Chapter XIII:
The National Plan: An Expression of the Popular Will
AFTER reading what has been said in the preceding chapters about the national plan being an expression of the might of the people, most exponents of the liberal philosophy will doubtless be inclined to advance many of the old arguments about a written Constitution and written laws, duly interpreted by the Courts, being the expression, and the only satisfactory form of expression, of the will and might of the people.
Fascism holds that the national plan or social scheme is always an expression of the might of the people, and that this expression must be made explicit and effective through interpretation and administration by those in power. Fascism finds absurd and untrue the liberal thesis that the will of the people is expressed in the written word of a Constitution or body of laws. In so far as a written document is instrumental in expressing the will of the people, it is through interpretation and enforcement of such a document. In other words, they who interpret and enforce a law and not the written law, give the expression of the will of the people.
It is a beguiling myth of liberalism that people can be governed by laws and not by men. It is a charming illusion that we can provide a machinery of government which is free of the faults of human personality and which is the very embodiment of moral absolutes and social wisdom. This illusion relies chiefly on the further illusion that, whereas the members of legislative and administrative councils, and particularly chief executives, are persons affected with all the weaknesses which persons are heirs to, judges are not persons, but the court, in reference to their official acts. Obviously, a judge is as much a person as anyone else. A person can never function except as a person.
The trouble with any theory of impersonal government, or government by laws and principles rather than by men, is that it attributes to written documents, or statements of principle and purpose, qualities which the written word can never possess and with which only human beings can be endowed. A man, or a group of men who are in agreement with each other, in response to any question as to what is the will of the people, can easily give at any time an answer that is explicit and intelligible. They may also give an answer which they are in a position to enforce. Whether such answer always expresses the true will of the people, or is a wise or good answer, are open questions to be decided according to the facts of the case and the point of view from which judged. But there can be no question that an ordinarily well endowed individual executive or executive group can say intelligibly what he or they hold to be the will of the people on any given problem. The written word, on the other hand, can never possess this quality, which is obviously peculiar to human personality. The written word can never be made to fit all possible cases which will arise, and the written word always requires interpretation and application to the given case by a person.
Disregarding for the moment the whole question of interpretation and application, and assuming agreement by all parties as to the meaning of a document, one may say that a written constitution or law can never express, the will of the people beyond an extremely limited field of reference. The limitations on the field of reference are those of time, place, and situation. With changes in time and conditions, laws very soon need rewriting. It is absurd to suppose that when the makers of the Constitution drafted that document they meant to say that it was the will of the American people that the Public Service Commission, of the State of Maryland, or Arkansas, might not fix a rate for a public utility which allowed less than a seven percent return, or that one theory of ratemaking instead of another was just and non-confiscatory. The makers of the Constitution had no knowledge of the present field of application of the principles they sought to express. Indeed, on careful thought, it must seem sheer nonsense to say that the makers of the American Constitution willed any one of hundreds of constitutional interpretations rendered by the courts as expressions of the sovereign will of the people.
It is not possible for any group of men either to express the will of the people living at the time in respect of problems arising a hundred years later, or to express the will of the people living a hundred years later as to the problems of that later period. The law can express only the will of the people with regard to current problems which are the subjects of contemporary thought and feeling. And whenever a question or uncertainty arises as to the will of the people as expressed in any law, only the responsible executive or legislative authority holding the mandate of the people can reasonably be assumed to have competence to say what the people now will. Certain it is that the present will of the people in respect to the application of an existing law to a current problem cannot, except by luck, be arrived at through the processes of legal ratiocination.
The processes of legal logic expressly disclaim, and methodically eschew, any undertaking to render a constitutional or legal interpretation to express the present opinion or will of the people, though, as Mr. Dooley remarked, the Supreme Court may sometimes, departing from the legal rules of interpretation, follow the election returns. The processes of legal interpretation specifically undertake to render an interpretation or application of the Constitution or the law in accord with some theory held by the judges as to what the men who wrote the Constitution or the law would have meant in respect of the issue submitted had they had cognizance of that issue. The courts do not attempt to express the present will of the people, for they admit that they have no means of knowing it, but they try rather to express their theory of the will of dead people in respect of a present living issue. They, of course, assume that their theory of the will of dead people in respect to a current problem submitted is also the will of the living people. It was the hope of many, if not of most, of the framers of the American Constitution, and of the subsequent builders of the American constitutional system during the first half of the 19th century, that separation of powers and the judicial veto would effectively curb expression of the popular will in ways disagreeable to the propertied classes.
It is the fact that the written word can have meaning only through interpretation and application, which establishes most conclusively the point that the popular will, or the ruling social purposes of the people in respect of the national plan, must be expressed from day to day to meet changes both in the popular will and in the conditions about which it has to make decisions. The oath to uphold the Constitution really amounts to nothing more or less than an oath to uphold what the courts may pronounce the Constitution to be. A rational oath of allegiance or of office must be an engagement to uphold the sovereign will or might of the people as made explicit by a duly authorized leader or representative of the people. A person can intelligently swear to obey and uphold the commands of a king or a supreme council or leader. But one cannot intelligently pledge one’s self to uphold a document which one is incompetent to interpret, a Court interpretation of which one cannot obtain to settle a given doubt, and all the thousands of court interpretations of which no finite mind-not even that of a Philadelphia lawyer-can possibly encompass.
Let us consider briefly the nature of the absurdity of an oath to uphold the Constitution. As a practical matter, what does the oath mean? In the case of the executive officials, other than governors of states and the President of the United States, it merely means that the office-holder will obey the orders of his superior and abide by any court orders which may be addressed to him. If the office-holder is a judge, the oath means that he will try to follow the constitutional interpretations of the higher courts where they seem applicable and, where no such precedents are available, that he will guess at the correct interpretation of the Constitution as best he can, his guess being subject to subsequent revision by a higher judge. If the office holder is a legislator, the oath to uphold the Constitution means that he ought not to vote for a measure he considers unconstitutional, but that he has no means of knowing whether a measure he is asked to vote on is constitutional or not unless and until the measure has been enacted and challenged before the courts.
The essential fallacy of the constitutional oath, or any system which makes judicial interpretation of the Constitution the supreme definition of the popular will, is that although every one, including particularly government officials charged with law enforcement, is supposed to know the law, no one can know what the Constitution means with regard to a specific act until the courts have passed on that act. The constitutional oath is a pledge to uphold a court’s interpretation of the Constitution before the interpretation has been given, and before any one can possibly know what the interpretation will be.
Now the favorite argument of liberal jurists is that a system of constitutional law and judicial interpretation of the law affords a degree of certainty which is not enjoyable under any system of what these jurists like to call personal government. The very reverse, of course, is the case. Certainty as to the law or the will of the people in reference to every problem of great moment is obviously desirable. But the liberal constitutional system is the worst imaginable way of giving certainty as to what is the will of the people. The argument of certainty is knocked into a cocked hat by the fact that whenever there is a constitutional or legal question of great importance before the courts, the best lawyers are usually as divided as to the tenor of the final decision as the laymen, or as are the players at a roulette wheel as to whether the next number will be red or black, or as are the bettors on the result of a prize fight. Whenever the case is sufficiently uncertain to cause large sums of money to be spent on both sides, the most scientific and economic way in which to select the final decision as to whether a given law or governmental act is constitutional or not is to flip a coin.
Trial by battle is one of the most essential features of the theory of Anglo-Saxon and liberal jurisprudence. The underlying assumptions are that there is such a thing as an absolute right and wrong to everything, and that if both parties to any dispute select a champion to wage a battle, the champion of that side which is right will win the encounter. The champion used to be a knight in arms. Now he is a lawyer. The pursuit of this will-o’-the-wisp of absolute justice or right is made into a sporting event exactly like a prize fight.
Now it is of the very nature of sporting events that one can never get scientific advice as to their outcome when, as is ordinarily the case in such events, the opponents are fairly evenly matched. One can get scientific advice as to whether a given structure or machine will stand certain strains, meet certain tests, or perform in certain ways. Rarely is that advice proved wrong by experience. Skyscrapers don’t fall down. John W. Davis, ranking constitutional lawyer in private practice, in ten years has won seventeen and lost fifteen decisions challenging the constitutionality of a law. James M. Beck, another eminent, self-constituted exponent and guardian of the Constitution, lost eight out of ten constitutionality bouts. It would be lese-majeste to give Chief Justice Hughes’ record in private practice before the tribunal from which he took a ten year leave of absence. The N. I.R.A. episode is the latest example of certainty under liberal constitutional law.
One can hire a prize fighter or a lawyer to wage a battle for one, and one can be quite certain that the professional will put up a better fight than the amateur, and that the more skillful the professional fighter, the better the fight he will put up and the better will be his chances of winning. But one cannot possibly derive any certainty either as to the result of any given legal bout, or as to the realization of any given absolute norm of justice, assuming that the definition of such a norm could be the subject of general agreement. The chief certainty of the liberal system of law is that the popular will will be expressed with a greater bias to private property and things as they are than to national interests and social change.
The theory of pursuing absolutes like justice, fair competition, equality, and so on, by means of trial by battle is obviously incompatible with any rational theory of national planning. Whatever methods rational planning may employ, it is fairly certain that it cannot find much use for a sporting event as a means of selecting social policies or decisions expressive of the public will. The sporting theory of administering justice is simply unscientific. It is not a means to any rational end of social action. Its vogue under liberalism probably is due mainly to two considerations: First, making right superior to, and independent of, might as a theoretical premise, and then conducting a legal battle to settle any arguments as to what is right, though logically most contradictory, will serve admirably the purpose of easing Christian consciences as to the predatory features of the economic struggle under liberal capitalism. The successful in the acquisitive struggle can exculpate themselves of all wrongdoing or abusive uses of force and violence if they can say that they have kept within the law. Moreover, they can make the State, through the exercise of the police powers, do most of their fighting for them. The legal rules can be made to allow, and even instrument, the pressures which the economically mighty wish to use, and to bar the pressures which the economically mighty cannot advantageously use.
The second important consideration which explains the vogue of the liberal premise that right is above might, and the liberal practice of trial by legal battle to settle disputes as to the definition of right, is the professional interest of the lawyers in having a social system operated on these principles. It means highly remunerative work, prestige, and power for thousands of men.
The liberal ideology as to right is the most important single factor for making more business for lawyers. Let two persons have a clash of interests or purposes which can be brought before the courts. How will they reason? They will think in terms of their rights and the possibilities of asserting them in a trial by legal battle. Nine-tenths of all civil suits could be settled by conference, compromise, and agreement, without litigation, and with a law clerk or lawyer needed only to draw up the final agreement, if all parties would think of the judicial process as a costly sporting event, the results of which are uncertain and costly — certain only to be unfortunate for one party and likely in most cases to be more costly for the winner than a generous compromise.
But liberal juristic ideology inhibits almost every one having an interest which can be made the subject of a legal battle from thinking in common sense terms. Often, of course, especially where large amounts are involved, clashes of interests are settled out of court by compromise arranged by counsel for both sides. In these cases, counsel will take anywhere from ten percent to all of the amount affected by the compromise, or legal costs which often run into millions of dollars, when the same or a better agreement for the parties in interest could be reached through simple, non-technical negotiation as to real interests conducted by honest representatives, such agreement to be embodied in documentary form at small cost by lawyers, accountants and other experts acting as technical aids and not as vultures. In the Paramount-Publix Corporation receivership and reorganization, a typical example of banker-lawyer racketeering, or trying to get something for nothing, Federal Judge Coxe slashed the fees demanded by the lawyers and bankers $2,2I3,117, allowing only $1,026,711 of the $3,239,828 asked. One of the largest and most reputable New York law firms asked $700,000 and was allowed only $200,000. Another Wall Street law firm, Cravath, de Gersdorff, Swaine and Wood, asked $150,000 and was allowed nothing. The second ranking private bankers of the country, Kuhn, Loeb & Co., asked $114,287 and was allowed nothing.
Written law, courts of law and judicial process have a place in every social scheme. But their function must be that of an instrument of the popular will, not that of making original expressions or creative interpretations of the popular will, and not that of making economic relationships a racket for lawyers and bankers. The function of law must be that of shop or institutional rules and regulations. It is obviously impossible for the highest mandatory of the people to administer the will of the people in thousands of civil and criminal cases which necessarily arise. For this purpose courts are necessary, and laws are obviously indicated merely as a guide for the courts, and a means of averting the necessity for continual reference to the highest authority expressing the public will. When the judge makes a ruling or gives a sentence pursuant to law under any system he is interpreting or expressing what has to be assumed to be the will of the people, and in ninety percent of the cases his ruling will be acceptable. But if a case arises in which there is an ambiguity as to the correct application of the law, let the court always apply to a combined executive and legislative council of the representatives of the people, or to their delegate for an interpretation.
It must not be supposed that such a theory of administration need bar appeal or the thorough ventilation of conflicting points of view as to a given law or governmental act.
This theory merely directs the contest along other lines of procedure. For instance, suppose under a fascist State a legislative or executive measure of an economic character were deemed unwise, unjust, or undesirable by a party to whom it was applied. He would be allowed quite as much opportunity to contest the measure, if the points of contest had not been finally adjudicated, as he has under the present system. But the principles on which the contest could be waged would be different. The property owner or corporate management which contested a new law or government measure would not be allowed to advance any arguments asserting a private right as superior to the right of the State. On the contrary, the paramount right of the State, or of the public interest, or of the might of the people, would always be established beyond challenge. The contesting private party would try to show that the measure or act in question was not calculated to serve the purposes of the public interest as they had been authoritatively defined by the representative of the people. In other words, the measure or act was a mistake. The argument on these grounds could be as involved, and the issues as difficult, as in any legal contest under the present system, but the standards or rules would be different.
The contest or reexamination of the law or measure would be settled finally by the decision of the government, which could the more easily reverse or modify a law or administrative act because the instrumental fitness of the measure, and not the authority of government or the State, had been contested. It is a favorite and thoroughly absurd argument of liberal jurisprudence and politics that the State should not be the judge of its own cause, or in a conflict between itself and a private person.
The argument is absurd on analysis for a number of reasons. The judge is supposed to be on the side of the rule or principle which expresses the will of the people. The officer or department of government representing the State in the legal action is also supposed to be on the side of the people. Suppose the judge disagrees with the executive branch of the government as to what is the will of the people, as often occurs, the case really presents the farce or absurdity of two parties asserting representation of the will of the people. In other words, the State, through the voice of the judge, tells the State, represented by another officer of government, that the State represented by the latter is wrong, and that the State represented by the former is right as to the will of the people. One voice of the State discredits another voice of the State. But how many voices or personalities should the State have? If the judge is the voice or personality which is always right in the State, why not have him decide all questions in the first instance so that there shall be no contests? What public advantage is gained by having a sporting event to decide a conflict of views between two persons, both supposedly representing the State? The argument that the private citizen does not have his case against the government judged by the government is rendered absurd by the one fact that the person, the judge, giving the final decision is the State or the government. The whole procedure of having one officer of the State pronounce another wrong, on the basis of metaphysical arguments as to the rights of individuals versus the rights of the State, serves mainly the purpose of providing professional income for lawyers.
The end of avoiding mistakes of administration in ultimate policies can only be served by scientific examination of the rationality of given means to given ends. Challenging the rationality of given means to given ends requires no challenging of the authority or powers of the State or government. Cases of alleged excesses or abuses of authority by an official should provide the subject of no legal battle but of a simple inquiry, stating the facts, and submitted to the highest public authority.
Challenging the authority of the State encourages a spirit of lawlessness and a disposition to thwart or circumvent a government which so often pronounces itself guilty, not of a mistake in the use of means, but guilty of a violation of law. How absurd are the daily spectacles afforded the populace by our liberal jurisprudence of a government haled into court by a plutocrat or large corporation and there found guilty of violating the law. Challenging the rationality of given governmental means to given public ends encourages no such lawlessness, and contributes to the understanding of current problems as a metaphysical argument about the powers of the State, or the authority of a given official in a given matter, cannot possibly do. There is no better reason why a billion-dollar corporation, which can spend a million dollars on one legal battle, should be allowed legally to oppose the considered ends of the State duly ratified by the legislature than there is why a gangster should illegally make such opposition.
In the regulation of private conduct, a fascist government will facilitate appeal, reexamination and discussion of government measures and policies. The appeal would be based on the same grounds on which an economic regulation or measure could be challenged. Any governmental interference with religious, cultural, or recreational activities of private citizens would be open to contest on the argument that it did not serve the announced and accepted ends of the State. A discussion of a given measure in these terms would be useful. A discussion of any governmental measure in terms of an individual’s right to worship, cultivate his mind, or exercise his body as he sees fit is absurd, for the simple reason that no liberal State will tolerate religiously-practiced cannibalism, human sacrifices, or castration, or any one of innumerable ways of cultivating the mind or body.
The fascist State entirely repudiates the liberal idea of conflict of interests and rights as between the State and the individual, such conflict to be settled through the sporting event of trial by legal battle under the umpiring of a neutral third party supposedly represented by the judge. The major concern of the administration of justice under fascism is not the protection of the individual against a State assumed to be prone to abuse the individual. The chief purpose of any judicial examination of public measures, whether such examination be made by the courts or specially constituted tribunals, is the protection of the State against its own mistakes. In this respect the salient points of the conflicting assumptions of liberalism and fascism are these: Liberalism assumes that individual welfare and protection is largely a matter of having active and powerful judicial restraints on governmental interference with the individual; Fascism assumes that individual welfare and protection is mainly secured by the strength, efficiency, and success of the State in the realization of the national plan.
It is easy to draw alarming pictures of a powerful State against which the individual would have the resource of no judicial veto on governmental acts. Conceivably, of course, a State and government might fall into the hands of a few individuals whose every act would be an abuse. But such an eventuality seems most improbable in any modern State, least of all in the United States.
On the other hand, it has to be recalled that the judicial checks of liberalism on government rarely avail the poor man in this or any other country where such checks are provided for, the reason being that judicial process, especially that required to overrule government, is expensive and outside the means of the poor man. So far as the abuses or mistakes, as you may choose to qualify them, of public administration are concerned, and so far as the welfare of the masses is affected thereby, any relief available through appeal and judicial review must be largely proportionate to the free facilities for such appeal and review which the State itself affords. The fascist State, through government-assisted unions of workers, government-regulated associations of employers, and special executive tribunals for hearing appeals and complaints,-can afford far more redress and correction than the liberal State with its judicial process available only no the rich individual and the large corporation.
In considering the problem of providing redress and correction in the cases of mistakes and abuses of public administration, we must think in terms of the practicable, or of might rather than abstract concepts of right; in terms of the mechanics rather than the norms of government. There is no right, in any useful sense of the term, for a man who has not the economic might to assert a right, or who cannot, for whatever the reason may be, avail himself of the existing machinery for redress and correction. Once the problem is viewed from this angle it will become apparent that no machinery for affording relief and correction in numerous cases, promptly, cheaply, and easily can possibly operate within the framework of liberal political and juridical rules and practices. Judicial norms of liberalism obviate any such result. Liberal redress through judicial process is an expensive luxury for the rich. The State must provide and operate judicial machinery of relief and correction of the mistakes of public administration as a necessary part of the national plan. Once liberal principles like those of the State versus the citizen and separation of powers are abandoned, and the older and more rational concept of the State adopted, developing and operating machinery both to formulate the national plan and to examine scientifically complaints against alleged mistakes and abuses in its realization will be found a comparatively easy matter.
Thus a series of tribunals culminating in a tribunal of last resort, composed of the highest mandatories of the people, would be organized to function for the examination of complaints arising out of public administration, in much the same way that committees of a vast corporation function for similar purposes. Those in charge of government would have the most obvious self-interest in making these tribunals function efficiently. For, while those exercising a public mandate have an interest in upholding the power and authority of the State, they would not have an interest in upholding its mistakes which could be corrected. This is especially true where those in office feel secure of a permanent tenure of office and realize that they must ultimately bear in one way or another the consequences of all mistakes in public administration. The art of insuring a desired standard of performance by public officials is to be found in making it their professional pride and self-interest under the system created so to perform — not in creating a system of checks, restraints, and interferences, the principal results of which will be irresponsibility in administration, frustration of efficient government, and the fostering of rackets, rather than protection of the weak or curbing of the mighty.