2 On Minorities
It is a commonplace of historical science that the forgotten worthies who framed the Constitution of the United States had no belief in democracy. Prof. Dr. Beard, in a slim, sad book, has laboriously proved that most obvious of obviousities. Two prime objects are visible in the Constitution, beautifully enshrouded in disarming words: to protect property and to safeguard minorities—in brief, to hold the superior few harmless against the inferior many. The first object is still carried out, despite the effort of democratic law to make capital an outlaw. The second, alas, has been defeated completely. What is worse, it has been defeated in the very holy of holies of those who sought to attain it, which is to say, in the funereal chamber of the Supreme Court of the United States. Bit by bit this great bench of master minds has gradually established the doctrine that a minority in the Republic has no rights whatever. If they still exist theoretically, as fossils surviving from better days, there is certainly no machinery left for protecting and enforcing them. The current majority, if it so desired to-morrow, could add an amendment to the Constitution prohibiting the ancient Confederate vice of chewing the compressed leaves of the tobacco plant (Nicotiana tabacum); the Supreme Court, which has long since forgotten the Bill of Rights, would promptly issue a writ of nihil obstat, with a series of moral reflections as lagniappe. More, the Supreme Court would as promptly uphold a law prohibiting the chewing of gum (Achras sapota)—on the ground that any unnecessary chewing, however harmless in itself, might tempt great hordes of morons to chew tobacco. This is not a mere torturing of sardonic theory: the thing has been actually done in the case of Prohibition. The Eighteenth Amendment prohibits the sale of intoxicating beverages; the Supreme Court has decided plainly that, in order to enforce it, Congress also has the right to prohibit the sale of beverages that are admittedly not intoxicating. It could, indeed, specifically prohibit near-beer to-morrow, or any drink containing malt or hops, however low in alcohol; the more extreme Prohibitionists actually demand that it do so forthwith.
Worse, a minority not only has no more inalienable rights in the United States; it is not even lawfully entitled to be heard. This was well established by the case of the Socialists elected to the New York Assembly. What the voters who elected these Socialists asked for was simply the privilege of choosing spokesmen to voice their doctrines in a perfectly lawful and peaceable manner,—nothing more. This privilege was denied them. In precisely the same way, the present national House of Representatives, which happens to be Republican in complexion, might expel all of its Democratic members. The voters who elected them would have no redress. If the same men were elected again, or other men of the same views, they might be expelled again. More, it would apparently be perfectly constitutional for the majority in Congress to pass a statute denying the use of the mails to the minority—that is, for the Republicans to bar all Democratic papers from the mails. I do not toy with mere theories. The thing has actually been done in the case of the Socialists. Under the present law, indeed—upheld by the Supreme Court—the Postmaster-General, without any further authority from Congress, might deny the mails to all Democrats. Or to all Catholics. Or to all single taxers. Or to all violoncellists.
Yet more, a citizen who happens to belong to a minority is not even safe in his person: he may be put into prison, and for very long periods, for the simple offense of differing from the majority. This happened, it will be recalled, in the case of Debs. Debs by no means advised citizens subject to military duty, in time of war, to evade that duty, as the newspapers of the time alleged. On the contrary, he advised them to meet and discharge that duty. All he did was to say that, even in time of war, he was against war—that he regarded it as a barbarous method of settling disputes between nations. For thus differing from the majority on a question of mere theory he was sentenced to ten years in prison. The case of the three young Russians arrested in New York was even more curious. These poor idiots were jailed for the almost incredible crime of circulating purely academic protests against making war upon a country with which the United States was legally at peace, to wit, Russia. For this preposterous offense two of them were sent to prison for fifteen years, and one, a girl, for ten years, and the Supreme Court upheld their convictions. Here was a plain case of proscription and punishment for a mere opinion. There was absolutely no contention that the protest of the three prisoners could have any practical result—that it might, for example, destroy the morale of American soldiers 6,000 miles away, and cut off from all communication with the United States. The three victims were ordered to be punished in that appalling manner simply because they ventured to criticise an executive usurpation which happened, at the moment, to have the support of public opinion, and particularly of the then President of the United States and of the holders of Russian government securities.
It must be obvious, viewing such leading cases critically—and hundreds like them might be cited—that the old rights of the free American, so carefully laid down by the Bill of Rights, are now worth nothing. Bit by bit, Congress and the State Legislatures have invaded and nullified them, and to-day they are so flimsy that no lawyer not insane would attempt to defend his client by bringing them up. Imagine trying to defend a man denied the use of the mails by the Postmaster-General, without hearing or even formal notice, on the ground that the Constitution guarantees the right of free speech! The very catchpolls in the courtroom would snicker. I say that the legislative arm is primarily responsible for this gradual enslavement of the Americano; the truth is, of course, that the executive and judicial arms are responsible to a scarcely less degree. Our law has not kept pace with the development of our bureaucracy; there is no machinery provided for curbing its excesses. In Prussia, in the old days, there were special courts for the purpose, and a citizen oppressed by the police or by any other public official could get relief and redress. The guilty functionary could be fined, mulcted in damages, demoted, cashiered, or even jailed. But in the United States to-day there are no such tribunals. A citizen attacked by the Postmaster-General simply has no redress whatever; the courts have refused, over and over again, to interfere save in cases of obvious fraud. Nor is there, it would seem, any remedy for the unconstitutional acts of Prohibition agents. Some time ago, when Senator Stanley, of Kentucky, tried to have a law passed forbidding them to break into a citizen’s house in violation of the Bill of Rights, the Prohibitionists mustered up their serfs in the Senate against him, and he was voted down.
The Supreme Court, had it been so disposed, might have put a stop to all this sinister buffoonery long ago. There was a time, indeed, when it was alert to do so. That was during the Civil War. But since then the court has gradually succumbed to the prevailing doctrine that the minority has no rights that the majority is bound to respect. As it is at present constituted, it shows little disposition to go to the rescue of the harassed freeman. When property is menaced it displays a laudable diligence, but when it comes to the mere rights of the citizen it seems hopelessly inclined to give the prosecution the benefit of every doubt. Two justices commonly dissent—two out of nine. They hold the last switch-trench of the old constitutional line. When they depart to realms of bliss the Bill of Rights will be buried with them.