who never lose an opportunity to bring the theory of democracy into disrepute. The defenders of the American Constitution clearly see that unless the fundamental principle of popular government is discredited the system of checks can not survive.

There is no liberty, we are told by the presentday followers of Alexander Hamilton, where the majority is supreme. The American political system realizes this conception of liberty mainly through the Supreme Court-an organ of government which interprets the Constitution and laws of Congress and which may forbid the carrying out of the expressed will of the popular majority. It necessarily follows that the authority which can thus overrule the majority and enforce its own views of the system is an authority greater than the majority. All governments must belong to one or the other of two classes according as the ultimate basis of political power is the many or the few. There is, in fact, no middle ground. We must either recognize the many as supreme, with no checks upon their authority except such as are implied in their own intelligence, sense of justice and spirit of fair play, or we must accept the view that the ultimate authority is in the hands of the few. Every scheme under which the power of the majority is limited means in its practical operation the subordination of the majority to the minority. This inevitable consequence of the limitation of popular rule is not

alluded to by the advocates of checks and balances, though it is obvious to any careful student of the system.

It would, however, do injustice to the intelligence of those who champion the scheme of checks and balances to give them credit for any real sympathy with the aims and purposes of democracy. Individual liberty as guaranteed by majority rule was not the end which the framers of the Constitution had in view, nor is it the reason why the present-day conservative defends their work. The Constitution as originally adopted did not contain those highly prized guarantees of personal liberty which democracy everywhere insists upon. The failure to make any provision for freedom of the press and right of trial by jury were significant omissions. These, however, were not an essential part of the Federalists' scheme of government, which aimed rather to protect the property and privileges of the few than to guarantee personal liberty to the masses. This omission is the more noteworthy in view of the fact that these guarantees were at that time expressly included in a majority of the state constitutions and that the temper of the people was such as to compel their speedy adoption as amendments to the Federal Constitution itself.

Liberty, as the framers of the Constitution understood the term, had to do primarily with property and property rights. The chief danger

which they saw in the Revolutionary state governments was the opportunity afforded to the majority to legislate upon matters which the wellto-do classes wished to place beyond the reach of popular interference. The unlimited authority which the state government had over taxation and its power to restrict or abridge property rights were viewed with alarm by the wealthy classes, who felt that any considerable measure of democracy would be likely to deprive them of their time-honored prerogatives. To guard against this danger the Constitution sought, in the interest of the classes which dominated the Federal Convention, to give the widest possible scope to private property. It prohibited private property in nothing-permitting it, as originally adopted, even in human beings. It may be said without exaggeration that the American scheme of government was planned and set up to perpetuate the ascendency of the property-holding class in a society leavened with democratic ideas. Those who framed it were fully alive to the fact that their economic advantages could be retained only by maintaining their class ascendency in the government. They understood the economic significance of democracy. They realized that if the supremacy of the majority were once fully established the entire policy of the government would be profoundly changed. They foresaw that it would mean the abolition of all private monopoly

and the abridgment and regulation of property rights in the interest of the general public.

The Constitution was in form a political document, but its significance was mainly economic. It was the outcome of an organized movement on the part of a class to surround themselves with legal and constitutional guarantees which would check the tendency toward democratic legislation. These were made effective through the attitude of the United States courts which, as Professor Burgess says, "have never declined jurisdiction where private property was immediately affected on the ground that the question was political."

"There can be no question that the national government has given to the minority a greater protection than it has enjoyed anywhere else in the world, save in those countries where the minority is a specially privileged aristocracy and the right of suffrage is limited. So absolute have property rights been held by the Supreme Court, that it even, by the Dred Scott decision, in effect made the whole country a land of slavery, because the slave was property, and the rights of property were sacred."2

In carrying out the original intent of the Constitution with reference to property the courts have developed and applied the doctrine of vested rights-a doctrine which has been used with tell

1 Pol. Sci. and Const. Law, Vol. I, p. 197.

2 Ford's ed. of The Federalist, Introduction, p. xiii.

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ing effect for the purpose of defeating democratic reforms. This doctrine briefly stated is that property rights once granted are sacred and inviolable. A rigid adherence to this policy would effectually deprive the government of the power to make the laws governing private property conform to social and economic changes. It would disregard the fact that vested rights are often vested wrongs, and that one important, if not indeed the most important, task which a government by and for the people has to perform is to rectify past mistakes and correct the evils growing out of corruption and class rule. A government without authority to interfere with vested rights would have little power to promote the general welfare through legislation.

The adoption of the Constitution brought this doctrine from the realm of political speculation into the arena of practical politics. The men who framed and set up our Federal government were shrewd enough to see that if the interests of the property-holding classes were to be given effective protection, it was necessary that political power should rest ultimately upon a class basis. This they expected to accomplish largely through the judicial veto and the power and influence of the Supreme Court. The effect of establishing the supremacy of this branch of the government was to make the legal profession virtually a ruling class. To their charge was committed under our