February 12, 1913
The Progressive movement which culminated last August in the creation of the Progressive party is no mere sign of temporary political discontent, it is a manifestation of the eternal forces of human growth, a manifestation of the God-given impulse implanted in mankind to make a better race and a better earth. Its purpose is to establish in this world the rights of man, the right not only to religious and political but to economic freedom; and to make these rights real and living. We recognize that property has its rights; but they are only incident to, they come second to, the rights of humanity. We hold that the resources of the earth were placed here for the use of man in the mass, that they are to be developed for the common welfare of all, and that they are not to be seized by a few for the purpose of oppression of the many or even with disregard of the rights of the many. Yet we earnestly believe and insist that our policy so far from being detrimental to property or to business will be for the good of property and of business. Our policy alone can permanently benefit property and business because our policy is to put both property and business in their proper relations with humanity.
It is peculiarly fitting to speak to the representatives of the Progressive party on Lincoln’s birthday; for we Progressives and we alone are today the representatives of the men of Lincoln’s day who upheld the hands of Lincoln and aided him in the great task to which he gave his life, and in doing which he met his death. I shall ask you tonight to listen while I quote certain sentences of Lincoln’s which possess a curious applicability to the questions of the present day. Lincoln and Lincoln’s supporters were emphatically the progressives of their day, and their violent opponents the Bourbon Democrats and Cotton Whigs of that time held the very principles by which the reactionaries of today including the Tories who now control the machinery of the Republican party, are themselves governed. The official leaders of the Republican party today are the spiritual heirs of the men who warred against Lincoln, who railed at him as a revolutionist, who denounced him for assailing the Supreme Court, who accused him of being a radical, an innovator, an opponent of the Constitution, and an enemy of property. Of course, Lincoln’s principles were actively applied to the great questions of union and slavery, both of which questions have now been solved; and as these questions are dead, the reactionaries of today are delighted to take a progressive position in reference to them the reactionary is always willing to take a progressive attitude on any issue that is dead. But in spite of the fact that Lincoln’s immediate life-work lay almost wholly with these two questions, it is curious to note the exact parallelism of his general attitude with the attitude that the Progressive party has now taken.
In the first place, remember that Abraham Lincoln’s great career began when at the age of forty-five he abandoned the Whig party in which he had been brought up and with which he had always acted, and took part in forming a new party, the Progressive party of that day. The new party in Illinois, in October, 1854, laid down a platform which I quote in part.
“1. Resolved, That we believe this truth to be self-evident, that when parties become subversive of the ends for which they are established, or incapable of restoring the government to the true principles of the Constitution, it is the right and duty of the people to dissolve the political bands by which they may have been connected therewith, and to organize new parties upon such principles and with such views as the circumstances and the exigencies of the nation may demand.
“2. Resolved, That the times imperatively demand the reorganization of parties, and, repudiating all previous party attachments, names and predilections, we unite ourselves together . . . pledged to bring the administration of the government back to the control of first principles.”
Lincoln himself, when upbraided for leaving the old party and allying himself with men from some of whom he differed on some points, responded to his critics by saying: “Will they allow me as an old Whig to tell them good-humoredly that I think this is very silly? Stand with anybody that stands right; stand with him while he is right, and part with him when he goes wrong. Stand with the Abolitionist in restoring the Missouri Compromise and stand against him when he attempts to repeal the fugitive-slave law. In the latter case you stand with the Southern disunionist. What of that? You are still right. In both cases you are right. In both cases you oppose the dangerous extremes. In both you stand on middle ground, and hold the ship level and steady. In both you are national, and nothing less than national. . . . To desert such ground because of any company is to be less than an American.”
With hardly more than the change of a word or two the doctrine enunciated in this old Illinois platform of ’54, the doctrine stated by this Illinois rail-splitter at the same time, contains the absolute justification for the actions of the Progressives today, and shows how fundamentally and basically alike the Progressive movement of today and the Republican movement of 1854 are. In Lincoln’s words too we find that sane and tempered radicalism which he in his great career exemplified as no other man in our history ever exemplified it, and which the Progressive party today in its turn exemplifies. When Lincoln says, “Stand with anybody that stands right; stand with him while he is right, and part with him when he goes wrong,” and when the old Illinois first Republican platform says that “When parties become subversive of the ends for which they are established, it is the right and the duty of the people to dissolve the political bands by which they have been connected therewith, and to organize new parties,” we find the case of the men and women who met in Chicago on August last to launch the new Progressive party put with convincing clearness. Lincoln, who with his strange power of prophetic vision, forecast the present situation, when, in asserting his loyalty to principles rather than to a party name, he said that if the Republican party proved false to its principles, then “these principles round which we have rallied and organized that party would live; they will live under all circumstances, while we will die. They would reproduce another party in the future.” All that Lincoln foretold has come to pass before our eyes. The Republican party has proved false to its principles; and those principles have lived and they have produced another party, the party of progress, which has grasped the banner of righteous liberty from the traitor hands that were trailing it in the dust.
So much then for the right and the duty of the citizens to form a new party when the old parties prove incompetent to help the people. What is true of parties is no less true of issues which underlie the need of parties.
On the issue of his day Lincoln spoke as follows:
“That is the real issue. That is the issue that will continue in this country when these poor tongues of Judge Douglas and myself shall be silent. It is the eternal struggle between these two principles—right and wrong throughout the world. They are the two principles that have stood face to face from the beginning of time; and will ever continue to struggle. The one is the common right of humanity, and the other the divine right of kings. It is the same principle in whatever shape it develops itself. It is the same spirit that says: “You toil and work and earn bread, and I’ll eat it.” No matter in what shape it comes, whether from the mouth of a king who seeks to bestride the people of his own nation and live by the fruit of their labors, or from one race of men as an apology for enslaving another race, it is the same tyrannical principle. Surely the Progressive platform of today is but an amplification of this statement of Lincoln’s. We Progressives are today standing for the common rights of humanity and against the doctrine—whether enunciated by political kings or by money kings, whether championed from a throne, or by a judge from the bench—which announced that it is one man’s duty to toil and work and earn bread and the right of another man to eat it when earned. We who denounce this doctrine are accused of being revolutionary by the very men who now falsely claim heirship in Lincoln’s name although they repudiate Lincoln’s principles. What have these men to say about the words I thus quoted from Lincoln? What sentiment have we ever uttered more revolutionary than this I have quoted?
Again, Lincoln said that as a general rule, much of the plain old democracy is with us, while nearly all the old, exclusive silk-stocking whiggery is against us. I do not mean nearly all the old Whig party, but nearly all the nice, exclusive sort. And why not? There has been nothing in politics since the Revolution so congenial to their nature as the present position of our opponents. Here again, how would it be possible better to describe the exact position of us and of our opponents today?
Again, we have been taunted because we say that we put the man above the dollar, and regard the rights of man as superior to the rights of property. Our opponents say that these statements are demagogic. Well, I quote from Lincoln:
“The Jefferson party was formed upon this supposed superior devotion to the personal rights of man, holding the rights of property to be secondary only and greatly inferior.” (Our opponents) “hold the liberty of one man to be absolutely nothing when in conflict with another man’s right of property.” (We) “on the contrary are for both the man and the dollar, but in case of conflict, we are for the man before the dollar.” How would it be possible to put the Progressive position more strongly than Lincoln thus put it fifty-five years ago! Lincoln said that his opponents claimed to be “conservative, eminently conservative,” while they denounced Lincoln as “revolutionary” and “destructive.” Later he set forth in detail this alleged revolutionary and destructive position, saying: “This is essentially a people’s contest for maintaining in the world that form and substance of government whose leading object is to elevate the condition of man, to lift artificial weights from all shoulders, to clear the paths of laudable pursuit for all, to afford all an unfettered start and a fair chance in the race of life. This is the leading object of the government for whose existence we contend.” Could there be framed a better statement of the purpose of the Progressive party today, to war against privilege and for an equal opportunity; or a better answer to those who accuse us of being revolutionary and destructive?
Again our opponents have attacked us because they say we are trying to substitute pure democracy for representative government, and they uphold the ideal of the present Republican party as being a government of the people, not “by the people,” but by a “representative part” of the people. Our opponents have especially objected to our doctrine that the people have the right to control all their servants, judicial, executive, and legislative alike. Well, listen to Abraham Lincoln. He assailed his opponents because they made “war upon the first principle of popular government, the rights of the people”, because they “boldly advocated” “the denial to the people of the right to participate in the selection of public officers except the legislative,” and because they argued “that large control by the people in government” is the “source of all political evil.” Mind you, I am quoting from Lincoln’s words uttered over fifty years ago. They are applicable in letter and in spirit to our opponents today. They apply without the change of a word to those critics who assail us because we advocate the initiative and the referendum and, where necessary, the recall, and because we stand for the right of the people to control all their public servants, including the judges when the judges exercise a legislative function. Again, special opposition has been made to us because of our supposed attitude in exalting labor at the expense of capital. Well, listen to Lincoln once more. He says that he wishes to make a point in favor of popular institutions and against “the effort to place capital on an equal footing with, if not above, labor in the structure of government.” He continues: “Labor is prior to and independent of capital. Capital is only the fruit of labor, and could never have existed if labor had not first existed. Labor is the superior of capital, and deserves much the higher consideration.” He then adds with his usual temperate wisdom: “Capital has its rights, which are as worthy of protection as any other rights; nor is it denied that there is and probably always will be a relation between capital and labor producing mutual benefits. . . (there should be no) war upon property, or upon the owners of property. Property is the fruit of labor; property is desirable, is a positive good in the world.” And he concludes with a thoroughly Lincoln-like touch: “Let not him who is houseless pull down the house of another; but let him work diligently and build one for himself, thus by example assuring that his own shall be safe from violence when built.” Elsewhere he discussed what he calls “the mud-sill theory of labor” and his own. He states that the advocates of the mud-sill theory assume that labor and education are incompatible, that from their standpoint the ideal laborer is “a strong-handed man without a head.” Down in the bottom of their hearts, this is the precise position that the ultrareactionaries among our opponents take today! Then Lincoln develops his own theory, which is that all men should be educated, and that therefore educated people must labor, because otherwise “education itself would become a positive and intolerable evil, for no country can sustain in idleness more than a small percentage of its numbers. The great majority must labor at something productive, and the ideal is that each particular head should direct and control its own pair of hands.”
Here again surely Lincoln states exactly the Progressive position of today, the Progressive position which the reactionary Republicans of today denounce as radical and revolutionary.
Our opponents are fond of saying that the governmental regulation which we advocate interferes with “liberty.” This is the argument of which certain judges and certain lawyers are most fond. It is the “liberty” which every reactionary court wishes to guarantee to the employer who makes money from the life-blood of those he employs; the “liberty” of the starving girl to starve slowly in a sweat-shop, or to accept employment where she hazards life and limb, at her own risk, in; the service of others. Well, it was Lincoln who said that the reactionaries of his day “sighed for that perfect liberty the liberty of making slaves of other people.”
Even in such seemingly local and temporary matters as fusion, as “getting together” with men who have acted against us, we can learn from Lincoln. In 1859, after the Republican defeat nationally, and his own defeat by Douglas, he clearly outlined why it was desirable for all good citizens to act together without regard to past political differences, but added that it was indispensable that such action should be on the basis of the then Republican platform, the then Progressive platform. He warned one correspondent against the temptation to “lower the standard in order to gather recruits,” saying: “In my judgment such a step would be a serious mistake and open a gap through which more would pass out than pass in. There are many men in the slave States for whom I would cheerfully vote to be either President or Vice-President provided they would be willing to enable me to do so with safety to [our] cause, without lowering [our] standard. This is the indispensable condition of union with us, it is idle to talk of any other.”
To another correspondent he wrote: “As to the matter of fusion, I am for it if it can be had on [progressive] grounds; and I am not for it on any other terms. A fusion on any other terms would be as foolish as unprincipled. It would lose the whole (of what we have) while the common enemy would still carry (all the vote that is hostile to us. The question of men is a different one. There are good patriotic men and able statesmen [in the territory opposed to us whom I would cheerfully support if they would now place themselves on [progressive grounds, but I am against letting down the [progressive standard a hair’s breadth." In these quotations I have merely substituted "Progressive" for the party name of the progressives of Lincoln’s day; and what Lincoln then said as to platform principles, men, and methods, applies exactly to all attempts to fuse or amalgamate the Progressives with any other party in our own days.
Our opponents are especially fond of denouncing our attitude toward the courts, and above all, our demand that the people shall be made masters of the courts as regards constitutional questions. Listen to Lincoln. "We must prevent these things [which are wrong] being done by either congresses or courts. The people of these United States are the rightful masters both of congresses and courts, not to overthrow the Constitution, but to overthrow the men who pervert the Constitution. How is it possible better to state the progressive position today? We wish to see the people the masters of the court not to overthrow the Constitution but to overthrow those who have perverted the Constitution into an antisocial fetish, used to prevent our securing laws to protect the ordinary working man and working woman in their rights.
The language that we have used in denouncing judicial decisions which today have cramped us in the effort to get social and industrial justice is far milder than the language which Lincoln used year after year in denouncing the Dred Scott decision the decision which in his day stood in the path of social and industrial justice. One of Lincoln’s chief opponents attacked him in this matter as follows: “He tells you that he does not like the Dred Scott decision. Suppose he does not, how is he going to help himself? He says that he will reverse it. How will he reverse it? I know of but one mode of reversing judicial decision, and that is by appealing from the inferior court to the superior court. But I have never yet learned how or where an appeal could be taken from the Supreme Court of the United States. The Dred Scott decision was pronounced by the highest tribunal on earth. From that decision there is no appeal this side of Heaven. Yet Mr. Lincoln says that he is going to reverse that decision. By what tribunal will he reverse it? Will he appeal to a mob? Does he intend to appeal to violence, to lynch-law? Will he stir up strife and rebellion in the land, and overthrow the court by violence? He does not deign to tell you how he will reverse the Dred Scott decision, but keeps appealing each day from the Supreme Court of the United States to political meetings in the country. He wants me to argue with you the merits of each point of that decision before this political meeting. I say to you, with all due respect, that I choose to abide by the decisions of the Supreme Court as they are pronounced. It is not for me to inquire, after a decision is made, whether I like it in all the points or not. When I used to practice law with Lincoln, I never knew him to be beat in a case that he did not get mad with the judge and talk about appealing; and when I got beat I generally thought the court was wrong, but I never dreamed of storming the court-house and making a stump speech to the people against the judge, merely because I had found out that I did not know the law as well us he did. If the decision did not suit me, I appealed until I got to the Supreme Court, and then if that court, the highest tribunal in the world, decided against me, I was satisfied, because it is the duty of every law-abiding man to obey the Constitution, the laws, and the constituted authorities. He who attempts to stir up odium and rebellion in the country against the constituted authorities is stimulating the passions of men to resort to violence and to mobs instead of to the law. Hence, I tell you that I take the decisions of the Supreme Court as the law of the land, and I intend to obey them as such.”
With only such changes as are necessary to fit the language to the issues of today instead of to the issues of fifty-five years ago, this denunciation of Lincoln by his opponents for what he then said is practically identical with the denunciation of us by our opponents for what we today say on the same subject. Our opponents now tell us that we must helplessly bow to the decisions of the courts when the decisions are wrong; we say, as Lincoln said of the Dred Scott decision, “somebody has to reverse that decision since it is made, and we mean to reverse it, and we mean to do it peaceably.” We say this of the Dred Scott decisions of our own time; of decisions like the tenement-house cigar-factory decision, like the bakeshop decision, like the Knight Sugar Case, like the Workmen’s Compensation Act decision. Lincoln, in taking the same attitude that we now take, said that he did not propose to disturb that particular decision, but that he would not have the citizen conform his vote to this decision of the Supreme Court nor the member of Congress his, and that he would oppose making it “a rule of political action for the people.” Is not this in principle the very position we Progressives now take? And Lincoln continued: “By resisting it as a political rule, I disturb no right of property, create no disorder, excite no mobs.” What better justification of our own present position could we ask than this which Lincoln made for us half a century ago?
Our position on this matter is fundamentally the position of Lincoln. We do not go as far as Jefferson and Jackson went. Our opponents say that we attack the courts. We do not. We attack judges when they go wrong, just exactly as we attack other people when they do wrong Presidents, senators, congressmen. And here again we follow Lincoln. In one of his speeches Lincoln said distinctly that he believed that there was a proslavery conspiracy between the chief justice of the United States, the outgoing and incoming Presidents of the United States, and a United States senator, the Dred Scott decision being one of the features of that conspiracy. He therefore charged that there was a “conspiracy” between the court and certain leading politicians belonging to the same party. This is an attack far more bitter than any we have ever made upon the courts. Lincoln was not attacking the courts any more than the presidency, although he attacked given individuals who were on the Supreme Court, just as he attacked given individuals who occupied the position of President. This is precisely and exactly the position that the Progressives take today. In his Inaugural Address Lincoln stated that “if the policy of the government on vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court” then “the people will have ceased to be their own rulers, having to that extent resigned the government into the hands of that eminent tribunal.” Senator Bristow’s recently introduced amendments to give to the people the right themselves to decide the policy of the government upon vital questions in cases where they do not agree with decisions rendered by the Supreme Court is but carrying out the principles set forth by Lincoln in this his First Inaugural Address.
At this moment there has occurred in Idaho a decision by the highest State court which within its own limits is an even graver offense against justice and decency, and an even greater blot on the American judiciary, than the Dred Scott decision itself. The reactionary supreme court of Idaho has played into the hands of the Republican machine of which it was itself a part, precisely as Justice Taney and the majority of the Supreme Court of the nation in 1857 played into the hands of Presidents Pierce and Buchanan and the reactionary organization of which he and they were parts. In the campaign last year the Republican machine succeeded by the exercise of flagrant political dishonesty in preventing the will of the rank and file of the Republican party being expressed in the nomination. They then, wherever they dared, sought to deny to the people of the United States the right freely to express at the polls their preference for President. The Republican machine swindled the rank and file of the Republicans out of their rights, and nominated the machine candidate and in forty-six of the forty-eight States he went on the regular ticket without further effort, becoming thus the beneficiary of his and their wrong-doing. In but two States, California and South Dakota, were the Republicans forced to go on the ballot by petition; in precisely the same method by which we Progressives were forced to get on the ticket in the other forty-six States. Everywhere throughout the primary contest and at the subsequent electoral contest we Progressives scrupulously respected every right of the Republicans and saw that they had every chance to give the fullest and freest expression to their desires. But wherever they had the opportunity, the evil political bosses to whose keeping they had surrendered their political consciences, sought to cheat and swindle us. They did this in the primaries here in New York City; and in Washington, in Michigan, in Indiana, in Arizona, in Texas, in Alabama, and in every one of these cases when at the polls we could get even an approximately fair count we overwhelmingly defeated them. But so far as they dared they also tried to tamper with the election machinery so as to thwart the will of the people. In Idaho the result was as grave a miscarriage of justice at the election as had already occurred at the nomination convention, and the court became the most potent instrument in this denial of justice. The election law of Idaho makes no provision for presidential electors. The presidential electors nominated by the old parties in convention were put on under a section which made no direct provision therefor. I think this was quite right, for it was the highest duty of the court to try to favor the voters in expressing freely their choice for the highest office in the land. But when the Progressives sought to place their electors on the ticket by petition, the court, on the motion of the machine Republicans, denied the Progressives this right, stating that the electors were not State officers; and this although the United States Supreme Court had already held that they were not national, and although the Idaho court had itself previously held that in their law the term “State officers” was merely a phrase indicating area or extent of territory. This decision I hold to have been an outrage upon the people of Idaho, and not merely upon them but upon the people of the United States, for any interference with the right of an American in any State to cast his vote and to have it counted for the President of his choice is an offense against the Americans of all States. The Progressives were reduced to the necessity of writing the names of the electors on the ballot, and it is an astounding fact that twenty-five thousand men and women of Idaho were able to do this and to press the old parties hard. I think the result of the vote showed that if we had been given our clear and undoubted rights Idaho’s electoral vote would have been in the Progressive column. The action of the reactionary court, taken in combination with the action of the Republican machine, resulted in the deprivation of the right of the people of Idaho to express their choice for President.
Abraham Lincoln said that he believed the Dred Scott decision represented a conspiracy against liberty between the then Supreme Court and the leading officers of the reactionary party to which that Supreme Court belonged. I believe that with even more justice Abraham Lincoln if alive today could make the same statement about the action of the reactionary court of Idaho in connection with the reactionary leaders of the Republican machine of Idaho. But the court did not stop here. There was in Idaho a newspaper which fearlessly and in entirely proper manner condemned the court for this outrage. The editor and publisher of that paper, and another man connected with them, have been thrown into jail and fined heavily for contempt by the court. The court in its opinion has cited the numerous dynamite outrages and the like that have occurred, as justifying their action. No more extraordinary plea was ever made. I yield to no man in the horror I feel for the Anarchists and for all other criminals who do murder, whether by dynamite or in any other fashion. They cannot be condemned too unsparingly and no legal action against them can be too rigorous. But the damage they do, though great, is by no means as great to the cause of law and order as is that done by a decision such as the decision in question; and no Anarchist ever can or ever will hurt the courts as they are hurt by such action as this of the highest court of the State of Idaho. Remember that if the position of the Idaho court in punishing its critics for contempt is proper, then Abraham Lincoln should have been jailed and fined for his words about the Supreme Court of the United States in connection with the Dred Scott decision. Abraham Lincoln was no more and no less guilty than the three men whom the supreme court of the State of Idaho has imprisoned for contempt because they criticized, in less severe language than Abraham Lincoln’s, a decision as indefensible from every standpoint of law and justice and popular rights as the Dred Scott decision itself. The incident emphasizes the fact that the time had come when it was necessary for such a protest to be made in reference to the courts as the Progressive party has made. Exactly as the attitude of the convicted Progressive editors in Idaho stands on all fours with the attitude of Abraham Lincoln fifty years ago, so the Progressive party in its attitude both toward the recall of judges and toward the right of the people to insist that they and not the judges are to have the ultimate say-so in making their own constitution, takes precisely the attitude of Abraham Lincoln when he said that “the people are the masters of both Congresses and the courts, not to destroy the Constitution, but to overthrow those who would destroy the Constitution.” A case like that in Idaho shows the need of the power of popular recall of the judiciary, a need which I believe could probably be best met by having the judges appointed or elected for life, but subject on petition to recall by popular vote every two years—which system in its essentials would be like that which has actually, although not nominally, obtained in Vermont, except that it would substitute popular vote for legislative action.
This action would not, however, meet all the difficulties of the case. In this State, for instance, there have been many well-meaning judges who, in certain cases, usually affecting labor, have rendered decisions which were wholly improper, wholly reactionary, and fraught with the gravest injustice to those classes of the community standing most in need of justice. What is needed here is not the right to recall the judge, who in some one instance gives a mistaken and reactionary interpretation of the Constitution, but the right of the people themselves to express after due deliberation their definite judgment as to what the Constitution shall permit in the way of legislation for social and industrial justice. Always remember, friends, that I am not speaking of the judicial functions which can properly be called such. I am not speaking of the functions exercised by the judges in other great industrial countries such as France, Germany, or England. I am speaking of the purely political function exercised by the judge in our country, and only in our country, in annulling legislation. The reactionaries, the beneficiaries of privilege, the upholders of special interest, have denounced my proposal as radical. On the contrary, it is conservative. Our proposal is by no means as radical as the system which obtains at the present moment over the border in Canada, which obtains in England as well as in France and Germany. In these countries the judge has no power to question a legislative act. I do not propose to reduce the power of the judge to the level of the judge’s power in these countries. The absurdity of the outcry against my proposal as “revolutionary,” as “destructive” of the dignity of the courts is shown by the fact that I do not propose to shear the judge of any power any English judge possesses or for nearly three centuries has possessed. No English judge today exercises a particle of the power which I propose to take from the American judge, and I propose to leave the American judge power which the English judge does not possess.
Recently the prime minister of Great Britain, in speaking on the Home Rule bill, criticized sharply, and as I believe with justice, the provisions of our American Constitution which have caused the abuses of which we complain, or at least the interpretation which these provisions have been given by the American courts. Mr. Asquith is one of the foremost lawyers of the civilized world. He is the head of the great Liberal party of Great Britain and Ireland. He announced, speaking for the Liberals of Great Britain and Ireland, and for many of the Conservatives, that it was not the practice of the British democracy to submit to the decision of our courts the meaning of phrases such as those which have been invoked by our courts for the denial of the right of the people to do justice. The Liberal papers of Great Britain, and the Home Rule papers of Ireland, heartily backed Mr. Asquith’s statements. They pointed out that what had occurred in America showed that if the courts were given such power in England and Ireland as they have here, the lawyers would grow rich by resisting the enforcement of laws on constitutional grounds, all administration would be checked, the decisions of the courts would be treated with disrespect, and the laws themselves would be tossed from court to court for years in a vain effort to ascertain whether or not they need be enforced. As one of the Liberal dailies phrased it: “The American courts decide usually unfavorably, whether an act establishing an income tax, or workmen’s compensation act, or factory legislation, is law. Judges are not trained for this kind of function, and no man who knows the history of the exercise of this function by American judges will but agree that it erects one of the most galling of all possible tyrannies.”
I am sorry to say that I must agree with this criticism of this feature of our Constitution, or rather, of this practice of construing the Constitution as it has obtained in increasing measure for the last fifty years. Marshall performed a great and needed service, one of the greatest services any statesman ever performed, when in a period of national weakness he put the Supreme Court behind the national ideal. But such a practice as he inaugurated could be maintained permanently only if it was exercised with the greatest moderation. For over half a century it was thus exercised: But under the strain of what I must call class pressure—the pressure of the privileged classes—this power has during the last fifty years come to be exercised in utterly reckless fashion. The result has been in a lamentably large number of cases to make the courts the bulwarks of special privilege against justice. Against this misconception and provision of our Constitution the organization of the Progressive party is the protest of the American people. Rather than have the present practice continued, I believe the people would make the legislature the sole arbiter of its own functions under the Constitution, exactly as is done in England and in Canada. But this I should regret. I would much rather not go to this length. But this much is certain, if any event of the future can be considered certain. If the reactionaries by their foolish violence in objecting to sensible, moderate proposals intended not to abolish but to regulate the exercise of the extraordinary judicial power succeed in delaying every measure of relief, they will finally force the American people to such action because there is no other alternative. I am glad to have the courts retain their present power, provided always that we make living and efficient and practical the power which Abraham Lincoln claimed for the people, the power of being master over the courts exactly as they are master over the legislative bodies and executive officers. One of the prime reasons for the reckless legislation which we so often see in Congress and in State legislatures is the lack of responsibility of members, who believe they can safely pass any law demanded by a section of the people because the courts will declare it unconstitutional. Such a practice is destructive to self-respect in the legislator, it encourages ignorance and tyranny in the judge, and it is ruinous to the interests of the people. Our proposal is that when two of the agencies established by the Constitution for its own enforcement, the legislature and the courts, differ between themselves as to what the Constitution which created them, means, or what it is to be held to mean, then that the people themselves, the people who created the Constitution, who established, whom Abraham Lincoln said are masters of both court and legislature, shall step in and after due deliberation decide what the Constitution is or is not to permit.
I hold that in such a case as the Bakeshop Case, in such a case as the Workmen’s Compensation Act, in such a case as the Tenement-House Cigar-Factory Act, in such a case as the act providing for the safeguarding of dangerous machinery, in such a case as the eight-hour law, that it is for the people themselves to decide whether such a law is or is not to stand on the statute-books. I do not care whether you call this action of theirs “construing” the Constitution or “making” the Constitution. I care for the fact and not for the name. This is the position that Jefferson took when Jefferson said that if the legislature passes an act and the courts decide that it has not the power to pass it, the people must step in to decide which of these agents is to be upheld. In such matters as these I have spoken of, judges have no especial means of knowing the facts. Indeed they usually have less means of arriving at a just conclusion on such a question of policy than has the average man.
The reactionaries of both parties will fight us to the death on this issue. They are entirely willing to express lip-loyalty to Progressive policies if only they can prevent these policies being put into effect. They are entirely willing to express a desire for justice if they keep in the hands of the court the power to nullify every effort to get justice. We must make this nation a real democracy; an economic as well as political democracy free from every taint of either sectional or sectarian hatred; a democracy of true brotherhood which knows neither North nor South, East nor West, which recognizes the right of each man to worship his Creator as he chooses; a democracy which recognizes service and not pleasure as the ideal for every man and woman, which stands for each individual’s performance of his own duty toward others even more than for his insistence upon his rights as against others.
Then, friends, having made a real democracy, we must remember that however good we make the law, more important still is it that the people themselves shall show loyalty in support of the law. I wish to see this made a real democracy, because I believe that our people have the capacity for self-control, for self-mastery. Ever in government there must be control somewhere, mastery somewhere. Ever in government there must be loyalty and obedience to law if law is to prevail. Our purpose should be twofold. We should take from the boss, from the big financier, from the judge himself where the judge even though well-meaning acts against the cause of justice, the power to misrepresent us. We should give that power into the hands of the people. Then we should make it understood by the people that power is a curse to the holder if it is abused, that we the people must show obedience to the law, loyalty to our ideals, self-control, self-mastery, self-restraint. We must act with justice and broad generosity and charity toward one another and toward all men if we are to make this Republic what it must and shall be made, the nation in all the earth where each man can in best and freest fashion live his own life unwronged by others and proudly careful to wrong no other man.