CHAPTER XI

INDIVIDUAL LIBERTY AND THE CÓNSTITUTION

The eighteenth-century conception of liberty was the outgrowth of the political conditions of that time. Government was largely in the hands of a ruling class who were able to further their own interests at the expense of the many who were unrepresented. It was but natural under these circumstances that the people should seek to limit the exercise of political authority, since every check imposed upon the government lessened the dangers of class rule. The problem which the advocates of political reform had to solve was how to secure the largest measure of individual liberty compatible with an irresponsible government. They were right in believing that this could be accomplished only by building up an elaborate system of constitutional restraints which would narrowly limit the exercise of irresponsible authority. Individual liberty as they understood the term was immunity from unjust interference at the hands of a minority.

This was a purely negative conception. It involved nothing more than the idea of protection against the evils of irresponsible government.

It

was a view of liberty adapted, however, to the needs of the time and served a useful purpose in aiding the movement to curb without destroying the power of the ruling class. Any attempt to push the doctrine of liberty farther than this and make it include more than mere immunity from governmental interference would have been revolutionary. The seventeenth and eighteenth century demand was not for the abolition, but for the limitation of irresponsible authority. It was not for popular government based upon universal suffrage, but for such modifications of the system as would give to the commercial and industrial classes the power to resist all encroachments upon their rights at the hands of the hereditary branches of the government. The basis and guarantee of individual liberty, as the term was then understood, was the popular veto such as was exercised through the House of Commons. This conception of liberty was realized for those represented in any coördinate branch of the government wherever the check and balance stage of political development had been reached.

The American revolution, which supplanted hereditary by popular rule, worked a fundamental change in the relation of the individual to the government. So far at least as the voters were concerned the government was no longer an alien institution-an authority imposed upon them from above, but an organization emanating from

them-one in which they had and felt a direct proprietary interest. It was no longer a government in which the active principle was irresponsible authority, but one which rested upon the safe and trustworthy basis of popular control.

The overthrow of monarchy and aristocracy necessitated a corresponding change in the idea of liberty to make it fit the new political conditions which had emerged. In so far as government had now passed into the hands of the people there was no longer any reason to fear that it would encroach upon what they regarded as their rights. With the transition, then, from class to popular sovereignty there was a corresponding change in the attitude of the people toward the government. They naturally desired to limit the authority and restrict the activity of the government as long as they felt that it was irresponsible; but as soon as they acquired an active control over it, the reason which formerly actuated them in desiring to limit its powers was no longer operative. Their ends could now be accomplished and their interests best furthered by unhampered political activity. They would now desire to remove the checks upon the government for the same reason that they formerly sought to impose them-viz., to promote their own welfare.

This tendency is seen in the changes made in the state constitutions at the beginning of the American revolution. As shown in a previous

chapter, they established the supremacy of the legislative body and through this branch of the government, the supremacy of the majority of the qualified voters. We have here a new conception of liberty. We see a tendency in these constitutional changes to reject the old passive view of state interference as limited by the consent of the governed and take the view that real liberty implies much more than the mere power of constitu✨tional resistance that it is something positive, that its essence is the power to actively control and direct the policy of the state. The early state constitutions thus represent a long step in the direction of unlimited responsible government.

This, as we have seen, was the chief danger which the conservative classes saw in the form of government established at the outbreak of the Revolution. They were afraid that the power of the numerical majority would be employed to further the interests of the many at the expense of the few, and to guard against such a use of the government they sought to re-establish the system of checks. The Constitution which restored the old scheme of government in a new garb also revived the old conception of individual liberty. There is, however, one important difference between the eighteenth-century conception of liberty and that which finds expression in our constitutional literature. Formerly it was because of the lack of popular control that the people generally

desired to limit the authority of the government, but the framers of the Constitution wished to bring about the limitation of governmental functions because they feared the consequences of majority rule. Formerly the many advocated the limitation of the power of king and aristocracy in the interest of liberty; now the few advocate the limitation of the power of the many for their own protection. With the abolition of monarchy and aristocracy the attitude of the few and the many has been reversed. The aristocratic and special interests that formerly opposed the limitation of political activity when they were predominant in the government, now favor it as a protection against the growing power of the masses, while the latter, who formerly favored, now oppose it. The conservative classes now regard the popular majority with the same distrust which the liberals formerly felt toward the king and aristocracy. In fact, the present-day conservative goes even farther than this and would have us believe that the popular majority is a much greater menace to liberty than king or aristocracy has ever been in the past.

"There can be no tyranny of a monarch so intolerable," says a recent American writer, "as that of the multitude, for it has the power behind it that no king can sway." This is and has all along been the attitude of the conservative classes Willoughby, The Nature of the State, p. 416.