the liberty and justice obtained by its people, but it would be evident at least that its form of government and its processes of law were very imperfect. NOTES ON BOOKS 1. The standard authorities on the liberties of Englishmen at the time of the Revolution and of Americans thereafter are Sir W. Blackstone's Commentaries on the Laws of England (1st ed., 4 vols., 1765-1769), and J. Kent's Commentaries on American Law (1st ed., 4 vols., 1826-1830; 14th ed., revised by O. W. Holmes, 4 vols., 1896). 2. On the constitutional liberties of Americans, as understood by the Founding Fathers, there should be added to the above J. Story's Commentaries on the Constitution of the United States, with a Preliminary Review of the Constitutional History of the Colonies and States before the adoption of the Constitution (1st ed., 2 vols., 1833; Cooley's 4th, 1873, and Bigelow's 5th, 1891, editions are the best). See also T. M. Cooley's Treatise on the Constitutional Limitations which rest upon the Legislative Power of the States of the American Union (7th ed., 1903), especially Chapters x and xi, which contain excellent discussions of the constitutional protection for personal liberty, as formerly understood, and of due process of law. 3. The most recent general treatise on the judicial interpretation of the Constitution is C. K. Burdick's The Law of the American Constitution (1922). W. W. Willoughby's The Constitutional Law of the United States (2 vols., 1910) is the most comprehensive treatise to the date of its publication. Much has been written in recent years on the judicial interpretation of the Fourteenth Amendment. See especially F. J. Goodnow's Social Reform and the Constitution (1911), and C. W. Collins's The Fourteenth Amendment and the States (1912). See also E. Freund's Standards of American Legislation, Chapter v (1917), and R. Pound's The Spirit of the Common Law, Chapters iv and vi (1921). The intention of the Congress which prepared the Fourteenth Amendment is carefully examined in H. E. Flack's The Adoption of the Fourteenth Amendment (1908). 4. E. Freund's The Police Power (1904) is the standard work on that subject. For recent developments in the law of the police power, see Burdick's book, noted above. CHAPTER IX THE COMMON DEFENSE 1 power THE next purpose of the people of the United States The war in establishing their Constitution was to provide for the common defense. The power of a body of people to make such provision is usually termed the war power. War is commonly understood to be contention by force and violence between two or more organized bodies of people, and a state of war may be recognized as existing whenever a formidable organization of people pursues its interests by force and violence. The war power is by nature broad enough to embrace Its nature provision for offensive as well as defensive hostilities, but the language of the Preamble to the Constitution reveals a sentiment on the part of the "Founding Fathers" adverse to aggressive and unnecessary wars. The widest diversity of opinion has existed concerning the nature of the interests that may justify a resort to war. Lord Bacon once remarked that "nobody can be healthful without exercise, neither natural body or politic; and certainly, to a kingdom or estate, a just and honorable war is the true exercise." Many have agreed with Bacon, some of whom have even omitted his qualification that the war should be just and honorable. But whatever may be thought by good citizens about the healthfulness of a just and honorable war, there can be no doubt of the right of the state to engage in such a war, except on the part of those who 1 Sir Francis Bacon, Essays. No. xxix, "Of the True Greatness of Kingdoms and Estates." The justification of its use Comparison conscientiously object to any form of physical coercion in the conduct of affairs of state. The real difficulty for most good citizens is to determine what wars are just and honorable. Those who hold that the sovereignty of so-called sovereign states is without limit, and that the rulers of states have no responsibilities except to cherish their own interests or at most those of their fellow citizens or subjects, are bound to believe that a state may justly and honorably wage war whenever its government deems it advantageous to do so. Those who hold that there is a higher law for the guidance of humanity than that dictated by the interests of particular portions of mankind, organized as states, must conclude that war cannot be justified except upon universal principles of justice. It is outside the scope of this book to consider either the general theory of war or particular proposals for distinguishing just from unjust wars, such as those embodied in the Covenant of the League of Nations. What must be considered here is the connection between the purpose to provide for the common defense and the foundations of the modern commonwealth, and especially the relation between the right of a commonwealth to wage a just war and its duty to secure the blessings of liberty to its people. The war power is broad enough also to embrace provision for domèstic as well as foreign wars. Domestic and civil wars, however, narrow down into hostilities of uncertain character, such as those directed against loosely organized insurrections and unpremeditated local riots. Thus the war power merges into the police power, and it is not easy to draw any clear line between them. Both alike involve the use of force to overcome force. Each accomplishes its purpose, when exerted to its full extent, by imposing physical restraints upon the persons against whom it is invoked. Each imposes legal restraints upon their right to do as they please. Each deprives individuals of liberty, in the realistic sense of the term, even if used properly, and, if abused, may deprive them also of liberty as it is defined by the political idealists. The practical operation of the war power, therefore, like that of the police power, illuminates the fundamental problems concerning the nature of liberty in the modern commonwealth. On the one hand, the liberty of the people is to be enjoyed upon such conditions as may be laid down by the government in the exercise of its police and war powers, and on the other, the common defense is to be provided for, as domestic tranquillity is to be insured, by methods that are not incompatible with popular liberty. power and The blessings of liberty, it is hardly necessary to add, The war must be as much an object of political action in war as in the problem peace, if the state is to qualify as a modern commonwealth. of liberty Certainly there is nothing in the Preamble to the Constitution of the United States to indicate that the purpose of the people to secure the blessings of liberty was less firm than that to provide for the common defense. In this respect the latter was on the same footing as the purpose to insure domestic tranquillity. The limitations upon the police power apply with the same force, as far as they are applicable at all, to the war power. The specific juristic liberties of the people, as far as they are protected against one of these powers, are equally protected against the other. Foremost among these are the fundamental or absolute rights, as Blackstone called them, of personal security, personal liberty, and private property, of which no person may be deprived without due process of law. Many others are specified in the Federal and State Constitutions. Of these others none is more important than those which protect the members of the state in the expression of their opinions, and in their access to the opinions of others and to the information upon which intelligent |