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civil, political or religious liberty on the other. Again, no organ of government existed in many of these states for the sovereign will of the people to express itself. Hence, revolution, rebellion, revolt and feud within the state were the agencies that necessity compelled them to invoke in order that the spirit of liberty and democracy might express itself. In view of this, various factions within the state frequently had the de facto status of belligerents. Hence, the development of the doctrine after the analogy of international law within the government of these countries. No such justification for the doctrine can exist in this country. Our constitutional system is so organized that at the ballot box the sovereign elector expresses his will. Changes are to be wrought through the constitutional organs of government and by the orderly processes of law. The Constitution by the rights, privileges and immunities granted therein amply protects any citizen in his religious or political liberty.
President Harding tersely and forcibly stated this view when he said at Omaha, on October 7, 1920:
No true American will argue that our laws should not be enforced. I refer to laws, no matter of what nature, whether they be those which deal with ordinary crimes and misdemeanors, or those which deal with acts of treason to the United States, threatening to the Constitution and the fabric of our social organization.
I wish no one to misunderstand me, and, therefore, I will say as plainly as I can that for my part I can see no essential difference between ordinary crimes on the one hand and political crimes on the other hand. If there is a distinction, surely it is not a distinction which favors political crimes or political prisoners. The thief, or any ordinary criminal, is surely less a menace to those things which we all hold dear than the man or woman who conspires to destroy our American institutions,
Another subject that undermines respect for law, especially prominent at the present time, is an erroneous theory of personal liberty under our constitutional system. This controversy is as old as government itself. It has been asserted with especial vigor recently owing to the Eighteenth Amendent to the Constitution of the United States and to the amendments in the various state constitutions, and because of legislation on the same subject by Congress and the various state legislatures.
The question of the limitation of personal liberty is, in the first instance, a question of political philosophy and not of law. The advocates of personal liberty have ranged all the way from those who favor the widest measure of license to the individual to do as he pleases, on the one hand, to those who would restrict the individual by the most puritanic standards, on the other hand. There is no quartel on my part with any of these groups. As long as life, personality, individual endowment of mind or heart differ, there will be differences of opinion among the constituent members of society on questions of this sort. As long as they remain purely speculative questions in the realm of political philosophy proposed by their respective advocates as the basis for social organization, there is and can be no objection to them. Everyone has a right to advocate any view that he pleases on this subject. However, when public sentiment has crystallized into law, there can be no question as to the duty of good citizens with reference thereto. They may still debate as to the wisdom of the law, but there is only one course of conduct, and that is obedience to the law while it exists.
In order that the weight to be attached to the argument of those persons who claim that their personal liberty is invaded by legislation of Congress and the various state legislatures, it may be profitable to refer to the history of this sort of legislation. In the evolution of government we have gradually limited the sphere of individual liberty. A study of the history of legislation wherein personal liberty has been limited by statute will show that these enactments have been vigorously challenged, and the same arguments have been used against violation of personal liberty that we hear today. For example, compulsory education laws, anti-dueling laws, anti-gambling laws, laws regulating social relations, and practically all the abridgements by statutes of the common law, have in the past been opposed by the argument that we now hear, namely, that they are violations of personal liberty.
In this connection I am reminded of the well-known remark of Madame Roland, who, when led to the guillotine, as she by chance looked up and saw the sign of liberty, which was the slogan of that awful time, exclaimed:
O Liberty! Liberty! how many crimes are committed in thy name.
Let me not be misunderstood. I do not mean to impute moral turpitude to him who is opposed to the Eighteenth Amendment or similar amendments in our state constitutions, or who is opposed to the Volstead Act or similar legislation in our states. All I mean to say is that the argument of undue abridgement of personal liberty advanced today has in the past been advanced by every champion of lawlessness who has sought to find an excuse for unlawful conduct. And, in passing, let me repeat that this question is older than the American constitutional system. In fact, it constitutes one of the fundamental points of observation in the history of civilization, and has been one of the principal elements in the cycle theory of civilization. That theory, briefly stated, is, that nations develop a strong virile life of simple living in their infancy, pass through the various steps of development, and then break more and more the restraints of life about them, until surfeited with the luxury that a high civilization can give, they throw off, little by little, the restraints of life until simple living has been changed to license and an unbridled indulgence in everything that appetite and propensities call forth. This effeminates, enervates, and undermines the virility of the nation so that it becomes enfeebled, falling sometimes at the hand of a younger and more virile civilization, sometimes decaying merely by mental or moral or spiritual atrophy. Then, after the wake of centuries, starting over again, they repeat the same processes. The lesson of all this is that if our civilization will place such restraints about itself as to keep it virile and strong in health its civilization will endure. If it yields to those false doctrines of personal liberty, it will go the way of the nations of the past.
“Ill fares the land, to hastening ills a prey,
Where wealth accumulates, and men decay.” On this subject of personal liberty Newell Dwight Hilles fittingly said: “He who stoops to bear the yoke of law becomes the child of Liberty.”
Daniel Webster said: “Liberty exists in proportion to wholesome restraint.”
From the standpoint of the government, the only sound view is that of law enforcement. Whatever differences of opinion exist in the views as to the wisdom of some of these laws can be of no concern to the agencies for law enforcement. The Executive De
partment cannot make the laws. It is equally true that it cannot nullify laws. To refuse or to neglect to enforce a valid enactment
a of the legislative department of government, or to enforce it mechanically or half-heartedly or to wink at its violation, is without justification on any sound theory of government. Those who ask it or expect it not only contribute to lawlessness but destroy the basis upon which their own security rests. Our safety and happiness lie in obedience to law by every man, woman and child within the domain of our republic, and no one can undermine respect for law without being, to that extent, an enemy of law and orderly government.
I am opposed to any system of government in which the rights of any individual or group of individuals depend upon the whim or caprice or temperamental attitude of any public officials.
If any citizen dislikes the law under which he is living, his relief is through the legislative department of government, and not through those who, under the Constitution, have the sworn duty of enforcing the law. As a citizen cannot choose what laws he will obey, so, likewise, those charged with law enforcement cannot choose what laws they will enforce. The only sound position for those who favor respect for law to take is that those charged with law enforcement must enforce all the laws, and all good citizens must obey all the laws; neither can exercise any right of choice in this matter without placing themselves above the law. It is the part of faithful officials to enforce and the part of good citizens to obey them.
Another subject closely related to the topic just discussed that tends to undermine respect for law, and which has been a mooted question in every system of constitutional government, is the mistaken theories of the relation and attitude of the minority to the majority. Recently, we hear much about the rights of the minority, as if it had a special privilege of not obeying the law because it is made by the majority.
Our Constitutional Fathers understood thoroughly the political philosophy underlying the relation of government to individuals and to minor groups of individuals. There was nothing in the doctrine of minorities in relation to majorities that was not before them for consideration. They gave to the world its first
solution of that problem in an instrument which protects the rights of minorities, as far as they ought to be protected, and at the same time, left the majority free to carry out the sovereign will.
The theory of our constitutional system, as framed by our fathers, as is well known to all, is that there is a field of rights, privileges and immunities set off as a separate domain into which the powers of government cannot enter. They also provided the first agency in the world's history for protecting this excluded domain from trespass by government by establishing a judicial system with power to say to the various agencies of the government: “Thus far thou shalt go and no farther.”
The fathers did not claim infallibility for the rule of the majority. They provided against hasty or inconsiderate action by a system of checks and balances, by the doctrine of the separation of powers, and by making the two branches of the legislature, as well as the executive, agencies in law making. This system insured careful consideration and the opportunity for the public sentiment of the nation and states to express itself.
The criticism of our government, as contrasted with the parliamentary system of government, has heretofore been that by its organization and structure it is difficult for the majority will to express itself freely, rather than the criticism that the Constitution was so made that the majority will could ride rough shod over the minority. In view of these constitutional safeguards, there can be no excuse for any person within the domain of this republic to hold its laws in contempt, to disobey them himself or countenance others to acts of disobedience to them, on the ground that the rights of the minority have been disregarded. It is the duty of the minority as well as the majority to obey the law.
I am fully aware that much that I have said is familiar thought to most, if not all, of the audience now present before me. My experience in the last few months as head of the law enforcing department of the government has carried to me the conviction that these things should be said to the general public. It has
my thought to use this occasion and this audience as the media through which to transmit these thoughts and suggestions to the American people, who are vitally concerned in maintaining a just and wholesome respect for law.