energy into social rather than unsocial channels; we want to use the inventiveness and ingenuity of the few not so much for the winning for them personally a freer and more expansive life, as for the winning of such a larger and freer life for the people as a whole. Not every man for himself, but every man for America. Not liberty for you, or for me, at the expense of others, but such mutual adjustments and restraints as will make for the greatest liberty of all.

The same problem that faces us here, in the relation of the individual to the community, has been met and in some degree solved in the relation of the several States to the Nation. In the name of liberty the various attempts of the people as a whole, through the national Congress, to regulate matters of national concern have been strenuously opposed. The Civil War silenced for all time the doctrine that the rights of the individual States transcend the rights of the Nation; and we have a steadily increasing body of federal statutes. But we still find it impossible to regulate child-labor nationally, save in a roundabout and partial manner; some States refuse to give up their right to exploit the health of their children. We find it difficult to regulate the killing of even the migratory song-birds; some States resent interference with the right of their citizens to make pot-pies out of robins and bobolinks. A Constitutional Amendment has been necessary to bring certain backward States to relinquish their right to refuse the ballot to women.

The separate States must not be allowed in their supposed self-interest to block the way toward the freest and happiest life for the people as a whole; that principle has been definitely decided, although its full application will long give rise to debate and disagreement. Similarly, no individual or group of

individuals, no corporation, or "interest," must be allowed to block the way toward the freest and happiest life for the people as a whole. We must not let the reaction from war-restraints bring us back to the easy-going tolerance of personal and corporate selfishness into which we had drifted. The energies of the eighteenth and early nineteenth centuries were necessarily taken up with the winning of the rights of peoples as opposed to tyrannous governments. The latter part of the nineteenth century and the twentieth century have had to add to this task that of preventing these rights from becoming the perquisite of the strong and the fortunate among the people, and ensuring them for the people as a whole.

SUGGESTED READINGS

The Constitution of the United States of America.

C. M. Gayley, Shakspere and the Founders of Liberty in America. (An excerpt from this is reprinted in Fulton, op. cit., p. 152. See also the extract from F. H. Giddings, p. 191.)

J. S. Mill, On Liberty.

J. H. Tufts, Our Democracy, Its Origins and its Tasks, Chapters XI-XVII.

Bertrand Russell, Why Men Fight, Chapter II. (Also in Atlantic Monthly, vol. 120, p. 112.)

E. S. P. Haynes, The Case for Liberty.

John Burroughs, The Light of Day, Chapter XIII.

C. S. Cooper, American Ideals, Chapter VII.

A. T. Hadley, Freedom and Responsibility.

J. W. Burgess, The Reconciliation of Government with Liberty. H. J. Laski, Authority in the Modern State.

Publications of the American Civil Liberties Union, 138 W. 13th Street, New York, N. Y.

CHAPTER IV

CONSTITUTIONAL GUARANTIES

IN the preceding chapter we have seen that liberty is preserved only through law. To this end we have the common law-the great mass of precedents to be found in earlier decisions, the State and National laws, and the State and National Constitutions. Of these, the written constitution is the distinctively American contribution, and deserves our special attention.

The fundamental purpose of written constitutions is to prevent majorities from tyrannizing over minorities—for the tyranny of Demos may be as crushing as that of an oligarchy. This restraining power is exercised in two ways. In the first place, a larger than majority vote is usually necessary to amend a constitution; often the process is an involved and difficult In the second place, the rights guaranteed by a constitution have such prestige that even a majority would be apt to be wary of annulling them.

one.

This, then, is the chief guaranty of our civil liberties. Legislatures can not limit the rights asserted by the State and Federal Constitutions, or executives ignore them—unless the people lose their vigilance and acquiesce in their violation. Jefferson in his Inaugural Address, in 1801, expressed the heart of the matter: "All too will bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will, to be rightful must be reasonable; that the minority possess their equal

rights which equal laws must protect, and to violate which would be oppressive." In short, the individual has certain rights that not even the elected representatives of the people have the right to destroy. Our government is one that is controlled not only by the views of the officials and legislators temporarily in office, but, fundamentally, by principles passed on from generation to generation and subject only to a purposely rather remote possibility of alteration.

An essential feature of this plan is that the meaning of these Constitutions is to be determined not by the legislatures which then might declare their laws proper, against whatever outcry-but by a non-lawmaking arm of the government, the Courts. As a matter of fact, the action of State legislatures has thus been declared unconstitutional some hundreds of times; and more than a score of times the Supreme Court has annulled a law passed by Congress.

To many Americans, and perhaps to most foreigners, this power of our courts seems too great. M. Rodrigues, a French admirer of our people, calls it "a dreadful obligation, an exorbitant power, if ever there was one. The judge is the judge not only of cases, but of laws; he is the judge not only of parties but of legislators!" Mr. Walter Weyl, in The New Democracy, likewise declares that "this right of the Supreme Court finally and unreviewably to declare a law void, in opposition to the opinion of a majority, constitutes, in the absence of ample facilities for a popular amendment of the Constitution, a flat and uncompromising negation of democracy."

This situation deserves careful attention. Here is an institution conceived by our fathers for the purpose of checking legislation oppressive of the fundamental rights of any class or individual, now re

garded by many acute observers as a grievous clog upon needed social reforms.

The problem is, first, as to the facts, and then as to the proper policy.

John Marshall, the first Chief Justice of the Federal Supreme Court, maintained the view that the Constitution is to be interpreted in such wise as to make for the truest welfare of the people, rather than in a spirit of technicality and literalism. Many of his successors were animated by this same liberal spirit, which may fairly be called the historic American tradition in the matter. It was expressed by Roosevelt in 1912, when he wrote, "My plea is that the courts act with ordinary statesmanship, ordinary regard for the Constitution as a living aid to growth, not as a strait-jacket."

It must be admitted, however, that on many occasions during the past century the exercise of this constitutional veto by the courts has actually blocked needed legislation and been a bulwark of special privilege. To cite a few out of many cases: The Federal Supreme Court declared unconstitutional a New York State law limiting the hours of work in bake-shops, on the ground that it deprived the employees of their personal liberty to work as long as they chose. This in spite of the fact that a large proportion of the bake-shops were underground, and unhygienic, that the health of many employees had been ruined by the long hours of work required of them in such surroundings, and that the law which had been passed was their only prospect of prompt relief from the intolerable conditions. What the employees wanted was to be able to work a reasonable number of hours and still retain their positions. That would have been for them a real increase in liberty.