Title: The Limitations of the Law
Date: August 10, 1922
Location: San Francisco, CA
Context: Address before the American Bar Association
The growing multiplicity of laws has often been observed. The National and State Legislatures pass acts, and their courts deliver opinions, which each year run into scores of thousands. A part of this is due to the increasing complexity of an advancing civilization. As new forces come into existence new relationships are created, new rights and obligations arise, which require establishment and definition by legislation and decision. These are all the natural and inevitable consequences of the growth of great cities, the development of steam and electricity, the use of the corporation as the leading factor in the transaction of business, and the attendant regulation and control of the powers created by these new and mighty agencies.
This has imposed a legal burden against which men of affairs have been wont to complain. But it is a burden which does not differ in its nature from the public requirement for security, sanitation, education, the maintenance of highways, or the other activities of government necessary to support present standards. It is all a part of the inescapable burden of existence. It follows the stream of events. It does not attempt to precede it. As human experience is broadened, it broadens with it. It represents a growth altogether natural. To resist it is to resist progress.
But there is another part of the great accumulating body of our laws that has been rapidly increasing of late, which is the result of other motives. Broadly speaking, it is the attempt to raise the moral standard of society by legislation.
The spirit of reform is altogether encouraging. The organized effort and insistent desire for an equitable distribution of the rewards of industry, for a wider justice, for a more consistent righteousness in human affairs, is one of the most stimulating and hopeful signs of the present era. There ought to be a militant public demand for progress in this direction. The society which is satisfied is lost. But in the accomplishment of these ends there needs to be a better understanding of the province of legislative and judicial action. There is danger of disappointment and disaster unless there be a wider comprehension of the limitations of the law.
The attempt to regulate, control, and prescribe all manner of conduct and social relations is very old. It was always the practice of primitive peoples. Such governments assumed jurisdiction over the action, property, life, and even religious convictions of their citizens down to the minutest detail. A large part of the history of free institutions is the history of the people struggling to emancipate themselves from all this bondage.
I do not mean by this that there has been, or can be, any progress in an attempt of the people to exist without a strong and vigorous government. That is the only foundation and the only support of all civilization. But progress has been made by the people relieving themselves of the unwarranted and unnecessary impositions of government. There exists, and must always exist, the righteous authority of the state. That is the sole source of the liberty of the individual, but it does not mean an inquisitive and officious intermeddling by attempted government action in all the affairs of the people. There is no justification for public interference with purely private concerns.
Those who founded and established the American Government had a very clear understanding of this principle. They had suffered many painful experiences from too much public supervision of their private affairs. The people of that period were very jealous of all authority. It was only the statesmanship and resourcefulness of Hamilton, aided by the great influence of the wisdom and character of Washington and the sound reasoning of the very limited circle of their associates, that succeeded in proposing and adopting the American Constitution. It established a vital government of broad powers, but within distinct and prescribed limitations. Under the policy of implied powers adopted by the Federal party its authority tended to enlarge. But under the administration of Jefferson, who, by word, though not so much by deed, questioned and resented almost all the powers of government, its authority tended to diminish, and but for the great judicial decisions of John Marshall might have become very uncertain. But while there is ground for criticism in the belittling attitude of Jefferson toward established government, there is even larger ground for approval of his policy of preserving to the people the largest possible jurisdiction and authority. After all, ours is an experiment in self-government by the people themselves, and self-government cannot be reposed wholly in some distant capital; it has to be exercised in part by the people in their own homes.
So intent were the founding fathers on establishing a Constitution which was confined to the fundamental principles of government that they did not turn aside even to deal with the great moral questions of slavery. That they comprehended it and regarded it as an evil was clearly demonstrated by Lincoln in his Cooper Union speech, when he showed that substantially all of them had at some time by public action made clear their opposition to the continuation of this great wrong. The early amendments were all in diminution of the power of the government and declaratory of an enlarged sovereignty of the people.
It was thus that our institutions stood for the better part of a century. There were the centralizing tendencies and the amendments arising out of the War of ’61; but, while they increased to some degree the power of the National Government, they were in chief great charters of liberty, confirming rights already enjoyed by the majority and undertaking to extend and guarantee like rights to those formerly deprived of equal protection of the laws. During most of this long period the trend of public opinion and of legislation ran in the same direction. This was exemplified in the executive and legislative refusal to renew the United States Bank charter before the war and in the judicial decision in the slaughter-house cases after the war. This decision has been both criticised and condemned in equally high places, but the result of it was perfectly clear. It was on the side of leaving to the people of the several States, and to their legislatures and courts, jurisdiction over the privileges and immunities of themselves and their own citizens.
During the past thirty years the trend has been in the opposite direction. Urged on by the force of public opinion, national legislation has been very broadly extended for the purpose of promoting the general welfare. New powers have been delegated to the Congress by constitutional amendments, and former grants have been so interpreted as to extend legislation into new fields. This has run its course from the Interstate Commerce Act of the late eighties, through the various regulatory acts under the commerce and tax clauses, down to the maternity-aid law which recently went into effect. Much of this has been accompanied by the establishment of various commissions and boards, often clothed with much delegated power, and by providing those already in existence with new and additional authority. The National Government has extended the scope of its legislation to include many kinds of regulation, the determination of traffic rates, hours of labor, wages, sumptuary laws, and into the domain of oversight of the public morals.
This has not been accomplished without what is virtually a change in the form, and actually a change in the process, of our government. The power of legislation has been to a large extent recast, for the old order looked on these increased activities with much concern. This has proceeded on the theory that it would be for the public benefit to have government to a greater degree the direct action of the people. The outcome of this doctrine has been the adoption of the direct primary, the direct election of the United States senators, the curtailment of the power of the speaker of the House, and a constant agitation for breaking down the authority of decisions of the courts. This is not the government which was put into form by Washington and Hamilton, and popularized by Jefferson. Some of the stabilizing safeguards which they had provided have been weakened. The representative element has been diminished and the democratic element has been increased; but it is still constitutional government; it still requires time, due deliberation, and the consent of the States to change or modify the fundamental law of the nation.
Advancing along this same line of centralization, of more and more legislation, of more and more power on the part of the National Government, there have been proposals from time to time which would make this field almost unlimited. The authority to make laws is conferred by the very first article and section of the Constitution, but it is not general; it is limited. It is not “All legislative powers,” but it is “All legislative powers herein granted shall be vested in a Congress of the United States.” The purpose of that limitation was in part to prevent encroachment on the authority of the States, but more especially to safeguard and protect the liberties of the people. The men of that day proposed to be the custodians of their own freedom. In the tyrannical acts of the British Parliament they had seen enough of a legislative body claiming to be clothed with unlimited powers.
For the purpose of protecting the people in all their rights, so dearly bought and so solemnly declared, the third article established one Supreme Court and vested it with judicial power over all cases arising under the Constitution. It is that court which has stood as the guardian and protector of our form of government, the guarantee of the perpetuity of the Constitution, and above all the great champion of the freedom and the liberty of the people. No other known tribunal has ever been devised in which the people could put their faith and confidence, to which they could intrust their choicest treasure, with a like assurance that there it would be secure and safe. There is no power, no influence, great enough to sway its judgments. There is no petitioner humble enough to be denied the full protection of its great authority. This court is human, and therefore not infallible; but in the more than one hundred and thirty years of its existence its decisions which have not withstood the questioning of criticism could almost be counted upon one hand. In it the people have the warrant of stability, of progress, and of humanity. Wherever there is a final authority it must be vested in mortal men. There has not been discovered a more worthy lodging-place for such authority than the Supreme Court of the United States.
Such is the legislative and judicial power that the people have established in their government. Recognizing the latent forces of the Constitution, which, in accordance with the spirit of the times, have been drawn on for the purpose of promoting the public welfare, it has been very seldom that the court has been compelled to find that any humanitarian legislation was beyond the power which the people had granted to the Congress. When such a decision has been made, as in the recent case of the child-labor law, it does not mean that the court or nation wants child labor, but it simply means that the Congress has gone outside of the limitations prescribed for it by the people in their Constitution and attempted to legislate on a subject which the several States and the people themselves have chosen to keep under their own control.
Should the people desire to have the Congress pass laws relating to that over which they have not yet granted to it any jurisdiction, the way is open and plain to proceed in the same method that was taken in relation to income taxes, direct election of senators, equal suffrage, or prohibition—by an amendment to the Constitution.
One of the proposals for enlarging the present field of legislation has been to give the Congress authority to make valid a proposed law which the Supreme Court had declared was outside the authority granted by the people by the simple device of re-enacting it. Such a provision would make the Congress finally supreme. In the last resort its powers practically would be unlimited. This would be to do away with the great main principle of our written Constitution, which regards the people as sovereign and the government as their agent, and would tend to make the legislative body sovereign and the people its subjects. It would to an extent substitute for the will of the people, definitely and permanently expressed in their written Constitution, the changing and uncertain will of the Congress. That would radically alter our form of government and take from it its chief guarantee of freedom.
This enlarging magnitude of legislation, these continual proposals for changes under which laws might become very excessive, whether they result from the praiseworthy motive of promoting general reform or whether they reflect the raising of the general standard of human relationship, require a new attitude on the part of the people toward their government. Our country has adopted this course. The choice has been made. It could not withdraw now if it would. But it makes it necessary to guard against the dangers which arise from this new position. It makes it necessary to keep in mind the limitation of what can be accomplished by law. It makes it necessary to adopt a new vigilance. It is not sufficient to secure legislation of this nature and leave it to go alone. It cannot execute itself. Oftentimes it will not be competently administered without the assistance of vigorous support. There must not be permitted any substitution of private will for public authority. There is required a renewed and enlarged determination to secure the observance and enforcement of the law.
So long as the National Government confined itself to providing those fundamentals of liberty, order, and justice for which it was primarily established, its course was reasonably clear and plain. No large amount of revenue was required. No great swarms of public employees were necessary. There was little clash of special interests or different sections, and what there was of this nature consisted not of petty details but of broad principles. There was time for the consideration of great questions of policy. There was an opportunity for mature deliberation. What the government undertook to do it could perform with a fair degree of accuracy and precision.
But this has all been changed by embarking on a policy of a general exercise of police powers, by the public control of much private enterprise and private conduct, and of furnishing a public supply for much private need. Here are these enormous obligations which the people found they themselves were imperfectly discharging. They therefore undertook to lay their burdens on the National Government. Under this weight the former accuracy of administration breaks down. The government has not at its disposal a supply of ability, honesty, and character necessary for the solution of all these problems, or an executive capacity great enough for their perfect administration. Nor is it in the possession of a wisdom which enables it to take great enterprises and manage them with no ground for criticism. We cannot rid ourselves of the human element in our affairs by an act of legislation which places them under the jurisdiction of a public commission.
The same limit of the law is manifest in the exercise of the police authority. There can be no perfect control of personal conduct by national legislation. Its attempt must be accompanied with the full expectation of very many failures. The problem of preventing vice and crime and of restraining personal and organized selfishness is as old as human experience. We shall not find for it an immediate and complete solution in an amendment to the Federal Constitution, an act of Congress, or in the findings of a new board or commission. There is no magic in government not possessed by the public at large by which these things can be done. The people cannot divest themselves of their really great burdens by undertaking to provide that they shall hereafter be borne by the government.
When provision is made for far-reaching action by public authority, whether it be in the nature of an expenditure of a large sum from the Treasury or the participation in a great moral reform, it all means the imposing of large additional obligations upon the people. In the last resort it is the people who must respond. They are the military power, they are the financial power, they are the moral power of the government. There is and can be no other. When a broad rule of action is laid down by law it is they who must perform.
If this conclusion be sound it becomes necessary to avoid the danger of asking of the people more than they can do. The times are not without evidence of a deep-seated discontent not confined to any one locality or walk of life but shared in generally by those who contribute by the toil of their hand and brain to the carrying on of American enterprise. This is not the muttering of agitators; it is the conviction of the intelligence, industry, and character of the nation. There is a state of alarm, however unwarranted, on the part of many people lest they be unable to maintain themselves in their present positions. There is an apparent fear of loss of wages, loss of profits, and loss of place. There is a discernible physical and nervous exhaustion which leaves the country with little elasticity to adjust itself to the strain of events.
As the standard of civilization rises there is necessity for a larger and larger outlay to maintain the cost of existence. As the activities of government increase, as it extends its field of operations, the initial tax which it requires becomes manifolded many times when it is finally paid by the ultimate consumer. When there is added to this aggravated financial condition an increasing amount of regulation and police control, the burden of it all becomes very great. Behind very many of these enlarging activities lies the untenable theory that there is some short cut to perfection. It is conceived that there can be a horizontal elevation of the standards of the nation, immediate and perceptible, by the simple device of new laws. This has never been the case in human experience. Progress is slow and the result of a long and arduous process of self-discipline. It is not conferred upon the people, it comes from the people. In a republic the law reflects rather than makes the standard of conduct and the state of public opinion. Real reform does not begin with a law, it ends with a law. The attempt to dragoon the body when the need is to convince the soul will end only in revolt.
Under the attempt to perform the impossible there sets in a general disintegration. When legislation fails, those who look upon it as a sovereign remedy simply cry out for more legislation. A sound and wise statesmanship which recognizes and attempts to abide by its limitations will undoubtedly find itself displaced by that type of public official who promises much, talks much, legislates much, expends much, but accomplishes little. The deliberate, sound judgment of the country is likely to find it has been superseded by a popular whim. The independence of the legislator is broken down. The enforcement of the law becomes uncertain. The courts fail in their function of speedy and accurate justice; their judgments are questioned and their independence is threatened. The law, changed and changeable on slight provocation, loses its sanctity and authority. A continuation of this condition opens the road to chaos.
These dangers must be recognized. These limits must be observed. Having embarked the government upon the enterprise of reform and regulation it must be realized that unaided and alone it can accomplish very little. It is only one element, and that not the most powerful in the promotion of progress. When it goes into this broad field it can furnish to the people only what the people furnish to it. Its measure of success is limited by the measure of their service.
This is very far from being a conclusion of discouragement. It is very far from being a conclusion that what legislation cannot do for the people they cannot do for themselves. The limit of what can be done by the law is soon reached, but the limit of what can be done by an aroused and vigorous citizenship has never been exhausted. In undertaking to bear these burdens and solve these problems the government needs the continuing indulgence, co-operation, and support of the people. When the public understands that there must be an increased and increasing effort, such effort will be forthcoming. They are not ignorant of the personal equation in the administration of their affairs. When trouble arises in any quarter they do not inquire what sort of a law they have there, but they inquire what sort of a governor and sheriff they have there. They will not long fail to observe that what kind of government they have depends upon what kind of citizens they have.
It is time to supplement the appeal to law, which is limited, with an appeal to the spirit of the people, which is unlimited. Some unsettlements disturb, but they are temporary. Some factious elements exist, but they are small. No assessment of the material conditions of Americans can warrant anything but the highest courage and the deepest faith. No reliance upon the national character has ever been betrayed. No survey which goes below the surface can fail to discover a solid and substantial foundation for satisfaction. But our countrymen must remember that they have, and can have, no dependence save themselves. Our institutions are their institutions. Our government is their government. Our laws are their laws. It is for them to enforce, support, and obey. If in this they fail, there are none who can succeed. The sanctity of duly constituted tribunals must be maintained. Undivided allegiance to public authority must be required. With a citizenship which voluntarily establishes and defends these, the cause of America is secure. Without that all else is of little avail.
Citation: The Price of Freedom
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