The Spirit of America

by Henry Van Dyke

Twenty-one times it has annulled the action of Congress and declared it ultra vires. More than two hundred times it has found that State statutes were contrary to the Constitution and therefore practically non-existent. And these decisions are not made in the abstract, on theory, but in the concrete, on actual cases when the principle of fair play under the Constitution is at stake.

Let me illustrate this. In 1894 a law was passed by Congress taxing all incomes over a certain sum at certain rates. This was, in effect, not a tax based proportionally upon population, but a special tax upon a part of the population. It was also a direct tax levied by the national legislature. There was no necessity of discussing the abstract question of the wisdom or righteousness of such taxation. The only question was whether it was fair play under the Constitution. A citizen of New York refused to pay the tax; the case was brought to the Supreme Court and argued by Mr. Choate, the late American Ambassador to Great Britain. The court held that Congress had no power to impose such a tax, because the Constitution forbids that body to lay any direct tax, “unless in proportion to the census.” By this one decision the income-tax law became null, as if it had never been.

Again, a certain citizen had obtained from the State of Georgia a grant of land upon certain terms. This grant was subsequently repealed by the State by a general statute. A case arose out of the conveyance of this land by a deed and covenant, and was carried to the Supreme Court. The court held that the statute of the State which took the citizen’s land away from him was null, because it “impaired the obligation of a contract,” which the Constitution expressly forbids.

Again, in 1890, Congress passed a measure commonly called the Sherman Anti-Trust Act, declaring “every contract, combination in the form of trusts or otherwise, or conspiracy in restraint of trade or commerce among the several States” to be illegal. This was undoubtedly intended to prevent the merger of railroads and manufacturing concerns into gigantic trusts with monopolistic powers. The American spirit has always understood liberty as including the right of the citizen to be free in the enjoyment of all his faculties, to live and work where he will, and in so doing to move freely from State to State. So far as the trusts were combinations in restraint of this right, the statute properly declared them illegal, and the Supreme Court so interpreted and applied it. But it soon became evident that combinations of labour might restrain trade just as much as combinations of capital. A strike or a boycott might paralyze an industry or stop a railroad. The Supreme Court did not hesitate to apply the same rule to the employees as to the employers. It held that a combination whose professed object is to arrest the operation of railroads whose lines extend from a great city into adjoining States until such roads accede to certain demands made upon them, whether such demands are in themselves reasonable or unreasonable, just or unjust, is certainly an unlawful conspiracy in restraint of commerce among the States.

Again and again the Supreme Court has interfered to prevent citizens of all the States from being deprived by the action of any State of those liberties which belong to them in common. Again and again its decisions have expressed and illustrated the fundamental American conviction which is summed up in the strong words of Justice Bradley: “The right to follow any of the common occupations of life is an inalienable right.”

I have not spoken of the other federal courts and of the general machinery of justice in the United States, because there is not time to do so. If it were possible to characterize the general tendency in a sentence, I would say that it lays the primary emphasis on the protection of rights, and the secondary emphasis on the punishment of offences. Looking at the processes of justice from the outside, and describing things by their appearance, one might say that in many parts of the continent of Europe an accused man looks guilty till he is proved innocent; in America he looks innocent until his guilt is established.

The American tendency has its serious drawbacks,—legal delays, failures to convict, immunity of criminals, and so on. These are unpleasant and dangerous things. Yet, after all, when the thoughtful American looks at his country quietly and soberly he feels that a fundamental sense of justice prevails there not only in the courts but among the people. The exceptions are glaring, but they are still exceptions. And when he remembers the immense and inevitable perils of a republic, he reassures himself by considering the past history and the present power of the Supreme Court, that great bulwark against official encroachment, legislative tyranny, and mobocracy,—that grave and majestic symbol of the spirit of fair play. A republic with such an institution at the centre of its national conscience has at least one instrument of protection against the dangers which lurk in the periphery of its own passions.

If you should ask me for a second illustration of the spirit of fair play in America, I should name religious liberty and the peaceful independence of the churches within the state. I do not call it the “Separation of Church and State,” because I fear that in France the phrase might carry a false meaning. It might convey the impression of a forcible rupture, or even a feeling of hostility, between the government and the religious bodies. Nothing of that kind exists in America. The state extends a firm and friendly protection to the adherents of all forms of religious belief or unbelief, defending all alike in their persons, in the possession of their property, and in their chosen method of pursuing happiness, whether in this world or in the next. It requires only that they shall not practise as a part of their cult anything contrary to public morality, such as polygamy, or physical cruelty, or neglect of children. Otherwise they are all free to follow the dictates of conscience in worshipping or in not worshipping, and in so doing they are under the shield of government.

This is guaranteed not only by the Constitution of the United States, but also by the separate State constitutions, so far as I know, without exception. Moreover, the general confidence and good-will of the state towards the churches is shown in many ways. Property used for religious purposes is exempted from taxation,—doubtless on the ground that these purposes are likely to promote good citizenship and orderly living. Religious marriage is recognized, but not required; and the act of a minister of any creed is, in this particular, as valid and binding as if he were a magistrate. But such marriages must be witnessed and registered according to law, and no church can annul them. It is the common practice to open sessions of the legislature, national and State, with an act of prayer; but participation in this act is voluntary. The President, according to ancient custom, appoints an annual day of national thanksgiving in the month of November, and his proclamation to this effect is repeated by the governors of the different States. But here, again, it is a proclamation of liberty. The people are simply recommended to assemble in their various places of worship, and to give thanks according to their conscience and faith.

The laws against blasphemy and against the disturbance of public worship which exist in most of the States offer an equal protection to a Jewish synagogue, a Catholic cathedral, a Buddhist temple, a Protestant church, and a Quaker meeting-house; and no citizen is under any compulsion to enter any one of these buildings, or to pay a penny of taxation for their support. Each religious organization regulates its own affairs and controls its own property. In cases of dispute arising within a church the civil law has decided, again and again, that the rule and constitution of the church itself shall prevail.