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ism and the

of the Non

The most energetic use of the welfare power has taken Collectivplace in the rural state of North Dakota. The legislative farmers program of the Non-Partisan League included the estab- The lishment of a state bank, the lending of public money to program private citizens for the building of homes, the construction Partisan at public expense of grain elevators and other shipping League facilities, and the operation of a public warehouse system on behalf of the grain growers by the State government. Despite the protests of North Dakota taxpayers, who alleged that such a program meant the devoting of public property to private uses, the United States Supreme Court decided that, if the dominant opinion in North Dakota deemed these enterprises to be a means for promoting the general welfare, it ought not to interfere.1 That the period of collectivism in America is as likely to be ushered in by the farmers as by the urban industrial wage earners is suggested also by recent experiments under the police power.

of labor

disputes

In the field of legislation under the police power the The compulsory most collectivistic measure yet enacted is the Kansas arbitration industrial commission law, providing in effect for the compulsory arbitration of labor disputes. No measure has imposed more drastic restraints upon the right of the individual employer or employee to do as he pleases. But this law was procured by a combination of farmers and businessmen. The wage earners themselves opposed it.

1 Green vs. Frazier, 253 U. S. 233 (1920). It is significant that the courts, in dealing with cases involving the validity of tax laws, have generally preferred to justify the prohibition against taxation for other than public purposes upon the doctrine set forth in the Topeka IronWorks Case, i. e. upon the general principles of free government (see infra p. 467, rather than upon any such interpretation of the "due process of law" clauses as has been applied in cases arising under the police power. See H. L. McBain, "Taxation for a Public Purpose," 29 Political Science Quarterly 185. A more recent writer, however, thinks there is now a tendency to adopt the "due process" rule in tax-power, as well as in police-power, cases. See R. E. Cushman, "The Social and Economic Interpretation of the Fourteenth Amendment,” 20 Michigan Law Review, 7 at p. 740.

Modern collectivism and social

Likewise, the proposals which have been advanced since the World War for the compulsory arbitration of labor disputes on the steam railroads have come from the railroad managers, and from the shippers, who suffer most from interruptions of service, both businessmen and farmers. The opinion among wage earners themselves is more divided. Possibly, if the urban proletariat in North Dakota and Kansas instead of the farmers dominated the State government, their opinion would be clearer.

Be that as it may, the dominant ideas of the age of competitive capitalism in economics, and of individualistic democracy liberalism in politics, have manifestly lost ground. The opinion that men, by seeking their private interests in their own way, best promote the general welfare is no longer so widely held or so confidently maintained as formerly. The belief has been generally abandoned that any relation between government and industry is objectionable "interference," which is more intimate than that resulting from the government's efforts to keep the peace and enforce contracts. Law and order begins to mean law and order in the economic community as well as in that which is most strictly political. The organized economic community, however, as Mr. Delisle Burns has pointed out in his instructive book Government and Industry,' is found to be neither the state alone, as many socialists have supposed it would be, nor the purely non-governmental organization of industry, as syndicalists and the so-called new guildsmen would have it, but an unprecedented combination of the two. The inadequacy under modern conditions of the individualistic system of production primarily for profit, instead of for use, and of distribution according to ability, without much regard for need, has been demonstrated by a crowd of writers. Mr. R. H. Tawney's recent book, The Sickness of an Acquisitive Society, is an excellent 1 C. D. Burns, Government and Industry, London, 1920.

2R. H. Tawney, The Sickness of an Acquisitive Society, London, 1920.

specimen of this type of criticism of capitalistic individualism. Among the modern collectivists Sidney and Beatrice Webb have been the most influential, and largely under their intellectual guidance British labor leaders and politicians have been working out the new theory of the economic functions of government. This has led to a new understanding of democracy itself, not only in Great Britain, but also in the United States.1

5

of the

The most cursory survey of the history of opinion with The nature respect to the functions of government in modern states welfare shows the impossibility of defining the welfare power with power precision. In a general/way it may be said that the welfare power is the power to accomplish any public purpose, other than that of insuring domestic tranquillity and that of providing for the common defense, by any means except the restraining of personal conduct and the use of physical force and violence. It is the residual power of the modern state, embracing all the powers that remain after allowing for the police and war powers. It is broad enough to enable a government, unless limited by the law of the state itself, to do whatever may be demanded of it by the dominant opinion in the state. "Is the end of law," Dean Pound inquires toward the close of a significant discussion of that subject in his recent work on the philosophy of law," "anything less than to do whatever may be achieved thereby to satisfy human desires?" Whether the state be

1 This new understanding of democracy is explained by the Webbs in the Introduction to their significant book, A Constitution for the Socialist Commonwealth of Great Britain, published in London in 1920. In the United States certain of its aspects, under the name of the democratization of industry, have already aroused much attention. But this is a matter which touches the problem of government rather than the nature of the state itself.

2 Roscoe Pound, An Introduction to the Philosophy of Law, New Haven, 1922, p. 96.

Private interests and the general welfare

one which accomplishes the purposes of its members by due process of law or one possessing a government of men, unrestrained by any law other than that dictated by their own interests, the promotion of the general welfare is an enterprise whose character can be determined only by the opinion of the people themselves. In the ideal commonwealth public opinion would be the dominant opinion, and the welfare power could serve none except truly public purposes. But in actual commonwealths, as in the inferior kinds of states, what is a public purpose is itself a matter of opinion, and the kind of opinion that will prevail in particular cases will depend, partly upon the circumstances of the case, partly upon the form of government and the nature of the state itself. To promote the general welfare is to promote the welfare of the men and women who actually constitute the state. If in any particular case governmental action will promote equally the welfare of all the members of the state, there will not be much controversy concerning the action to be taken. But if, as must generally be the case, some of the members of the state seem likely to benefit at the expense of others, or even merely somewhat more than others, by a proposed use of the welfare power, the dominant interests in the state, whatever they may be, are in a position to interpret the public purpose in the light of their special purposes, and to serve their special interests under the guise of promoting the general welfare. In short, there are no limits to what a government may undertake to accomplish by means of the welfare power, except those fixed by the character of the purposes which the dominant opinion in the state recognizes as public purposes.

Much confusion concerning the nature of the welfare power has arisen from the failure to distinguish between the power itself and the expediency of using it in particular cases. Whether or not it is expedient for a particular gov

ernment to undertake a particular service depends upon the nature of the service to be rendered and of the government which is to render the service. Strong and efficient governments can wisely undertake many services which feeble and ineffective governments must leave to private enterprise or to that of churches and other non-political organizations. The nature of the service, moreover, must be compatible with that of the state itself. Ecclesiastical states may properly undertake the care of religion. Nationalistic states cannot avoid assuming responsibility for the management of education. Proletarian states will inevitably concern themselves with the distribution of wealth. Theories of the functions of government are meaningless, unless they are related to the conditions that determine the character of states. The relativity of function to structure is as true of the war and police powers as of the welfare power. The police power, like the welfare power, is certain to be used in proletarian states, for example, for purposes which would never be recognized as public purposes in states dominated by capitalistic interests. The definition of the power is a much less important matter in practical politics than the forms and processes of the government which is to administer the power. Political power, whatever be its nature, is the means by which the government of a state adjusts the conflicts of interest between its members. The kind of adjustments which will be made in any particular state depends, partly, to be sure, upon theories of governmental action. which express adequately the underlying tendencies of the age, but largely upon the forms and processes of government. It is the forms and processes of government that partly determine, partly reveal, the nature of the interests which dominate the state. No adjustments can be thoroughly satisfactory that do not rest upon the authority of a government, which reflects in its operations all the sub

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