# Popular Science Monthly/Volume 83/December 1913/The Struggle for Equality in the United States I

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* THE STRUGGLE FOR EQUALITY IN THE UNITED STATES
By Professor CHARLES F. EMERICK
SMITH COLLEGE
Introduction
THE student of public affairs finds much in the course of nineteenth century development in which the friends of orderly progress may well take heart. For one thing, the world underwent a great advance materially. In 1800, the appliances for producing wealth and the modes of transportation did not differ greatly from those that had been in vogue for hundreds of years. If the men of the fifteenth century could have been brought back to life three centuries later, they would have found the world in these respects substantially what it was when they lived and died. The nineteenth century supplied the world for the first time with the conditions of comfortable living. But it did something more. It contributed greatly to the advance of knowledge and to the diffusion of enlightenment. It witnessed a tremendous increase in the spirit of humanitarianism and the sense of justice. More of the material comforts of life, greater knowledge and enlightenment, and a keener sense of brotherhood and justice have gone hand in hand. The three have, for the most part, been in accord, but occasionally the facts of the material situation have failed to conform to the demands of the other two. It is the purpose of these pages to consider how two or three of these conflicts have contributed to our progress as a nation, and more particularly to discuss certain phases of the existing situation.
The Declaration of Independence
Equality and private property are the two things dear to the American heart. The influence of frontier conditions where one man socially is as good as another and where every one is a potential, if not an actual, owner of land, has stimulated a high regard for the former. On the other hand, in addition to the need of property which civilized man the world over experiences, the environment has been peculiarly favorable in arousing in nearly every one the desire to better his economic condition. In the absence of titled rank, the acquisition of property has been the chief stepping stone to political and social recognition. Besides, immigration has added to our population large numbers in whom the acquisitive instinct is exceptionally strong. The very richness of the rewards open to men of energy and intelligence has given zest to the economic struggle. It may well be, therefore, that the desire to get on ​in life is stronger in the United States than in any of the countries of Europe. Relatively to the desire for equality, however, private property is held in no higher esteem here than elsewhere. The American people are no more disposed to sacrifice their ideals to the pursuit of money than arc the people of other lands. Among other evidences that this is true are the numerous communistic societies that have sprung up from time to time in the face of repeated failure.
In the main, the passion for equality and the desire for property have not been incompatible. On occasion, however, the two have conflicted and an epoch-making event has occurred in our politics. Moreover, public opinion has not always held the two in equal esteem, but has at times been more devoted to the one and then again to the other. At the outset the emphasis was upon equality. "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable rights, that among these are Life, Liberty, and the pursuit of Happiness," runs the Declaration of Independence. These words are not to be taken in the sense that every one should wear the same sort of clothes, live in the same kind of a house, eat the same quantity and variety of food, or receive the same economic rewards and social recognition in life. Common sense and the intense individualism of the times are both opposed to any such narrow view as this. The American ideal of equality never has called for a dead level of uniformity. Owing to the strong dislike for anything that savors of titled rank or caste, there was once a popular objection to the wearing of uniforms, even by railroad conductors, but the objection was withdrawn when the practical utility of such uniforms was perceived. The colonists were no less intent upon liberty than upon equality, and their conception of the latter included a generous measure of the former. Equal in some respects, namely, in the right to life, liberty and the pursuit of happiness, was Lincoln's interpretation.
The Declaration of Independence was occasioned by the commercial restrictions of Great Britain. To secure freedom from these restrictions the right of self-government was asserted. More fundamental, however, than British commercial policy were the spirit of independence, the sense of self-reliance and the craving for freedom which isolation from the mother country and other conditions of frontier life helped to develop.
This philosophy constituted the idealism of a nation and found expression in the Revolution. Fairly within the spirit of the times was the thought that every man should be given an even chance to realize the best there is in him, and that the strong ought not to use their strength or cunning to despoil the weak. This thought is implied in many of the grounds on which the king of Great Britain was indicted. To equality in some such sense as this the signers of the Declaration of Independence pledged their lives, their fortunes and their sacred honor.
The Constitution
The Revolutionary War was attended with a good deal of turbulence and insecurity of life and property. The property of many of the Loyalists was confiscated and they themselves were forced into exile. Nor was the condition of affairs satisfactory in the years following the treaty of Paris in 1783. The governmental system was notoriously out of accord with the demands of the economic situation. The central government was dependent upon the states for support and its credit was at low ebb. The revolutionary bills of credit reached the last stages of depreciation. Some of the states levied hostile tariffs against each other, or were at loggerheads over the control of the navigable rivers which separated them. The tariff policies and schedules of the several states were woefully lacking in unity. English statesmen questioned the ability of congress to enforce the provisions of any commercial agreement that might be entered into, and Spain continued to claim both banks of the Mississippi. The result was that many tired of the ideal of equality. Moreover, the "hard times" which followed the Revolution and the return of some of the Loyalists contributed to the reaction.
The framing and adopting of the constitution were the logical outcome of the situation. The new government was given the unquestioned power to levy and collect the taxes needed for its own support, and was granted the exclusive power over interstate and foreign commerce. The treaty-making power and the control of the monetary system of the country were definitely and firmly lodged in its hands. These grants of power did much toward making the new government a tower of strength, and that property was thereby rendered more secure there can be no doubt. The cause of equality was also advanced. Federal control of interstate and foreign commerce opened wide the door of ​industrial opportunity, and a more stable political order made for the spirit of fair play among men. But in the main, the government instituted in 1789 appealed to the property-loving instinct rather than to the idealism of the nation. The assumption of state debts, the establishment of the United States Bank, the enactment of a protective tariff, policies espoused by Hamilton, all tended to enlist men of substance on the side of the government.
The mode provided for amending the constitution contributed to the same end. A two thirds majority of both houses of congress, or a convention called on application of two thirds of the states, is necessary to propose an amendment, and ratification either by conventions or legislatures in three fourths of the states is required for its adoption. The people have no direct voice either in proposing or in adopting amendments, and the obstinacy of a group of states containing a small minority of the population may effectually block the will of states containing an overwhelming majority. According to Walter E. Weyl, less than one fortieth of the voters may block the will of the remaining thirty-nine fortieths. So difficult is the mode of amendment that with the exception of the first twelve amendments, the first ten of which were the price paid to secure the adoption of the constitution and all of which were added shortly after its ratification, the only others are the three resulting from the Civil War and the two recently added. But for military occupation of the southern states, it is doubtful whether all the war amendments would have been ratified by the requisite number of states. In no democratic country are property owners more secure against innovations in the organic law. In England, the power to amend the constitution is vested in the House of Commons. In France, an absolute majority of the two houses in joint session suffices. And in Switzerland, proposed amendments are adopted by a majority of all the votes cast at a popular election provided a majority in a majority of the cantons is at the same time received. The federal constitution of Australia has copied this provision.
Our constitutional system further safeguards property by the system of checks and balances, a leading feature of which is the federal courts. The power to override an act of congress is exercised by an appointive judiciary holding office for life whose compensation "shall not be diminished during their continuance in office." The fifth amendment prohibits congress from depriving any one "of life, liberty, or property, without due process of law," and the fourteenth amendment imposes the same prohibition upon the states. Property is mentioned along with life and liberty implying that it is either on a par with or is necessary to them. As the watch-dogs of both these amendments stand the federal ​courts. Moreover, judicial interpretation has given a scope to certain clauses of the constitution which no one suspected at the time of their adoption. In the Dartmouth College case in 1819, the Supreme Court held that a charter is a contract, and in a case involving the Southern Pacific Railroad in 1882 the same court interpreted the word "person" to include a corporation. In the former case, the court enlarged the conception of property, and in the latter case, in interpreting an amendment intended for the protection of the negro, the court included under its guardianship the property of artificial as well as of natural persons. The Supreme Court has well been termed "the bulwark of private property." President Hadley aptly remarks:
When it is said, as it commonly is, that the fundamental division of powers in the modern State is into legislative, executive and judicial, the student of American institutions may fairly note an exception. The fundamental division of powers in the Constitution of the United States is between voters op. the one hand and property owners on the other. The forces of democracy on one side, divided between the executive and the legislature, are set over against the forces of property on the other side, with the judiciary as arbiter between them; the constitution itself not only forbidding the legislature and executive to trench upon the rights of property, but compelling the judiciary to define and uphold those rights in a manner provided by the constitution itself.
These remarks were originally delivered at Berlin University. To the average investor, both at home and abroad, they describe what appears to be an ideal situation. On the other hand, to a democracy seeking to possess more fully the reins of power they indicate a condition that is far from satisfactory.
Slavery
A short time after the election of Washington, a reaction set in against the party of property. The commanding personality of Washington and the high respect in which he was held for a brief period stemmed the reaction but could not avert it. The election of Jefferson marked the triumph of the party of equality, a triumph which the westward drift of population and the successive admission of trans-Allegheny states helped to perpetuate. Kentucky was admitted as a state in 1792, Tennessee in 1796, Ohio in 1802, and in the ten years ending with 1821, Louisiana, Indiana, Mississippi, Illinois, Alabama, Maine and Missouri joined the family of states, a greater number than in any decade before or since. The Louisiana purchase sealed the fate of the Federalist party. The ideal of equality in the United States is greatly indebted to the circumstances which have made it possible for such large numbers to become the owners of land in their own right. The liberalization of the terms on which the public lands were offered for sale in 1800, and in the years following, contributed powerfully to the growing prevalence of democratic equality. This found expression in the ​gradual broadening of the suffrage in the different states, in the abolishment of religious and property qualifications for office, in the election of Jackson and the spoils system, and in the war on the United States Bank.
The economic situation rendered the craving for property in the main at one with the ideal of equality. The one noteworthy exception was property in human chattels against which the forces of equality protested until the close of the Civil War. In colonial days African slavery was an American institution. But gradually slavery died out in the north, as the fact that it did not pay became more generally recognized, and even in the south, except in South Carolina and Georgia, the feeling against the institution as late as 1790 was strong. Two events, just at this juncture, the invention of the cotton gin and the introduction of short staple cotton adapted to the uplands of the south, made slave ownership much more profitable and changed the whole situation. The simultaneous introduction of spinning and weaving by steam-driven machinery greatly reduced the cost of manufacturing cotton goods and, aided by improved transportation, brought them into general use, enlarged the market for the product of the cotton fields, hastened the spread of slavery and helped to fasten it more firmly upon the south. Improved transportation also contributed to this result by rendering the interior of the south accessible to the cotton manufacturing centers. Likewise, the growing of slaves in the border states for the southern market became more profitable, and public opinion in these states which had been half way friendly to emancipation suddenly recoiled. As a consequence, slavery ceased to be a national and became a sectional institution. The explanation is at bottom economic, for while slavery as a method of applying labor disappeared in the north, the slave trade continued for some years, even after it had been made unlawful, and was the foundation of not a few fortunes in Newport and other northern cities. Slavery died out in the north because it did not pay, while northerners continued to traffic in slaves because it was profitable. Under the same economic conditions, the southerner is ethically the peer of the northerner.
Property in human beings conflicted with the ideal of equality. So long as one individual owns the body of another, the conception of fair play is set at naught. Not only is the slave denied the freedom necessary to the expression of his personality, but the effect upon the owner is apt to be degrading. The aspirations for better things of both master and slave are either restrained or suppressed. Clearly, slavery was inconsistent with the professions of democracy and was out of accord with the spirit of nineteenth-century civilization. The inconsistency was so glaring that the authors of the constitution scrupulously avoided the use of the words "slave" and "slavery" in framing that document. It would have been strange, therefore, if the restraint and abolition of ​slavery had not become the goal of the devotees of equality, especially since its inhumanity appeared more obvious and the situation more grotesque as the institution assumed greater proportions.
In the contest which ensued, the abolishment of the African slave trade was the first great event. The power of congress over foreign commerce was in this regard abridged by the constitution till 1808. But promptly upon the expiration of the time limit, the importation of slaves was prohibited. Subsequently, the antagonism between equality and property in slaves was seldom in abeyance, but the enactment of the Missouri compromise in 1820, its repeal in 1854, the Dred Scott decision, and the Civil War were the four events of chief importance. The first prohibited slavery in the territories north of 36° 30′. This was in keeping with the spirit of the ordinance of 1787, and marked a triumph for the advocates of equality. The second and third were victories for the defenders of property in slaves but proved to be only temporary triumphs. The crystallization of public opinion in the north against the spread of slavery in the territories, and the rapid growth of population in the free states threatened its very existence. The tide of events was so strongly against the institution that southern leaders felt that delay was fatal, and resolved to submit the issue to the sword. The fortunes of war turned against them and resulted in a loss of slave property of two thousand millions of dollars. In the enthusiasm of the moment the tide toward equality was so strong that three amendments were added to the constitution. The first declared the negro a free man, the second made him a citizen, and the third aimed at giving him the ballot on a parity with whites. Doubtless the glamor of military success coupled with resentment toward the south and the desire to place the ballot in hands loyal to the federal government contributed to this result. None the less, the three war amendments suggest how dear the ideal of equality is to the American heart.
The Dred Scott Decision
It is worth while to pause long enough here to consider briefly two features of the Dred Scott decision. The first is the rule of judicial interpretation which guided the majority of the court. In the light of precedent and of the law narrowly and strictly interpreted, many lawyers to-day hold the decision handed down by Judge Taney to have been correct. But of those who subscribe to this view, a small but respectable minority maintain that the decision was none the less erroneous on the ground that it is the business of the courts to make precedents as well as to be bound by them and to this end to interpret and apply the law broadly in the light of the prevailing sense of justice. According to this view there is no such hard and fast line of cleavage between the ​functions of the legislative and judicial departments as is sometimes supposed, and in rendering decisions the courts on occasion make the law as well as declare what the law is. For the courts in their rulings to avoid any recognition of a higher sense of justice in the community until it has found expression in a legislative enactment seems a travesty upon justice to those who hold this position. There is little doubt that the unpopular reception accorded the Dred Scott decision was based upon some such view as this. In point of fact, there is a large body of judge-made law. Some decisions have even gone further and have amended the constitution by interpretation, a procedure which the difficulty of formally amending our organic law invites. In the opinion of many legal lights, Justice Harlan had good ground for accusing the majority of reading the word "reasonable" into the anti-trust act in the Standard Oil and American Tobacco Company cases.
The second feature of the Dred Scott decision to which it is desired to allude here is the storm of popular disapproval which greeted its announcement. The present age is familiar with the heated discussions to which the judicial determination of cases involving the ideals of democracy and the rights of property frequently give rise. Both parties to such controversies have so much at stake that it is hard for either to be a good loser. When anything that a man has once possessed himself of is placed in jeopardy, or when any ideal upon which the fortunes of humanity are supposed to rest is called in question, a complacent mood is too much to expect. Nor is this peculiar to this age. Those who assume that failure to acquiesce cheerfully in the rulings of the courts is without precedent in the past will do well to recall the attitude of Jefferson and Jackson, and especially the outburst of indignation which the Dred Scott decision called forth. As an example of what some look upon as treason to the courts, the contempt with which this decision was regarded has not been duplicated before or since.
The way in which Mr. Lincoln took the Supreme Court to task deserves a passing notice. He did not content himself with maintaining that the decision was bad law. In a speech at Springfield, Illinois, June 17, 1858, he boldly insinuated that Chief Justice Taney, Stephen A. Douglas, James Buchanan and Franklin Pierce conspired together in handing down the Dred Scott decision. After citing the successive points in the alleged conspiracy, he threw his indictment into the following classic:
To this Judge Douglas replied:
It would be perfectly legitimate and proper for Mr, Lincoln, myself, or any other lawyer, to go before the Supreme Court and argue any question that might arise there, taking either side of it, and enforcing it with all our ability, zeal and energy, but when the decision is pronounced, that decision becomes the law of the land, and he, and you, and myself, and every other good citizen, must bow to it, and yield obedience to it. Unless we respect and bow in deference to the final decisions of the highest judicial tribunal in our country, we are driven at once to anarchy, to violence, to mob law, and there is no security left for our property, or our own civil rights. What protects your property but the law, and who expounds the law but the judicial tribunals; and if an appeal is to be taken from the decisions of the Supreme Court of the United States, in all cases where a person does not like the adjudication, to whom is that appeal to be taken! Are we to appeal from the Supreme Court to a county meeting like this?
Douglas also denied the conspiracy charge. Not content with Douglas' denial, Lincoln renewed the charge, and while admitting that he did not "know" submitted the evidence upon which he "believed" it to be true. Likewise, he objected to "the sacredness that Judge Douglas throws around this decision," and said:
If I were in Congress, and a vote should come up on a question whether slavery should be prohibited in a new territory, in spite of the Dred Scott decision, I would vote that it should.
He also asked Douglas whether he would acquiesce in a second Dred Scott decision forbidding the free states from excluding slavery from their limits, and stated that Douglas himself had approved of Jackson's refusal to be bound by a Supreme Court decision touching the constitutionality of the United States Bank. He went even farther and asserted that Douglas was once in favor of "adding five new Judges" to the Supreme Court of Illinois in order to reverse a decision of that court, and that "it ended in the judge's sitting down on that very bench as one of the five new judges to break down the four old ones." In short, "Judge Douglas is for Supreme Court decisions when he likes and against them when he does not like them."
​Lincoln distinguished sharply between the sense in which he opposed the Dred Scott decision and the sense in which he did not. He disclaimed any intention of resisting the decision in so far as it affected Dred Scott. "We let this property abide by the decision, but we will try to reverse that decision. We will try to put it where Judge Douglas would not object, for he says he will obey it until it is reversed. Somebody has to reverse that decision, since it is made, and we mean to reverse it, and we mean to do it peaceably." Lincoln did not indicate how far he would go to attain his end. Judge Douglas charged him with intending to pack the court. I am not aware that Lincoln ever entered a denial.
The controversy between Lincoln and Douglas in 1858 suggests present-day conditions. The Republican party at its origin was an uprising against those extremists who considered the right to property in slaves paramount to the rights of man. The stand which it took against the Dred Scott decision contributed much to its growth and influence. With its advent to power, however, the party became more and more closely identified with the clandestine work of arranging tariff schedules, getting valuable franchises for a song, looking after the "pork" in river and harbor and public building bills, and with voting the public money for pensions. The leadership of the party suffered the inevitable consequences of long years in power. The moral enthusiasm which attended its origin grew less and less. In striking contrast to 1860, the tendency to emphasize the rights of property and to object to any and all criticisms of court decisions which uphold property rights became more and more pronounced. With Lincoln's arraignment of Douglas for accepting a court decision not at all "on its merits," but because "it is to him a 'Thus saith the Lord,'" the party came to have less and less sympathy. The leadership more and more approximated that of Douglas, who cared not whether slavery was voted up or voted down, and nothing so well describes it as Lincoln's characterization of his distinguished opponent. Said Mr. Lincoln:
Senator Douglas is of world-wide renown. All the anxious politicians of his party, or who have been of his party for years past, have been looking upon him certainly, at no distant day, to be President of the United States. They have seen in his round, jolly, fruitful face, post-offices, land-offices, marshallships and cabinet appointments, chargeships and foreign missions, bursting and sprouting out in wonderful exuberance, ready to be laid hold of by his greedy hands. . ., On the contrary, nobody has ever expected me to be President. In my poor, lean, lank face, nobody has ever seen that any cabbages were sprouting out.
Happily, in recent years many of the more prominent leaders in the Democratic as well as in the Republican party who answered to this ​description have fallen "outside the breastworks." We have been going through a period of political housecleaning, and the politicians in response to an awakened public opinion have been showing fruits meek for repentance. Seldom have the leaders in every party been so much on their good behavior. Judged by the sort of measures that have been placed upon the statute books during the past year, the Democratic party in Ohio and the Republican-Progressive party in California have been about equally progressive. There is not much choice between the Democratic party in New Jersey under the leadership of Woodrow Wilson and the Republican party in Wisconsin under the leadership of Senator La Follette. When politicians in general are competing for the good will and support of the more decent and public-spirited portion of the community, as they are to-day, the friends of good government have much ground for encouragement.
Political parties, in common with individuals, are judged by the kind of company they keep and by the reputations they acquire. This accounts for the defeat of the Republican party and the appearance of the Progressive party in the presidential election of 1912. The Republican party has not been entirely irresponsive to the demands of a more exacting public opinion. A growing number of men truly progressive in spirit has become conspicuous in its counsels. Many salutary measures have been placed upon the statute books under Republican auspices. But in all of this there has been a certain hesitation, a reluctance to move forward save under compulsion, a tendency to death-bed repentance. The revision of the tariff at the hands of the Republican party is a conspicuous illustration. As a result, the party has failed to receive due credit for some of the forward steps which it has occasionally taken. This was especially true under the Taft administration when a number of progressive measures were enacted into law, while others, notably the recommendations of the President on conservation, failed to become laws partly because the public suspected the auspices under which they originated. The Republican party is suffering the consequences of not keeping properly abreast of the times. At a time when new problems were pressing for solution, it has sustained a reputation for "standing pat" and for "letting well enough alone." When it might have invoked the power of the national government to solve problems that are clearly nation wide in character, it has faltered and failed to prove true to the traditions of its origin. ​
* ↑ Debates of Lincoln and Douglas, published by Follett, Foster and Co., Columbus, Ohio, p. 63.
* ↑ Walter E. Weyl, "The New Democracy," p. 37.
* ↑ Katherine Coman, "Industrial History of the United States," new and revised edition, 1910, pp. 115-116.
* ↑ Op. cit., p. 14.
* ↑ J. Allen Smith, "The Spirit of American Government," pp. 62-63.
* ↑ The Independent, Vol. LXIV, 1908, p. 837.
* ↑ Blaine, "Twenty Years of Congress," Vol. 1, p. 174.
* ↑ Debates of Lincoln and Douglas, op. cit., pp. 3-4.
* ↑ Ibid., p. 32.
* ↑ Ibid., p. 79.
* ↑ Ibid., p. 20.
* ↑ Ibid., p. 20.
* ↑ Ibid., p. 90.
* ↑ Ibid., pp. 82-83.
* ↑ Ibid., p. 62.
* ↑ Ibid., p. 20.
* ↑ Ibid., pp. 33-34.
* ↑ Ibid., p. 55.
* ↑ The future of the Republican party is an interesting subject for speculation. On the one hand, it has a great past. Its early devotion to human rights has not been forgotten. It performed a great service in saving the Union and in freeing the slaves. It has repeatedly recognized the sense of nationality which we cherish as a people. Its very name is a household word, and it« devotees are still numbered by the millions. Its alliances are by no means as unsavory as those that killed the Whig party, and it has an incomparably greater past. As a going concern long in the field, it possesses certain substantial advantages which a new party can only painfully acquire. There is a legitimate place for a party that champions the interests of property within reasonable bounds. The differences between the Republican and the Progressive parties on the tariff and the trusts are by no means insuperable. On the other hand, it is vulnerable in three respects. It distrusts the people, it has not identified itself closely enough with their interests, and it is on too intimate terms with those who participate in politics for private gain, three weaknesses that led to the downfall of the Federalist party. Its future depends on its ability to overcome these weaknesses and on the mistakes of its adversaries. The fact that the Democratic party managed to live down its associations with slavery and its highly questionable record during the Civil War indicates that the future of the Republican party is by no means hopeless. Competition normally leads even a conservative party to make a bid for popular favor, and but for the disposition of many of the Republican leaders to bank upon the mistakes of their opponents rather than upon setting their own house in order, one might confidently predict a field of future usefulness. The party has often profited by such mistakes in the past, but it is always poor strategy to rely upon the shortsightedness of one's opponents for success in any game. Sobered by the responsibility of power, the Democratic leaders may not be as obliging in the future as they have often been in the past, or the Socialist and Progressive parties may profit by their mistakes. If the Democracy rises to the occasion, it may be given a long lease of power. The schism in the Republican party is a more serious matter than many of its leaders realize. Fundamentally, it is not the work of a lot of "soreheads" or of Mr. Roosevelt, but the natural consequence of its own conduct.