H.L. Mencken

The American Mercury/January, 1924

RECENT CHANGES IN AMERICAN CONSTITUTIONAL THEORY, by John W. Burgess, Ph.D., J.U.D., LL.D. New York, Columbia University Press.

THIS is a very small book, but it is packed with important matter. What it recounts, in brief, is the story of the decay of liberty in the United States since the end of the last century. The old Constitution, despite some alarming strains, held up very bravely until the time of the Spanish War. It survived the Alien and Sedition Acts of 1798, it survived the rise of Homo boobois under Jackson, it survived the rough mauling that the sainted Lincoln gave it during the Civil War, and it even survived the Amendments that followed the Versailles-like peace of 1865. But at the hands of Roosevelt it began to buckle and give way, and at the hands of Wilson it went to pieces. Today the old constitutional guarantees have only an antiquarian interest, and the old scheme of checks and balances functions no more. Bit by bit, the Supreme Court has yielded to pressure, until now its very right to resist at all has begun to be threatened. The American citizen of 1914 who, menaced by bureaucratic tyranny, appealed to that decayed tribunal to save him would be laughed at in open court. For it has already decided against him (often unanimously) on almost all conceivable counts, and to make his chains doubly strong it has even begun to limit his right of mere remonstrance. The Draft Act, the Espionage Act, the Volstead Act, the various State Syndicalist Acts—these outrageous and obviously unconstitutional laws mark the successive stages of the Supreme Court’s degradation. Having failed in its primary duty, it has failed in all its duties. What liberties remain to the citizen today remain by a sort of grace—perhaps, more accurately, a sort of oversight. Another Wilson, set upon the throne tomorrow by another fraud of 1916, might take them away from him with no more danger of challenge from the Supreme Court than from the American Legion or the Union League.

Dr. Burgess rehearses succinctly the fundamental principles of American constitutional theory before 1898, and shows how all of them have been subverted and abandoned. The most important of them was that which set up a sharp distinction between sovereignty and government, and rigidly limited the scope and powers of the latter. The Federal Government was not the United States; it was simply the agent of the United States, employed and authorized to perform certain clearly-defined functions and none other. Beyond the field of those functions it was as impotent as the individual office-holders composing it. That principle remained in force from the election of Thomas Jefferson in 1800 to the dawn of imperialism in 1898—roughly, a century. When it began to be conditioned, then the whole constitutional structure broke up. Today there is no clearly defined boundary between sovereignty and government. The President, in time of war, is indistinguishable from an oriental despot—and he is now quite free to make war whenever he pleases, with or without the consent of Congress. The raid against Russia, in 1918, was apparently, in the view of the Supreme Court, a perfectly legal war, though Congress had never authorized it, for persons who protested against it were sentenced to long terms of imprisonment under the Espionage Act, and the Court upheld the sentences. The invasions of the citizen’s fundamental rights in time of peace are too numerous and notorious to need rehearsing. One will suffice. The Bill of Rights guarantees him an inviolable right to trial by jury; the Volstead Act takes it away from him; the Supreme Court has upheld the Volstead Act.

Dr. Burgess’ exposition of the facts is temperate, learned and incontrovertible. The disease is accurately described. I wish I could add that the remedy he proposes promises a cure. But it actually seems to me to be hopeless. His plan, briefly, is to abandon the method of making constitutional amendments by the votes of the two houses of Congress and the State Legislatures, i.e., by the votes of men professionally venal and dishonorable, and to return to the primary scheme of national constitutional conventions. Such conventions, he argues, would represent the people directly, would be chosen for the specific purpose of framing amendments, and would thus voice true sovereignty. He forgets two things. He forgets that their members would be elected precisely as members of Congress are now elected, and would probably be the same petty demagogues and scoundrels. And he forgets that there is no evidence that the people, given a free opportunity, would actually try to recover the rights that have been taken away from them. In point of fact, only a very small minority of Americans have any genuine respect or desire for liberty. The majority supported Wilson ecstatically, and, with him, Palmer, Burleson and all the rest of the cossacks. And when the majority is heard of today, it is not demanding a restoration of its old rights; it is tarring and feathering some fanatic who believes that they should, will and must be restored.