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emn passion, stirred by the knowledge of wrong, of ideals lost, of government too often debauched and made an instrument of evil.

G. CONSERVATIVE FACTORS IN DEVELOPMENT OF SOCIAL CONTROL

59. Arrested Constitutional Development23

BY MYRON T. WATKINS

As the thought and conduct of a people, reflecting and reacting upon their material conditions, are ever in flux, it follows that the ability to crystallize their thought into law with a fair degree of spontaneity is the condition of a stable institutional development. But the government of this country was conceived at a time when the individual was too far in the ascendent, when there was too little need of state activity, and when man had too freshly in mind the tyranny of England, for any opinion other than that government is a necessary evil to find expression in the American system. The government, accordingly, was to be hampered at every turn in the exercise of its authority. It was, moreover, considered to be like a machine whose function must be now and forevermore the same. Consequently it was believed that an arrangement of the parts that permitted the very limited functioning then needed should be fixed. and made impervious to any subsequent change which might contemplate a wider functioning. For had they not clearly in mind the evils attendant upon the exercise of large powers by the state?

With this attitude toward government and law, the framers of the American government provided a rigid separation of the departments of government, an inflexible amendment clause, and a comprehensive Bill of Rights. Under the separation of departments, there may be three very divergent policies all seeking to operate at the same time. Since the sponsors of none are responsible for the efficient functioning of the whole, and since there are no provisions for a means of co-ordination, it is apparent that the exercise of social control is very difficult. This lack of means of cooperation makes it possible, in almost any case, for any one of the three powers, from either conservatism, jealousy, or irresponsibility, to inhibit the operation of any administrative instrument or law, and thus make social control ineffectual if not impossible. An inflexible amending clause is an expression of the belief that the functions of government do not change. This makes an extension of state powers to protect social interests very difficult.

23

2 Adapted from an unpublished essay entitled, "The Regulation of Competition, a Means of Adjusting Industrial Development to Social Ideals."

The Bill of Rights was conceived to be an embodiment of all the "immutable laws of nature," which by some divine guidance the English-speaking peoples had struck upon. In fact, there are parts of these guaranties which have been so construed as to provide immunities quite inapplicable to any other than a frontier society— where all men are economic "prime-movers," and where the limits to the improvement of land are unrealized. One illustration will suffice. That part of the Fifth Amendment which declares that "no person shall be deprived of . . . property without due process of law," while just and necessary if interpreted in view of the existing conditions, may operate to effect the very thing which it was intended to prevent, if applied without reference to a possible change in what constitutes property. Thus an act prohibiting certain employers from discharging employees because of membership in a labor organization was declared unconstitutional,24 on the ground that the actions prohibited are part of the liberty of the employer protected by the Constitution from limitation or regulation. Regardless of the technical merits of the decision, it manifests the disposition on the part of the courts to consider the relation of employer and employee as it was on the frontier when there was much more equality of bargaining power.

The chief reason for our inability to secure needed social control has been that our political institutions have been hampered with defined, fixed, legal rights. As a result we have, on one hand, a government which undertakes any action haltingly lest it overstep the bounds of its narrow function, or disturb the equilibrium of its selfimposed parts, and, on the other hand, a declaration of principles capable of wide or changing application, or of narrow and strict application. The result has been an ultra-conservative interpretation of rights and responsibilities by each of the three organs of government; each, fearing from its own jealous traditions to depart from its historic construction of powers by conceiving larger functions for themselves. If the state could have functioned as an organic whole, there seems no reason to believe that the rights and responsibilities embodied in the Bill of Rights would have been so arrested in their development.

60. The Anti-Paternalism of the Government25

Paternalism, whether state or federal, as the derivation of the term implies, is the assumption by the government of a quasi-fatherly relation to the citizen and his family, involving excessive govern24 Adair v. United States, 208 U.S. 161. 25 State v. Switzler, 143 Mo. 287 (1897).

mental regulation of the private affairs and business methods and interests of the people, upon the theory that the people are incapable of managing their own affairs, and is pernicious in its tendencies. In a word, it minimizes the citizen and maximizes the state. Our governments are founded upon a principle wholly antagonistic to this. Our fathers believed the people capable of self-government. Such a government is founded upon a willingness and desire of the people to take care of their own affairs and an indisposition to look to the government for everything. The citizen is a unit. Under self-government we have advanced in all the elements of a greater people more rapidly than any nation that has ever existed upon the earth, and there is greater need now than ever before in our history for adhering to it.

61. Industrial Freedom and Prosperity26

BY JAMES J. HILL

Among the radical and permanent, as distinguished from the partial and temporary, causes of bad times, one stands out preeminent by the volume of its effects and the persistence with which it has raged all over the country, namely, the legislative crusade against business. I speak here of no particular act, for the business interests of the country as a whole have been under fire for more than ten years. The attack has steadily increased in violence and decreased in discrimination. The ingenuity of restless minds has taxed itself to invent new restrictions, new regulations, new punishments for guilty and innocent alike.

While existing laws were allowed to fall into more or less disuse, new laws were heaped on one another. Each of these invaded some new territory, laid the hand of authority upon some new occupation, drew closer the circle of business interference to bureaucracy. Innovation scarcely stopped short of declaring any distinct business success prima facie evidence of crime. The country is feeling the inevitable effect.

When hostile regulation goes to this extent, without promise of limit to either its objects or its orders, business comes to a halt though tariff rates are raised to the skies. It cuts down present activity, and it puts a veto on all expansion. The present may be obscure, but the future looks black. For here industry begins to feel the indispensable effects of capital withdrawn, and to realize the effects that follow its withdrawal.

26 Adapted from an address delivered before the Rochester Chamber of Commerce, December 5, 1914.

Nowadays it is the fashion to overlook the claim of capital in production. The mistake is costly. For new plants will not be built, raw material will not be bought, wages cannot be paid unless capital is ready in sufficient quantities. It will be ready only on condition that it expects to earn at least a reasonable profit. There is no reason why it should take the risks present in even the most conservative employment unless there is a possibility of commensurate profit. That possibility must have a promise of continuance sufficient to make it worth while to go into the enterprise at all.

Now it is exactly these indispensables, a fair return and a reasonable lease of life, that continuous legislation against business has destroyed, or has threatened to destroy. Politicians have acted upon the theory that it is good to burn down your house because a chimney smokes. Fire has been started in many places.

Our progress toward a centralized paternalism is so marked and has gone so far that the Socialist has little reason to complain that his party has not secured a majority. Every year sees the transaction of business made more expensive by laws prescribing multiplied and costly reports, ordering expensive improvements or additional services, laying new taxes, compelling the hiring of additional employees.

This is the history of paternalism, of centralization, since the beginning. Under the tribute it attempts to levy, business in the United States will eventually become unable to conform to the onerous conditions of the new era. It would be some compensation if the governing system were efficient. But it is as incompetent as it is expensive. This is not the fault of any man or party; it inheres in the method itself, and in the persistent American delusion that democracy can afford to overlook, in its selection of governing instruments, the question of fitness. Nowhere else outside the strictly barbarous countries is the idea that public place should presuppose some direct business qualification so contemptuously rejected.

Industries which represent billions of capital, capital belonging largely to people of moderate means, are under the order of officials chosen for political reasons, many of whom could not earn on their merits a salary large enough to keep them alive in the service of the concerns which are now at their mercy. It is not malevolence, it is not corruption, that strikes at the heart of business so dominated; it is the ignorance of well-meaning men who have been placed, for political considerations, where they do not belong, where they can do no good, and may be able to do immense harm.

It is a master-stroke of irony that while business all over the country has been spending time, effort, and money in an endeavor to realize efficiency, the governments to which it must render an account and whose orders it must obey remain the most striking examples of inefficiency to be found anywhere in the world.

The main outlines of the business situation are clear. The country may enter, after the close of the European war, upon a period of remarkable prosperity. So it will be given the task of providing for a time for a maintenance of a considerable portion of the world's industry. The great and continued demand should be a guaranty of a corresponding prosperity. It would be so if no artificial conditions intervened. But, to realize this, both capital and business initiative must have reasonable freedom. But it is less easy to take advantage of opportunities than ever before. At every promising opening industry sees a sign-board, erected by public authority, bearing the words "No thoroughfare." If the next five years are to repeat the history of the last ten, there can be no general improvement and no general prosperity in the United States.

These words are not spoken hopelessly. The American people have an enormous fund of underlying common-sense. It is fundamentally conservative, though it loves to follow the circus parade once in a while, listen to the music, and applaud the clown. Since its own well-being is now definitely at stake, it is not unreasonable to hope that it will take a few simple steps toward the realization of its hopes.

The first and indispensable requirement is a respite from attack for the business interests of the country. So great are its recuperative powers that probably one or two years of freedom from foreboding as well as from assault would accomplish great things for industry.

Subordinate the extension of the sphere of governing power to an improvement of its quality. It is time for all to remember that no man has a right to hold public office, from the top to the bottom, unless he has knowledge of that line of work.

Rest from agitation, intelligent economy, efficiency, harmonious co-operation for business institutions as well as for political divisions-these are not abtruse ideas. They are things as long familiar and as little reverenced by the mass of men as the contents of the Decalogue. We must go back to them or suffer the penalty paid by every creative thing that defies the law of the physical or that of the moral order of the world.

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