Private Rights and Government; G. Sutherland

Throughout all history mankind has oscillated, like some huge pen26 dulum, between these two, some times swinging too far in one di rection and sometimes, in the re bound, too far in the opposite di rection. Liberty has degenerated into anarchy and authority has ended in despotism, and this has been repeated so often that some students of history have reached the pessimistic conclusion that the whole process was but the aimless pursuit of the unattainable. I do not, myself, share that view. In all probability we shall never succeed in getting rid of all the bad things which afflict the social organism - and perhaps it would not be a desirable result if 1966 PRIVATE RIGHTS AND GOVERNMENT 27 W~ should succeed, since out of the dead level of settled perfection there could not come that uplifting sense of moral regeneration which follows the successful fight against evil, and which is respon sible for so much of human ad vancement-but I am sure that in most ways, including some of the ways of government,we are better off today than we have ever been before. It is, however, apparently one of the corollaries of progres sive development that we get rid of old evils only to acquire' new ones. We move out of the wilder ness into the city and thereby es cape the tooth and claw of savage nature, which we see clearly, only to incur the sometimes· deadlier menace of the microbes of civiliza tion, of whose existence we learn only after suffering the mischief they do.

Today~ as always, eternal vigi lance is the price of liberty liberty whose form has changed but whose spirit is the same. In the old days it was the liberty of person, the liberty of speech, the freedom of religious worshi p, which were principally threatened. Today it is the liberty to order the detail of one's daily life for one self - the liberty to do honest and profitable business - the liberty to seek honest and remunerative in vestment that are in peril. In my own mind I feel sure that there never has been a time when the business of the country occupied a higher moral plane; never a time when the voluntary code which governs the conduct of the banker, the manufacturer, the merchant, the railway manager, has been finer in tone or more faithfully ob served than it is today; and yet never before have the business ac tivities of the people been so beset and bedeviled with vexatious stat utes, prying commissions, and governmental intermeddling of all sorts.

Pass a Law Under our form of government the will of the people is supreme. We seem to have become intoxi cated with the plenitude of our power, or fearful that it will dis appear if we do not constantly use it, and, inasmuch as our will can be exercised authoritatively only through some form of law, when ever we become dissatisfied with anything, we enact a statute on the subject. If, therefore, I were asked to name the characteristic which more than any other distinguishes our present-day political institu tions, I am not sure that I should not answer, "the passion for mak ing laws." There are 48 small or moderate-sized legislative bodies in the United States engaged a good deal of the time and one very 28 THE FREEMAN June large national legislature working overtime at this amiable occupa tion, their combined output being not far from 15,000 statutes each year. The prevailing obsession seems to be that statutes, like crops, enrich the country in pro portion to their volume. Unfortu nately for this notion, however, the average legislator does not al ways know what he is sowing, and the harvest which frequently re sults is made up of strange and unexpected plants whose appear ance is as astonishing to the legis lator as it is disconcerting to his constituents.

This situation, I am bound to say, is not wholly unrelated to a more or less prevalent superstition entertained by the electorate that previous training in legislative affairs is a superfluous adjunct of the legislative mind, which should enter upon its task with the sweet inexperience of a bride coming to the altar. As rotation in crops - if I may return to the agricultural figure - improves the soil, so ro tation in office is supposed to im prove the government. The com parison, however, is illusory, since the legislator resembles the farmer who cultivates the crops rather than the crops themselves, and previous experience, even of the most thorough character, on the part of the farmer has never hitherto been supposed to destroy his availability for continued serv ice. I think it was the late Mr. Carlyle, who is reported to have made the rather cynical observa tion that the only acts of Parlia ment which were entitled to com mendation were, those by which previous acts of Parliament were repealed. I am not prepared to go quite that far, though I am pre pared to say that in my judgment an extraordinarily large propor tion of the statutes which have been passed from time to time in our various legislative bodies might be repealed without the slightest detriment to the general welfare.

Throughout the country the business world has come to look upon the meeting of the legisla ture as a thing to be borne rather than desired, and to regard with grave suspicion pretty much every thing that happens, with the ex ception of the final adj ournment, a resolution to which end, unless history has been singularly unob servant, has never thus far been withheld by· general request. Good Intentions Only The trouble with much of our legislation is that the legislator has mistaken emotion for wisdom, impulse· for knowledge, and good intention for sound judgment. "He means well" is a sweet and whole·1966 PRIVATE RIGHTS AND GOVERNMENT 29 some thing in the field of ethics. It may be of small consequence, or of no consequence at all, in the domain of law. "He means well" may save the legislator from the afflictions of an accusing con science, but it does not protect the community from the affliction of mischievous and meddlesome statutes.

A diffused desire to do good an anxious· feeling about progress - are not to be derided, of course, but standing alone and regarded from the viewpoint of practical statesmanship, they leave some· thing to be desired in the way of complete equipment for discrimi nating legislative work. Progress, let me suggest, is not a state of mind. It is a fact, or set of facts, capable of observation and analy sis - a condition of affairs which may be cross-examined to ascer tain whether it is what it pretends to be. But you cannot cross-ex amine a mere longing for goodness - an indefinite, inarticulate yearn ing for reform and the uplift - or an uneasy, vague state of flabby sentimentalism about things in general. In matters of social convention ality we are still rigidly conserva. tive, but in the field of government there is a widespread demand for innovating legislation - a craze for change. A politician may ad vocate the complete repudiation of the Constitution and be regarded with complacency, if not with ap proval as an up-to-date reformer and friend of the people, but let him appear in public wearing a skirt instead of a pair. of trousers and the populace will be moved to riot and violence.

Impatience Undermines freedom The difficulty which confronts us in all the fields of human en deavor is that we are going ahead so fast - so many novel and per plexing problems are pressing upon us for solution - that we be come confused at their very multi plicity. Evils develop faster than remedies can be devised. Most of these evils, if left alone, would disappear under the powerful pressure of public sentiment, but we become impatient because the force of social organism is not sufficiently radical and the demand goes forth for a law which will instantly put an end to the matter. The view which prevailed a hun dred years ago was that the pri mary relation of the government to the conduct of the citizen was that of the policeman, to preserve the peace and regulate the activi ties of the individual only when necessary to prevent inj ury to other individuals or to safeguard the public; in short, to exercise ,,,hat is comprehended under the term "police power." It is true 30 THE FREEMAN June that the government was not rig idly confined to these limits, but whenever it undertook to go be yond them it assumed the burden of showing clearly the necessity for so doing. The whole philosophy found its extreme expression in the Jeffersonian aphorism - "That government is best which governs least," while Lord Macaulay's terse summary was, "The primary end of government is the protec tion of the persons and property of men."

Of course with the tremendous increase in the extent and com plexity of our social, economic, and political activities, alterations in the scope and additions to the ex tent of governmental operations become inevitable and necessary. To this no thoughtful person ob jects, but unfortunately the gov ernmental incursions into the new territory are being extended be yond the limits of necessity and even beyond the bounds of expedi ency into the domain of doubtful experiment. When Vices Become Crimes There is, to begin with, an in creasing disposition to give au thoritative direction to the course of personal behavior - an effort to mold the conduct of individuals irrespective of their differing views, habits, and tastes to the pattern, which for the time being has received the approval of the majority. Under this process we are losing our sense of perspective. Weare constarttly bringing the petty shortcomings of our neigh bors into the foreground so that the evil becomes overemphasized, while the noble proportions of the good are minimized by being rele gated to the background. We have developed a mania for regulating people. We forbid not only evil practices, but we are beginning to lay the restraining hand of law upon practices that are at the most of only doubtful character. We not infrequently fail to distinguish be tween crimes and vices, and we are beginning almost to put in the category along with vices and of fensive habits any behavior which happens to differ from our own.

I do not, for example, question the moral right of the majority to forbid the traffic in intoxicating liquor, nor its wisdom in doing so. No doubt the world would be better off if the trade were en..; tirely abolished, but some of the states have recently gone to lengths hitherto undreamed of in penalizing the mere possession of intoxicating liquor and - since no one can use liquor without having the possession of it - thereby penalizing its personal use no matter how moderate such use may be. To put the consumer of a glass of beer in the penitentiary 1966 PRIVATE RIGHTS AND GOVERNMENT 31 along with the burglar and the highwayman is to sacrifice all the wholesome distinctions which for centuries have separated debatable habit from indisputable crime. Such legislation, to say the least, constitutes a novel extension of the doctrines of penology. Hitherto, laws on the subject have taken the form of prohibiting and penalizing the traffic, but not the personal use, which seems to have been quite generally regarded as falling outside the scope of the criminal law. The use of intoxi cants or tobacco, however injuri ous to the user, has not generally been thought to involve the element of immorality. Hence the attempt to coerce an abandonment of such use by punitive legislation directed against the user, however desir able the result itself may be, will inevitably run counter to the senti ment, still rather widely enter tained, that the imposition of criminal penalties for any purely self-regarding conduct, can only be justified in cases involving some degree of moral turpitude.

Legislated "Goodness" It does not require a prophet to foresee that laws of this character exacting penalties so utterly dis proportionate to the offense, can never be generally enforced, and to write them into the statutes to be cunningly evaded or contemptuously ignored will have a strong tendency to bring just and wholesome laws dealing with the liquor question into disrepute. It is sometimes a matter of nice discrimination to determine, as be tween the liberty of the citizen and the supposed good of the com munity, which shall prevail. The liberty of the individual to control his own conduct is the most pre cious possession of a democracy and interference with it is seldom justified except where necessary to protect the liberties or rights of other individuals or to safe guard society. If widely indulged, such interference will not only fail to bring about the good results in tended to be produced, but will gravely threaten the stability and further development of that sturdy individualism, to which is due more than any other thing our present advanced civilization.

In passing legislation of this character, doubts should be re solved in favor of the liberty of the individual, and his power to freely determine and pursue his own course in his own way should rarely be interfered with,. unless the welfare of other individuals or of society clearly requires it. "Hu man nature," says Mill, "is not a machine to be built after a model, and set to do exactly the work pre scribed for it, but a tree which re quires to grow and develop itself 32 THE FREEMAN June on all sides, according to the tend ency of the inward forces which make it a living thing." Human nature is so constituted that we freely tolerate in ourselves what we condemn in others, and we are prone to condemn traits of character in others simply because we do not find the same traits in ourselves. Very often the evil is in the eye of the beholder rather than in the thing beheld, for he is a man of rare good sense who can always distinguish between an evil thing and his own prejudices.

Self-Discipline Outlawed One objection to governmental interference with the personal habits, or even the vices of the individual, is that it tends to weaken the effect of the self-con vincing moral standards and to put in their place fallible and chang ing conventions as the test of right conduct, with the· consequent loss of· the strengthening value to the individual of the free exercise of his rational choice of good rather than evil. Enforced discipline can never have the moral value of sel/ discipline, since it lacks the ele ment of cooperating effort on the part of the individual which is the very soul of all personal advance ment. We may, therefore, well pause to consider whether the benefits which will result to society from a given interference of this char acter are sufficiently important to compensate for the loss of that fine sense of personal independence, which more than any other quality has enabled the Anglo-Saxon race to throw off the yoke of monar chical absolutism and substitute democratic self-government.

It must not be forgotten that democracy is after an but a form of government whose justification must be established in the same way that the justification of any other form of government is estab lished; namely, by what it does rather than by what it claims to be. The errors of a democracy and the errors of an autocracy will be followed by similar consequences. A foolish law does not become a wise law because it is approved by a great many people. The success ful enforcement of the law in a democracy must always rest pri marily in the fact tha t on the whole it commends itself to a uni versal sense of justice, shared even by those who violate it. Any attempt, therefore, to cur tail the liberties of the citizen, which shocks the sense of personal independence of any considerable proportion of the community is likely to do more harm than good, not only because a strong feeling that a particular law is unj ust lessens in some degree the rever ence for law generally, but because 1966 PRIVATE RIGHTS AND GOVERNMENT 33 such a law cannot be successfully enforced, and a law that inspires neither respect for its justice nor fear for its enforcement is about as utterly contemptible a thing as can be imagined.

Burgeoning Bureaucracy Another thing which may well give concern to thoughtful men is the trenlendous increase during late years in the number and power of administrative boards, bureaus, commissions, and similar agencies, the insidious tendency of which is to undermine the funda mental principle upon which our form of government depends; ,namely, that it is "an empire of laws and not of men"; the mean ing of which is that the rights and duties of the individual as a member of society must be defined by pre-established laws and not left to be fixed by official edict as they may be called into question from time to time. The American people have heretofore enjoyed a greater freedom from vexatious official intermeddling and arbi trary governmental compulsion than perhaps any other people in the world. Despotism has found no place among us because we have been subject to no restraint save the impartial restraint of the law, which has thus far stood su perior to the will of any official, high or low.

It is not enough, however, that we should continue free from the despotism of a supreme autocrat. We must keep ourselves free from the petty despotism which may come from vesting final discretion to regulate individual conduct in the hands of lesser officials. To this end the things which organ ized society exacts from its mem bers must be particularized as far as practicable by definite and uni form rules. Liberty consists at last in the right to do whatever the law does not forbid, and this presupposes law made in advance - so that the individual may know before he acts, the standard of conduct to which his acts must conform - and interpreted and ap plied after the act by disinterested authority - so that the true rela tion to one another of the conduct and the law may be clearly ascer tained and declared. Itis, therefore, of the utmost importance that the authority which interprets and executes the law should not also be the author ity which makes it. The law must apply to all alike. The making of law is an exercise of the will of the state; the interpretation and application of the' law is an exer cise of the reason of the judge.

The legislator concerns himself with the question, Is the proposed law just in its gene'ral application? The official who administers the 34 THE FREEMAN June law has nothing to do with the abstract question of its justice; his function is to ascertain what it is and whether it has been violated. The two functions are so utterly different that the neces sity of vesting them in separate hands has been long recognized. To confer upon the same man, or body of men, the power to make the law and also to administer it would. inevitably result in despotic government by substituting the shifting frontiers of personal com mand for the definite boundaries of general, impersonal law. "The spirit of encroachment," said Washington· in the Farewell Ad dress, "tends to consolidate the powers of all the departments in one and thus to create, whatever the form of government, a real despotism." Regulation of Business The danger, therefore, which is threatened by the multiplication of bureaus and commissions con sists in the commingling of these powers. The authority conferred upon these administrative bodies is becoming ·less a:nd less limited.

The jurisdiction to deal with par ticular subjects involving the con duct of individuals is conferred in terms which tend to become in creasingly indefinite. . . . Not only are the business activ ities of the country being investigated, supervised, directed, and controlled in such a multitude of ways that the banker, the mer chant, and the men of industry generally are afloat upon a sea of uncertainty where if they succeed in avoiding the mines of dubious statutes by which they are sur rounded, they are in danger of being blown up by an administra tive torpedo, launched from one of the numerous submarine com missions by which the business waters are everywhere infested, but the government is invading and is threatening to more seri ously invade the market place it self, not as a regulator, but as a participant and competitor. We seem to be approaching more and more nearly the point where the old philosophy that whatever can be done by the individual should not be done by the government even though it may be well done, is to be abandoned for the new and dangerous doctrine that what ever can be done by the govern ment, even though it may be badly done, should not be permitted to the individual. ...

The regulation and control of merely self-regarding conduct, the multiplication of administrative boards and similar agencies and the invasion of the field of private business, which I have thus far particularized, illustrate rather than enumerate the various tend1966 PRIVATE RIGHTS AND .GOVERNMENT 35 encies of modern legislation and government to depart from those sound and wholesome principles which hitherto have been supposed to operate in the direction of pre serving the individual against un due restraint and oppression. Class legislation, the most odi ous form of legislative abuse, is by no means infrequent. In state and nation statutes are to be found which select for special privilege one' class of great voting strength or set apart for special burdens another class of small numerical power at the polls. Separation of Powers Next to the separation and dis tribution of the legislative, execu tive, and judicial powers, the most important feature of our plan of government is the division of the aggregate powers of government between the nation and the' sev eral states, to the one by enumera tion and to the other by reserva tion. I believe in the most liberal construction of the national pow ers actually granted, but I also be lieve in the rigid exclusion of the national government from those powers which have been actually reserved to the states. The local government is in immediate con tact with the local problems and should be able to deal with them more wisely and more effectively than the general government having its seat at a distance. The need of preserving the power and en forcing the duty of local self-gov ernment is imperative, and espe cially so in a country, such as ours, of vast population and extent, pos sessing almost every variety of soil and climate, of greatly diver sified interests and occupations, and having all sorts of differing conditions to deal with.

There is, unfortunately, how ever, a constantly growing tend ency on the part of the general government to intrude upon the powers of the state governments, more by way of relieving them from responsibilities they are will ing to shirk than by usurping powers they are anxious to retain. Especially does any inroad or sug gested inroad upon the federal treasury for state purposes meet with instant and hearty approval. The grave danger of all this is that the ability as well as the desire of the people of the several states to carry their own burdens and cor rect their own shortcomings will gradually lessen and finally disap pear, with the result that the states will become mere geographi cal subdivisions and the federal character of the nation will cease to exist save as a more or less dis credited tradition. These and many other matters afford temptation to further dis cussion to which I cannot yield 36 THE FREEMAN June without undue trespass upon your patience, which I feel has already been quite sufficiently taxed.

Human Dignity and Property Fifty years ago a great French writer-Laboulaye, I think it was - speaking through the lips of one of his American characters, ut tered these words of wisdom and of power, words which are as true today as they were when they were written: The more democratic a people is, the more it is necessary that the in dividual be strong and his property sacred. Weare a nation of sover eigns, and everything that weakens the individual tends toward dema gogy, that is, toward disorder and ruin; whereas everything that forti fies the individual tends toward democracy, that is, the reign of rea son and the Evangel. A free country is a country where each citizen is absolute master of his conscience, his person, and his goods. If the day ever comes when individual rights are swallowed up by those of the general interest, that day will see the end of Washington's handiwork; we will be a mob and we will have a master.

It is now as it has always been, that when the visionary or the demagogue advocates a new law or policy or scheme of government which tends to curtail the liberties of the individual, he loudly insists that he is acting for the general interest and thereby surrounds his propaganda with such a halo of sanctity that opposition or even candid criticism is looked upon as sacrilege. But the time has come when every true lover of his country must refuse to be misled or over awed by specious claims of this character. Individual liberty and the common good are not incom patible, but are entirely consistent with one another. Both are desir able and both may be had, but we must demand the substance of both and not accept the counter feit of either. Crimes, we are told, have been committed in the name of liberty. But either the thing that was called a crime was no crime or the name of liberty was profaned, as though one should become an anarchist in the name of order.

Liberty and order are the two most precious things beneath the stars. The duty which rests upon us of this generation is the same that has rested upon all the gen erations of the past; to be vigilant to see and absolute to repel every attempt, however insidious or in direct, to destroy liberty in the name of order, or order in the name of liberty, for the alterna tive of the one is despotism and of the other the n10b. ~ Private Enterprise in the Public Interest from the1965 Annual Report of the United States Steel Corporation. PRIVATE ENTERPRISE is freedom to produce and sell, and freedom to buy and consume; and the con sumer, as well as the producer, is an integral part of the private enterprise system - indeed, the consumer also is in a way a pri vate enterpriser. As an economic system, private enterprise is char acterized by competition, open markets, private ownership, and private initiative. Producers take production initiative on the basis of price and profit-and-loss signals essentially given by consumers.