Chapter XII. The Structure of the United States

CHAPTER XII The Structure of the United States The problem then which confronted the founders of the United States was how to maintain regional bases for a political structure without an aristocracy. It was not so stated at the time, for this is a description of the practical means, when only the objective, was known. In like case, it could not have been said that a keystone must be designed to complete the form of the arch, or a zero sign for the use of position in numbers, until these devices had been foundj such a statement is impossible until the problem has been solved. The American revolutionaries had declared the axiom of the rights of the individual, the Society of Contract, as the reason and justification for their independence. An indigenous aristocracy would nullify their intention. Such vestige as remained, in the form of entail, which is the root of the society of status, was accordingly abolished. The separate states already existed, and had not ceded their several sovereignties to the original loose federation. Their natural resistance as political entities in being was strong enough to defeat proposals that their autonomy should be extinguished, and tended to obscure the future danger in that direction. The question immediately presented was how to bring them together in "a more perfect union"—without lapsing into democracy. What was wanted was a Republic.

The objection to democracy was clear and cogent; but for quite opposite reasons from those of the Old World. It was obvious that democracy must dissolve the European order of Bociety, which was hierarchical, framed to hereditary rank. The premise of democracy is supposed to be natural equality. 118 THE STRUCTURE OF THE UNITED STATES 119 The Society of Status claimed to derive its moral sanction from the family, extended by analogy in political organization 5 but this hypothesis ignores the prime fact that everyone in due course becomes adult. In such extension the feudal pattern became fictitious; outside of domestic affairs it did not and could not correspond to the facts, either in respect of blood relationship or simple seniority. It resolved into the rule of the few over the many, by the arbitrary convention of descent through "old" families. In nature, one family cannot be "older" than another. Age is personal. But maturity, the condition of being adult, is equality within its definition. By this conclusion, the few can have no hereditary claim to command the many.

On the other hand, this is a mathematical order applied only to chronology. It describes men as equals when they have reached a given span of years, the presumed period of maturation. Outside of that single classification, it has no positive or intrinsic significance.* The Greeks were never able to validate their hypothesis for democracy because it is a materialistic concept, and materialism will not admit human equality, nor any other principle of human association. Materialism must regard mankind as simply an animal species whose behavior is predicated and determined by instinct and expedience. On those grounds, there are no rights and no moral questions 5 whatever happens must happen, and whatever must happen does happen. But even if this dead-end in materialistic determinism is ignored, and equality sought in respect of phenomena, it cannot be found in human beings, * Equality in itself signifies nothing, implies no values; two zeros are equal.

Liberty attaches value to it. The argument that conscription is right because it is applied equally would justify torture if applied equally. This argument has been carried further by a pseudo-liberal: "The voluntary system sounds well. In practise it is a moral horror ... since no one can tell by looking at a young man whether he is doing essential war work, or is married or has children, or is perhaps not in good health. The voluntary system is not voluntary. It is in practise the worst form of compulsion . . . excellently designed to make young men unhappy." Then slavery is not slavery, because the world is peopled with moral imbeciles, all equally terrified of the casual glance of a stranger.

I2O THE GOD OF THE MACHINE regarded as "higher" animals or as objects in nature. Strict materialism must finally deny that a human being is an entity; it resolves him into a lump of plasmic material "conditioned" to various "responses" or "reactions." In materialistic terms, psychology becomes a branch of physiology, behaviorism. Then if the responses (attributes or qualities) are compared, one man may be demonstrably stronger than another, or gifted with some ability (music, art, or whatever) which another lacks or exhibits in less degree at a given time; but there is no general equation for the diverse endowments, even if they could be fully discovered. The only definition of equality by measure is that of Euclid: things which are equal to the same thing are equal to one another. This calls for a fixed objective standard, a perfect typical man, embodying quantitatively all human attributes in absolute scale and proportion as a norm, and with an unimaginable common denominator by which such qualities would be translatable into number for points which could be added together. Thus men as they are could be estimated by comparison and each one assigned a rating. (The Platonic theory of archetypes, or the Ideal, was an unsuccessful attempt to get around this difficulty.) But the American axiom asserted political equality as a corollary of the inalienable right of every man to liberty.

Democracy was inadmissible because it must deny that right and lapse into despotism, as it has always done. It does so abstractly, by its own logical contradiction; and in practice because logic is a statement of sequence. It is not liberty and equality that are incompatible, but liberty and democracy. The distinction is that between a principle and a process; the confusion arises from an unwarrantable identification of a negative proposition with a positive. It is falsely assumed that when the claim of the few to command the many is refuted, the converse claim of the many to command the individual is proved. This is quite untenable except in strictly materialistic terms; and in those terms, right must be ruled THE STRUCTURE OF THE UNITED STATES 121 out altogether. Right as a concept is necessarily opposed to force j otherwise the word is meaningless. Liberty is a truly natural condition 5 for life itself is possible to a human being only by virtue of his capacity for independent action. If any living creature is subjected to absolute restraint, it dies. Human life is of an order transcending the deterministic necessity of physics j man exists by rational volition, free will. Hence the rational and natural terms of human association are those of voluntary agreement, not command.

Therefore the proper organization of society must be that of free individuals. And their equality is posited on the plain fact that the qualities and attributes of a human being are ultimately not subject to measure at all; a man equals a spiritual entity. But democracy is a collective term; it describes the aggregate as a whole, and assumes that the right and authority reside in the whole, though derived from the adult condition of the individuals comprised. Then it must be supposed that at an unknown moment by an unknown sanction and for no reason whatever such right and authority was irrevocably transferred from the individuals to a group which is nothing but a numerical sum, or particles merged into mass. The authority then is not in any part, nor is any part of it in any part of the mass. Thus democracy resolves into pure process, and even the process is fictitious, for individuals cannot actually merge, though a group can exercise the function of mass for a given purpose at a given time, by inaction, a negative. The fictitious process imagined as operating in democracy is of a physical and mathematical and non-moral order, beginning with an arbitrary number delimited by accident of residence or descent.

But if the authority resides in the collective whole, it is evident that with the disagreement of even one person, the whole is no longer existent or operative 5 in which case no general action whatever could be legitimately undertaken.

122 THE GOD OF THE MACHINE The prime presumption has vanished. In practice then democracy must abandon its own pretended entity o£ the collective whole, and rely upon majority. But majority is only a partj thus majority rule implies inconceivably that the part is greater than the whole. Furthermore, even majority is not always obtainablej only a plurality may favor a given course of action $ in which case one minority must command several other minorities which if added together are greater in number or weight. Such is the inherent contradiction in the theory of democracy. In any event, personal liberty is wiped out at the very beginning, with the theoretic transition from particles to mass or from the unit to the sum. Slavery of a minority, or of "foreigners," is quite consistent with majority rule.* But in reason, if one man has no right to command all other men—the expedient of despotism—neither has he any right to command even one other man 3 nor yet have ten men, or a million, the right to command even one other man, for ten times nothing is nothing, and a million times nothing is nothing.

The material objection to democracy is that it has no structure, the practical defect corresponding to the moral defect. Gravity determines the movements of an aggregation of separate particles over a given surface $ with every disturbance each particle is subject to the discontinuous hazard of chance 5 if a number of them move together under the same impulsion, it is as dislocated mass. Active difference of opinion in democracy is either the detachment of a particle or dislocated mass. As Madison said, "it affords no remedy for the evils of faction." Faction is fragmentary mass, the several fragments being thrown into collision by whatever force occasioned the cleavage. *The modern cliche, "This is a democracy, I am the government," is nonsensical. Even as an agency, the government is a formal organization with an authorized personnel, of which the private citizen is not a member. When several persons employ an umpire, they are distinctively not the umpire, although he holds that office by their agreement.

THE STRUCTURE OF THE UNITED STATES 123 At various times, various nations have exhibited certain aptitudes to an unusual degree. Different periods and places have been marked by a splendid flowering of special talents. Such manifestations are vaguely credited to racial genius, but the phrase will not bear analysis. The elements are usually mixed in origin, so that a somewhat eclectic culture has become homogeneous by development, while still open to new ideas. (Even the rigorously enclosed society of Japan acknowledged an esthetic inspiration from China.) But the prerequisite must be the conditions, or mode of association, which do not hinder such development of innate faculties. Now if the works and thoughts of the men who founded the United States are examined, it is evident that they had a highly developed structural sense, a remarkable feeling for and understanding of form, proportion, perspective. However it came about, they were a nation of architects 5 and they thought in mathematics as "naturally" as in words. It is by no means an accident, but an indication of the intellectual context of the period, that George Washington was a surveyor (though a gentleman by family) -y that Thomas Jefferson, a lawyer by profession, was passionately interested in architecture j or that Benjamin Franklin, a tradesman and craftsman with no nautical connection, was given to scientific experiment, and saw nothing out of the way in proposing to work out by himself a formula for finding a position at sea.

Indeed, the standard textbook on navigation was composed by a New Englander, Nathaniel Bowditch, who had no special advantage of education and was not a navigator. This predisposition was nowise exceptional. Roger Sherman, though bred to the humble occupation of a cobbler, taught himself mathematics so well that he could calculate a lunar eclipse. Once he was invited to speak on the occasion of opening a new bridge.* "He walked critically over the structure," and delivered his oration in one sentence: "I don't sec * BULWARK OF THE REPUBLIC. By Burton J. Hendrick. Little, Brown & Co.

124 THE G0D 0F THE MACHINE but it stands steady." When New Englanders habitually used the phrase, "I calculate," that was what they meant. They did calculate. Roger Sherman was responsible for the dual method of representation in the two houses of Congress— by popular vote in the House of Representatives, with congressmen allotted in proportion to population, and by equality of the States in the Senate. His structural sense was sound j he hit on both the regional bases and the mass veto function at once. He knew what would stand steady. To understand why bases cannot be established on popular suffrage, with no property qualification, it is only necessary to try an equivalent with any other physical materials. Let the substance on which the structure must be supported be composed of separate particles of equal size and weight, and each susceptible of movement—obviously nothing can possibly stand on it. A pillar or cornerstone cannot be fixed on a heap of buckshot, or a mound of sand. There must be something solid, self-contained, and immovable. A regional area answers that description, and will sustain a permanent base of political representation. The area must be definitely circumscribed, and the representation must pertain to it, not to the mobile inhabitants, who may wander about and cross the boundaries at will.

Failure to discern that a political organization consists of both structure and mechanism, that is, a fixed base to which agencies of action are attached, has caused untold disaster throughout the ages. These components were hopelessly confused in the feudal theory, where the regional areas were the real structural base while the family was supposed to perform that function. When it came to the point that there were no heirs to a territorial family, another succession was established 5 but still men did not see the point. Needing an immovable base, their almost incredibly irrational recourse was to bind men to the land, crushing living bodies under the weight of the pillars. But all that was actually necessary was to allot the representation to the area. To do this, howTHE STRUCTURE OF THE UNITED STATES 125 ever, the area must be established as a political entity, and represented as such 5 which can be done only by having the representative appointed by the local political organization, not by the popular vote. There must be delimited local sovereignty in the area.

On the other hand, the direct representation of the voters in a definite agency of government is necessary to utilize the function of mass, that is, of the aggregate population. The representation of mass can be effected only by delegates in proportion to numbers, regardless of the several areas which form the bases. Thus by using the materials available, in accordance with architectural and mechanical principles, the founders of the United States solved the problem on which the Roman empire had failed. The Constitution of the United States is an architectural and mechanical drawing, in which the design is laid out on its broad general principles. They are as simple as the design of a foundation, an arch, a piston cylinder, or an eccentric transmission $ and like those fundamentals, they embody relations; and are thus capable of infinitely complex application. But the intrinsic design must always be maintained. If the foundations are removed, or the keystone withdrawn, the arch must fall 5 if the piston cylinder head is blown out, the action will cease 5 if the eccentric rod is detached at one end, it can only flail about and smash the whole mechanism. A greater volume of energy does not and cannot alter the necessary relations involved. The belief that it does is the fatal delusion of today. Increased volume of energy has been made the pretext for destroying the regional bases, when they should rather have been strengthened.

Let the Constitution as it was originally drawn, including the Bill of Rights, be examined strictly on its merits and in the light of performance, as an architectural plan and a mechanical apparatus of an earlier day might be studied by modern architects and engineers. It will be found amazing in its correctness, in respect of the relation of mass and motion, 126 THE GOD OF THE MACHINE operative through the association of human beings; and the release and application of energy. The Bill of Rights and the treason clause taken together establish the individual as the dynamic factor. The Bill of Rights withdraws entirely from political control both the faculties and the instruments of initiative and enterprise. No law might be passed against freedom of the mind, whether in religion, in speech, or in print 5 nor to restrict interchange of ideas in peaceable assembly; nor to prevent the expression of private opinion from individuals to the government, by petition. No law might deprive the individual of the right to bear arms. Soldiers must not be quartered on citizens in time of peace; nor even in time of war unless under civil regulation. No man's home might be entered except on formal warrant in pursuit of a specific charge authorized by law and confined to the named purpose. No person might be tried unless formally indicted for a crime, nor condemned by secret trial or without witnesses and counsel. And most important for the maintenance of these rights, private property might not be taken for public use without just compensation. Finally, forestalling attempts on the part of the government to nullify these safeguards by indirect means, excessive bail, excessive fines, and torture (cruel and unusual punishments) were forbidden. (Excessive bail can only mean bail fixed in a sum that would be beyond the means of the average person to procure. An excessive fine would be a larger sum than the offense could involve; otherwise a fine would be an easy way of confiscating anybody's property on the slightest pretext.) * The treason clause remains unique in all the long record of political institutions. In the first place, it declares that there is no such crime as treason in peace time. "Treason against the United States shall consist only in levying war *The constitutional prohibition of excessive fines has been completely ignored in recent legislation, without one word of protest from citizens or any attempt to appeal on the issue in court.

THE STRUCTURE OF THE UNITED STATES 127 against them, or in adhering to their enemies, giving them aid or comfort." Nothing but armed rebellion or joining with an enemy nation—and nations are by definition enemies only when at war—can be treason. No peaceful or personal opposition to government or to members of the government, comes under the head of treason. Even the forcible attack or resistance of a single person as such (having no connection or agreement with other persons or a foreign government to the same end), could hardly be construed as "treason," as it would not constitute "levying war." Treason must also be "an overt act," not merely an expression of opinion; and a conviction cannot be had on circumstantial evidence ; two witnesses to the act are required. In the European theory it was treason to attack the person of the king even for a nonpolitical motive. The man and the office are held to be inseparable. A like attempt against a member of a true republican government is a strictly personal criminal offense.

By this unprecedented limitation of treason, the government or administration was debarred from imposing silence while making encroachments. Its members were allowed no means of reprisal against criticism or exposure. But the treason clause also contains another unique and significant provision. "No attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted." It is doubtful whether the average American today would readily understand the meaning of the phrase "corruption of blood," or of the limitation of forfeiture to the lifetime of the person indicted for treason. But the first restriction defined guilt as personal; and the second defined private property as belonging to individuals. Both are in opposition to the collectivist theory of the group as superior or antecedent to the individual. It is evident, from the bewildered comments of our contemporary press, that Americans have quite forgotten the historic fact that until the United States came into existence, the laws of Europe allowed punishment of all the members of a family for the 128 THE GOD OF THE MACHINE crime or any one member. Since the family was the political unit, and honors were inherited and privilege pertained in some degree to all the members of the family, it appeared equitable and logical that the whole family should suffer proportionately for the delinquency of any member. The capital penalty was seldom visited upon all, even in earlier times, but lesser penalties, such as exile or imprisonment or demotion in status, were not uncommon for nothing but kinship ; likewise the family property was held to be forfeit altogether by the fault of the head of the family, even if he escaped from jurisdiction or died before being brought to trial. It all went together, family honors, family ownership, family guilt, and family forfeiture. The church doctrine of private property was naturally difficult to maintain against the threat of the state, although the church never yielded that position. Family property is of course private property, differentiated from state or communal ownership as a norm $ also by Christian doctrine guilt is personal. But with a charge of treason, the secular ruler could use the family unit as a pretext for confiscating all the family property -y and under cover of this procedure, the secular ruler* could also fall back on the political system of feudalism, and claim that property was not really privately owned, but held in tenancy from the crown or overlord, and that the tenure lapsed when the tenant failed in allegiance. Land titles did go so far back, and had so often and long been held on such tenancy from local lords or conquerors, the question was extremely complex.

On the other hand, during the period of settlement of the American colonies, the actual practice of severe penalizing of families for the guilt of a member had long tended to fall into disuse, especially in England, whence it largely vanished with serfdom. But even in England, treason might be imputed for a wide range of actions or for mere words j and forfeiture might follow after death. But the American Constitution said, by its treason clause, THE STRUCTURE OF THE UNITED STATES 129 that private property belongs to individuals by indefeasible title. If a person indictable for treason, or convicted of it, should escape, his property might be sequestrated (in forfeit), as long as he was alive, a fugitive from justice or unpardoned; but at the moment of his death, the title passes unimpaired to his legal heir. Nor could any member of his family be punished for mere kinship 3 none could be held guilty of the deed of another. This is the meaning of the ban against "corruption of blood." Until the resurgence of Communism, even Russia had largely conformed to the American practice 5 but America first declared the principle as absolute.

This also prevented the State from having an invisible and unspecified power over an accused man by means of threats to his family. A man of integrity may face death for himself calmly, yet he might quail before the prospect of torture or even of penury for his wife and children, his parents, his brothers and sisters. It is disgraceful to our educational institutions and to the political intelligence of Americans, that in discussion of the notorious "Moscow trials," not one comment indicated any knowledge of the American constitutional safeguard against trials of that type, and of the base of that safeguard on individual private property j nor even of the collectivist political theory which admitted the Russian procedure until the example of the United States shamed them into desuetude. To Americans, and by the moral axiom of the American political system, such trials are an abominable perversion of justice. But with the return of collectivism the legal imputation of collective guilt inevitably returns also.

All these provisions in the Bill of Rights and the Constitution are of the utmost importance in relation to the flow of energy; the fact which they express accounts for the unparalleled expansion of the United States in territorial extent in the given time, by accounting for the even more extraordinary extension of the field of physical science and 130 THE GOD OF THE MACHINE mechanical invention. In a hundred and fifty years, men suddenly enlarged and corrected their knowledge of scientific principles which had taken many thousands of years to discover at all -7 and devised means of application which made possible a concurrent increase of population and a rise in the standard of well-being beyond even the dreams of humanity in the past. Nothing of the sort had ever occurred in the world before j history reveals nothing comparable to the United States as a nation. It may be pointed out reasonably that the contributions to scientific knowledge and practical invention did not originate only in the United States. But it was the existence of the United States, and the consequent demonstration and spread of liberty, which made the achievements of science possible in Europe.

What happened was that the dynamo of the energy used in human association was located. It is in the individual. And it was withdrawn from political interference by a formal reservation, along with the means and material by which it can organize the great world circuit of energy. The dynamo is the mind, the creative intelligence, which our Bill of Rights and the treason clause assert to be free of political control. The material means on which intelligence projects by initiative is private property. Nothing else will serve. Likewise the structure of government was established on its enduring base, without pinning men down under the foundation. Regional areas were delimited to which the instruments of political action were attached, without confining any person by law to the given area, or confiding the power of wielding such instruments to persons by hereditary rule, or making such power unlimited. The instruments were properly defined as agencies. They pertained to the several states as such. This effect was secured by the method of appointment to the Senate. Senators were chosen by the legislative bodies of the states j that is, their office was attached to the statey being derived from the state j unlike the Roman THE STRUCTURE OF THE UNITED STATES provincial governors who were appointed by the central authority. The thrust was against the center, instead of from the center j therefore it countered the weight of the superstructure. On the other hand, the Senator had no political function within the state he represented, hence the office had no intrinsic tendency toward separatism. It took effect only at the center. The stresses were doubly equalized. The several states also preserved their political integrity by keeping to themselves the primary authority to qualify voters in Federal elections.* Nevertheless citizenship, as a general condition, was a Federal attribute j that is, a citizen of any one state had the rights of citizenship in all the other states. This effected cohesion of the particles to form a nation, without prejudice to the regional bases. The states were limited to a "republican form of government" by the Federal authority.

The citizens, by the institution of private property, were given resistance against all the agencies of government. Private property is the standing ground of the citizen ; there is no other. As the state had to be a regional area with its representatives, to preserve its basic function, so it was necessary for citizens to have a direct vote for the mass inertia vetoj hence the two legislative chambers, the Senate for the States and the House of Representatives for the citizens as individuals. The possibility of legislators using their office for a direct grab from the public funds was forestalled by debarring them from such action in respect of a current term of office. The Senate, having the longest term of office and representing the states as continuing bodies, was given control of foreign relations by ratification, with negotiations entrusted to the executive. The executive was given no specific means of initiating domestic legislation, and only a provisional or delaying veto.

The House of Representatives, elected by direct vote of * The proposal to abolish by Federal legislation the poll tax imposed by some Southern states as a franchise qualification is absolutely unconstitutional.

132 THE GOD OF THE MACHINE the citizens, was enabled to express the property and function of mass, the ultimate veto by negation, being entrusted with the initiative in laying taxation and granting supplies. All supplies were required to be granted only in denominated sums for allotted purposes 5 any such grant must therefore be used up in time and would have to be granted again. If no grant is made, the veto of inertia is in force. It is only necessary to do nothing. To prevent the larger, wealthier, or more populous states from throwing their weight against smaller states, their representation as states was made equal. To prevent the smaller or poorer states from ganging up and fleecing the more opulent states—throwing their joint weight—the popular representation was made proportionate to the number of citizens. To prevent the central authority from mulcting the wealthy states in order to buy out poor states, it was provided that Federal taxation imposed upon persons could be levied only in proportion to population; while taxes on goods (tariffs, excise duties, imposts) must be uniform throughout the United States. That is, no favor could be shown to any one state in respect of manufactures, port dues, or the like. This prevented the political monopolies which were the bane of Europe. And the states could not impose port or border tariffs at all.

The several states were forbidden to coin money or emit paper currency ("bills of credit"), or to make anything but gold and silver legal tender. Therefore the transmission line of energy could not be cut or tapped by the political agency of any state. And the Federal government was given no fower to issue fafer currency. Though it has done so, the authority is not in the Constitution, while it is expressly stated in the Constitution that powers not delegated to the Federal authority are reserved from it. Neither is the Federal government granted any power to impair contracts, though it has lately done SOJ while the states were forbidden in set terms.

THE STRUCTURE OF THE UNITED STATES 133 The Federal judiciary was to be appointed for life (subject to impeachment for misuse of office), in order to keep a check on the legislative and executive branches. The endlessly debated question of "judicial review" is mere stultification; for the jurisdiction of the Supreme Court is specified as covering only cases "arising under this Constitution, the laws of the United States, and treaties made under their authority," while "this Constitution, and the laws of the United States which shall be made in pursuance thereof, shall be the supreme law of the land." No sophistry can evade the proposition that the supreme law must govern the verdict; that is what supreme means. But after arguing for a hundred years against this proper and indispensable function of judicial review, the pseudo-liberals have invented a singularly vicious hypothetical perversion of it. Justice Frankfurter expressed it, writing of "the dangers and difficulties inherent in the power to review legislation. For it is a subtle business to decide, not whether legislation is wise, but whether legislators were reasonable in believing it to be wise." Judicial review is not concerned with deciding whether legislation is wise or legislators reasonable in believing it to be wise. Judicial review is confined to finding whether or not a given law contravenes the Constitution, the supreme law; as it does if the legislature exceeded its Constitutional power in passing the law in question—the legislature has no authority except in the Constitution.

The Constitutional provision for armed defense was consonant with the political structure. The originating authority of the Federal government was sufficient to enlist and provide for a standing army, without direct reference to the several states; but supplies could be appropriated only for a term of two years. This would tend to keep the professional army of reasonable size. As the original method was by voluntary enlistment, obviously that was the intention. On the other hand, the primary right to bear arms and form militia companies was reserved to the citizens; but if such 134 THE GOD OF THE MACHINE bodies of militia were to serve in a declared war, their officers must be appointed by the states j after which they were subject to call by the Federal government. Throughout, initiative remained with the individual, as a free manj but formal action rested with the political authorities, as having the formal inhibitory power. Though a defensive war is just and necessary, war involves destruction} hence the inhibitory power must regulate it. But creative action must be free.

For its realization of these moral relations and structural embodiment of them, the Constitution of the United States has been justly described as the greatest political document ever struck off at one time by the mind of man.