The "New Freedom" and the Courts (page 544)
"Some ten months ago the Progressive party at its first national convention, promulgated a platform of principles which I verily believe that lovers of clean and decent politics, that believers in sound and enlightened statesmanship and upholders of social and industrial justice, will in the future recognize as one of the great documents in American political history. In that document we laid down certain principles the truth of which and the need for the application of which have been almost startlingly shown by events that have occurred since election. We declared, for instance, in favor of the National Government's undertaking on a gigantic scale the work of harnessing the rivers and controlling the floods throughout the Mississippi basin, using for that purpose the outfit that has been used in building the Panama Canal. The floods of last spring, the untold havoc they wrought from Ohio to Louisiana, surely emphasize the need of the demand the Progressives then made. We Americans are sometimes a short-sighted and forgetful people, and it will be a dreadful thing if we now forget the lesson thus taught and let Congress proceed on the old familiar "pork-barrel" theory of dealing with our river systems, a theory almost completely lacking in good results and fraught with incalculable waste, extravagance, and political trickery.
In the same way, the demand that the Progressive party made for national regulation of corporations and combinations so as to favor them in doing legitimate business and at the same time to insure their doing justice to their rivals, to their customers, and to their employees, has been emphasized by what has occurred in the West Virginia bituminous coal fields. The utter futility of the plan of action, or rather non-action, advocated in both the Republican and Democratic platforms last year, and christened by President Wilson with magniloquent vagueness the "New Freedom," has been strikingly shown by what has thus occurred in West Virginia. The worth of any such phrase as this of our scholarly and well-intentioned President lies in its interpretation. A careful study of the articles that have appeared by President Wilson dealing with this subject since he was President has left us some what puzzled as to what he really does mean; but of course I assume that there must be meaning, and if this assumption is warranted, then the "New Freedom" means nothing whatever but the old license translated into terms of pleasant rhetoric. The "New Freedom" is nothing whatever but the right of the strong to prey on the weak, of the big men to crush down the little men, and to shield their iniquity beneath the cry that they are exercising freedom. The "New Freedom" when practically applied turns out to be that old kind of dreadful freedom which leaves the unscrupulous and powerful free to make slaves of the feeble. There is but one way to interfere with this freedom to inflict slavery on others, and that is by invoking the supervisory, the regulatory, the controlling, and directing power of the government precisely as the Progressives last year demanded in their platform, and as I and those like me demanded in our speeches. Every honest and law-abiding business man when once he realizes what the situation actually is will welcome our proposals; and for the wage-worker and the small man in business, the only hope of permanent relief comes through our program.
It is vital to remember always that in dealing with a great wrong what is necessary is to do away with the conditions that create the wrong. In West Virginia it was not the men responsible for putting a stop to rioting and lawlessness who were to blame; it was their sworn duty to put a stop to rioting and lawlessness, and if this could only be done by the establishment of martial law, then martial law had to be established. The men responsible for government had to face the evil conditions created by the extremists of both sides in the absence of thoroughgoing governmental regulation and control. They had to face the greed and avarice of capital at its worst and arrayed over against it a spirit of revolt, proper in itself, but which, alas i too often developed into a murderous and violent anarchy. The government should not content itself merely with restoring law and order; although this is the essential first step, it is only the first step; and when law and order have been obtained a system of fair play must be established or the evil will return with increasing violence. What is needed is the thorough rooting out of the conditions which brought about the dreadful state of affairs in the West Virginia bituminous fields.
The basis of the whole trouble is the fact that under the notions of unlimited competition, which is what the " New Freedom " in practice amounts to, the bituminous-coal mine business is competing to death. In that region we see in actual operation the ever-competitive conditions to which the advocates of the "New Freedom" would have us return under the impression that they offer a panacea for all our ills. The "New Freedom" has actually obtained in the West Virginia coal-fields, with the result that there is little money in it for the operators, that the business is conducted with extreme wastefulness, that it is very dangerous, and that the main source of profit left the mine-owner is what he can squeeze out of his laborers, so that he has exploited them in every way ranging from unjustifiable injunctions issued by judges in the interest of unscrupulous capitalists to the "pluck-me" stores of the capitalists themselves. The worst injunctions, so far as my remembrance goes, in the whole history of the United States have been granted in West Virginia. Ten years ago some of the injunctions then granted by Judge Jackson read as the veriest travesty upon justice. Under the pressure of an unenlightened capitalistic opinion, the West Virginian courts have rendered decisions-in strict accordance with the principles of the "New Freedom"- which themselves serve as the most striking object-lessons of the need of the wide-spread application of Progressive principles.
In the district where the rioting has occurred the employing operators have not only discriminated in utterly unjust and antisocial fashion against labor-unions, but have endeavored to keep the miners in a state of practical serfage by the use of the company stores. A company store is a store run by the employers of the wage-workers at which the wage-workers are required by direct or indirect pressure to make their purchases, paying them in part or in whole by orders upon these stores. Every man acquainted with the conditions of labor where they are worst and most degrading, knows that this type of company store is one of the most effective of all agencies in the work of degradation.
This fact has been recognized and the practice forbidden in most civilized countries, in England, for instance, again and again. Indeed in England legislation was passed forbidding this practice more than seventy years ago ! and yet now we in America, we who on the Fourth of July are fond of claiming to be in the forefront of progress, actually permit the continuance of the intolerable practices which have passed out of the memory of the oldest man in England. The West Virginia legislature did its duty by passing laws requiring the cash payment of wages, and prohibiting persons and corporations engaged in mining and manufacture from selling any merchandise or supplies from stores to their employees at a greater percentage of profit than to outsiders. These laws were contested in the courts as unconstitutional. Half of the judges declared that they were constitutional, and were in the interests not only of justice but of domestic peace; and I think all minds not smothered in legalism will agree with them. But as a whole the West Virginia court has repudiated the principle of justice upon which these laws were based, and has declared that they were ineffective, as in contravention of the Constitution. The court explicitly states that a contract for labor is property, thereby putting the life-blood of men, women, and V children on a level with the commodities they produce, and declares for that form of the "New Freedom" which invokes the Constitution in order to forbid any interference with those evil and dreadful methods of buying and selling property and contracting in respect thereto which ruin the wage-worker. The mining companies have made enormous profits from their employees through this store-order business; and, by the way, the Progressive party everywhere should emphatically take ground against it and in favor of the cash-payment system and in favor moreover of having that system adopted notwithstanding the opinion of any reactionary court in reference thereto.
The study of the West Virginia cases shows the imperative need of introducing as speedily as possible that plank of the Progressive platform which will make the people really and not merely nominally, the sovereign power as regards the exercise of the most vital of the functions of sovereign power, the function of deciding what the laws, and above all the fundamental law which we call the Constitution, shall be in matters of social and industrial justice. If the people are not sovereign over their own officials, then we do not live in a real democracy; for a government based on the divine right of irresponsible judges, no matter how learned and well-meaning, is as flat a negation of popular rule and democracy as is a system based on the divine right of kings. In 33 West Virginia 179 and 188, the court explicitly repudiated the notion that the miners are entitled to be paid in cash or can by law be secured such a right, or that the mine-owners can be prohibited by law from selling to the laborers at a higher price than to outsiders. The court stated that these laws represented "unjust interference with private contracts and business," and that they were an "insulting attempt to put the laborer under legislative tutelage," which was "degrading to his manhood" and "suppressive of his rights as a citizen of the United States." In the State v. Mack Mfg. Co., Judge Hervery used the following language:
"In that drift toward paternalism, which has so largely manifested itself in the legislation of the various States in recent years, the state has been frequently called upon to interfere on these matters which we have been taught to believe might be safely left to the care of the parties immediately interested. . . . My conclusion is that the laborer has the constitutional right in the language of the Supreme Court of Pennsylvania to sell his labor for what he thinks best, whether money or goods, just as his employer may sell coal, and any and every law that proposes to prevent him from doing so is an infringement of his constitutional privileges, and consequently void. (Citing Godchild v. Weigman, 113 Pa., St., Rep., 431.) I am of the opinion that the first section of the act is unconstitutional."
These opinions put the case of the "New Freedom" concisely. They say that the laborer has the freedom, or as they phrase it the "right" to sell his labor as he thinks best, and that any law controlling this right is unconstitutional. Literally and exactly this decision stands on a par with one which in the name of freedom should guarantee the laborer the right to sell himself into slavery. It represents nothing whatever but the effort, the successful effort, to suppress the workers' end of an economic controversy by denying him just law; and in actual practice this has been supplemented in West Virginia by the issuance of oppressive injunctions against the laborer. Finally when the result was an outburst of wild violence, so that there practically remained no law, no constitution, no court, the authorities were forced to grapple with the actual need of things by instituting martial law. Judging from the letters published by Father Collins, a priest whose knowledge of the situation and devotion to the cause of labor seem to be unquestioned, it was necessary to declare martial law, and the representatives of the power of the State did an essential work in keeping and restoring order. But once order has been restored it is even more essential that the governmental authorities shall resolutely devote themselves to the destruction of the bitterly unjust conditions which were responsible for causing the anarchy.
I wish I could make the men of property in this country, the big business men in New York, in Boston, in Providence, throughout our country, understand that in fighting such conditions as these in the bituminous-coal fields, and in fighting such court decisions as those which I have quoted, I am fighting against anarchy, against the Socialism of the I. W. W., and in favor of law and order and for property. As I said at the outset, I believe that one of the chief causes of the trouble in West Virginia has been the insistence upon unregulated cutthroat competition, the refusal to allow combination for good purposes, and the failure to exercise thoroughgoing governmental control alike over separate individuals and corporations and over the combinations that are legal and permissible. In dealing with big corporations, as in dealing with all business, it is an absolute necessity for us to abandon the utter folly of discriminating against them on the ground of size instead of on the ground of conduct. Combinations may exist for a good purpose just as they may exist for a bad purpose, whether among business men, among farmers, among laborers; and as regards all of them our aim should be effectively to suppress combinations that work evil, and also to favor those that do well, while nevertheless exercising over them such thoroughgoing control as to enable us to be sure that that they in very fact do well, alike to competitors, to wage-workers, and to the general public. If a corporation or a combination makes for efficiency we favor it, providing the benefits are shared with reasonable equality among the employers and capitalists, the workers and the general public. If, however, the so-called efficiency represents merely profits for the employer obtained by exploiting the workmen or mistreating his rivals, or swindling the general public, then our desire is not merely to stop the practices but to punish those who take part in them.
It is our aim to help legitimate business. We wish to see the business man prosper and make money, for unless he does prosper and make money he can neither permanently pay good wages to his employees nor permanently render good service to the public. Therefore, on grounds not only of abstract morality but of self-interest, we wish to favor the business man and see him succeed. We wish to give him laws under which there will be a reasonable administrative governmental body to which he can appeal to find out just what he can and what he cannot do; laws which will encourage him in the use of the great modern business principles of combination and co-operation, and which by the creation of a proper administrative body will exercise such supervision and control over him as will guarantee that there will be no stock-watering or other devices of overcapitalization for which the honest investors and wage-workers alike have to pay, that there will be no unfair and discriminatory practices against rivals, no swindling of the general public, and no exploitation of wage-workers.
Our proposal is to put the government, acting for the general public, in such shape that it will not ask justice as a favor but demand it as a right which it is ready and able to enforce. We propose to use the power of the government to help the business community prosper by helping the honest business man in all honest and proper ways to make his business successful. We also propose to use it to protect the whole public against dishonest business men and to save the wage-worker from such cruel exploitation as has been practised on him in West Virginia by certain mine owners working with certain judges as their allies. These men are themselves forbidden by the law to take steps toward securing the highest efficiency and yet are permitted by the law to make money out of the cruel degradation of those whose lives are spent in toil.
It is idle to tell us that the Constitution forbids our having such laws or to quote opinions of the courts which forbid our right to have them. The Constitution belongs to the people and not the people to the Constitution ; and the courts are the servants of the people precisely as is true of all other public servants, legislative and executive alike. It is for the people and not the courts to say whether we shall have such laws in the interest of social and industrial justice, acts providing for cash payment in wages and abolishing these company stores. And we Progressives propose not only to have them, but to provide the machinery which will render it possible without ruinous and heart-breaking delay to have them put on the statute-books as living, as vital laws. In the words of Abraham Lincoln, we propose that the people shall control both the legislatures and the courts, not to pervert the Constitution, but to overthrow those who themselves pervert the Constitution into an instrument for perpetuating injustice, instead of making it what it must and shall be made, the most effective of all possible means for securing to the people of the whole country the right everywhere to create conditions which will tend for the uplift of the ordinary, the average men, women, and children of the United States.