The State, through the instrumentalities of government, has to express and enforce the social plan which, for one country, has to be unique. We have already seen why the social plan for any one country has to be unique. This plan the State has to express and enforce through the instrumentalities of government. The methods by which the State does this may follow the liberal formula of the policeman State or the fascist formula of the executive State. In any event, the political power of the State has to be exercised in many matters without limitation if any type of social order is to be maintained. The point is that the power exercised by the totalitarian State in economic and social planning is no greater than the power of the State exercised in other ways under any other political system, or more simply still, that the social plan always requires exercises of the absolute power of the State.
The popular type of denunciation of fascism on the ground that it stands for State absolutism, or a State of unlimited powers, as contrasted with the liberal State of limited powers, is based on misrepresentation of the true nature of the liberal State. The issue between liberalism and fascism is not one of an absolute State versus a State of limited powers. The fact is that the powers of every State are in pure theory unlimited, except by physical impossibilities and by engagements the State chooses to respect in deference to the demands of certain class interests. The powers of the fascist State are unlimited as to doing certain things, while the powers of the liberal State are equally unlimited as to doing certain other things. The important differences between fascism and liberalism in this respect lie between those certain things which each State, respectively, does without limitation, or those fields of State action in which the State is inhibited by no limiting constitutional or legal engagement not to do certain things.
Let us for a moment talk in terms of concrete examples to clarify this obvious point that State absolutism is not the issue but rather the specific applications to be made of the absolute power of the State or rather the specific interests to be favored in the unlimited uses of State power. Let us suppose that, under our liberal system, a United States marine in 1927 had applied to one of our courts praying some kind of court order restraining the President of the United States, as commander-in-chief of the armed forces of the United States, from sending this marine to kill Nicaraguans in order to carry out the pact which Mr. Stimson, personal representative of the President, made with General Moncada, a revolutionary leader at the head of an army in the field in June, 1927. This marine might have argued, with entire correctness as to fact, that the President’s representative, Mr. Stimson, had no constitutional authority to make a pledge to General Moncada that the United States Government would disarm all the armed forces in Nicaragua and supervise the elections to be held over a year later in November, 1928. The marine might also have pointed out that the President of the United States is nowhere in the Constitution given power to use the armed forces of the United States to supervise elections in a foreign country, to disarm all its armed forces, and to kill all nationals of that country who might oppose with arms the presence of American troops on their territory, all without a formal declaration of war by the United States. Had the marine made any such petition to one of our liberal law courts, what would he have learned?
For one thing, he would have learned that our courts have no power to enjoin the President of the United States from sending the armed forces of the United States anywhere in the world, or from ordering them to kill other people, or to commit any other act, however arbitrary or unreasonable it might seem to be.
Let us suppose, again, that the wife, mother or other dependent of a marine killed in battle in Nicaragua had at tempted to prove a claim against the United States in the Court of Claims. This is not a far-fetched supposition, as over a hundred and twenty marines were killed in battle during our war on General Sandino. What would she have been told? She would have been told that the United States Court of Claims had no jurisdiction to hear such a claim. The United States Government is wholly without legal responsibility to its own citizens for losses of life and damage to their property which any military adventure of the President with American troops may occasion abroad.
The power of the liberal State to cause its citizens to be killed either in official or unofficial warfare abroad, through exercises of the discretionary power of the President over our armed forces, is absolutely unlimited by law or the courts. But it is a bulwark of liberal liberty that the President’s power to regulate commerce, or to do any one of a thousand executive acts in the public interest, must be inhibited by the Constitution or subject to judicial review for its reasonableness. The President has virtually no limitations on his power to get us into war, through the conduct of foreign relations or the command of the armed forces, except such checks as legislative action might impose through impeachment or a failure to vote necessary funds.
The features of the liberal system we are now discussing are fundamental. It is constantly forgotten that the quintessence of liberalism and liberal liberties under a constitution is the maintenance of a regime of special or exceptionally favorable considerations for private property. Briefly, private property cannot be taken for public purposes, not even in war time, without an obligation to pay just compensation, while human life may be so taken without an obligation to pay any compensation. The liberal doctrine giving property a measure of protection and bargaining power against the State denied to human life may be said to have fully emerged as a political principle of good liberalism when Cromwell sent King Charles the First of England to the block and established the rule that the King, or the executive branch of the government, cannot take the money of the rich by means of direct levies but must first have the money for the King’s wars voted by Parliament, which, as a practical matter, has meant financing wars by loans instead of capital levies. This doctrine, of course, goes under a different name from that of special privilege for property. Its most popular identifying formula is
No taxation without representation. Of course, few people ever pause to inquire
Representation of whom and of what?
The right of private property to be treated by the State with greater consideration than human life in the matter of conscription for public purposes is the essence of liberalism. This right, once established, becomes not only incompatible with the demands of humanity but also with the requisites of strong nationalism. An interesting sidelight, showing the power of this doctrine as a political principle, is the fact that good liberals before 1914 constantly speculated about the possibility of financing the next big war. But no liberal ever imagined that a war would be impossible because the State would be unable to mobilize the necessary man-power. A human life has no right to deny itself to its country, or to bargain with the State for a fair price, or have appeal to a neutral judiciary to fix for it a fair bargain with the State, according to the same theories of equity which are so extremely partial to property.
Before Cromwell’s Revolution, the executive branch of the government represented by the Crown used to conduct foreign relations and make war much as it does today in all States. But the Crown, under the Stuarts, tried to collect money levies from the rich tradesmen with the same arbitrariness that it took the lives of the people for war. The 17th century English shopkeepers did not like that way of financing wars. They did not mind how many wars the Crown fought. On the contrary, they were usually favorable to, or eager for, the Crown’s wars, on which they made so much money. Nor did the rich merchants at all mind putting up all the money required for the wars of the Crown on the condition that they got government obligations in return for their war contributions.
The proof that the foregoing statements about democratic government and war are substantially true is found in the facts that neither the British nor the American national legislature has ever refused to vote a declaration of war on the recommendation of the chief executive, to vote all the money the chief executive has asked for, to vote compulsory levies of all the men the executive has demanded, or to support the executive in the continuance of the war as long as the executive saw fit to wage it. But not once, in the long history of British and American liberal capitalism or democracy, has a national legislature voted a levy on capital, though it has repeatedly voted the conscription of men of fighting age.
Several counter arguments to what has just been said about the partiality of liberalism to property may be advanced. For one thing, it may be said that the liberties shown to be taken by the executive branch of the government with the lives of citizens are taken only as measures deemed necessary for national defense in an emergency like war. For another thing, it may be said that the liberal State is not constitutionally inhibited from taking property by taxation. (Taking property by right of eminent domain does not furnish any rebuttal to the point of this chapter, for property so taken must be paid for.) And then it may be said that the property and labor of the poorest citizen enjoys the same protection from taking without due compensation.
It would seem almost enough to demolish these arguments to point out that the liberal democracies have not drafted wealth when they have drafted man power; that the poor have no money worth mentioning to enjoy the protection of liberal law; and that the bargaining power of labor is by no means comparable with the bargaining power of capital under the liberal regime. It is one of the sharpest tricks of liberal dialectics to exploit the fact that legally a measure of protection is enjoyed equally by the rich and the poor, or by capital and labor. The fact, of course, always is that for large numbers of cases equal protection of the law for property can only mean equal justice for all the people where property is fairly evenly distributed. Liberal equality before the law means, as a practical matter, that any two fortunes of a million dollars are approximately equal before the law.
The immunity of property from taking without just compensation is, of course, enjoyed in a legal sense quite as much by the man who has no money the State could take as by the man who has a million the State could take. Obviously, the protection of this immunity avails only to those who have enough money to be taken by the State, and whose money, as a practical matter, is taken, but in exchange for government bonds instead of the sort of compensation a conscript receives. Stripped of liberal verbiage of the law, and stated in terms of larger social results, the immunity liberalism gives to property but not to human life from taking by the State without just compensation, means that long wars result in a greater concentration of ownership of wealth, as a result of war financing by borrowing from the rich, whereas long wars would result in a drastic equalization of wealth if the funds needed were taken by levy from the,only sources from which they can be taken.
It is one of the great propaganda and indoctrination achievements of the London shopkeepers and the Manchester mill owners, as well as of their American cousins, that it has been possible over a couple centuries of Anglo-Saxon liberal democracy to generalize the belief that the liberties of the people depend on the maintenance of liberal principles which operate to exempt wealth from sharing with personal service the burdens of the liberal state. It is amusing to see how poor devils who will never own anything that the State would find it worth while commandeering except their ability to serve as cannon-fodder will support a Constitution which protects capital from mobilization and social direction by the State except under conditions of profiteering by the capitalists. These poor devils do not realize that there is no clause in the Constitution which they, in their troubles, can ever invoke to check government impingement. on their lives or to obtain government relief. When they turn to the Government, it is for a charity hand-out for which they can invoke no right granted them by the Constitution. Under the Constitution and under liberalism, there is a right not to have one’s property taken without just compensation — i.e., compensation the courts approve of — but there is no such right for one’s life, nor is there a right not to starve for want of work and lack of the instruments or facilities of production.
Indeed, what the Constitution protects is not the right of the hungry to eat but the right of the rich to keep what they have and to eat while the poor starve. Nothing augurs so impressively the end of liberalism today as the changing temper of those on relief who are coming more and more to feel and assert a vested right to be cared for by the State. To the extent the State is being forced by the demands of public order to grant relief-still on the theory of an emergency-it is creating a vested interest or a de facto right which the Constitution does not recognize and a right which a new social order must recognize. Never was the social theory of liberalism more clearly or instructively clarified than in the Louisville Federal Housing Project decision, in which the Court held that the Federal Government is without constitutional authority to condemn private property by the right of eminent domain for slum clearance, low cost housing, or work-making projects, for such purposes are, in the opinion of the Court — i.e., the Constitution of the United States —
not public purposes.
Ours is supposedly a government of delegated powers. The Federal Constitution nowhere delegates to the Federal Government the power to take property through condemnation proceedings in exercise of the right of eminent domain. But, in the opinion of the court — i.e., the Constitution of the United States-the Federal Government, by virtue of the fact that it is a national government, must have such power. The Federal Government may exercise this power inherent in government only in accordance with the social theory of the Court — i.e., the Constitution. In the social theory of the Court, government can properly take property through condemnation proceedings for an arsenal-but not for slum clearance or low cost housing.
In the theory of the Court — i.e., the Constitution — the one is a public purpose and the other is not.
It is the same bias of 17th, 18th and 19th century liberalism, namely, that of seeking to limit the unlimited powers of the State in ways suitable to certain supposed property interests, and of making the courts the exponents of those peculiar limitations on political sovereignty. In so far as these limitations on political sovereignty have significance or effectiveness, whether in the Dred Scott decision, the Income Tax Decision, the leading child labor decisions, or a long line of decisions abridging the power of the State to modify property rights in the national interest, they almost always show the same bias. The time has come when the limitations imposed by liberal theory on the sovereignty of the national State in respect of property rights, wealth, and economic activities generally, are no longer to be considered by a hard-thinking man of property as calculated to protect his interests in the long run. The day has come when property’-must no longer assert any immunity from government taking and government commanding which a poor man cannot assert for his life or labor in war time when drafted for national defense. Fascism insists that property or capital and private economic enterprise must be called to the colors as well as conscripts in time of war. And fascism insists that the term of service for both capital and labor is not for an emergency but a new and permanent scheme of social organization and operation. Fascism insists that the new social adventure cannot be conducted on the good liberal principle of having the State always buy the cooperation of the owners and managers of property, as well as of the workers, by paying the price which any economic factor is able to hold out for, in a bargain in which there is great inequality of bargaining power as between different individuals and groups.
The argument of this chapter has been that what is commonly thought of as more power over private property for the State does not mean any greater State absolutism than we have already, or, indeed, any new power over private property. It means new techniques, theories and methods in the application of State power and, also, the application of State power for the service of different interests and for the pursuit of different social objectives. In pure theory, or in concrete fact, fascism or any other political system, cannot be said to create new powers for the State or to give it powers it did not already possess. Fascism merely means that the State announces and adheres to the purpose of using the powers inherent in national sovereignty, or in the monopoly of force held by all government, to meet new needs and desires in new ways.