Whether this aggressive unionism will ever become popular enough to endanger the foundations of the American political and social order, I shall not pretend to predict. The practical dangers resulting from it at any one time are largely neutralized by the mere size of the country and its extremely complicated social and industrial economy. The menace it contains to the nation as a whole can hardly become very critical as long as so large a proportion of the American voters are land-owning farmers. But while the general national well-being seems sufficiently protected for the present against the aggressive assertion of the class interests of the unionists, the legal public interest of particular states and cities cannot be considered as anywhere near so secure; and in any event the existence of aggressive discontent on that part of the unionists must constitute a serious problem for the American legislator and statesman. Is there any ground for such aggressive discontent? How has it come to pass that the American political system, which was designed to guarantee the welfare and prosperity of the people, is the subject of such violent popular suspicion? Can these suspicions be allayed merely by curbing the somewhat excessive opportunities of the rich man and by the diminution of his influence upon the government? Or does the discontent indicate the existence of more radical economic evils or the necessity of more radical economic reforms?
However the foregoing questions ought to be answered, there can be no doubt as to the nature of the answers, proposed by the unionists themselves. The unionist leaders frequently offer verbal homage to the great American principle of equal rights, but what they really demand is the abandonment of that principle. What they want is an economic and political order which will discriminate in favor of union labor and against non-union labor; and they want it on the ground that the unions have proved to be the most effective agency on behalf of economic and social amelioration of the wage-earner. The unions, that is, are helping most effectively to accomplish the task, traditionally attributed to the American democratic political system—the task of raising the general standard of living; and the unionists claim that they deserve on this ground recognition by the state and active encouragement. Obviously, however, such encouragement could not go very far without violating both the Federal and many state constitutions—the result being that there is a profound antagonism between our existing political system and what the unionists consider to be a perfectly fair demand. Like all good Americans, while verbally asking for nothing but equal rights, they interpret the phrase so that equal rights become equivalent to special rights.
Of all the hard blows which the course of American political and economic development has dealt the traditional system of political ideas and institutions, perhaps the hardest is this demand for discrimination on behalf of union labor. It means that the more intelligent and progressive American workingmen are coming to believe that the American political and economic organization does not sufficiently secure the material improvement of the wage-earner. This conviction may be to a large extent erroneous. Certain it is that the wages of unorganized farm laborers have been increasing as rapidly during the past thirty years as have the wages of the organized mechanics. But whether erroneous or not, it is widespread and deep-rooted; and whatever danger it possesses is derived from the fact that it affords to a substantially revolutionary purpose a large and increasing popular following. The other instances of organization for special purposes which have been remarked, have superficially, at least, been making for conservatism. The millionaire and the professional politician want above all things to be let alone, and to be allowed to enjoy the benefit of their conquests. But the labor organizations cannot exercise the power necessary in their opinion to their interests without certain radical changes in the political and economic order; and inasmuch as their power is likely to increase rather than diminish, the American people are confronted with the prospect of persistent, unscrupulous, and increasing agitation on behalf of an economic and political reorganization in favor of one class of citizens.
The large corporations and the unions occupy in certain respects a similar relation to the American political system. Their advocates both believe in associated action for themselves and in competition for their adversaries. They both demand governmental protection and recognition, but resent the notion of efficient governmental regulation. They have both reached their existing power, partly because of the weakness of the state governments, to which they are legally subject, and they both are opposed to any interference by the Federal government—except exclusively on their own behalf. Yet they both have become so very powerful that they are frequently too strong for the state governments, and in different ways they both traffic for their own benefit with the politicians, who so often control those governments. Here, of course, the parallelism ends and the divergence begins. The corporations have apparently the best of the situation because existing institutions are more favorable to the interests of the corporations than to the interests of the unionists; but on the other hand, the unions have the immense advantage of a great and increasing numerical strength. They are beginning to use the suffrage to promote a class interest, though how far they will travel on this perilous path remains doubtful. In any event, it is obvious that the development in this country of two such powerful and unscrupulous and well-organized special interests has created a condition which the founders of the Republic never anticipated, and which demands as a counterpoise a more effective body of national opinion, and a more powerful organization of the national interest.
V
GOVERNMENT BY LAWYERS
The corporation, the politician, and the union laborer are all illustrations of the organization of men representing fundamental interests for special purposes. The specialization of American society has not, however, stopped with its specialized organization. A similar process has been taking place in the different professions, arts, and trades; and of these much the most important is the gradual transformation of the function of the lawyer in the American political system. He no longer either performs the same office or occupies the same place in the public mind as he did before the Civil War; and the nature and meaning of this change cannot be understood without some preliminary consideration of the important part which American lawyers have played in American political history.
The importance of that part is both considerable and peculiar—as is the debt of gratitude which the American people owe to American lawyers. They founded the Republic, and they have always governed it. Some few generals, and even one colonel, have been elected to the Presidency of the United States; and occasionally business men of one kind or another have prevailed in local politics; but really important political action in our country has almost always been taken under the influence of lawyers. On the whole, American laws have been made by lawyers; they have been executed by lawyers; and, of course, they have been expounded by lawyers. Their predominance has been practically complete; and so far as I know, it has been unprecedented. No other great people, either in classic, mediæval, or modern times, has ever allowed such a professional monopoly of governmental functions. Certain religious bodies have submitted for a while to the dominion of ecclesiastical lawyers; but the lawyer has rarely been allowed to interfere either in the executive or the legislative branches of the government. The lawyer phrased the laws and he expounded them for the benefit of litigants. The construction which he has placed upon bodies of customary law, particularly in England, has sometimes been equivalent to the most permanent and fruitful legislation. But the people responsible for the government of European countries have rarely been trained lawyers, whereas American statesmen, untrained in the law, are palpable exceptions. This dominion of lawyers is so defiant of precedent that it must be due to certain novel and peremptory American conditions.
The American would claim, of course, that the unprecedented prominence of the lawyer in American politics is to be explained on the ground that the American government is a government by law. The lawyer is necessarily of subordinate importance in any political system tending towards absolutism. He is even of subordinate importance in a liberal system such as that of Great Britain, where Crown and Parliament, acting together, have the power to enact any desired legislation. The Federal Constitution, on the other hand, by establishing the Supreme Court as the interpreter of the Fundamental Law, and as a separate and independent department of the government, really made the American lawyer responsible for the future of the country. In so far as the Constitution continues to prevail, the Supreme Court becomes the final arbiter of the destinies of the United States. Whenever its action can be legally invoked, it can, if necessary, declare the will of either or both the President and Congress of no effect; and inasmuch as almost every important question of public policy raises corresponding questions of Constitutional interpretation, its possible or actual influence dominates American political discussion. Thus the lawyer, when consecrated as Justice of the Supreme Court, has become the High Priest of our political faith. He sits in the sanctuary and guards the sacred rights which have been enshrined in the ark of the Constitution.
The importance of lawyers as legislators and executives in the actual work of American government has been an indirect consequence of the peculiar function of the Supreme Court in the American political system. The state constitutions confer a corresponding function on the highest state courts, although they make no similar provision for the independence of the state judiciary. The whole business of American government is so entangled in a network of legal conditions that a training in the law is the beet education which an American public man can receive. The first question asked of any important legislative project, whether state or Federal, concerns its constitutionality; and the question of its wisdom is necessarily subordinate to these fundamental legal considerations. The statesman, who is not a lawyer, suffers under many disadvantages—not the least of which is the suspicion wherewith he is regarded by his legal fellow-statesmen. When they talk about a government by law, they really mean a government by lawyers; and they are by way of believing that government by anybody but lawyers is really unsafe.