Equality Before the Law

I

THE idea of equality has in the past been regarded as essential to democracy. Only recently has any one challenged the statement in our American Declaration of Independence, that ‘all men are created equal’; and yet when applied to actual life the idea is so manifestly chimerical, that we are now coming quite generally to qualify the statement by substituting ‘equal in opportunity.’

But except as a vague generalization the change avails nothing. Any attempt to apply the idea would show that there is no more equality of opportunity among men than there is equality of powers. Various methods have been tried, especially by means of popular education, to minimize the outward effects of natural inequalities. Still the inequalities remain — not merely in the artificial products of organized society, such as the right to accumulate private property, but as well in every natural field of human activity.

The persistence of the idea, notwithstanding these facts, strongly suggests that there may be some principle of equality, not as yet fully defined in popular thought, which is fundamental in a democratic state. May it not be that such a principle will be found in ‘Equality before the Law’?

The blackest pages of history have been written because of the lack of such equality. Again and again have nations been overturned, or dynasties destroyed, because judges have failed to recognize the equality of all men before the bar of justice.

Justice is blind. She takes no note of a man’s appearance or position. She simply hears his case and weighs the evidence. Solomon is a good example of a just ruler. He was jury, trial judge, and court of last resort . Yet his decisions were so fair and unbiased that he was able to weld the jealous and turbulent tribes of Israel into a mighty nation.

On the contrary his son, Rehoboam, in his very first decision, which was delivered on a question of taxation, showed so clearly his bias in favor of the privileged class who were his advisers, that ten of his twelve provinces revolted on the spot, his kingdom became hopelessly divided, and soon declined into a subject province.

Again, a celebrated Roman case in which the Decemvir, Appius Claudius, in the arbitrary exercise of his judicial power, condemned to slavery and dishonor the beautiful daughter of a Roman citizen, led to the deposing of the tyrannical Decemvirate, and the assumption of authority by the tribunes of the people.

Similarly in England, it was in part on account of the assertion by the Stuarts of their authority to administer justice as of divine right, and their flagrant abuse of that power, that James the Second lost his crown and Charles the First his head.

Then, too, revolut ion was the logical expression of the condition of society existing in France in 1789. The courts in no way safeguarded the rights of the people from the rapacity and lust of the privileged class; and, by an inexorable law, outraged justice overthrew that favored class, and created for itself a new tribunal, which became in turn the relentless engine of their destruction.

These are a few instances and seem to show that in all civilized times, in the past, justice has been considered a divine quality which man might demand as his right. He has had an undefined feeling that a just God would see to it that justice was administered to his children. If kings and courts failed to do this, then plainly it was the duty of the people to overthrow these faithless agents. This is the psychology of revolution.

II

The increasing popularity of democracy as a form of government is no doubt due in large measure to the discovery that monarchy—unless it should be merely nominal, as in modern England — tends everywhere to the creation of legal tribunals which favor certain classes. Even old China is playing at democracy in the hope of securing at least some approach to justice, in place of the arbitrary decrees of an absolute despotism.

And this growing protest against monarchical systems goes on in spite of the fact that democracy is much more cumbersome and less efficient as a form of administration. If any one is inclined to question this last proposition, let him observe how frequently, in cases of acute emergency, — where immediate efficiency is required, — a city, state or province is placed under martial law, giving supreme authority to the will of one man, with an armed force to carry out his orders.

The feeling appears to be that in a democracy the humblest citizen will be guaranteed the equal consideration of his rights by courts of justice, even if he be opposed by the wealthiest or most powerful; that if democracy does not mean this then it has no excuse for being.

Unfortunately this ideal has not thus far been attained merely by adopting a democratic form of government. And this lesson the United States has had to learn at bitter cost.

Many causes, no doubt, contributed to that ‘irrepressible conflict’ in our country generally known as the Civil War. But probably no one will now deny that chief in the chain of causes leading to that fratricidal conflict was the decision of the famous Dred Scott case by the Supreme Court of the United States. This final proof that the slave-holding aristocracy of the South could control the highest legal tribunal in the land, and use it as a means of working injustice, aroused the people of the North to the need of vigorous action in defense of their most cherished ideals.

III

The result of the Civil War settled, for a time at least, the bitterly contested issue between national supremacy and state sovereignty, which was the natural outgrowth of the compromise effected in the Constitutional Convention of 1787; it left quite untouched, however, the semi-political character of the courts, which was a part of that compromise, and which has prevented them from realizing the ideal of democracy in the administration of justice.

This element of weakness in our judicial system was very clearly pointed out by Mr. Brooks Adams in a striking article in the April (1913) number of the Atlantic on ‘The Collapse of Capitalistic Government.’ That article seemed to many readers to demonstrate conclusively that ‘the relation which our courts shall hold to politics is now the fundamental question which the American people must solve, before any stable social equilibrium can be attained’; and also that the attitude which influential and powerful members of the capitalistic class shall assume toward that question is most vital, both to their own safety and to the welfare of the Republic. Since then, the problem has been worked out more thoroughly by Mr. Adams, in a book just published, on The Theory of Social Revolutions. ¹

A most important contribution of this volume is its discussion of the fact that not only are our American courts semi-political in their functions, but that this character was given to them from the beginning in order to safeguard the National idea; that it was in effect incorporated in the Constitution and made an integral element in our system of government.

The presentation of this fact to-day seems somewhat novel, so accustomed have we become to a feeling of unquestioning reverence both for the Constitution and the courts. And yet we are reminded that Jefferson, at the time, opposed the giving of such power to the courts, contending that ‘a bench purposely constituted to pass upon political questions must be politically partisan,’ and predicting, from the abuse of such power, many of the evils which have in fact followed.

But as Mr. Adams aptly says, ‘The abstract virtue of the written Constitution was not a question in issue when Washington and his contemporaries set themselves to reorganize the Confederation. Those men had no choice but to draft some kind of a platform on which the states could agree to unite.’

The convention had met ‘to form a more perfect union,’ the Confederation having broken down through its own inherent weakness. And the problem was to secure the consent of the thirteen new states, each jealous of its own prerogatives, to the formation of a federal government strong enough to do its work effectively, and to bear the strain which was sure to come upon it. The Federalists, of whom Hamilton was the mouthpiece and Washington the dominating personality, were in favor of a strong centralized government with power sufficient, if necessary, to coerce a recalcitrant state into obedience. Their opponents, under the lead of Jefferson and other strong men, were bitterly opposed to such a policy on the ground that it was monarchical in its tendency. Our written Constitution was the result; and probably it was the best that could be accomplished at the time. The Federalists, aided by the clear and forceful arguments of Hamilton and the personal influence of Washington, were for the moment in control of the situation, and were able to secure the form of a national government on paper. But they evidently recognized the fact that they were in a minority, and that some means must be devised for safeguarding what they had gained, until the new nation, by its own momentum, had acquired sufficient cohesion to survive. Otherwise, as soon as their opponents came into power the acts of state legislatures, or of Congress itself, might easily undo all that had been accomplished.

The expedient eventually adopted was to give to the federal courts, presided over by judges appointed for fife by the President, the power not only to interpret the federal Constitution, but also to pass upon the constitutionality, under its provisions, of laws passed by the several state legislatures, as well as by Congress itself. This was brought about through the interpretation placed by the judges appointed by President Washington and others on the clauscs defining the judicial power.

It is quite unlikely that the Federalists would have been able to secure such an interpretation but for a fact not mentioned by Mr. Adams, but which must have had a strong bearing upon the result, namely, that the colonies were already accustomed to a similar exercise of power by a polit ical court in England, known as the Privy Council, and had come to recognize its necessity. In fact such necessity was obvious. In the charters of the colonies were many conflicting grants. For example, both Massachusetts and New York had grants of land extending from ocean to ocean, which covered of course the same territory as soon as the western boundary of New York was passed — a fact which has affected litigation in the latter state down to the present time. The liability to serious disagreements between the colonies, arising from such conflicts, made it necessary to have some tribunal with authority to arbitrate between them. The Privy Council fulfilled this function, and frequently declared some act of a colonial legislature to be void, on the ground that it was ultra vires. That is to say, the particular act thus nullified was beyond the power conferred upon the colony by its charter.

After the Revolution there was need of some tribunal to continue the exercise of this function between the states themselves, and also between the state and federal governments. This would naturally devolve on the Supreme Court. And, in effect, a declaration by that body that an act of Congress, or of some state legislature, is unconstitutional (that is, void under the Federal Constitution), in no way differs from a similar declaration by the Privy Council that an act of some colonial legislature was ultra vires under a colonial grant. Both were political acts, and both were made necessary by the relations existing, first between the colonies, and afterward between the states. Thus the Supreme Court was in effect constituted an independent chamber with an absolute veto power over legislation, in the name of a constitution of whose provisions it was the final interpreter. And the judges who should wield this enormous power, being granted life-tenure of office, were not responsible to the people, as other legislators are, but were subject to impeachment for misconduct only.

In view of the fact that, ‘manifest destiny’ pointed to Washington as the first President, the plan was well conceived for the end to be gained. But the incidental result has been to place a construction on the Constitution which has stood and still stands as an insuperable obstacle to the realization of that ideal which, as we have seen, is fundamental in democracy—Equality before the Law.

IV

The plan worked as expected, and the bench was filled with men who for a generation maintained the Federalist idea of a strong national government. To quote the words of Mr. Brooks Adams, ‘General Washington chose John Jay for the first Chief Justice, who in some important respects was more Federalist than Hamilton; while John Adams selected John Marshall, who, though one of the greatest jurists who ever lived, was hated by Jefferson with a bitter hatred because of his political bias.’

At the close of John Adams’s term of office as President,the Federalists were driven from power by the rising tide of popular protest against centralization, and Jefferson became President. But their theory of government had been protected so successfully by the expedient of a political court that, during the first generation of the nation’s life, the powerful opinions of Chief Justice Marshall so far strengthened the idea of national sovereignty, that when the inevitable clash came in 1861-65, the nation had gained sufficient power to prevent dismemberment, and Appomattox completed the work of 1787.

It is only fair to recognize that the Federalists had no personal interests to serve. Their motives were purely patriotic. What they planned and carried out was done to preserve the Union. But in doing this they gave to the courts a political power which might, at any time, be used for selfish purposes, and which was bound to be so used as soon as the first, noble impulse toward nation-building had been lost sight of in the pursuit of personal interests.

It is evident that, a certain undefined recognition of this fact, at the time, tended to create a feeling of distrust and antagonism in the minds of the people. Aside from the specific denunciations of the political character of the courts by Jefferson, there seems to have been a widespread feeling that the Federalists were somehow working to subvert the liberties of the people. Even the exalted character and devoted service of Washington himself did not save him from direct charges of this sort, as will be seen by an extract from the Philadelphia Aurora, published on the day following his retirement from the presidency: —

‘The man who is the source of all the misfortunes of our country is this day reduced to a level with his fellow citizens, and is no longer possessed of power to multiply evils upon the United States. If ever there was a period of rejoicing this is the moment. Every heart in unison with the freedom and happiness of the people ought to beat high with exultation that the name of George Washington, from this day, has ceased to give a currency to political iniquity and to legalized corruption.. .. It is a subject of astonishment that a single individual should have carried his designs against the public liberty so far as to put in jeopardy its very existence.’

But although the Federalists were defeated in the elections and their policies denounced, no effort seems to have been made to change the political character of the courts, after the first ineffectual protests of Jefferson. He did, indeed, when he became President, undertake to impeach one of the justices of the Supreme Court on account, of the exercise of the political powers thus conferred; and had he succeeded he might have carried the proceeding far enough to include the entire bench, including Marshall. But the effort failed on account of the lack of the necessary two-thirds vote in the Senate, and no further attempt was made to interfere with the political powers of the court under the Constitution.

Thus it happened, most fortunately as it would seem to us to-day, that in spite of adverse elections which placed the legislative and executive departments of the national government in the hands of their opponents, the most vital political ideals of men like Washington, Hamilton, and Adams prevailed over those of Jefferson and his supporters, through the assistance rendered by the Supreme Court in the beneficent exercise of those political functions conferred by the Constitution. But although we may admit that, historically, this particular use of the power thus granted was beneficial, what we need to recognize to-day is that, in principle, the possession of such power is both undemocratic and hazardous.

V

The evil effects of such exercise of power by the courts began to appear in the second generation, when personal and sectional interests solicited their protection. Quoting again from Mr. Adams’s concise summing up of the facts:—

‘Before Marshall died slavery had become a burning issue, and the slaveowners controlled the appointing power. General Jackson appointed Taney to sustain the expansion of slavery, and when the anti-slavery party carried the country with Lincoln, Lincoln supplanted Taney with Chase in order that Chase might stand by him in his struggle to destroy slavery. And as it has been, so must it always be. As long as the power to enact laws shall hinge on the complexion of benches of judges, so long will the ability to control a majority of the bench be as crucial a political necessity as the ability to control a majority in avowedly representative assemblies.’²

With the assumption of the ermine by Chief Justice Taney there began a series of political decisions culminating in the Dred Scott case, which were calculated to and which did maintain the commercial interests and political power of the dominant class of that period, namely, the slave-holding aristocracy of the South. Under this powerful protection the slave-holders became arrogant, and self-assertive. They not only trampled ruthlessly on individual rights, and ignored the protests of their fellow-citizens in the North, as well as the growing sentiment of the civilized world against human slavery; but they even set at defiance the laws of Congress itself—as witness the persistent and unlawful importation of slaves from the west coast of Africa. This importation had been prohibited by Congress in 1808; but when the invention of the cotton gin made Negro labor an industrial necessity in the South, the protected slaveholders resumed this traffic with impunity; nor was it stopped until a successful blockade of Southern ports had been established during the Civil War.

Meanwhile all the stock arguments for the maintenance of the status quo, such as the stability of law, the sacredness of the Constitution, the inviolability of vested rights, and so on through the familiar list of phrases which are still heard to-day in support of special privilege, were freely indulged in by the Supreme Court to buttress their opinions in support of slavery.

The Dred Scott decision was the final proof needed to convince the people of the North that the slave-holding aristocracy owned the courts, and that there was no hope of securing justice so long as the perpetuation and expansion of slavery continued to be the controlling issue in the Nation’s councils.

Then that innate sense of outraged justice, which has so often led to social revolutions in the past, set in motion the tremendous impulse which resulted, in November, I860, in the triumphant election to the Presidency of Abraham Lincoln, who had declared that this nation ‘could not permanently endure, half slave and half free.’

In the struggle which followed, the slave-owning class was practically annihilated— its industrial system swept away, its property confiscated or destroyed; and its members as a type perished from the face of the earth,

VI

But the climax of Mr. Adams’s remarkable book is reached in his searching analysis of the present situation. The facts presented in the course of this analysis are fully verified by citations from the opinions of the courts, clearly establishing the fact that the Supreme Court of the United States to-day, under the pressure which is unavoidable where courts exercise political functions, is supporting the interests of the present capitalistic class, quite as fully and unequivocally as the same court under Marshall maintained the national ideas of the Federalists, as later on under Taney it upheld the power of the slave-holders, and still later under Chase helped to sustain the new régime.

This article can hardly undertake more in this connection than to indicate some of the conclusions reached by Mr. Adams, leaving the reader to find more convincing proof in a perusal of the book. But one of the instances cited seems particularly illuminating. In 1890, Congress passed the ‘Sherman Anti-Trust Act,’ prohibiting all combinations in restraint of trade. A suit known as the Trans-Missouri case, brought under this act to dissolve an obnoxious railway pool, came up for final adjudication in the United States Supreme Court in December, 1896. The railroads sought a decision limiting the operation of such laws to ’unreasonable ’ restraint of trade. But the Court refused at that time to make such a decision, which would have been virtually an amendment to the act. Thereupon those concerned in such combinations set up the claim that this decision ‘disturbed the business interests of the country,’ and the question was repeatedly argued in other cases. For a time the Supreme Court adhered to its decision, holding that under the Sherman act all restraints of trade were unlawful. Then an effort was made to have the act amended by Congress. This attempt was defeated after an exhaustive report by a committee appointed to investigate the facts.

The pressure from those interested in large combinations continued, however, and finally, in May, 1911, when opinions were handed down in the celebrated cases of ‘Standard Oil Company vs. United States’ and ‘United States vs. American Tobacco Company’ (221 U. S. 1 et seq.), the personnel of the Court had been so changed by death and new appointments that a majority of the justices, speaking through the Chief Justice, laid down the rule so long contended for in the interest, of large combinations of capital, namely that it is ‘undue’ restraint alone which should be regarded as unlawful. The fact that the court held in those cases that the particular combinations then before the court had been shown to be guilty of undue restraint of trade and were therefore amenable to the penalties of the Sherman Act, does not disguise the more significant fact that a majority of the Supreme Court of the United States had at last declared its adhesion to a rule which for fifteen years that Court had steadily refused to recognize, namely that it is ‘undue’ or ‘unreasonable’ restraint of trade which is to be held unlawful under the Sherman Act.

In a dissenting opinion in the Tobacco case Mr. Justice Harlan Comments as follows: ‘But now the court, in accordance with what it denominates the “ rule of reason,’ in effect inserts in the act the word “ undue” which means the same as “unreasonable,” and thereby makes Congress say what it did not say . . . and what, since the passage of the act, it has explicitly refused to say. . . . In short the court now, by judicial legislation, in effect amends an act of Congress relating to a subject over which that department of the Government has exclusive cognizance.’

Could any proof be more convincing to show that our Supreme Court under the Constitution does assume legislative or political functions, or that it does so, even though indirectly, under pressure from the dominant class? The mere recital of the record seems almost sensational as an indictment of our present system.

At the same time Mr. Adams disclaims any intention of reflecting upon the personal integrity of our judges. His attack is not on men but on the system. His contention is that ‘where political influences enter, disaster follows.’

The principle involved is briefly stated in these words: ‘In no community can every person have equal civil rights. That is impossible. Civil rights must vary according to status. But such rights as any person may have, those the courts are bound to guard impartially. If the courts do not perform this, their first and most sacred duty, I apprehend that order cannot be permanently maintained; for this is equality before the law, and equality before the law is the corner-stone of order in every modern state.’

A survey of the whole situation seems fully to sustain the proposition stated in the first chapter of the book: ‘So long as our courts retain their present functions no comprehensive administrative reform is possible.’

VII

Mr. Adams does not propose, in this volume, any specific remedy for those defects in our judicial system which he thus lays bare. His purpose seems rather to challenge serious discussion of these vital matters, and if possible to arouse the wiser members of the capitalistic class to a sense of their own responsibility and danger.

But to the thoughtful reader the inference to be drawn from his clear and logical analysis is obvious. It has been made plain that political functions were conferred upon the courts of this country in the first instance, with the evident purpose on the part of the Federalists of protecting the National idea, and also because of the need of some tribunal to arbitrate such questions as might arise among the thirteen separate states, or between one or more of these and the federal government. This necessity has increased, rather than diminished, with the admission of thirty-five additional states. In the meantime the evils inhering in the exercise of such powers by the courts have been multiplied indefinitely by the social and economic changes which have taken place.

Obviously the way to escape from the evil effects of semi-political courts is to get rid of the administrative system which has made them necessary. So long as we continue, with growing difficulty, the effort to maintain order and to regulate the relations of one hundred millions of people of diverse races and conditions, by means of a national government of limited powers, and fortyeight separate and autonomous constituent governments, reserving to themselves all other powers, —just so long we shall impose upon ourselves the necessit y of maintaining political courts to arbitrate differences. It has been abundantly proved that, such courts are bound to be influenced by pressure from the dominant class, thus permanently preventing that even-handed justice which is the sine qua non of true democracy.

In view of past experience, why would it not be the part of wisdom to reconstruct our form of government? We could, for instance, replace our present cumbersome and ineffective system of divided authority by giving the national government exclusive power to make and enforce all necessary laws for the regulation of industry, commerce and finance throughout the country. Such a government would be capable, with the power of all the people behind it, of compelling the obedience of all, even the wealthiest and most powerful. Then the courts, released from the necessity of arbitrating between conflicting claims of state and national sovereignty, would be free to resume those purely judicial functions whose exercise would guarantee ‘ Equality before the Law.’

The primary obstacle to such a change is our written Constitution. But surely a political creed, even though called a constitution, which was adopted as a doubtful compromise in the eighteenth century, ought not to be regarded as a finality in the twentieth century, when substantially all the interests and relations with which it deals have undergone most drastic change.

The truth is that few if any of the practical or material interests of the people to-day bear any relation to state boundaries. On the contrary our most important activities along commercial, industrial, and financial lines either are already, or are rapidly becoming national in their scope of operation, like our great railway systems. Manifestly such activities could be regulated much more wisely and fairly for the interests of all concerned by one strong central government, such as is here suggested, than by the present system of divided authority.

But the real obstacle in the way of such a reconstruction is the attitude of the people themselves. Those most fundamentally antagonistic to the capitalistic class, because opposed to any accumulation of private property, do not care to reform our present system of government. What they want is to abolish it altogether. They would have no interest in changing the functions of the courts. They would in fact prefer political courts, if controlled by themselves, as a weapon to destroy their enemies and buttress the decrees of a socialistic state.

Between the extremes of revolutionary socialists and the few who might justly be regarded as ‘predatory’ capitalists, stands the great body of sane, comfortable, law-abiding citizens who might control the situation if only they were united and aroused. But in fact they are not only widely separated in their political interests and opinions, but at present they do not seem aware of any need of change save in the cost of living. Like a sleeping giant unconscious of approaching danger, the average citizen seems hardly awake to the present menace of social revolution, except for an occasional start at the extent and magnitude of those sporadic cases of riot and disorder which indicate the growth of social discontent. Moreover, it is just this average citizen who is apt to feel a sense of undiscriminating reverence for the Constitution, as expressed in the motto, ‘Let the work of the Fathers stand.’ And this feeling makes it difficult to convince him of the need of any change in our organic law.

On the other hand, the dominant or capitalistic class are well aware of the advantage they possess in their ability to control the courts, to a certain extent , as a safeguard against attack upon their special privileges. Quite naturally they are disinclined to surrender their advantage; and it is to them especially that the argument of Mr. Adams’s book appears to be addressed — not in any sense as any attack on capital, but, quite the reverse, as a recognition that these are the men of power and should be the responsible rulers of the nation; that it is to them that we must look, not merely to save themselves from destruction, but also to save American society from disintegration. Calm, dispassionate and judicial as the volume is in tone and method, it is in effect a most powerful appeal to the present dominant class to transcend the limitations of their highly specialized ways of thinking and to adapt themselves to the requirements of a rapidly changing environment. And yet the author appears to have little hope that his appeal will be heeded — not because the reasons for it are not perfectly definite and obvious, but because the capitalistic class, as such, have come to think so exclusively in terms of money that their attitude of mind has become rigid and inflexible. And in the inevitable overthrow of this specialized class he seems to apprehend the failure of American Democracy.

It is just here that the writer of this article is inclined to dissent from Mr. Adams in his evident lack of faith in the ability of the great body of the American people to meet the present emergency, when once they come to recognize that a real crisis is impending.

It, is in fact, the stability and the underlying moral sanity of the large, slow-moving, undemonstrative mass of loyal citizens, belonging to different parties, grades, and classes, which has preserved the nation in the various crises through which it has already passed. This mass is slow to apprehend and slow to act; its members are divided by a thousand varied and even conflicting interests; but it has never failed to come together in response to any clearcut moral issue involving the salvation of American Democracy. And when thus united its impact has been irresistible, just as Cromwell’s ‘Ironsides’ were invincible because they believed that they were fighting ‘the battle of the Lord.’

Mr. Adams’s closely reasoned argument may fail to bring conviction to the majority of those to whom it is more particularly addressed, and yet become an epoch-making book through the response it meets from an unexpected quarter. We are told by Mrs. Stowe’s son that Uncle Tom’s Cabin was written as an appeal to the slave-holding aristocracy. As such it failed; but it accomplished its real purpose through the awakened conscience of the great body of liberty-loving people in the North.

As an appeal to the self-preserving instinct of the capitalistic class, The Theory of Social Revolutions may fail to find its mark, and yet may do vastly more by awakening the dormant consciousness of the serious-minded masses. For, in the last analysis, the argument for equality before the law is nothing less than a plea for common justice; and such a plea has rarely failed to reach and rouse the conscience of the people, when they are brought, as in this volume, face to face with naked truth.