Vanishing Landmarks. Shaw Leslie Mortier

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СКАЧАТЬ however, she amended her constitution and inserted the socialistic – the “democratic” – provisions, the elimination of which Congress had made a condition precedent to admission.

      In his work, “The State,” Woodrow Wilson calls attention to the fact that constitution-making is fast becoming “a cumbrous mode of legislation.” The record in many states justifies this comment.

      At the election of 1918, in the state of California there were submitted through referendum nineteen proposed amendments to its constitution, no one of which legitimately belongs in a constitution. They were simply legislative acts sought to be inserted in the organic law, or state charter, for the sole purpose of rendering them more difficult of repeal when proved bad. The “people” had so little confidence in themselves that they deemed it imprudent to trust to their wisdom whether a law should be continued when found beneficial or repealed when its effects were evil, and hence sought to tie their own hands by placing the act in the constitution instead of in the revised statutes.

      George Washington, with prophetic vision, foresaw and in his immortal Farewell Address warned against this tendency towards evolutionary revolution and employed this language, the last sentence of which I feel certain he would today italicize:

      “Towards the preservation of your government and the permanency of your present happy state, it is requisite not only that you speedily discountenance irregular opposition to its acknowledged authority, but also that you resist with care the spirit of innovation upon its principles, however specious the pretext. One method of assault may be to effect in the forms of the Constitution alterations which will impair the energy of the system and thus to undermine what cannot be directly overthrown.”

      This trend towards a democratic form of government, or direct government, finds fitting illustration in the fact that if you were to locate a homestead in any one of several states, prove up and secure your patent, and someone should contest your title, and the court should find the land belonged to you, and should render decision accordingly, the people might reverse this decree and give the land to the contestant. It is not a question whether they are likely to do such a thing. The fact that the people in several states have deliberately provided the machinery by which they can thus defeat justice, constitutes a perpetual menace that should adversely affect the market value of all real estate in those states. When title to property is made to rest upon the sentimental whim of the masses, as distinguished from a decree of court, liberty itself is rendered unstable and organized government is abandoned and socialism is substituted.

      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 СКАЧАТЬ