III
THE DEVELOPMENT OF THE POLITICAL SPECIALIST
The corporations were able to secure and to exercise an excessive and corrupt influence on legislation, because their aggrandizement coincided with a process of deterioration in our local political inst.i.tutions. We have seen that the stress of economic compet.i.tion had specialized the American business man and made him almost exclusively preoccupied with the advancement of his own private interests; and one of the first results of this specialization was an alteration in his att.i.tude towards the political welfare of his country. Not only did he no longer give as much time to politics as he formerly did, but as his business increased in size and scope, he found his own interests by way of conflicting at many points with the laws of his country and with its well-being. He did not take this conflict very seriously. He was still reflected in the mirror of his own mind as a patriotic and a public-spirited citizen; but at the same time his ambition was to conquer, and he did not scruple to sacrifice both the law and the public weal to his own prosperity. All unknowingly he began to testify to a growing and a decisive division between the two primary interests of American life,--between the interest of the individual business man and the interest of the body politic; and he became a living refutation of the amiable theories of the Jacksonian Democrat that the two must substantially coincide. The business man had become merely a business man, and the conditions which had made him less of a politician had also had its effect upon the men whose business was that of politics. Just as business had become specialized and organized, so politics also became subject to specialization and organization. The appearance of the "Captain of Industry" was almost coincident with the appearance of the "Boss."
There has been a disposition to treat the "Boss" chiefly as the political creature of the corrupt corporation; and it is undoubtedly true that one of the most important functions of the munic.i.p.al and state "Bosses" has been that of conducting negotiations with the corporations.
But to consider the specialized organization of our local politics as the direct result of specialized organization of American business is wholly to misunderstand its significance. The two processes are the parallel effects of the same conditions and ideas working in different fields. Business efficiency under the conditions prevailing in our political and economic fabric demanded the "Captain of Industry."
Political efficiency under our system of local government demanded the "Boss." The latter is an independent power who has his own special reasons for existence. He put in an embryonic appearance long before the large corporations had obtained anything like their existing power in American politics; and he will survive in some form their reduction to political insignificance. He has been a genuine and within limits a useful product of the American democracy; and it would be fatal either to undervalue or to misunderstand him.
The American system of local self-government encouraged the creation of the political "Boss," because it required such an enormous amount of political business. Some one was needed to transact this business, and the professional politician was developed to supply the need. There was no reason why such a need should have existed; because the amount of political business incident to state government could have been very much economized by a simpler method of organization. But American democratic ideas during the years when the state governments took form were wholly opposed to simplicity of organization. The state const.i.tutions adopted during the period of Jacksonian supremacy seem designed to make local government costly in time and energy and irresponsible in action; and they provided the legal scenery in the midst of which the professional politician became the only effective hero.
The state const.i.tutions were all very much influenced by the Federal instrument, but in the copies many attempts were made to improve upon the model. The Democracy had come to believe that the Federal Const.i.tution tended to encourage independence and even special efficiency on the part of Federal officials; and it proposed to correct such an erroneous tendency in the more thoroughly democratic state governments. No attempt was, indeed, made to deprive the executive and the judicial officials of independence by making them the creatures of the legislative branch; for such a change, although conforming to earlier democratic ideas, would have looked in the direction of a concentration of responsibility. The far more insidious course was adopted of keeping the executive, the judicial, and the legislative branches of the government technically separate, while at the same time depriving all three of any genuine independence and efficiency. The term of the executive, for instance, was not allowed to exceed one or two years. The importance of his functions was diminished. His power of appointment was curtailed. Many of his most important executive a.s.sistants were elected by popular vote and made independent of him. In some few instances he was even deprived of a qualified veto upon legislation. But the legislature itself was not treated much better.
Instead of deriving its power from a short const.i.tution which conferred upon it full legislative responsibilities and powers, the tendency has been to incorporate an enormous ma.s.s of special and detailed legislation in the fundamental law, and so to diminish indefinitely the power of the legislative branch either to be useful or dangerous. Finally state judges instead of being appointed for life were usually elected for limited terms, so that they could scarcely avoid being more "amenable to public opinion." The tendency in every respect was to multiply elections and elective officials, divide responsibility and power, and destroy independence. The more "democratic" these const.i.tutions became, the more clearly the Democracy showed its disposition to distrust its own representatives, and to deprive them of any chance of being genuinely representative.
The object of the Jacksonion Democrat in framing const.i.tutions of this kind was to keep political power in the hands of the "plain people," and to forestall the domination of administrative and legislative specialists. The effect was precisely the opposite. They afforded the political specialist a wonderful opportunity. The ordinary American could not pretend to give as much time to politics as the smooth operation of this complicated machine demanded; and little by little there emerged in different parts of the country a cla.s.s of politicians who spent all their time in nominating and electing candidates to these numerous offices. The officials so elected, instead of being responsible to the people, were responsible to the men to whom they owed their offices; and their own individual official power was usually so small that they could not put what little independence they possessed to any good use. As a matter of fact, they used their official powers chiefly for the benefit of their creators. They appointed to office the men whom the "Bosses" selected. They pa.s.sed the measures which the machine demanded. In this way the professional politician gradually obtained a stock of political goods wherewith to maintain and increase his power.
Reenforced by the introduction of the spoils system first into the state and then into the Federal civil services, a process of local political organization began after 1830 to make rapid headway. Local leaders appeared in different parts of the country who little by little relieved the farmer and the business man of the cares and preoccupations of government. In the beginning the most efficient of these politicians were usually Jacksonian Democrats, and they ruled both in the name of the people and by virtue of a st.u.r.dy popular following. They gradually increased in power, until in the years succeeding the war they became the dominant influence in local American politics, and had won the right to be called something which they would never have dared to call themselves, viz. a governing cla.s.s.
While the local "Boss" nearly always belonged to the political party dominant in his neighborhood, so that he could in ordinary elections depend upon the regular party vote, still the real source of his power consisted in a band of personal retainers; and the means by which such groups were collected and held together contain a curious mixture of corruption and democracy. In the first place the local leader had to be a "good fellow" who lived in the midst of his followers and knew all about them. His influence was entirely dependent upon personal kindliness, loyalty, and good-comradeship. He was socially the playmate and the equal of his followers, and the relations among them were characterized by many admirable qualities. The group was within limits a genuine example of social democracy, and was founded on mutual understanding, good-will, and a.s.sistance. The leader used his official and unofficial power to obtain jobs for his followers. He succored them when in need; he sometimes protected them against the invidious activity of the police or the prosecuting attorneys; he provided excursions and picnics for them in hot weather; he tied them to himself by a thousand bonds of interest and a.s.sociation; he organized them into a clan, who supported him blindly at elections in return for a deal of personal kindliness and a mult.i.tude of small services; he became their genuine representative, whether official or not, because he represented their most vital interests and satisfied their most pressing and intimate needs.
The general method of political organization indicated above was perfected in the two decades succeeding the Civil War. The American democracy was divided politically into a mult.i.tude of small groups, organized chiefly for the purpose of securing the local and individual interests of these groups and their leaders, and supported by local and personal feeling, political patronage, and petty "graft." These groups were a.s.sociated with both parties, and merely made the use of partisan ties and cries to secure the cooperation of more disinterested voters.
The result was that so far as American political representation was merely local, it was generally corrupt, and it was always selfish. The leader"s power depended absolutely on an appeal to the individual, neighborhood, and cla.s.s interests of his followers. They were the "people"; he was the popular tribune. He could not retain his power for a month, in case he failed to subordinate every larger interest to the flattery, cajolery, and nourishment of his local clan. Thus the local representative system was poisoned at its source. The alderman, the a.s.semblyman, or the congressman, even if he were an honest man, represented little more than the political powers controlling his district; and to be disinterested in local politics was usually equivalent to being indifferent.
Although these local clans were the basis of American political organization, they were not, of course, its ultimate fruit. In many of the cities, large and small, and in some of the states the leaders of the local groups were subordinated to one of their number who became the real "Boss" and who strengthened the district organizations by using for their benefit the munic.i.p.al, state, and Federal patronage. The relation of the munic.i.p.al or state "Boss" to the district leaders was similar to the relation which the district leader bore to his more important retainers. The "Boss" first obtained his primacy by means of diplomatic skill or force of character; and his ability to retain it depended upon his ability to satisfy the demands of the district leaders for patronage, while at the same time leading the organization to victory in the local elections. His special duties as "Boss" required personal prestige, strength of will, power of persuasive talking, good judgment of men, loyalty to his promises and his followers, and a complete lack of scruple. Unlike the district leader, however, the munic.i.p.al "Boss"
has tended to become a secretive and somewhat lonely person, who carried on his business behind closed doors, and on whom was visited the odium incurred by this whole system of political organization. The district leader either does not incur or is less affected by this odium, because his social status is precisely that of his followers. The "Boss," on the other hand, by this wealth and public position would naturally be an important member of the society in which he lives, whereas as a matter of fact he has come to be ostracized because of the source of his power and wealth. His leadership over-reached the district clan, which was real social basis; and the consequence was that the "Boss" became, to all appearances, a very unpopular man in the democracy which he ruled.
His secretiveness and his unpopularity point to one of the most important functions of the munic.i.p.al and state "Bosses," to which as yet only incidental reference has been made. The "Boss" became the man who negotiated with the corporations, and through whom they obtained what they wanted. We have already seen that the large corporation, particularly those owning railroad and munic.i.p.al franchises, have found that the purchase of a certain amount of political power was a necessary consequence of their dubious legal position. A traffic of this kind was not one, of course, to which many people could be admitted. It must be transmitted in secret, and by people who possessed full authority. An agreement to secure certain franchises or certain needed legislation in return for certain personal or party favors was not an agreement which could be made between a board of directors and a group of district leaders. If a large number of people were familiar with the details of such negotiations, something more than a hint thereof would be sure to leak out; and unquestionably the fact that a traffic of this kind was part of the political game had much to do with the ability of the munic.i.p.al or state "Boss" to obtain and to keep his power. The profits not only enabled him to increase party funds and to line his own pockets, but it also furnished him with a useful and abundant source of patronage. He could get positions for the political henchmen of his district leaders, not only with the local and state governments, but with the corporations. Thus every "Boss," even those whose influence did not extend beyond an election district, was more or less completely identified with the corporations who occupied within his bailiwick any important relation to the state.
This alliance between the political machines and the big corporations--particularly those who operate railroads or control munic.i.p.al franchises--was an alliance between two independent and coordinate powers in the kingdom of American practical affairs. The political "Boss" did not create the industrial leader for his own good purposes. Neither did the industrial leader create the machine and its "Boss," although he has done much to confirm the latter"s influence.
Each of them saw an opportunity to turn to his own account the individualistic "freedom" of American politics and industry. Each of them was enabled by the character of our political traditions to obtain an amount of power which the originators of those political ideas never antic.i.p.ated, and which, if not illegal, was entirely outside the law.
It so happened that the kind of power which each obtained was very useful to the other. A corporation which derived its profits from public franchises, or from a business transacted in many different states, found the purchase of a local or state machine well within its means and well according to its interests. The professional politicians who had embarked in politics as a business and who were making what they could out of it for themselves and their followers, could not resist this unexpected and lucrative addition to their market. But it must be remembered that the alliance was founded on interest rather than a.s.sociation, on mutual agreement rather than on any effective subordination one to another. A certain change in conditions might easily make their separate interests diverge, and abstract all the profits from their traffic. If anything happened, for instance, to make inter-state railroad corporations less dependent on the state governments, they would no longer need the expense of subsidizing the state machines. There are signs at the present time that these interests are diverging, and that such alliances will be less dangerous in the future than they have been in the past. But even if the alliance is broken, the peculiar unofficial organization of American industry and politics will persist, and will const.i.tute, both in its consequences and its significance, two of our most important national problems.
It would be as grave a mistake, however, absolutely to condemn this process of political organization as it would absolutely to condemn the process of industrial organization. The huge corporation and the political machine were both created to satisfy a real and a permanent need--the needs of specialized leadership and a.s.sociated action in these two primary American activities. That in both of these cases the actual method of organization has threatened vital public interests, and even the very future of democracy has been due chiefly to the disregard by the official American political system of the necessity and the consequences of specialized leadership and a.s.sociated action. The political system was based on the a.s.sumption that the individualism it encouraged could be persuaded merely by the power of words to respect the public interest, that public officials could be deprived of independence and authority for the real benefit of the "plain people,"
and that the "plain people" would ask nothing from the government but their legal rights. These a.s.sumptions were all erroneous; and when a.s.sociated action and specialized leadership became necessary in local American politics, the leaders and their machine took advantage of the defective official system to build up an unofficial system, better suited to actual popular needs. The "people" wanted the government to do something for them, and the politicians made their living and served their country by satisfying the want. To be sure, the "people" they benefited were a small minority of the whole population whose interests were far from being the public interest; but it was none the less natural that the people, whoever they were, should want the government to do more for them than to guarantee certain legal rights, and it was inevitable that they should select leaders who could satisfy their positive, if selfish, needs.
The consequence has been, however, a separation of actual political power from official political responsibility. The public officers are still technically responsible for the good government of the states, even if, as individuals, they have not been granted the necessary authority effectively to perform their task. But their actual power is even smaller than their official authority. They are almost completely controlled by the machine which secures their election or appointment.
The leader or leaders of that machine are the rulers of the community, even though they occupy no offices and cannot be held in any way publicly responsible. Here, again, as in the case of the multi-millionaire, we have an example of a dangerous inequality in the distribution of power, and one which tends to maintain and perpetuate itself. The professional politician is frequently beaten and is being vigorously fought; but he himself understands how necessary he is under the existing local political organization, and how difficult it will be to dislodge him. Beaten though he be again and again, he constantly recovers his influence, because he is performing a necessary political task and because he is genuinely representative of the needs of his followers. Organizations such as Tammany in New York City are founded on a deeply rooted political tradition, a group of popular ideas, prejudices, and interests, and a species of genuine democratic a.s.sociation which are a guarantee of a long and tenacious life. They will survive much of the reforming machinery which is being created for their extirpation.
IV
THE LABOR UNION AND THE DEMOCRATIC TRADITION
One other decisive instance of this specialized organization of American activity remains to be considered--that of the labor unions. The power which the unions have obtained in certain industrial centers and the tightness of their organization would have seemed anomalous to the good Jacksonian Democrat. From his point of view the whole American democracy was a kind of labor union whose political const.i.tution provided for a substantially equal division of the products of labor; and if the United States had remained as much of an agricultural community as it was in 1830, the Jacksonian system would have preserved a much higher degree of serviceability.
Except in the case of certain local Granger and Populist movements, the American farmers have never felt the necessity of organization to advance either their economic or their political interests. But when the mechanic or the day-laborer gathered into the cities, he soon discovered that life in a democratic state by no means deprived him of special cla.s.s interests. No doubt he was at worst paid better than his European a.n.a.logues, because the demand for labor in a new country was continually outrunning the supply; but on occasions he was, like his employer, threatened with merciless compet.i.tion. The large and continuous stream of foreign immigrants, whose standards of living were in the beginning lower than those which prevailed in this country, were, particularly in hard times, a constant menace not merely to his advancement, but to the stability of his economic situation; and he began to organize partly for the purpose of protecting himself against such compet.i.tion. During the past thirty years the work of organization has made enormous strides; and it has been much accelerated by the increasing industrial power of huge corporations. The mechanic and the laborer have come to believe that they must meet organization with organization, and discipline with discipline. Their object in forming trade a.s.sociations has been militant. Their purpose has been to conquer a larger share of the economic product by aggressive a.s.sociated action.
They have been very successful in accomplishing their object. In spite of the flood of alien immigration the American laborer has been able to earn an almost constantly increasing wage, and he devoutly thinks that his unions have been the chief agency of his stronger economic position.
He believes in unionism, consequently, as he believes in nothing else.
He is, indeed, far more aggressively preoccupied with his cla.s.s, as contrasted with his individual interests, than are his employers. He has no respect for the traditional American individualism as applied to his own social and economic standing. Whenever he has had the power, he has suppressed compet.i.tion as ruthlessly as have his employers. Every kind of contumelious reproach is heaped on the heads of the working men who dare to replace him when he strikes; and he does not scruple to use under such conditions weapons more convincing than the most opprobrious epithets. His own personality is merged in that of the union. No individual has any rights as opposed to the interests of the union. He fully believes, of course, in compet.i.tion among employers, just as the employers are extremely enthusiastic over the individual liberty of the working man. But in his own trade he has no use for individuality of any kind. The union is to be composed of so many equal units who will work the same number of hours for the some wages, and no one of whom is to receive more pay even for more work. The unionist, that is, has come to depend upon his union for that material prosperity and advancement which, according to the American tradition, was to be the inevitable result of American political ideas and inst.i.tutions. His attachment to his union has come to be the most important attachment of his life--more important in most cases than his attachment to the American ideal and to the national interest.
Some of the labor unions, like some of the corporations, have taken advantage of the infirmities of local and state governments to become arrogant and lawless. On the occasion of a great strike the strikers are often just as disorderly as they are permitted to be by the local police. When the police prevent them from resisting the employment of strike-breakers by force, they apparently believe that the political system of the country has been pressed into the service of their enemies; and they begin to wonder whether it will not be necessary for them to control such an inimical political organization. The average union laborer, even though he might hesitate himself to a.s.sault a "scab," warmly sympathizes with such a.s.saults, and believes that in the existing state of industrial warfare they are morally justifiable. In these and in other respects he places his allegiance to his union and to his cla.s.s above his allegiance to his state and to his country. He becomes in the interests of his organization a bad citizen, and at times an inhuman animal, who is ready to maim or even to kill another man and for the supposed benefit of himself and his fellows.
The most serious danger to the American democratic future which may issue from aggressive and unscrupulous unionism consists in the state of mind of which mob-violence is only one expression. The militant unionists are beginning to talk and believe as if they were at war with the existing social and political order--as if the American political system was as inimical to their interests as would be that of any European monarchy or aristocracy. The idea is being systematically propagated that the American government is one which favors the millionaire rather than the wage-earner; and the facts which either superficially or really support this view are sufficiently numerous to win for it an apparently increasing number of adherents. The union laborer is tending to become suspicious, not merely of his employer, but of the const.i.tution of American society. His morals are becoming those of men engaged in a struggle for life. The manifestations of this state of mind in notion are not very numerous, although on many occasions they have worn a sufficiently sinister aspect. But they are numerous enough to demand serious attention, for the literature popular among the unionists is a literature, not merely of discontent, but sometimes of revolt.
Whether this aggressive unionism will ever become popular enough to endanger the foundations of the American political and social order, I shall not pretend to predict. The practical dangers resulting from it at any one time are largely neutralized by the mere size of the country and its extremely complicated social and industrial economy. The menace it contains to the nation as a whole can hardly become very critical as long as so large a proportion of the American voters are land-owning farmers. But while the general national well-being seems sufficiently protected for the present against the aggressive a.s.sertion of the cla.s.s interests of the unionists, the legal public interest of particular states and cities cannot be considered as anywhere near so secure; and in any event the existence of aggressive discontent on that part of the unionists must const.i.tute a serious problem for the American legislator and statesman. Is there any ground for such aggressive discontent? How has it come to pa.s.s that the American political system, which was designed to guarantee the welfare and prosperity of the people, is the subject of such violent popular suspicion? Can these suspicions be allayed merely by curbing the somewhat excessive opportunities of the rich man and by the diminution of his influence upon the government? Or does the discontent indicate the existence of more radical economic evils or the necessity of more radical economic reforms?
However the foregoing questions ought to be answered, there can be no doubt as to the nature of the answers, proposed by the unionists themselves. The unionist leaders frequently offer verbal homage to the great American principle of equal rights, but what they really demand is the abandonment of that principle. What they want is an economic and political order which will discriminate in favor of union labor and against non-union labor; and they want it on the ground that the unions have proved to be the most effective agency on behalf of economic and social amelioration of the wage-earner. The unions, that is, are helping most effectively to accomplish the task, traditionally attributed to the American democratic political system--the task of raising the general standard of living; and the unionists claim that they deserve on this ground recognition by the state and active encouragement. Obviously, however, such encouragement could not go very far without violating both the Federal and many state const.i.tutions--the result being that there is a profound antagonism between our existing political system and what the unionists consider to be a perfectly fair demand. Like all good Americans, while verbally asking for nothing but equal rights, they interpret the phrase so that equal rights become equivalent to special rights.
Of all the hard blows which the course of American political and economic development has dealt the traditional system of political ideas and inst.i.tutions, perhaps the hardest is this demand for discrimination on behalf of union labor. It means that the more intelligent and progressive American workingmen are coming to believe that the American political and economic organization does not sufficiently secure the material improvement of the wage-earner. This conviction may be to a large extent erroneous. Certain it is that the wages of unorganized farm laborers have been increasing as rapidly during the past thirty years as have the wages of the organized mechanics. But whether erroneous or not, it is widespread and deep-rooted; and whatever danger it possesses is derived from the fact that it affords to a substantially revolutionary purpose a large and increasing popular following. The other instances of organization for special purposes which have been remarked, have superficially, at least, been making for conservatism. The millionaire and the professional politician want above all things to be let alone, and to be allowed to enjoy the benefit of their conquests. But the labor organizations cannot exercise the power necessary in their opinion to their interests without certain radical changes in the political and economic order; and inasmuch as their power is likely to increase rather than diminish, the American people are confronted with the prospect of persistent, unscrupulous, and increasing agitation on behalf of an economic and political reorganization in favor of one cla.s.s of citizens.
The large corporations and the unions occupy in certain respects a similar relation to the American political system. Their advocates both believe in a.s.sociated action for themselves and in compet.i.tion for their adversaries. They both demand governmental protection and recognition, but resent the notion of efficient governmental regulation. They have both reached their existing power, partly because of the weakness of the state governments, to which they are legally subject, and they both are opposed to any interference by the Federal government--except exclusively on their own behalf. Yet they both have become so very powerful that they are frequently too strong for the state governments, and in different ways they both traffic for their own benefit with the politicians, who so often control those governments. Here, of course, the parallelism ends and the divergence begins. The corporations have apparently the best of the situation because existing inst.i.tutions are more favorable to the interests of the corporations than to the interests of the unionists; but on the other hand, the unions have the immense advantage of a great and increasing numerical strength. They are beginning to use the suffrage to promote a cla.s.s interest, though how far they will travel on this perilous path remains doubtful. In any event, it is obvious that the development in this country of two such powerful and unscrupulous and well-organized special interests has created a condition which the founders of the Republic never antic.i.p.ated, and which demands as a counterpoise a more effective body of national opinion, and a more powerful organization of the national interest.
V
GOVERNMENT BY LAWYERS
The corporation, the politician, and the union laborer are all ill.u.s.trations of the organization of men representing fundamental interests for special purposes. The specialization of American society has not, however, stopped with its specialized organization. A similar process has been taking place in the different professions, arts, and trades; and of these much the most important is the gradual transformation of the function of the lawyer in the American political system. He no longer either performs the same office or occupies the same place in the public mind as he did before the Civil War; and the nature and meaning of this change cannot be understood without some preliminary consideration of the important part which American lawyers have played in American political history.
The importance of that part is both considerable and peculiar--as is the debt of grat.i.tude which the American people owe to American lawyers.
They founded the Republic, and they have always governed it. Some few generals, and even one colonel, have been elected to the Presidency of the United States; and occasionally business men of one kind or another have prevailed in local politics; but really important political action in our country has almost always been taken under the influence of lawyers. On the whole, American laws have been made by lawyers; they have been executed by lawyers; and, of course, they have been expounded by lawyers. Their predominance has been practically complete; and so far as I know, it has been unprecedented. No other great people, either in cla.s.sic, mediaeval, or modern times, has ever allowed such a professional monopoly of governmental functions. Certain religious bodies have submitted for a while to the dominion of ecclesiastical lawyers; but the lawyer has rarely been allowed to interfere either in the executive or the legislative branches of the government. The lawyer phrased the laws and he expounded them for the benefit of litigants. The construction which he has placed upon bodies of customary law, particularly in England, has sometimes been equivalent to the most permanent and fruitful legislation. But the people responsible for the government of European countries have rarely been trained lawyers, whereas American statesmen, untrained in the law, are palpable exceptions. This dominion of lawyers is so defiant of precedent that it must be due to certain novel and peremptory American conditions.
The American would claim, of course, that the unprecedented prominence of the lawyer in American politics is to be explained on the ground that the American government is a government by law. The lawyer is necessarily of subordinate importance in any political system tending towards absolutism. He is even of subordinate importance in a liberal system such as that of Great Britain, where Crown and Parliament, acting together, have the power to enact any desired legislation. The Federal Const.i.tution, on the other hand, by establishing the Supreme Court as the interpreter of the Fundamental Law, and as a separate and independent department of the government, really made the American lawyer responsible for the future of the country. In so far as the Const.i.tution continues to prevail, the Supreme Court becomes the final arbiter of the destinies of the United States. Whenever its action can be legally invoked, it can, if necessary, declare the will of either or both the President and Congress of no effect; and inasmuch as almost every important question of public policy raises corresponding questions of Const.i.tutional interpretation, its possible or actual influence dominates American political discussion. Thus the lawyer, when consecrated as Justice of the Supreme Court, has become the High Priest of our political faith. He sits in the sanctuary and guards the sacred rights which have been enshrined in the ark of the Const.i.tution.
The importance of lawyers as legislators and executives in the actual work of American government has been an indirect consequence of the peculiar function of the Supreme Court in the American political system.
The state const.i.tutions confer a corresponding function on the highest state courts, although they make no similar provision for the independence of the state judiciary. The whole business of American government is so entangled in a network of legal conditions that a training in the law is the beet education which an American public man can receive. The first question asked of any important legislative project, whether state or Federal, concerns its const.i.tutionality; and the question of its wisdom is necessarily subordinate to these fundamental legal considerations. The statesman, who is not a lawyer, suffers under many disadvantages--not the least of which is the suspicion wherewith he is regarded by his legal fellow-statesmen. When they talk about a government by law, they really mean a government by lawyers; and they are by way of believing that government by anybody but lawyers is really unsafe.
The Const.i.tution bestowed upon the American lawyer a constructive political function; and this function has been confirmed and even enlarged by American political custom and practice. The work of finally interpreting the Federal Const.i.tution has rarely been either conceived or executed in a merely negative spirit. The construction, which successive generations of Supreme Court Justices have placed upon the instrument, has tended to enlarge its scope, and make it a legal garment, which was being better cut to fit the American political and economic organism. In its original form, and to a certain extent in its present form, the Const.i.tution was in many respects an ambiguous doc.u.ment which might have been interpreted along several different lines; and the Supreme Court in its official expositions has been influenced by other than strictly legal and verbal reasons--by considerations of public welfare or by general political ideas. But such constructive interpretations have been most cautiously and discreetly admitted. In proclaiming them, the Supreme Court has usually represented a substantial consensus of the better legal opinion of the time; and constructions of this kind are accepted and confirmed only when any particular decision is the expression of some permanent advance or achievement in political thinking by the American lawyer. It becomes consequently of the utmost importance that American lawyers should really represent the current of national political opinion. The Supreme Court has been, on the whole, one of the great successes of the American political system, because the lawyers, whom it represented, were themselves representative of the ideas and interests of the bulk of their fellow-countrymen; and if for any reason they become less representative, a dangerous division would be created between the body of American public opinion and its official and final legal expositors.
If the lawyers have any reason to misinterpret a serious political problem, the difficulty of dealing therewith is much increased, because in addition to the ordinary risks of political therapeutics there will be added that of a false diagnosis by the family doctor. The adequacy of the lawyers" training, the disinterestedness of their political motives, the fairness of their mental outlook, and the closeness of their contact with the national public opinion--all become matters of grave public concern.
It can be fairly a.s.serted that the qualifications of the American lawyer for his traditional task as the official interpreter and guide of American const.i.tutional democracy have been considerably impaired.
Whatever his qualifications have been for the task (and they have, perhaps, been over-estimated) they are no longer as substantial as they were. Not only has the average lawyer become a less representative citizen, but a strictly legal training has become a less desirable preparation for the candid consideration of contemporary political problems.
Since 1870 the lawyer has been traveling in the same path as the business man and the politician. He has tended to become a professional specialist, and to give all his time to his specialty. The greatest and most successful American lawyers no longer become legislators and statesmen as they did in the time of Daniel Webster. They no longer obtain the experience of men and affairs which an active political life brings with it. Their professional practice, whenever they are successful, is so remunerative and so exacting that they cannot afford either the time or the money which a political career demands. The most eminent American lawyers usually remain lawyers all their lives; and if they abandon private practice at all, it is generally for the purpose of taking a seat on the Bench. Like nearly all other Americans they have found rigid specialization a condition of success.
A considerable proportion of our legislators and executives continue to be lawyers, but the difference is that now they are more likely to be less successful lawyers. Knowledge of the law and a legal habit of mind still have a great practical value in political work; and the professional politicians, who are themselves rarely men of legal training, need the services of lawyers whose legal methods are not attenuated by scruples. Lawyers of this cla.s.s occupy the same relation to the local political "Bosses" as the European lawyer used to occupy in the court of the absolute monarch. He phrases the legislation which the ruler decides to be of private or public benefit; and he acts frequently as his employer"s official mouthpiece and special pleader.
No doubt many excellent and even eminent lawyers continue to play an important and an honorable part in American politics. Mr. Elihu Root is a conspicuous example of a lawyer, who has sacrificed a most lucrative private practice for the purpose of giving his country the benefit of his great abilities. Mr. Taft was, of course, a lawyer before he was an administrator, though he had made no professional success corresponding to that of Mr. Root. Mr. Hughes, also, was a successful lawyer. The reform movement has brought into prominence many public-spirited lawyers, who, either as attorney-generals or as district attorneys, have sought vigorously to enforce the law and punish its violators. The lawyers, like every cla.s.s of business and professional men, have felt the influence of the reforming ideas, which have become so conspicuous in American practical politics, and they have performed admirable and essential work on behalf of reform.
But it is equally true that the most prominent and thorough-going reformers, such as Roosevelt, Bryan, and Hearst, are not lawyers by profession, and that the majority of prominent American lawyers are not reformers. The tendency of the legally trained mind is inevitably and extremely conservative. So far as reform consists in the enforcement of the law, it is, of course, supported by the majority of successful lawyers; but so far as reform has come to mean a tendency to political or economic reorganization, it has to face the opposition of the bulk of American legal opinion. The existing political order has been created by lawyers; and they naturally believe somewhat obsequiously in a system for which they are responsible, and from which they benefit. This government by law, of which they boast, is not only a government by lawyers, but is a government in the interest of litigation. It makes legal advice more constantly essential to the corporation and the individual than any European political system. The lawyer, just as much as the millionaire and the politician, has reaped a bountiful harvest from the inefficiency and irresponsibility of American state governments, and from the worship of individual rights.
They have corporations in Europe, but they have nothing corresponding to the American corporation lawyer. The ablest American lawyers have been retained by the special interests. In some cases they have been retained to perform tasks which must have been repugnant to honest men; but that is not the most serious aspect of the situation. The retainer which the American legal profession has accepted from the corporations inevitably increases its natural tendency to a blind conservatism; and its influence has been used not for the purpose of extricating the large corporations from their dubious and dangerous legal situation, but for the purpose of keeping them entangled in its meshes. At a time when the public interest needs a candid reconsideration of the basis and the purpose of the American legal system, they have either opposed or contributed little to the essential work, and in adopting this course they have betrayed the interests of their more profitable clients--the large corporations themselves--whose one chance of perpetuation depends upon political and legal reconstruction.
The conservative believer in the existing American political system will doubtless reply that the lawyer, in so far as he opposes radical reform or reorganization, is merely remaining true to his function as the High Priest of American const.i.tutional democracy. And no doubt it is begging the question at the present stage of this discussion, to a.s.sert that American lawyers as such are not so well qualified as they were to guide American political thought and action. But it can at least be maintained that, a.s.suming some radical reorganization to be necessary, the existing prejudices, interests, and mental outlook of the American lawyer disqualify him for the task. The legal profession is risking its traditional position as the mouthpiece of the American political creed and faith upon the adequacy of the existing political system. If there is any thorough-going reorganization needed, it will be brought about in spite of the opposition of the legal profession. They occupy in relation to the modern economic and political problem a position similar to that of the Const.i.tutional Unionists previous to the Civil War. Those estimable gentlemen believed devoutly that the Const.i.tution, which created the problem of slavery and provoked the anti-slavery agitation, was adequate to its solution. In the same spirit learned lawyers now affirm that the existing problems can easily be solved, if only American public opinion remain faithful to the Const.i.tution. But it may be that the Const.i.tution, as well as the system of local political government built up around the Federal Const.i.tution, is itself partly responsible for some of the existing abuses, evils, and problems; and if so, the American lawyer may be useful, as he was before the Civil War, in evading our difficulties; but he will not be very useful in settling them. He may try to settle them by decisions of the Supreme Court; but such decisions,--a.s.suming, of course, that the problem is as inexorable as was that of the legal existence of slavery in a democratic nation,--such decisions would have precisely the same effect on public opinion as did the Dred Scott decision. They would merely excite a crisis, which they were intended to allay, and strengthen the hands of the more radical critics of the existing political system.
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