admittedly a part of the liberty of the individual protected by the terms of the Fifth Amendment to the Constitution, a part of the bill of rights. If the law of the District of Columbia deprived Willie A. Lyons of that right it was cleary void and of no effect. If the law was in the interest of the public welfare and not an unreason
able invasion of her rights it was valid; otherwise, invalid. The viewpoint of the court cannot better be set forth than in its own language. The court said:
There are limits to the power [legislative power], and when these have been passed, it becomes the plain duty of the courts, in the proper exercise of their authority, to so declare. To sustain the individual freedom of action contemplated by the Constitution is not to strike down the common good, but to exalt it; for surely the good of society as a whole cannot be better served than by the preservation against arbitrary restraint of the liberties of its constituent members.
The court held that the law was an unreasonable invasion of constitutional rights, and that Willie A. Lyons was deprived of a right guaranteed to her by the Constitution. The opposite view is stated by Mr. Justice Holmes, dissenting:
The criterion of constitutionality is not whether we believe the law to be for the public good. We certainly cannot be prepared to deny that a reasonable man reasonably might have that belief, in view of the legislation of Great Britain, Victoria, and a number of the states of this Union. The belief is fortified by a very remarkable collection of documents submitted on behalf of the appellants, material here, I conceive, only as showing that the belief reasonably may be held. . . . . I am of the opinion that the statute is valid.
By this Mr. Justice Holmes meant to say that the statute was not such an unreasonable and unwarrantable invasion of a right guaranteed by the Constitution as to warrant the court in declaring it invalid. Manifestly, whether it was or not was a matter of opinion. At some point a place is reached where the determination rests upon human judgment. Whether "unconscious rationalization" is exhibited in the opinion of the court or the dissenting opinions will be left for your further consideration.
It must be quite apparent that social progress does not depend upon a complete destruction of the legal and social concepts upon which our institutions are based and that taking out of the domain of obedience to the unenforceable a considerable section of human action will not always result in social advance. It cannot be assumed that mere change is progress, or that because an idea is new it is sound. On the other hand, the fact that an idea was valid as applied to conditions of a former time is no proof that it is valid for our time. One consolation is that in a controversy between groups each of which desires to promote the general welfare, where the relative merits are so difficult to ascertain that persons equally solicitous for social progress are found upon each side of the controversy, the decision will not be all to the bad, whichever way it goes.
Social progress will ever remain a series of ups and downs. The resistant power of mere inertia in the social organism is so great that advance can be made only as the result of most persistent and long-continued efforts on the part of the socially minded members of society. These efforts, from their very intensity, must be spasmodic and irregular. Every great effort requires a succeeding period of rest and recuperation. The real function of positive law is to maintain the line of advance, to set the stakes, so to speak, so that an advance once secured may be held.
Social justice is a necessary and indispensable concomitant to social progress. In our society, social justice is attained when we have an equilibrium between individualism and the public welfare. Doctor Carver1 suggests that the conflict of interest between private and public rights must be recognized, and when recognized may be harmonized in accordance with the following principles: first, there is an absolute necessity for the suppression of all harmful methods of pursuing individual interests; second, the individual is entitled to absolute freedom in the pursuit of his self-interest in all serviceable ways; third, each individual must be charged with the responsibility for his own wellbeing. He must not be made dependent upon society; if upon his own initiative he fails to find ways of serving the community he must suffer the consequences. The first two propositions set the limits to a wise and proper exercise of legislative power. Legislative enactment cannot do everything. The processes of evolution are incredibly slow. Humanity cannot lift itself socially by its boot straps. Every department of human activity in these days of steam, gas, and electricity proceeds at high speed. We are impatient in public as well as in private matters. We are in a terrific hurry to reach a social millenium. In this field, as well as in every other domain of human effort, consideration might well be given to the ancient maxim: "Make haste slowly." The line of future social progress will be resultant of many conflicting and contending forces. The principle of adaptation must determine our future social progress as it does our cosmic and biological progress. This process of adaptation goes on principally in the field of obedience to the unenforceable. In this field is developed in a people a sense of responsibility for the general welfare which we must not destroy nor limit unduly. If we do we shall atrophy, or perhaps wholly destroy, that faculty of the social organism the evolution of which is called "social progress." We must not forget that states are as men are: they do but grow out of human characters. We talk much of our rights and privileges, and so we should, but if democracy is to survive and the democratic spirit is to have a larger growth, we must learn to think also of our duties and responsibilities. Upon a recognition of these by our democracies which are for the first time in the world's history exercising a sovereign power depends the future trend of civilization. The history of democracy in the last decade is not reassuring. At the close of the war it was pointed out that a map of the world colored to show that part of it ruled by a democracy left remaining but a small part of the civilized world. That area today is vastly shrunken, and there are not wanting indications that it will be still further diminished. We who are primarily concerned in the promotion of social progress should be on our guard. We must not destroy, either by enactment or organization, a feeling on the part of the citizen of responsibility for the public welfare. Neither must we take from the family its rightful functions and lodge them with organizations, no matter how efficient the organization promises to be. We must not break with the traditions of our race too rapidly. Carver, Essays in Social Justice, p. 158.
We are in a highly transitional stage. Adaptations must be made with a swiftness with which we are not racially familiar. Our efforts will often be mistaken and abortive, but they should continue because it is only by a proper adaptation of the lives of the individual and the family to the new and changing order that we can hope to have social progress, either with or without the aid of law.
Dr. David Starr Jordan recently used the following words in an address to the alumni of Stanford University:
No one man, nor a thousand, nor a million, can at once set the world on fire, nor is it clear that combustion or other violent means is just what the world needs. A few hundred intelligent men, working in order and patience, count for more than a million engaged in snatching freedom for themselves at the risk of that of others.
THE ADMINISTRATION OF CRIMINAL JUSTICE
Hon. Edward Lindsey, Warren, Pennsylvania
As everybody knows, the subject of the administration of criminal justice is just now very much in the public view. It is an open season for defects in the criminal law and its administration. Alienists, business men, clergymen, doctors, and reformers; lawyers and laymen-even judges-all, with the exception of a few who have given especial thought and study to the subject, have theories (all different) as to just what is wrong and "sure cures" or specifics for the malady. To speak at all on the subject is to incur the risk of being written down as simply another note in the popular chorus. I have no infallible remedy to suggest for the conditions giving rise to so much dissatisfaction. My aim is the comparatively modest one of calling attention to some considerations of a fundamental and underlying nature which may be useful in defining a helpful attitude and point of view toward the problems involved.
In itself the awakened general interest is a good thing, but if it is to be at all effective in the improvement of conditions we must warn against overfacile solutions where the causes are really complex, and the mere treatment of symptoms under the illusion that causes themselves are being reached. A very common critical attitude is that which attacks improved methods in the treatment of criminals which have been advocated and adopted in varying degrees, such as probation, parole, and improved methods of discipline and treatment within prisons. These methods are sarcastically referred to as the coddling of criminals. It is argued that coincident with their adoption crime has not decreased, but rather increased, and they are therefore written down as failures, their abolishment suggested, and more certain and severe punishment and prison discipline demanded. Now there are one or two elements of truth in these criticisms, but as a whole they will not bear investigation and there is danger that they may be taken for more than they are worth. Perhaps the recent tendency has been to center attention too much upon the individual criminal and too little upon the
criminal law as a social institution existing for the public security. Although we know that its origins were diverse, we base that institution today upon the theory that the prohibition of acts deemed detrimental to society under threat of certain consequences and the infliction of those consequences as punishment on violators of the prohibition will, by the evocation of the psychological motive of avoiding the punishment, deter the commission of those acts sufficiently to protect society We also know that, whether we regard it as reasonable or not, the infliction of the threatened punishment on the criminal appeals to a common or social sentiment shared by a very large number of people, including many criminals themselves, as being just. It is of course no argument against the deterrent theory to point out that it does not deter every member of society from committing crime. Most people who have given attention to the subject are convinced that punishment does have a deterrent effect; but to what extent we do not know, as it is not known how many persons would have committed such acts had the system of criminal law not been in effect, nor have we made any intelligent attempt to find out.
Nor can I agree with the statement of an eminent jurist, in this month's Scribner's Magazine, that "to test whether or not punishment is a deterrent, one must find out how it would work if it were certain to be inflicted if a given crime were committed." Says Judge Nott, in the article referred to, "Let each reader ask himself whether he would break that law tomorrow if he positively and certainly knew that he would spend a year in the Atlanta federal penitentiary if he broke it." But no such certainty of the infliction of punishment ever obtained in any system of criminal law anywhere and never will; the obstacles are insurmountable. We do not know what the effect of such certainty would be, except as a matter of theory, but we do know that not even an approximation to such certainty can be attained unless the great majority of people, for whatever motive or reason, are willing to, and actually do, refrain from the commission of the prohibited act.
But belief in the efficacy of punishment as a deterrent is no reason for confining the effort of society to that or for not taking other means for social security. Particularly it is no reason for not attempting the reformation of the convict. It is true that most of those who emphasize the deterrent theory scoff at the possibility of reformation, and those who advocate reformatory methods have no confidence in deterrence; but this is neither logical nor necessary. We, nowadays, except for two or three crimes, are unwilling to inflict other punishment than pecuniary penalty or imprisonment. I say we are unwilling that the criminal law attach other punishment to the commission of crime; but after the convict has been sentenced to the measure of imprisonment fixed by the statute for his offense there is still an amazing indifference as to what happens to him. Is it not an anomaly that we have become too sensitive or sensible, whichever it be, to flog a prisoner for having committed a crime, and still provide that punishment for breaking some prison regulation? To be sure, it is