Monday, May 25, 2015

To Make Students of Socialism, by Thomas Wentworth Higginson

TO MAKE STUDENTS OF SOCIALISM

Dublin, N.H., July 14, 1905.

To the Editor of Harper's Weekly

Sir, - I observe in a recent number of your valuable journal an expression of surprise that my name should be united with others in the formation of an "Intercollegiate Socialist School" which "aims to imbue the minds of the rising generation with socialistic doctrines." This last phrase is your own, for I at least am connected with no organization for the purpose you here state. As to the names with which mine is united I am not concerned; as Theodore Parker used to say "I am not particular with whom I unite in a good action." As to the object in view it is clearly enough stated in the call itself: the movement does not aim to produce socialists, but to create students of socialism.

It is based on the obvious fact that we are more and more surrounded by institutions, such as free schools, free text books, free libraries, free bridges, free water-supplies, free lecture courses, even free universities, which were all called socialistic when first proposed, and which so able a man as Herbert Spencer denounced as socialism to his dying day. Every day makes it more important that this tendency should be studied seriously and thoughtfully, not left to demagogues alone. For this purpose our foremost universities should take the matter up scientifically, as has been done for several years at Harvard University, where there is a full course on "Methods of Social Reform - Socialism, Communism, the Single Tax." etc., given by Professor T.N. Carver. This is precisely what the "Intercollegiate Socialist School" aims at; and those who seriously criticise this object must be classed, I fear, with those medieval grammarians who wrote of an adversary "May God confound thee for thy theory of irregular verbs!"

I am, sir,

Thomas Wentworth Higginson

http://tinyurl.com/m6xr8pm

Saturday, April 25, 2015

GEORGE CREEL SOUNDS CALL TO UNSELFISH NATIONAL SERVICE TO NEWSPAPER MEN

GEORGE CREEL SOUNDS CALL TO UNSELFISH NATIONAL SERVICE TO NEWSPAPER MEN - Editor and Publisher, August 17, 1918

In Address to North Carolina Editors the Chairman of the Committee on Public Information Urges That Our Newspapers Emphasize Truth, Not Tattle, and Carry to Every Person in the Land a Clear Understanding of American Purposes and Ideals—Press the Supreme Power in Developing Morale

CHIEF among the speakers on the programme at the annual convention of the North Carolina Press Association was George Creel, chairman of the Committee on Public Information, who made a talk that will long be remembered by the editors.

Before launching into his set speech, Mr. Creel took occasion to pay a magnificent tribute to Secretary of the Navy Josephus Daniels, himself an editor of note, and a man whom Mr. Creel declared to be one of the "real pillars" of the American Government. The speaker declared that he had read slighting criticism of Mr. Daniels, and had seen him ridiculed in the press, but that a personal acquaintance with the Secretary had quickly disclosed his real worth.

To-day, Mr. Creel declared, America and the whole world know that Josephus Daniels was the right man for his present place, and to any who may have lingering doubts, the efficiency of the American navy is the best answer.

Mr. Creel's speech in part was as follows:

Is Not a Censor

"Let me say at the very outset that I am not the censor or even a censor.

"I took this position because I believed to the freedom of the press, and wanted to be in position where I could help to guard it. You know and I know that this freedom has been often abused, but it is stupid to try to cure an evil by cutting it out. A better way is to crowd it out. Suppression is not a wise remedy. Hope of betterment lies in the slow processes of education and in the development of a capacity for restraint and self-discipline.

"I was not in favor of a censorship law in the beginning, nor am I now in favor of the enactment of any legislation. Aside from the physical difficulties of enforcement, the enormous cost, the overwhelming irritation, and the inevitable tendency of such laws to operate solely against the weak and powerless, I have always had the conviction that our hope must He in the aroused patriotism, the nobler consciences, of the men who make the papers of America.

"The great need is not that we should keep the press from doing hurtful things, but that we should get the press to do the helpful things. The compulsions we want can never be applied from without, but must proceed from within.

"It was upon this theory, when the proposed law failed of passage, that I evolved the voluntary agreement under which the press is its own censor.

"The desires of Government with respect to the concealment from the enemy of military policies, plans, and movements, are set forth in certain specific requests. No law stands behind them. Their observance rests entirely upon honor and patriotism. There are violations, as a matter of course, and papers holding to the unwritten agreement have suffered injury from papers less careful and less honest, but, on the whole, the press has responded in the same spirit of unselfish service that animates the firing line.

"This is the only censorship exercised by the Committee on Public Information.

"In all else the work is positive, the emphasis on expression. The Committee, in plain, is the machinery created by the President of the United States to make the fight for public opinion both in this country and in other countries of the world.

"There is nothing academic in this proposition. Public opinion stands recognized as a vital part of national defence, a mighty force in national attack. The strength of the firing line is not in trench or barricade alone, but has its source in the morale of the civilian population from which the fighting force is drawn.

"As the nation is united, resolute, and convinced of the justice of its cause, so may heroic efforts be expected of its defenders. Disunity and disloyalty tear at the very heart of courage. The Committee fights ignorance, misunderstanding, and disaffection. It works for the maintenance of morale by every process of stimulation. We do not call it propaganda, for that word, in the German hands, has come to be associated with lies and corruptions. Our work is educational and informative, for we have such confidence in our case that we feel that no more than a fair presentation of its facts is needed to win the verdict "Under the pressure of this necessity, the Committee has grown to be a world organization. Not only does it reach deep into every community in the United States, but it carries the aims and objects of America to every land.

Support Based on Understanding

"At every point our accent is on expression, not repression. From the Committee goes out the official war information; In each of the war-making branches we have sworn representatives whose duty it is to open up operations to the inspection of the people as far as military prudence will permit. We believe that public support is a matter of public understanding, and it is our job to take dead wood out of the channels of information, permitting a freer, more continuous flow.

"The press, I feel, is commencing to realize our honesty of purpose, and the military experts are growing to have an increasing faith In the power of absolute frankness. The army and navy, through this Division of Nows, has pledged to the people instant and honest announcement of all casualties, all accidents, all disasters. Bear this in mind when the air fills with rumors about the sinking of a transport, the loss of thousands of soldiers in France, the destruction of the fleet. Brand them as lies, and publish the liar, for the Government does not suppress such news or seek to minimize it. We do not have to conceal reverses, because we do not have to fear for the courage of America.

Accuracy of Committee's Report

"It is for you to remember, and I make the statement with pride, that, while this Committee has issued thousands of releases during the year of its existence, only three of this vast number have ever been questioned as to absolute accuracy.

"The first of these, a direct charge that the Fourth of July statement was a 'fake,' and that our transports had not been attacked by submarines, was met fully by the report of Admiral Gleaves.

"The second complaint, concerned with certain captions for airplane photographs, was largely due to a confusion between training planes and battle planes. The captions referred to training-plane production and the pictures showed clearly that the machines were 1 raining planes.

"The third, a release bearing upon airplane production and shipment, came to us with explicit endorsements that we were without right to question.

"A system of checking and verification is now permitted that will hereafter guard effectively against error.

Foreign-Language Press

"The foreign-language press is dealt with by a distinct division that has enlisted the services of over two hundred volunteer translators. Reports are made on virtually every paper In the United States that is not printed in English, and we try to fight ignorance and untruth with a steady stream of articles selected with particular reference to the race or to the problem of bitterness.

"The Official Bulletin has a daily free circulation of 100,000, and, although a seemingly prohibition price was fixed, over $35,000 has been received in subscriptions in its first year.

"A mobilization has taken place in the advertising. forces of the nation, and from a central office In New York a great army of experts is directed with almost military precision. These men put the Idea and needs of the Government into proper and attractive form, arrange for its presentation in the daily and periodical press, on the billboards of the country, and in the cars, and in the coming year alone will furnish millions of dollars' worth of space to the national service.

"The activities that I have mentioned concern themselves entirely with the domestic situation, but beyond the United States are countries that are Just as much a part of my job as any commonwealth in the Union. It is our right and our necessity to fight for public opinion in every other country in the world, and we make this fight In print, in speech, and on the screen.

"We found that America was dependent upon foreign press agencies for our intercourse with other nations, that the volume of information was small, and what was worse, concerned only with the violent and unusual in our national life. To remedy this evil situation we devised cable and wireless services, and each day one thousand words go out to every foreign capital for distribution to the press of the particular country.

Carrying American Ideals to All Nations

"In Russia alone, as an illustration of activity, our organization stretches from Petrograd to Vladivostok, great printing plants are employed for our work alone, the principal theatres are hired for the exhibition of our pictures, and our speakers and printed appeals, in every one of the varied languages of Austro-Hungary, go into the enemy country wherever possible, along the firing line, into cities and villages, and particularly into the prison camps. The enemy, countries themselves are Invaded through the air. Bombardment planes and balloons, loaded with leaflets and pamphlets that tell the truth to a deluded people, go regularly over the firing lines and far into the land both on the eastern and western fronts.

"There is no activity of the Committee that we are ashamed to reveal, no dollar that is sent on a furtive errand, but peculiarly is this true of our work in other lands. No paper is subsidised, no official is bought, no corruption is employed.

"It is a tremendous fight that the Committee is waging, and to its banners it calls all that Is fine and ardent in our civilian population. This fight for public opinion, both here and all over the world, will not be won until every man, woman, and child enlists as a soldier, standing squarely behind the war, believing passionately In its justice, and combatting lies, prejudices, and misrepresentations just as our men in France combat the Hun.

"It is up to the press to see to It that we do not have to wear gas masks here at home. The press sees, hears, and speaks for the nation. No other medium has such power to rally, to interpret and to enthuse, and as the printed word is conceived in truth, courage, and patriotism, so will a people grow in understanding, unity, and indomitable purpose.

"The tremendous necessities of the hour call every newspaperman to the colors no less than the soldier and the sailor. We, too, must search our hearts, gird our loins, and make vows of loyalty and sacrifice.

Power of Press for National Service "I have a very real pride in our profession. We are the most powerful in the land to-day. Not even the President of the United States can be heard beyond the door of the White House if it were not for the writers that put his messages before the public and send them abroad throughout the world. What of Congress? Its voice would not carry beyond the Capitol if it were not for the printed word.

"Our duty Is to be jealous of our power, and to give it purpose and direction. Make every word count. Cut out the non-essential. That is w*at we have got to do in manufacturing, what we have got to do in every line of business, and equally must the press prepare to give up the unimportant, and devote its space to the essential. When you know that what you write is going to be read by millions, when you know it is going to have power to mould thought; when you know it is going to have power to bring order out of chaos and clarity out of confusion, I say every one of you should have a thrill of conscious power and great responsibility when you sit down and take your pen in hand.

A Heart for News

"What one of us but has heard that ancient phrase, 'a nose for news'? What we need to-day, when men are going forth to fight and die, is a heart for news, a soul for news. None of us but were reared in the faith that that if a dog bit a man, that was not news, but if a man bit a dog that was news. How cheap, and how terrible In its cheapness, is this sort of thing today when the world, like some great shell of the sea echoes unceasingly the moan of mangled men, orphaned children and widowed women.

"The press will not be upon a war basis until it takes away its emphasis from tattle and puts it on truth. It is not enough to give columns to war work news. It is one's life that must be consecrated to the war itself.

"A campaign against the German whisper is peculiarly the duty of the press. It is also the case that the press can carry to all the great message of sacrifice and endeavor, making it reach every man, woman, and child, teaching them that there is more than one kind of service, that there is a service in the shop, a service in the store, a service in the factory, the field, and the home, a service in all the innumerable walks of life, both industrial and commercial, that will be accounted as noble and as heroic as service in the trench or on the great gray ships that guard our shores.

"Partisanship still persists, and while the nation fights for its life, columns are being printed that have no larger object than some mean political advantage.

"The great and overwhelming consciousness of duty is not going to be driven home until the press returns to its historic mission, and again takes its place as a great educational interpretative force in the national life.

"It is the hour of opportunity. It is up to the press to mould the public opinion of America into the iron shapes of an indomitable resolution and there can be no excuse for failure. For, my friends, it is easy to plead a just cause, and never in the history of the world did a people take arms in such purity of purpose, such nobility of resolve."

Archive.org

Saturday, April 18, 2015

Creating a living and breathing Constitution

The United States does not have a living and breathing constitution. So then, how do we build it into one?

Earlier today, I posted the full text of Louis Brandeis' address "The Living Law", which is quite an interesting work. On the one hand, Brandeis does accurately capture public feeling regarding mistreatment by their employers. On the other hand, Brandeis' uses this address to stand back, marvel at his own work, and act like an innocent bystander.

The big key in the address is the court case "Muller v. Oregon", to which Brandeis had a hand in. He doesn't mention that in the address.

The Muller case is important because of the famous(I prefer to look at it as the infamous) 'Brandeis Brief'. Brandeis himself notes the importance of the repercussions of the case in his own writing, I encourage you to read it. To summarize, just a few years after the Lochner and Ritchie cases the courts reversed themselves in regard to legal working hours.

The Brandeis Brief is another great example of what I wrote regarding John Dewey. I will summarize this so that I can move forward. Not all that encompasses progressivism is written in their words, there is also their deeds. In other words, early progressivism is only partially quotable. The real danger of progressivism is the culture of progressivism. The Brandeis Brief is an exemplary example of propaganda by deed. Norman Risjord, in his book Populists and Progressives (page 177), explains this fairly well. Brandeis saw an opportunity and exploited it. Here's how this particular situation works:

1) Louis Brandeis engages in propaganda by deed, abusing the legal system in Muller v Oregon to achieve a particular end.

2) He then publishes his essay on 'The Living Law', which mates the propaganda to the deed and complete the process.

It's a two part activity split apart by 8 years. This also shows the patience progressives have in subverting our way of life.

As to how this plays into the 'living and breathing Constitution', it has been via the courts more than any other that the progressives have had their greatest success in breaking apart the protections that are there in the document to defend we the people against an out of control government. What the Muller case ends up achieving is one break-away, free from constitutional constraint. Peckham's dissent was not an open invitation, yet Brandeis walked through the door anyways. The end result is that instead of the Constitution itself being the de-facto standard by which law is decided, the tit-for-tat comings and goings of the employee vs the employer become the sole standard.

Voila, living and breathing law under a living and breathing constitution. At this point, progressive judges and legalists are not honestly using the constitution as a model, they're pulling quotes and 'sound bites' out of it in order to advance their viewpoints.

A few other things of note: The Supreme Court does not have to hear all cases. It can pick and choose, and defer back to the states. The states have their own constitutions for such things. This sort of nationalism has taken place because the progressives have no use for, as Theodore Roosevelt put it, "squabbling contemptible commonwealths".

Other such court cases which have broken the courts away from constitutional constraint include the J. W. Hampton, Jr. & Co. v. United States case.(1928)

Again, we see the patience of progressives on display. Hampton was 20 years after Muller.

For additional background on how progressives moulded our Constitution into a 'living and breathing' document, see one of the two study papers I have written: Honestly questioning the notion of a Living and Breathing Document - The British Constitution.

http://t.co/UXVUWrsqo4

The Living Law, by Louis Brandeis

THE LIVING LAW (1) (Alt. Link)

By Louis D. Brandeis (2)

The history of the United States, since the adoption of the constitution, covers less than 128 years. Yet in that short period the American ideal of government has been greatly modified. At first our ideal was expressed as “A government of laws and not of men.” Then it became “A government of the people, by the people and for the people.” Now it is “Democracy and social justice.”

In the last half century our democracy has deepened. Coincidentally there has been a shifting of our longing from legal justice to social justice, and - it must be admitted - also a waning respect for law. Is there any causal connection between the shifting of our longing from legal justice to social justice and waning respect for law? If so, was that result unavoidable?

Many different causes contributed to this waning respect for law. Some related specifically to the lawyer, some to the courts and some to the substantive law itself. The lessening of the lawyer’s influence in the community came first. James Bryce called attention to this as a fact of great significance, already a generation ago. Later criticism of the efliciency of our judicial machinery became widespread. Finally, the law as administered was challenged - a challenge which expressed itself vehemently a few years ago in the demand for recall of judges and of judicial decisions.

Many different remedies must be applied before the ground lost can be fully recovered and the domain of law extended further. The causes and the remedies have received perhaps their most helpful discussion from three lawyers whom we associate with Chicago: Professor Roscoe Pound, recently secured for Harvard, who stands pre-eminently in service in this connection; Professor Wigmore; and Professor Freund. Another Chicago Professor, who was not a lawyer but a sociologist, the late Charles R. Henderson, has aided much by intelligent criticism. No court in America has in the last generation done such notable pioneer work in removing the causes of criticism as your own Municipal Court under its distinguished Chief Justice, Harry Olson. And the American Judicature Society, under the efficient management of Mr. Herbert Harley, is stimulating thought and action throughout the country by its dissemination of what is being done and should be done in aid of the reform of our judicial system.

The important contribution which Chicago has made in this connection makes me wish to discuss before you a small part of this large problem.

The Challenge of Existing Law. The challenge of existing law is not a manifestation peculiar to our country or to our time. Sporadic dissatisfaction has doubtless existed in every country at all times. Such dissatisfaction has usually been treated by those who govern as evidencing the unreasonableness of law breakers. The line “No thief e’er felt the halter draw with good opinion of the law,” expresses the traditional attitude of those who are apt to regard existing law as “the true embodiment of everything that's excellent.” It required the joint forces of Sir Samuel Romilly and Jeremy Bentham to make clear to a humane, enlightened and liberty-loving England that death was not the natural and proper punishment for theft. Still another century had to elapse before social science raised the doubt whether theft was not perhaps as much the fault of the community as of the individual.

Earlier Challenges. In periods of rapid transformation, challenge of existing law, instead of being sporadic, becomes general. Such was the case in Athens, twenty-four centuries ago, when Euripides burst out in flaming words against “the trammelings of law which are not of the right.” Such was the case also in Germany during the Reformation, when Ulrich Zasius declared that “All sciences have put off their dirty clothes, only jurisprudence remains in its rags.”

And after the French Revolution, another period of rapid transformation, another poet-sage, Goethe, imbued with the modern scientific spirit, added to his protest a clear diagnosis of the disease:

“Customs and laws, in every place

Like a disease, an heirloom dread,

Still trace their curse from race to race,

And furtively abroad they spread.

To nonsense, reasons self they turn;

Beneficence becomes a pest;

Woe unto thee, thou art a grandson born!

As for the law, born with us, unexpressed

That law, alas, none careth to discern."

The Industrial Revolution. Is not Goethe's diagnosis applicable to the twentieth century challenge of the law in the United States? Has not the recent dissatisfaction with our law as administered been due, in large measure, to the fact that it had not kept pace with the rapid development of our political, economic and social ideals? In other words, is not the challenge of legal justice due to its failure to conform to contemporary conceptions of social justice?

Since the adoption of the federal constitution, and notably within the last fifty years, we have passed through an economic and social revolution which affected the life of the people more fundamentally than any political revolution known to history. Widespread substitution of machinery for hand labor (thus multiplying hundred-fold man’s productivity), and the annihilation of space through steam and electricity, have wrought changes in the conditions of life which are in many respects greater than those which had occurred in civilized countries during thousands of years preceding. The end was put to legalized human slavery - an institution which had existed since the dawn of history. But of vastly greater influence upon the lives of the great majority of all civilized peoples was the possibility which invention and discovery created of emancipating women and of liberating men called free from the excessive toil theretofore required to secure food, clothing and shelter. Yet, while invention and discovery created the possibility of releasing men and women from the thraldom of drudgery, there actually came, with the introduction of the factory system and the development of the business corporation, new dangers to liberty. Large publicly owned corporations replaced small privately owned concerns. Ownership of the instruments of production pass from the workman to the employer. Individual personal relationships between the proprietor and his help ceased. The individual contract of service lost its character, because of the inequality in position between employer and employee. The group relation of employee to employer with collective bargaining became common; for it was essential to the workers’ protection.

Legal Science Static. Political as well as economic and social science noted these revolutionary changes. But legal science - the unwritten or judge-made laws as distinguished from legislation - was largely deaf and blind to them. Courts continued to ignore newly arisen social needs. They applied complacently 18th century conceptions of the liberty of the individual and of the sacredness of private property. Early 19th century scientific half-truths like “The survival of the fittest," which translated into practice meant “The devil take the hindmost," were erected by judicial sanction into a moral law. Where statutes giving expression to the new social spirit were clearly constitutional, judges, imbued with the relentless spirit of individualism, often construed them away. Where any doubt as to the constitutionality of such statutes could find lodgment, courts all too frequently declared the acts void. Also in other countries the strain upon the law has been great during the last generation; because there also the period has been one of rapid transformation; and the law has everywhere a tendency to lag behind the facts of life. But in America the strain became dangerous; because constitutional limitations were invoked to stop the natural vent of legislation. In the course of relatively few years hundreds of statutes which embodied attempts (often very crude) to adjust legal rights to the demands of social justice were nullified by the courts, on the grounds that the statutes violated the constitutional guaranties of liberty or property. Small wonder that there arose a clamor for the recall of judges and of judicial decisions and that demand was made for amendment of the constitutions and even for their complete abolition. The assaults upon courts and constitutions culminated in 1912. They centered about two decisions: the Lochner case,(3) in which a majority of the judges of the Supreme Court of the United States had declared void a New York law limiting the hours of labor for bakers, and the Ives case,(4) in which the New York Court of Appeals had unanimously held void its accident compensation law.

The Two Ritchie Cases. Since 1912, the fury against the courts has abated. This change in the attitude of the public towards the courts is due not to any modification in judicial tenure, not to amendment of the constitutions, but to the movement, begun some years prior to 1912, which has more recently resulted in a better appreciation by the courts of existing social needs.

In 1895 your Supreme Court held in the first Ritchie case(5) that the eight hour law for women engaged in manufacturing was unconstitutional. In 1908 the United States Supreme Court held in Muller v. Oregon(6) that the Women's Ten Hour Law was constitutional. In 1910 your Supreme Court held the same in the second Ritchie case.(7) The difference in decision in the two Ritchie cases was not due to the difference between a ten hour day and an eight hour day; for the Supreme Court of the United States has since held (as some state courts had held earlier) that an eight hour law also was valid; and your Illinois Supreme Court has since sustained a nine hour law. In the two Ritchie cases the same broad principles of constitutional law were applied. In each the right of a legislature to limit (in the exercise of the police power) both liberty of contract and use of property was fully recognized. But in the first Ritchie case the court, reasoning from abstract conception, held a limitation of working hours to be arbitrary and unreasonable; while in the second Ritchie case, reasoning from life, it held the limitation of hours not to be arbitrary and unreasonable. In other words, - in the second Ritchie case it took notice of those facts of general knowledge embraced in the world's experience with unrestricted working hours, which the court had in the earlier case ignored. It considered the evils which had flowed from unrestricted hours, and the social and industrial benefit which had attended curtailed working hours. It considered likewise the common belief in the advisability of so limiting working hours which the legislatures of many states and countries evidenced. In the light of this evidence as to the world's experience and beliefs, it proved impossible for reasonable judges to say that the legislature of Illinois had acted unreasonably and arbitrarily in limiting the hours of labor.

The Two Night Work Cases. Decisions rendered by the Court of Appeals of New York show even more clearly than do those of Illinois the judicial awakening to the facts of life.

In 1907, in the Williams case,(8) that court held that an act prohibiting night work for women was unconstitutional. In 1915, in the Schweinler case(9) it held that a similar night work act was constitutional. And with great clearness and frankness the court set forth the reason:

“While theoretically we might [then] have been able to take judicial notice of some of the facts and of some of the legislation now called to our attention as sustaining the belief and opinion that night work in factories is widely and substantially injurious to the health of women, actually very few of these facts were called to our attention, and the argument to uphold the law on that ground was brief and inconsequential.

“Especially and necessarily was there lacking evidence of the extent to which, during the intervening years, the opinion and belief have spread and strengthened that such night work is injurious to women; of the laws as indicating such belief, since adopted by several of our own states and by large European countries, and the report made to the legislature by its own agency, the factory investigating commission, based on investigation of actual conditions and the study of scientific and medical opinion that night work by women in factories is generally injurious, and ought to be prohibited.

* * *

“So, as it seems to me, in view of the incomplete manner in which the important question underlying this statute - the danger to women of night work in factories - was presented to us in the Williams case, we ought not to regard its decision as any bar to a consideration of the present statute in the light of all the facts and arguments now presented to us and many of which are in addition to those formerly presented, not only as a matter of mere presentation, but because they have been developed by study and investigation during the years which have intervened since the Williams decision was made. There is no reason why we should be reluctant to give effect to new and additional knowledge upon such a subject as this, even if it did lead us to take a different view of such a vastly important question as that of public health or disease than formerly prevailed. Particularly do I feel that we should give serious consideration and great weight to the fact that the present legislation is based upon and sustained by an investigation by the legislature deliberately and carefully made through an agency of its own creation, the present factory investigating commission.”

Eight years elapsed between the two decisions. But the change in the attitude of the court had actually come after the agitation of 1912. As late as 1911, when the court in the Ives case(10) held the first accident compensation law void, it refused to consider the facts of life, saying:

“The report [of the commission appointed by the legislature to consider that subject before legislating] is based upon a most voluminous array of statistical tables, extracts from the works of philosophical writers and the industrial laws of many countries, all of which are designed to show that our own system of dealing with industrial accidents is economically, morally, and legally unsound. Under our form of government, however, courts must regard all economic, philosophical, and moral theories, attractive and desirable though they may be, as subordinate to the primary question whether they can be moulded into statutes without infringing upon the letter or spirit of our written constitutions. In that respect we are unlike any of the countries whose industrial laws are referred to as models for our guidance. Practically all of these countries are so-called constitutional monarchies in which, as in England, there is no written constitution, and the Parliament of law-making body is supreme. In our country the federal and state constitutions are the charters which demark the extent and the limitations of legislative power; and while it is true that the rigidity of a written constitution may at times prove to be a hindrance to the march of progress, yet more often its stability protects the people against the frequent and violent fluctuations of that which, for want of a better name, we call ‘public opinion'."

On the other hand in July, 1915, in the Jensen case,(11) the court holding valid the second compensation law (which was enacted after a constitutional amendment), said:

“We should consider practical experiences, as well as theory, in deciding whether a given plan in fact constitutes a taking of property in violation of the constitution. A compulsory scheme of insurance to secure injured workmen in hazardous employments and their dependents from becoming objects of charity certainly promotes the public welfare as directly as does an insurance of bank depositors from loss."

The Struggle Continues. The court re-awakened to the truth of the old maxim of the civilians ex facto oritur jus. It realized that no law, written or unwritten, can be understood without a full knowledge of the facts out of which it arises, and to which it is to be applied. But the struggle for the living law has not been fully won. The Lochner case has not been expressly overruled. Within six weeks, the Supreme Judicial Court of Massachusetts, in supposed obedience to its authority held invalid a nine hour law for certain railroad employees.(12) The Supreme Court of the United States which, by many decisions had made possible in other fields the harmonizing of legal rights with contemporary conceptions of social justice, showed by its recent decision in the Coppage case(13) the potency of mental prepossessions. Long before it had recognized(14) that employers “and their operatives do not stand upon an equality,” that “the legislature being familiar with local conditions is primarily the judge of the necessity of such enactments”;(15) and that unless a “prohibition is palpably unreasonable and arbitrary we are not at liberty to say that it passes beyond the limitation of a state’s protective authority.”(16) And in the application of these principles it had repeatedly upheld legislation limiting the right of free contract between employer and employee. But in the Adair(17) case, and again in the Coppage case,(18) it declared unconstitutional a statute which prohibited an employer from requiring as a condition of his securing or retaining employment, that the workman should not be a member of a labor union. Without considering that Congress or the Kansas legislature might have had good cause to believe that such prohibition was essential to the maintenance of trade unionism, and that trade unionism was essential to securing equality between employer and employee, our Supreme Court of the United States declared that the enactment of the anti-discrimination law was an arbitrary and unreasonable interference with the right of contract.

The Business Men's Protest. The challenge of existing law does not, however, come only from the working classes. Criticism of the law is widespread among business men. The tone of their criticism is more courteous than that of the working classes; and the specific objections raised by business men are different. Business men do not demand recall of judges or of judicial decisions. Business men do not ordinarily seek constitutional amendments. They are more apt to desire repeal of statutes than enactment. But both business men and working men insist that courts lack understanding of contemporary industrial conditions. Both insist that the law is not “up to date." Both insist that the lack of familiarity with the facts of business life results in erroneous decisions. In proof of this business men point to certain decisions under the Sherman Law, and certain applications of the doctrine of contracts against public policy-decisions like the Dr. Miles Medical Co. case,(19) in which it is held that manufacturers of a competitive trademarked article cannot legally contract with retailers to maintain a standard selling price for their article, and thus prevent ruinous price cutting. Both business men and working men have given further evidence of their distrust of the courts and,of lawyers by their efforts to establish non-legal tribunals or commissions to exercise functions which are judicial (even where not legal) in their nature, and by their insistence that the commissions shall be manned with business and working men instead of lawyers. And business men have been active in devising other means of escape from the domain of the courts, as is evidenced by the widespread tendency to arbitrate controversies through committees of business organizations.

An Inadequate Remedy. The remedy so sought is not adequate, and may prove a mischievous one. What we need is not to displace the courts, but to make them efficient instruments of justice; not to displace the lawyer, but to fit him for his official or judicial task. And indeed the task of fitting the lawyer and the judge to perform adequately the functions of harmonizing law with life is a task far easier of accomplishment than that of endowing men, who lack legal training, with the necessary qualifications.

The training of the practicing lawyer is that best adapted to develop men not only for the exercise of strictly judicial‘functions, but also for the exercise of administrative functions, quasi-judicial in character. It breeds a certain virile, compelling quality, which tends to make the possessor proof against the influence of either fear or favor. It is this quality to which the prevailing high standard of honesty among our judges is due. And it is certainly a noteworthy fact that in spite of the abundant criticism of our judicial system, the suggestion of dishonesty is rare; and instances of established dishonesty are extremely few.

The All Round Lawyer. The pursuit of the legal profession involves a happy combination of the intellectual with the practical life. The intellectual tends to breadth of view; the practical to that realization of limitations which are essential to the wise conduct of life. Formerly the lawyer secured breadth of view largely through wide professional experience. Being a general practitioner, he was brought into contact with all phases of contemporary life. His education was not legal only; because his diversified clientage brought him, by the mere practice of his profession, an economic and social education. The relative smallness of the communities tended to make his practice diversified not only in the character of matters dealt with, but also in the character or standing of his clients. For the same lawyer was apt to serve at one time or another both rich and poor, both employer and employee. Furthermore - nearly every lawyer of ability took some part in political life. Our greatest judges, Marshall, Kent, Story, Shaw, had secured this training. Oliver, in his study of Alexander Hamilton, pictured the value of such training in public affairs:

“In the vigor of his youth and at the very summit of hope, he brought to the study of the law a character already trained and tested by the realities of life, formed by success, experienced in the facts and disorders with which the law has to deal. Before he began a study of the remedies he had a wide knowledge of the conditions of human society. * * * With him * * * the law was * * * a reality, quick, human, buxom and jolly, and not a formula, pinched, stiff, banded and dusty like a royal mummy of Egypt."

Hamilton was an apostle of the living law.

The Specialist. The last fifty years have wrought a great change in professional life. Industrial development and the consequent growth of cities have led to a high degree of specialization - specialization not only in the nature and class of questions dealt with, but also specialization in the character of clientage. The term “corporation lawyer” is significant in this connection. The growing intensity of professional life tended also to discourage participation in public affairs, and thus the broadening of view which comes from political life was lost. The deepening of knowledge in certain subjects was purchased at the cost of vast areas of ignorance and grave danger of resultant distortion of judgment.

The effect of ‘this contraction of the lawyers’ intimate relation to contemporary life was doubly serious; because it came at a time when the rapidity of our economic and social transformation made accurate and broad knowledge of present day problems essential to the administration of justice. “Lack of recent information,” says Matthew Arnold, “is responsible for more mistakes of judgment than erroneous reasoning.”

The judge came to the bench unequipped with the necessary knowledge of economic and social science, and his judgment suffered likewise through lack of equipment in the lawyers who presented the cases to him. For a judge rarely performs his functions adequately unless the case before him is adequately presented. Thus were the blind led by the blind. It is not surprising that under such conditions the laws as administered failed to meet contemporary economic and social demands.

The True Remedy. We are powerless to restore the general practitioner and general participation in public life. Intense specialization must continue. But we can correct its distorting effects by broader education - by study undertaken preparatory to practice - and continued by lawyer and judge throughout life: Study of economics and sociology and politics which embody the facts and present the problems of today.

“Every beneficent change in legislation,” Professor Hendeson said, "comes from a fresh study of social conditions, and social ends, and from such rejection of obsolete laws to make room for a rule which fits the new facts. One can hardly escape from the conclusion that a lawyer who has not studied economics and sociology is very apt to become a public enemy."

Your former townsman, Charles R. Crane, told me once the story of two men whose lives he would have cared most to have lived. One was Bogigish, a native of the ancient city of Ragusa off the coast of Dalmatia, - a deep student of law, who after gaining some distinction at the University of Vienna, and in France, became Professor at the University of Odessa. When Montenegro was admitted to the family of nations, its Prince concluded that, like other civilized countries, it must have a code of law. Bogigish’s fame had reached Montenegro, - for Ragusa is but a few miles distant. So the Prince begged the Czar of Russia to have the learned jurist prepare a code for Montenegro. The Czar granted the request; and Bogigish undertook the task. But instead of utilizing his great knowledge of laws to draft a code, he proceeded to Montenegro, and for two years literally made his home with the people, studying everywhere their customs, their practices, their needs, their beliefs, their points of view. Then he embodied in law the life which the Montenegrins lived. They respected that law; because it expressed the will of the people.


Footnotes:

1. An address delivered before the Chicago Bar Association, January 3rd, 1916.

2. Or the Massachusetts Bar.

3. Lochner v. New York, 198 U. S. 45.

4. Ives v. South Buffalo Ry. Co., 201 N. Y. 271.

5. Ritchie v. People, 155 Ill. 98.

6. Muller v. Oregon, 208 U. S. 412.

7. W. C. Ritchie & Co. v. Wagman, 244 Ill. 509.

8. People v. Williams, 189 N. Y. 131.

9. People v. Charles Schweinler Press, 214 N. Y. 395.

10. Ives v. South Buffalo Ry. Co., 201 N. Y. 271.

11. Jensen v. Southern Pacific Co. (N. Y.) 109 N. E. R. 600

12. Commonwealth v. B. & M. R. R. (Mass.) 110 N. E. R. 264.

13. Coppage v. Kansas, 236 U. S. 1.

14. See 219 U. S. 570.

15. See 219 U. S. 569.

16. See 238 U. S. 452.

17. Adair v. U. S. 208 U. S. 161.

18. Supra.

19. Dr. Miles Medical Co. v. Park & Sons Co., 220 U. S. 409.

Merrie England is The Poor Man's Plato

In the Review of Reviews, William Thomas Stead wrote this about Robert Blatchford's socialist book ""Merrie England".

THE POOR MAN'S PLATO

Notwithstanding his modest disavowal of writing anything but plain practical letters to practical people, he cannot keep out his idealism. His book is far more than a racy vorsion of economic Socialism. It is full of a fine ethical spirit. It has a warm human heart behind it. And the literary freedom with which these appear shows them to be no stage properties. It is the human qualities of the work which help to explain its vogue and bid fair to extend it. Doubtless "Nunquam's" admirers are prepared to say that if Marx's "Capital" may be called the German worker's Bible, "Merrie England" is our poor man's Plato.

President elect Wilson's speech to the Southern Society

https://archive.org/details/WoodrowWilsonToSouthernSociety

Saturday, April 4, 2015

Name Change: League for Industrial Democracy

In 1921, the Intercollegiate Socialist Society changed its name to the "League for Industrial Democracy". There is more to be discussed in that one sentence than I could adequately cover here, so I am only going to cover points related to the article I just posted, titled "I.S.S. Gives Way to New League for Democracy". This article originally appeared in a New York newspaper called "The Call" or "New York Call", which was at the time a communist publication. Published originally in 1921; what I published would then be in the public domain, however, Google Books still presents a challenge.

There are three major points to this article which really highlight what kind of organization the LID truely was:

1) Norman Thomas stated that the League is designed to stir up "tired radicals" of the "red, the near red and the infra red" variety.

This doesn't need much explanation from me.

2) The reason why the League would have you think it changed its name is to expand its ranks and nothing else - and to this there is certainly a verifiable truth. But that's not the key. This:

There is not a single college that has not availed itself of the war period to 'clean house'," Mr. Nearing asserted. He said that the house cleaning had been particularly severe in the department of sociology, where more care is devoted to the selection of the professors than in any other field of study.

In the period right around the turn of the 1920s, socialism was a very dirty word. The socialists and progressives had not yet completed their task of capturing all colleges, and this 'house cleaning' he is referring to was under way, rolling back the clock on their efforts. But that's not the important part. The important part is the name change itself. Name changing is foundational for progressive ideology and goes back as far as they do. These people will never ever give up their beliefs, they will just find a new way to lie to you about what they really believe. So in that sense, the progressive is the ultimate propagandist. To put this another way, Saul Alinsky wrote about means and ends in the 60's, these people lived it in the 20s, nearly 40 years prior.

One of the big reasons that progressives have had continued success, I think, is because nobody wants to pay attention to the crazies. To be honest, I don't want to either, but I recognize that I must otherwise I might as well put the chains of slavery on my own arms and not wait for them to do it. Paying attention to tyranny is the price to be paid of Liberty. There's one last thing:

3) "The league proposes to do its share in changing the social order. That phrase is "gentle and deadly," according to the prospectus of the new society, which was on hand in printed form for distribution last night."

What phrase? Unfortunately, I was unsuccessful at accessing 100% of the article. I did however, capture enough to drive the point home as to what the article is about.(so that the article says what it says, and not a casting by myself or anybody else)

So, let's get at this phrase. The New Republic captures much of the same language: (page 73)

Only one main idea is in sight with driving force and the power to capture the imagination of men. That idea concerns itself with changing the basis of civilization. It is the idea of production for use. Production for use is a seemly phrase, so sound that sections of the church have accepted it, so far-reaching that it will bring down the walls of Jericho. It is gentle and deadly. It says that the present order is ethically indefensible and economically unsound. It makes the community the instrument and arbiter of social change. It says that the consumer, the citizen, the "average man" is the person whose interests are the main concern.

Take note that this article in TNR was written written in 1921(the same year the League launched), by Arthur Gleason, who as you can see in the article I posted today was an Officer of the League. So he would be in the position to know about it being "gentle and deadly".