CHAPTER VII
CONSTITUTIONAL LIBERTY
The necessity for organized government and organized justice as a guarantee of constitutional liberty is sought to be shown. Plato’s dream, Macaulay’s dire prediction and a threat.
A democratic form of government precludes the possibility of constitutional liberty. Constitutional liberty does exist in what Professor Giddings calls a “democratic state,” but cannot in what the same author calls a “democratic form of government.” His admittedly correct differentiation cannot be too often repeated.
“A democratic state,” says this high authority, “is popular sovereignty,” while “a democratic form of government is the actual decision of every question of legal and executive detail by a direct popular vote.”
I grant the formality of a constitution may exist under a democratic form of government, but where all functions of government are exercised directly by the people, necessarily there can be no tribunal to enforce the provisions of a constitution. Let me illustrate.
Suppose, if you will, that an uninhabited island has been discovered, and a government is about to be formulated preliminary to its occupation. Undoubtedly, we would agree that the sovereignty of the island should be vested in the people. This, according to Professor Giddings, would make it a “democratic state.” The next question would be whether this sovereignty would be exercised directly or through representatives. Shall it be a democratic form of government, or a republican form of government?
Someone would propose that a majority should rule. If I were present, I would promptly suggest that the rights of majorities always have been, and always will be, secure. Minorities, not majorities, need protection. I would ask what protection is to be given me, or anyone who may prove an undesirable citizen. Will we be thrown into jail and kept there indefinitely, without trial and without knowing the cause of our incarceration? Such wrongs were common for centuries and are perpetrated by bolshevists, and defended by socialists today. Very likely the assembly would then promise a speedy trial, with right to summon witnesses, and to be confronted by one’s accusers, and other safeguards of liberty such as are now guaranteed in the Constitution of the United States, and that of every state.
But this would not satisfy me. I would ask “How do I know that this promise will be kept?” Then, doubtless, the right to a writ of habeas corpus would be promised. And this would not satisfy me. I would ask: “By whom will it be issued, and by whom enforced?” Before we were through, it is quite probable we would create a tribunal, clothe it with greatest dignity, segregate it from the affairs of business and safeguard it against political influence, and for want of a better name, we would call it “The Supreme Court of the Island.” This court would be clothed with authority to grant and enforce not only writs of habeas corpus but any and all other orders and decrees and judgments necessary to protect the minority, even though a minority of one, in his every constitutional right.
TREASON AS AN ILLUSTRATION
Treason is the only crime defined in the Constitution. Prior to the year 1352 there was great uncertainty in England as to what constituted treason, and Parliament, for the purpose of restraining the power of the Crown to oppress the subject by arbitrary construction, passed, in that year, what is commonly known as the “Statute of Treason.” All acts that might be construed treasonable were classified under seven branches. The framers of the Constitution, desiring to protect the minority, chose only one of the seven and placed a perpetual bar against any other act being made treason, and further safeguarded the minority by defining the only basis of conviction. Section 3, Article III, is as follows:
“Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.”
Now, suppose confiscationists, whether styling themselves socialists, bolsheviki, single-taxers, or non-partisan leaguers, shall get control and, by referendum, extend the scope of treason to include such offenses as claiming title to real estate, which all the breed insist rightfully belongs to the people en masse. Far less degrees of what they consider “crime” were made punishable by death when democracy went mad in France. Of what use would the express provisions of the Constitution be if the power to recall decisions, as well as the judges who render them, is to be exercised by the mass?
Leave it to the people to afford protection from the people and you might just as well abolish all constitutional guarantees. Were the people en masse to make the laws, en masse to interpret the laws, and en masse to enforce the laws, the individual would have no rights that the people en masse would be bound to respect.
SOVIET RUSSIA AND AMERICAN REVOLUTION
In a widely circulated pamphlet, “A Voice Out of Russia,” the author speaks of “a certain divine sense in which the Russian revolution parallels the revolt of the thirteen American colonies, and in which the proletariat of Russia is striving to accomplish for his world much the same ideals which our forefathers laid down for theirs. There was,” he says, “more of the spirit of the people, more of faith and dependence in the proletariat, in American revolutionary doctrines, than we seem disposed to admit today; and by the same token, it is because we have lost our sense of fundamental democracy that we do not care to admit it.”
“Fundamental democracy” is the correct term. But we have not lost it. We are simply in danger of getting it. It is exactly what the Fathers sought to eliminate and prevent.
On the next page of the pamphlet, the author says: “The writers of the American Constitution certainly strove to do away with the artificial complexities of politics, and to bring every function of government within the grasp and comprehension of the whole electorate.”
I submit that that is exactly what the framers of the Constitution did not seek to do. They created representative government and sought to guard against direct government. The author quoted, and every other teacher of revolution, either by peaceful or violent means, is seeking to establish direct government. When they use the word “democracy,” they use it in its dictionary sense. They use it as Rousseau, Robespierre, Lenine, Trotsky and a very large number of others, including some widely known Americans, use it. Why do liberty-loving Americans seek to divorce the word “democracy” from its original meaning and popularize the greatest enemy liberty has ever known?
PLATO’S DREAM
One of the best and most conservative newspapers in the United States printed late in 1918 a carefully written editorial under the above title, from which I quote a few disconnected sentences, italicizing the most important:
“Twenty-five hundred years ago in Athens, Plato, the philosopher, who is called the ‘father of idealists,’ framed the structure of an ideal government among men, in the form of a republic. … When the dust of Plato was gathered into a Grecian urn, his dream did not die. The generations harbored and treasured it. Time after time, and in place after place, republics were formed. Men gave their blood and their lives to realize the dream of Plato. But always might prevailed over them. Only America endured to make the dream come true. In these times there are numerous republics but there is not one among them that does not owe its existence to the example and the influence of the United States. Were our republic to crumble, every other on earth would crumble with it… Since the adoption of the Constitution in 1789, one hundred and thirty years have passed and during that time America has met and overcome every trial to which the ideal republic could possibly be subjected. It has answered every argument against a republican form of government advanced by the most stubborn objectors.”
The