The New Star Chamber and Other Essays The New Policy
by Edgar Lee Masters
Since the campaign of 1900 a good deal has been spoken and written concerning the plight of the democratic party. That of itself can be of little consequence except as that plight affects those principles upon which the welfare of the whole people depends. But in so far as democratic defeat has introduced mischievous and perilous conditions into American polity, the plight of that party must come home to all Americans with a message of grave significance.
The republic was born of political idealism. If it had sprung from expediency -- that is, from a desire to put away present evil -- nothing more would have been necessary than a declaration of war against Great Britain. Such a declaration could have been made good by force of arms. And a government of some form could have been founded growing out of the mere selfish, but proper, impulse on the part of our forefathers to have a government of their own. But our forefathers went much farther than that. They spoke not only for themselves, but for all people and for all time. They laid down political principles in precise and comprehensive language. Were those principles true? The English derided them, although we are told that "there are certain principles of natural justice inherent in the Anglo-Saxon character which need no expression in constitutions." The English found a violent conflict between the utterances of the declaration of independence and those "principles of justice inherent in the Anglo-Saxon character." It resulted that the declaration triumphed through war over those Anglo-Saxon principles and the republic was born.
But after these things had happened did the fathers go about to construct a government which could perpetrate against some other people the oppressions which the English had perpetrated upon them? Was it only their taxation without representation which constituted tyranny? And did they immediately put into action a government which could, according to expediency, tax some other people without representation? It is to this pass of vulgarity and cynicism that the argument is reduced which seeks to extract from the silence of the constitution a power in congress to tax the Puerto Ricans without representation.
The words liberty and freedom are words of general significance and mean everything or nothing, according to the peculiar views of him who uses them. They are found in magna charta. But magna charta did not prevent James II from overriding the most sacred rights of liberty. This infamous despot habitually assured the English people that he stood for liberty even while a slavish parliament cooperated with him in the destruction of human rights and human life. This was only a little over 200 years ago and "the principles of natural justice inherent in the Anglo-Saxon character" laid no obstacles in the way of the bloody assize and the temporary extinguishment of every ray of liberty. Except for the infusion of republicanism which came with William from Holland the English would have had no more to boast of in the way of inherent principles than the Russians. And the English constitution would have been even more vague and elastic than it is.
When our fathers adopted the constitution the English parliament, in the language of Mr. Bryce, had the same powers which it has today, as follows: "It can make and unmake any and every law, change the form of the government or the succession to the crown, interfere with the course of justice, extinguish the most sacred private rights of the citizen. Between it and the people at large there is no legal distinction. It is, therefore, within its sphere of law irresponsible and omnipotent."
Did the fathers then intend to make congress an "irresponsible and omnipotent" body upon the theory that those "principles of natural justice" would be sufficient limitation upon congressional despotism? That is the argument, and that is the theory upon which the Puerto Rican tariff was sustained by the supreme court.
The opinion of the court delivered by Mr. Justice Brown is historically, legally, politically and ethically false. It is a tissue of sophistry. It is a jumble of assumption. It is a flat reversal of all former decisions. It overrides the solemn deliberations of the fathers. It incurs the sound reasonings of Jefferson, Madison, Marshall, Webster, Story, Lincoln and Taney. It flies in the face of common sense. It twistifies and splits the English language into meaningless refinements in an endeavor to overcome palpable and indubitable truths written in language which does not admit of doubt. Its basic assumption is that the United States can do anything that any other nation can do. Syllogistically expressed Russia, Germany or England as sovereign powers can grab islands, rule subjects and exploit them. The United States are sovereign, and, therefore, they can do whatever Russia, Germany or England can do. It is obvious at a glance that the minor premise is false, and not only has never before been pronounced by the supreme court, but is far beyond the wildest declarations of the maddest Hamiltonian up to this day. Even Marshall when validating the United States bank did it in the name of the constitution and under an assumed power of the constitution; while the Puerto Rican tariff is validated in spite of the constitution. In the bank case Marshall said: "Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution are constitutional." Mr. Justice Brown says the United States are as sovereign as any nation and "we decline to hold that there is anything in the constitution to prevent such action" -- namely, taxation without representation.
In the first place the United States have sovereign powers only within their sphere of constitutional grant, and, second, the question cannot be disposed of by the statement that there is nothing in the constitution to prevent such action. Is there anything in the constitution to permit such action, either in letter or spirit? That is the question which we have been taught by this court and constitutional writers to apply to any course of congressional or executive polity.
Said Marshall: "The government of the United States is emphatically and truly a government of the people. In fact and substance it emanates from them; its powers are granted by them and for their benefit. This government is acknowledged by all to be one of enumerated powers. The principle that it can only exercise the powers granted to it would seem too apparent to have required to be urged by all these arguments, which its enlightened friends, while it was pending before the people, found it necessary to urge." Again Marshall said: "The government of the United States can claim no powers which are not granted to it by the constitution, and the powers actually granted must be such as are expressly given, or given by necessary implication."
Mr. Story: "The constitution was from its very origin contemplated to be the frame of a national government of special and enumerated powers and not of general and unlimited powers."
Mr. Webster in 1848. "Arbitrary governments may have territories and distant possessions, because arbitrary government may rule them by different laws and different systems. We cannot do such things. They must be of us, part of us, or else strangers."
William H. Seward -- "The framers of the constitution never contemplated colonies or provinces or territories. They contemplated nothing but sovereign states."
Mr. Cooley -- "The government of the United States is one of enumerated powers, the national constitution being the instrument which specifies them and in which authority should be found for the exercise of any power which the national government assumes to possess. In this respect it differs from the constitutions of the several states, which are not grants of power to the state, but which apportion and impose restrictions upon the powers which the states inherently possess."
The republican party in 1860 -- "That we recognize the great principles laid down in the immortal declaration of independence as the true foundation of democratic government, and we hail with gladness every effort toward making these principles a living reality on every inch of American soil."
The supreme court in 1897 -- "Absolute arbitrary power exists nowhere in this free land. The authority of the United States must be found in the constitution."
The constitution itself -- "The powers not delegated to the United States by the constitution nor prohibited by it to the states are reserved to the states respectively or the people."
But there is an embarrassment of riches. Up to the Downes decision the constitutional test of a law was found in the words of Marshall already quoted. The end must be legitimate; it must be within the scope of the constitution; the means must be plainly adapted to the end; the means must not be prohibited by the constitution, but must consist with the letter and spirit of the constitution, while under the Downes decision any law which any sovereign power can enact and which is not prohibited by the constitution is constitutional. Here is a formula of revolution as complete as the most rabid monocrat could desire.
The old strict constructionists were accused of holding that the congress could pass no law unless the constitution expressly authorized it. The principle of the Downes case is strict construction on the reverse side. It declares that congress can pass any law which the constitution does not expressly inhibit. It follows that the only limitations upon congress are expressed in the bill of rights and in a few other negative clauses. Otherwise it is as powerful as the British parliament, which is also in theory restrained by a bill of rights. And, this being true, this congress can mount upon the ruins of a constitutional republic and unfurl the banner of empire. Its power does not consist within grants and prohibitions, nor yet within the implied powers of Marshallism. It has marched up to that domain where it is not expressly prohibited from going and has claimed every power not expressly denied to it.
In a sort of way the American people elect their senators; in truth and in fact they elect their representatives. They are sent to Washington, where, before entering upon their duties, they take an oath to support the constitution. If our senators and congressman have power to pass such laws -- as the supreme court says they have -- as the Puerto Rican bill, where did they get it? It is not claimed that they got it from the constitution. They cannot get it from the states, because the supreme court expressly says that the states never at any time had power to acquire territory. They did not get it from the people because that could not be done only through a constitutional amendment. The question, then, remains, Where did they get it? Under the Puerto Rican bill, so validated by the supreme court, we have left a constitution which is effective so far as it expressly restrains congress, and for the rest we have "principles of natural justice inherent in the Anglo-Saxon character." Meantime, Mr. McKinley tours the country and in effect assures the American people that their rights will remain as formerly. There will be no change at home. We have bartered a written constitution for inherent Anglo-Saxon principles and executive reassurances.
Conceding the narrow contention that the congress is not prohibited from taxing the inhabitants of an appurtenant territory according to the uniformity clause of the constitution, must not a law, according to Marshall, consist with the letter and spirit of the constitution? If the United States were a despotism or a monarchy the argument would be sound. To interpret a law of a despotic government in favor of despotism is perfectly consistent. But it is another thing to interpret the constitution of a republic in favor of despotism. It must be interpreted in favor of republicanism to be consistent. Therefore, the question is not in its nature purely constitutional. It is also fundamental. A republic by its inherent nature possesses certain characteristics. It has a spirit, which is liberty. Its very being consists in a rule of the people. A republic that stands for liberty at home and tyranny abroad as to people who cannot defend themselves has to that extent ceased to be a republic. Its own people may well be alarmed for their own liberties which are begun to be pledged to them in executive assurance and "principles of justice inherent in the Anglo-Saxon character" decreed by the supreme court.
But how soon have come true all the prophecies of democracy touching this miserable complication! Democracy attacked the validity of the treaty of Paris on the plain ground that the acquisition of distant islands peopled by alien races was not an exercise of constitutional power and was repugnant to the spirit of a republic. Mr. Story had so declared in his great work on the constitution. Montesquieu had considered that question in detail. And now one of the reasons for not sustaining the ex proprio vigore doctrine concerning the constitution is stated by Mr. Justice Brown to be that the executive and the senate should not be given the power to incorporate alien races into the American system by the mere fiat of a treaty. Mr. Story wrote: "If congress have the power it may unite any foreign territory whatever to our own, however distant, however populous and however powerful. Under the form of cession we may become united to a more powerful neighbor or rival and be involved in European or other foreign interests." But all authority, all reason were brushed aside. And not only is the treaty to stand, ratified by the whole congress, so far as the lower branch can ratify it, but legislation is to stand of a character which provoked the American colonies to war in 1776. And because the constitution is silent on the question the high-handed and revolutionary proceeding is to be validated which, according to all authority, tends to overthrow and not to perpetuate the republic. That a congress can legislate so as to overthrow the republic is somewhat repugnant to the great argument of Mr. Webster. Democracy contended that these people could not be citizens without imperiling our own civilization. And the supreme court says that is true. Democracy said that they could not be subjects without undermining the republic; nor without depositing in its body the germ of constitutional destruction. And the supreme court offers the people "principles of justice inherent in the Anglo-Saxon character." The administration, backed by the supreme court, assures the American people that these races shall have all the liberty they are capable of enjoying. Democracy contended that even with steam and electricity the control of these distant islands would aggrandize the power of the executive, and the Spooner bill demonstrated the truth of that contention. So that every objection, though loudly derided at the time, became verified in a few months.
Even Mr. Roosevelt as a constitutional historian had declared that a republic could acquire nothing but contiguous territory capable of being formed into states; and that such territory must be peopled not at all, or by the white race fit to be incorporated into the American system. But he toured the country declaring in effect that he himself was antedated. All events have shown that he was correct when he was not seeking office. Democracy contended from the first that the whole scheme was a renaissance of mercantile colonialism; and the Puerto Rican bill proved it. And thus it was demonstrated that the American republic in an hour of test did not have the moral reserve to stand by its principles. It went to war to free an oppressed people and then turned oppressor and sunk to the level of other sovereign powers in a vulgar and wholly mistaken scheme of acquiring national wealth.
And now in what plight are the American people? They had nothing to do with the treaty. It was formulated secretly by commissioners in Paris; it was consented to by a body that they do not elect. The Puerto Rican bill was enacted under the party lash. It was validated by a court that is as independent of their choice as an hereditary monarch. The question of the acquisition or retention of the islands has never been passed upon at the polls, and after the election the Spooner bill created executive imperialism. The supreme court has created congressional imperialism. What are you going to do about it? What are you going to do about these events that follow so swiftly one after another and that will continue to occur? When will the supreme court catch up with the administration even if it was opposed to imperialism? What has become of your republic in four years? The fact is the republican party never since the days of Lincoln has had any principle whatever on any subject. It never had any theory of government except what it borrowed from Jefferson. It rode into power on the declaration of independence and when it abandoned the declaration through the ascendancy of rapacious federalism it went plumb into monarchy and has ever since hidden its designs from the people under the garb of holiness and patriotism. It temporized with the tariff question and met it on terms of expediency; it practiced expediency with the money question, and at all times it has followed the trail of toryism and monarchy. It has built up its leaders through special privilege and it has debauched its followers with the argument that the government exists to support the people. It has awakened anarchy and touched into life that very socialism which it pretends to abhor.
And so what does the paramount party care about such rights as freedom of speech and of the press so long as it can wring tribute from dependent people? They may rail and write as they please against this great vulgar government. They may have the habeas corpus, too. Individual judges in the far islands acting under central orders will whittle away that and every other right in individual cases as circumstances require; and they will do it under that unknown clause of the constitution which makes the United States as sovereign as any other nation. A party that taxes without representation will also deprive of life and property without due process of law. The negative prohibitions of the constitution are not so much as pack thread about the arms of a republican congress.
The plight of the American people consists in this, that no peculation of any official, no disregard of plain duty, no breach of expressed faith with Cuba, no act of despotism toward our insular possessions, no disregard of the constitution, finds any response of rebuke in the breast of the republican party. It is so sunk in the depths of infamy that no imagined revolution, with all the accompaniments of monarchy, would arouse that party to protest. Things never feared but spoken of by the fathers as impossible to our system have come to pass. Colonialism is validated on the expressed ground of expediency and there is rejoicing. Retrogression is hailed as progress. All the vilest elements of human nature are sent whirling to the top of national life -- cupidity, hypocrisy, dishonesty, tyranny and debauchery; we behold the destruction of ideals, the withering of character and morality and there is no protest, but rejoicing. The hideous specter of slavocracy has been tempted from the tomb to revisit the gimpses of this era and a portion of the work that this very republican party came into being to perform is being swept away amid shouts of the administration.
That corporations are corrupt, that they debauch every branch of the government has passed into the domain of jest and is tossed about in a spirit of humorous comment. Our officials are openly accused of dishonesty and corruption by the leading journals and it is accepted at large as a commonplace. The people are suspicious of their legislators and their courts. Everyone knows that the Filipinos were our allies and that we betrayed them; that we broke our word with Cuba and that the course of the president has been uncandid and inconsistent. One of the great papers declared that the decision of the supreme court was smeared with tobacco and sugar. And against this resistless tide of evil who will remain true to the ideals of morality except the strongest swimmers? Moreover, amidst all this there is a lamentable lack of good sense. Prosperity is measured by the ability of the seller to advance the price and not by the ability of the purchaser to buy. It is measured by the activity of monopolists, not by the normal activity of the people at large. It is measured by the extent to which capital consents to the employment of labor, not by the demand which the consumer calls upon the producer to produce.
But to hold society together there must be some enforcement of law. So that pinochle and larceny will be vigorously punished, while gambling in grain, monopolistic extortion, slaughter of inferior peoples and other things which extend civilization will proceed without interruption.
And what is the conclusion that is forced upon men? These degeneracies have been treated with ideals and the disease has steadily grown worse. Was not slavery destroyed by ideals? History answers this question in the negative and by so answering it declares that civilization has not yet reached the point where ideals are sufficient to work reforms. Slavery was destroyed by the power of money. Slavery was uneconomic. It crushed the south; it interfered with the rights of white labor. Yet at this the time of its overthrow, economically speaking, had not come in Lincoln's day. For slavery was still profitable to the mercantilists in the north and in England. Lincoln would not have been elected except for a split in the democratic party. In fact, he received the smallest per centum of the vote of any candidate ever elected by the American people. Colonialism does not pay; it never paid any country. It is profitable only to the privileged few. But colonialism cannot be destroyed until the forces of plutocracy become divided or until its uneconomic features bear hard enough upon a sufficient number of people to win them back to the ways of a plain but virtuous republic. Ideals will not do. We have seen that ideals are as flax to the fire in a day when men are hungry for money.
