A BRIEF CHRONOLOGY OF COLLECTIVISM
Attorney At Law
John Dewey stated in 1899: "Children who know how to think for themselves spoil the harmony of the collective society which is coming where everyone is interdependent."
On May 14, 1899 Davidson wrote Cohen: "I am glad to have you look upon me as a father . . . " Knight, p. 139. Davidson added: "(T)hat you are attached to socialism neither surprises nor disappoints me. I once came near being a socialist myself, and, indeed, in that frame of mind founded what afterwards became the Fabian Society. But I soon found out the limitations of socialism, and so I am sure will you, 'if you are true to yourself.' I have not found any deep social insight, or any high moral ideals, among the many socialists I know." Id. at 139. Socialism would worsen rather than improve society: "Further, I suppose, we both see that mere economic socialism -- that it, the owning of all the means of production by the state -- would not necessarily insure economic well-being, that Crokerian socialism, for example, would be sure to do the opposite. Socialism could not abolish 'bossism,' but would rather increase its opportunities and power." Id. at 142. He predicted: "Historically, nations have been great . . . in proportion as they have developed individualism on a basis of private property . . . If socialism once realized should prove abortive, and throw power and wealth into the hands of a class, that class would be able to maintain itself against all opposition, just as did the feudal chiefs for so long." Id. at 143.
Davidson wrote to Cohen on June 12, 1899: "You are altogether mistaken in thinking that I am an idealist. I have fought idealism for forty years with all my might." Id.
James claimed that Davidson was never critical of Kant: "Hegel, it is true, he detested; but he always spoke with reverence of Kant. Of Mill and Spencer he had a low opinion." William Knight, MEMORIALS OF THOMAS DAVIDSON: THE WANDERING SCHOLAR 109 (1907). James lent Davidson Paulsen's Einleitungindie Philosophie. Davidson shot back: "It's the shabbiest, seediest pretence at a philosophy I have ever dreamed of as possible." Id. at 109-110. James labeled Davidson as "a Platonizer." Id. at 110. Davidson thought that academic life subdued individualism and made for "philistinism." On the way back to Glenmore one night, Davidson lit into James by the lantern light denouncing him as an academic. Id. James again, less gratefully, acknowledged Davidson's Glenmore library: "His own cottage was full of books, whose use was free to all who visited the settlement." Id. at 114. Davidson did not relate well to Jame's politics: "It was this individualistic religion that made Davidson so indifferent, all democrat as he nevertheless was, to socialisms and general administrative panaceas. Life must be flexible. You ask for a free man and these Utopias give you an interchangeable part,' with a fixed number, in a rule-bound social organism." Id. at 115. James learned little from Thomas Davidson: " . . Personally I never gained any very definite light from his more abstract philosophy. Id. at 118.
While the people have continued to believe in their reserved rights, some scholars have disagreed in favor of unlimited government. In 1902, for instance, Dr. James Sullivan, in an address before the American Historical Association, referred to the popular discussion of inalienable rights as only serving to "illustrate the wide gulf which separates the scholarly world from the general public. The world of learning has long abandoned the state of nature theory." Morris R. Cohen, REASON AND NATURE 401 (1931); Report of the American Historical Association for 1902, pp. 67-68.
American pragamatists embraced the central ideas of Kant and Hegel. It was German metaphysical idealism given an active development. Piekoff, p. 124. Plain anticipations of pragmatism can be found in the idealism writings of Kant, Fichte and Nietzche. Henry David Aiken, THE AGE OF IDEOLOGY 264 (Mentor 1956). Pragmatism became "the dominant force in American sociology, education and jurisprudence" after being fostered by John Dewey and Roscoe Pound. Paul L. Gregg, The Pragmatism of Mr. Justice Holmes, 31 GEO. L.J. 262, 284 (1943).
In a letter to Lady Welby, on December 1, 1903, Charles Pierce wrote: "(T)he objections that have been made to my word 'pragmatism' are very trifling. It is the doctrine that truth consists in future serviceableness for our needs." George Seldes, THE GREAT THOUGHTS 327 (1985).
The views of William James echoed Utilitarianism. Pound as a Harvard colleague of James and was greatly influenced by him in his basic approach. Pound taught that the law was involved with "social engineering." In his classes on "experimental logic" John Dewey at Columbia was fond of using the engineer as a prime example of "man thinking." Felix Frankfurter, in his Memoirs, said that he and Pound were brought to the Harvard Law School at the same time to bring social referents to bear on the law. Beryl Harold Levy, ANGLO-AMERICAN PHILOSOPHY OF LAW 77-78 (1991). By blending sociology and law, Roscoe Pound became "the leading theoretician of the Progressive movement, whose theories provided the underpinning for natural resources conservation and, though rarely acknowledged, for the modern environmental movement." 69 CHICAGO-KENT L. REV. 847, 851 (1994).
Roscoe Pound, styled as a great legal educator, repeatedly revealed his low opinion of individualism. He wrote in 1905: "No amount of admiration for our traditional system should blind us to the obvious fact that it exhibits too great a respect for the individual, and for the entrenched position in which our legal and political history has put him, and too little respect for the needs of society, when they come in conflict with the individual, to be in touch with the present age." Pound, Do We Need A Philosophy of Law?, 5 COLUM. L. REV. 339, 344 (1905). Pound much later made an address to the annual meeting of Phi Beta Kappa entitled "The End of Individualism and Development of a 'Relational' Society." New York Times 17:7 (February 20, 1932). Later Pound would write against an "individual" Second Amendment.
Less than a month after being appointed to the U.S. Supreme Court, Holmes upheld "judicial tolerance" of state action in economic and social matters -- the practice of giving the states the benefit of any doubt: "If the State thinks that an admitted evil cannot be prevented except by prohibiting a calling or transaction not in itself necessarily objectionable, the courts cannot interfere, unless, in looking at the substance of the matter, they can see that it 'is a clear, unmistakable infringement of rights secured by the fundamental law.'" Otis v. Parker, 187 U.S. 606 (1903); Max Lerner, The Mind and Faith of Justice Holmes 128 (1940). Two years later Holme's language was even stronger in urging a liberal treat of state economic legislation. Lochner v. New York, 198 U.S. 45 (1905).
On July 10, 1906 Attorney Robt. G. Street read a paper to the Texas Bar Association in which he quoted President Elliot of Harvard University): "The new ideal in American life is the idea of unity for the common good, individualism with collectivism, each to perfect the other. The first half of the 19th century saw the development of individualism, the last half of collectivism . . . " PROCEEDINGS, p. 232.
John Dewey read the ideas of Schelling and Hegel. John E. Wise, THE HISTORY OF EDUCATION 421 (1964). Like Holmes and Bentham, Dewey left behind the theory of natural law. Beryl Harold Levy, ANGLO- AMERICAN PHILOSOPHY OF LAW 82 (1991). C.S. Morris at Johns Hopkins University was an Hegelian idealist who shaped Dewey's early philosophical thought. Id. When G. Stanley Hall arrived at Johns Hopkins University from Leipzig, Dewey, a Hegelian in philosophy, was there waiting to write his doctoral thesis on "The Psychology of Kant." Anthony C. Sutton, AMERICA'S SECRET ESTABLISHMENT 102 (1986). Auguste Comte, systematized his ideal of social investigation and called it positivism. Young Dewey read Harriet Martineau's condensation of Auguste Comte's Positive Philosophy which "awakened his lifelong interest in the interaction of social conditions with the development of thought in science and philosophy." Neil Gerard McCluskey, PUBLIC SCHOOLS AND MORAL EDUCATION 180 (1958). While Dewey studied with Morris: "Thomas Hill Green and other English neo-Hegelians, Lord Haldane and his group who wrote the Essays in Philosophical Criticism, were part of a movement in England which Dewey says was at the time the vital and constructive one in philosophy. This was the influence that fell in with and reinforced that of professor Morris." Neil Gerard McCluskey, PUBLIC SCHOOLS AND MORAL EDUCATION 182-183 (1958).
In the period 1907-1908 Dewey detailed pragmatism's claim that there are no ultimate principles by which ends, means and actions are assayed. The only critical rule was that an idea or "plan of action" is true if it works. Paul L. Gregg, The Pragmatism of Mr. Justice Holmes, 31 GEO. L.J. 262, 284 (1943); John Dewey, 16 MIND 335-336 (1907) and 5 JOURNAL OF PHILOSOPHY 88 (1908). Aaron Sargent, a consultant to the Senate Internal Security Committee, said: "Professor Dewey denied that there was any such thing as absolute truth, that everything was relative, everything was doubtful, that there were no basic values and nothing which was specifically true . . . you automatically wipe the slate clean, you throw historical experience and background to the wind and you begin all over again, which is exactly what the Marxians want someone to do." Rene A. Wormser, FOUNDATIONS: THEIR POWER AND INFLUENCE 144 (1958).
William James of Harvard defined pragmatism as "the attitude of looking away from first things, principles, 'categories,' supposed necessities, of looking towards last things, fruits, consequences, facts." In Lecture 1 (1907) he also wrote: "Pragmatism is uncomfortable away from facts. Rationalism is comfortable only in the presence of abstraction . . . " George Seldes, THE GREAT THOUGHTS 204 (1985). As a youth, Mussolini became acquainted with several Italian disciples of William James. In a an April 1926 Sunday Times interview, Mussolini stated: "The pragmatism of William James was of great use to me in my political career. James taught me that an action should be judged rather by its results than by its doctrinary basis. I learnt of James that faith in action, that ardent will to live and fight, to which Fascism owes a great part of its success...For me the essential was to act." Leonard Piekoff, THE OMINOUS PARALLELS 321 (1982); Ralph Barton Perry, II THE THOUGHT AND CHARACTER OF WILLIAM JAMES 575 (1935).
In 1908 the first "Brandeis Brief" was submitted to the court which made the surrounding facts and circumstances important in due process cases. Muller v. Oregon, 208 U.S. 412 (1908). Brandeis joined the Court after urging that all social legislation and business regulation be given a presumption of constitutionality. Justice Cardozo most frequently joined Holmes and Brandeis in seeking their liberal objective. Pat Baskin, "The Dual Theory of the Presumption of Legislative Validity: A History anbd Critical Analysis," 3 (1949?).
Since 1910 "it has not been uncommon to find reference to James, Dewey or other pragmatists in judicial decisions of state and national courts, including the Supreme Court of the United States." 12 ENCYCLOPEDIA OF THE SOCIAL SCIENCES 310 (Edwin Seligman Ed. 1934). The influence of pragmatism in judicial decisions can be be seen when an opinion begins by stating that a fundamental right "is not absolute." Once a right is thus limited, regulation is said to be fully permissible.
In April of 1913 the first Conference on Legal and Social Philosophy was held. Many lawyers, social scientists and philosophers "were excited by what Cohen himself called "The Process of Judicial Legislation." David A. Hollinger, MORRIS R. COHEN AND THE SCIENTIFIC IDEAL 167-168 (MIT Press 1975). The conference was organized by Morris R. Cohen and chaired by John Dewey. Roscoe Pound opened the conference with an appeal to let judges improve society by putting the appropriate social ideals into effect. This was also Cohen's theme -- judges were to calculate the social consequences of alternatives open in a given case and make a decision according to a clearly articulated set of social priorities. Id. at 168. Cohen blasted Hans Wustendorfer, Ernst Fuchs, Arthur F. Bentley and Brooks Adams for their denial of "all value to logic and general principles." Cohen's son later boasted that it is from this conference that "much of the social and philosophical consciousness of modern American jurisprudence derives."
In 1917 Holmes wrote in a dissenting opinion: "I recognize without hesistation that judges do and must legislate, but they can do so only interstitially; they are confined from molar to molecular motions." Thomas C. Grey, Molecular Motions: The Holmesian Judge in Theory and Practice, 37 WILL. & MARY L. REV. 19, 33 (1995); Southern Pacific v. Jensen, 244 U.S. 205, 221 (1917) (Holmes, J., dissenting).
In August of 1918, Holmes wrote: "The jurists who believe in natural law seem to me to be in that naive state of mind that accepts what has been familiar and accepted by them and their neighbors as something that must be accepted by all men everywhere." Oliver Wendell Holmes, Jr., Natural Law, -- HARV. L. REV. 40, 41 (1918). The natural law school holds that a minimum residue of inalienable rights exist that are essential to dignity of citizens. In the absence of such rights, man is reduced to an animal no matter how well governed, housed and fed. Paul L. Gregg, The Pragmatism of Mr. Justice Holmes, 31 GEO. L.J. 262, 291 (1943).
In 1921 Chief Justice Taft held: "The Constitution was intended -- its very purpose was -- to prevent experimentation with the fundamental rights of the individual." Holme's dissented: "There is nothing that I more deprecate than the use of the Fourteenth Amendment beyond the absolute compulsion of its words to prevent the making or social experiments that an important part of the community desires, in the insulated chambers afforded by the several states, even though the experiments may seem futile or even noxious to me and to those whose judgment I most respect." Truax v. Corrigan, 257 U.S. 312 (1921).
John Dewey, in 1922, maintained that the individual achieves his meaning only in his relations with others -- in associational activity. HUMAN NATURE AND CONDUCT: AN INTRODUCTION TO SOCIAL PSYCHOLOGY (1922); Quoted by Miller, SOCIAL CHANGE AND FUNDAMENTAL LAW 55-56 (1979).
In 1923 it was held that there was an unbroken line of decisions upholding an act of Congress "unless overcome beyond reasonable doubt." Adkins v. Children's Hospital, 261 U.S. 525 (1923). In 1923 the Court began a process of using the Fourteenth Amendment to protect fundamental rights. Meyer v. Nebraska, 262 U.S. 390 (1923).
In 1923 G. Stanley Hall wrote of his experiences in Germany: "(F)or I had read Buchner and Moleschott; had wrestled with Karl Marx and half accepted what I understood of him; thought Comte and the Positivists had pretty much made out their case and that the theological if not the metaphysical stage of thought should be transcended." Samuel L. Blumenfeld, N.E.A.: TROJAN HORSE IN AMERICAN EDUCATION 45 (1984); G. Stanley Hall, LIFE AND CONFESSIONS OF A PSYCHOLOGIST 219 (1923).
Brandeis dissented in 1924 accusing the Court of assuming "the powers of a super legislature." Burns Baking Co. v. Bryan, 264 U.S. 504 (1924).
John Dewey described Holme's "impatience with the attempt to settle matter of social policy by dialectic reasoning from fixed concepts" and his "faith that . . . our social system is one of experimentation, subject to the ordeal of experienced consequences." John Dewy, Justice Holmes and the Liberal Mind, 53 NEW REPUBLIC 210-211 (1928). Late in life Holmes praised the work of John Dewey in highest terms. On December 15, 1926 he wrote to Laski that Dewey's Experience and Nature was "truly a great book." Thomas C. Grey, Holmes and Legal Pragmatism, 41 STAN. L. REV. 787, 868 (1989); 2 HOLMES-LASKI LETTERS 904. Dewey had quoted Holmes for two pages and called him "one of our greatest American philosophers . . . " John Dwey, EXPERIENCE AND NATURE 417 (2nd Ed. 1929).
Dewey stated in 1927: "(T)he human being whom we fasten upon as individual par excellence is moved and regulated by his association with others; what he does and what the consequences of his behavior are, what his experience consists of, cannot even be described, much less accounted for, in isolation." THE PUBLIC AND ITS PROBLEMS 188 (1927).
It has long been preached that ignorance of the law is no excuse. As early as 1927 it was estimated that "no fewer than 10,000,000 laws and ordinances are theoretically operative in the United States today." Indeed: "Even the most conscientious observer can hardly fail during the course of a single day to violate unwittingly some of them. The law has become so complex and extensive that no living man can hope to learn its provisions or observe it in full." William P. Helm, Jr., "The Plague of Laws," The American Mercury 16 (January 1927).
In 1928 Justice Stone demanded that some presumption be made that New Jersey's legislature was acting with knowledge of conditions making legislation necessary. Robnick v. McBride, 277 U.S. 350 (1928) (dissenting).
The plain meaning doctrine began to blur at least as early as 1930: "The words he (a judge) must construe are empty vessels into which he can pour nearly anything he will." Judge Learned Hand, SPIRIT OF LIBERTY 81 (Dillard Ed.); 79 U. PA. L. REV. 1, 12 (1930).
In May 1930 H.L. Mencken wrote about Holmes's lawmaker-centered views:
My suspicion is that the hopeful Liberals of the 20s, franctically eager to find at least one judge who was not violently and implacably against them, seized upon certain of Mr. Justice Holme's opinions without examining the rest, and read into them an attitude that was actually as foreign to his ways of thinking... Finding him, now and then, defending eloquently a new and uplifting law which his colleagues proposed to strike off the books, they concluded that he was a sworn advocate of the rights of man. But all the while, if I do not misread his plain words, he was actually no more than an advocate of the right of lawmakers. There, indeed, is the clue to his whole jurisprudence. D.P.B., Mencken and Holmes, 2 CONSTITUTIONAL COMMENTARY 277, 282-283 (1985).
In 1931 Justice Frankfurter stated: "New winds are blowing on old doctrines, the critical spirit infiltrates traditional formulas, philosophical inquiry is pursued without apology as it becomes clearer that decisions are functions of some juristic philosophy." Francis E. Lucy, Homes -- Liberal -- Humanitarian -- Believer in Democracy? 39 GEO. L.J. 523, 560 (1951); Frankfurter, The Early Writings of O.W. Holmes, Jr., 44 HARV. L. REV. 717 (1931).
In 1932 it was stated: "The courts . . . have formed the habit of reading into the venerable text principles and provisions which not even exhaustive scholarship can discern; thus, in another line, contributing to the process of weakening the real authority behind its provisions." Samuel Bell Thomas, OUR WEAKENED CONSTITUTION 308 (1932).
Justice Sutherland dissented in 1934: "If the provisions of the Constitution be not upheld when they pinch as well as when they comfort, they may as well be abandoned." Home Building and Loan Association v. Blaisdell, 290 U.S. 398, 483, 78 L.Ed. 413, 452, 54 S.Ct. 231, 88 ALR 1481 (1934).
Deweyites Counts and Rugg added the concept of using the schools for building "a new social order." John A. Stormer, NONE DARE CALL IT TREASON 101 (1964). Counts directed a 17-volume study financed by the Carnegie Foundation. The final volume was published in 1934 and said: "Cumulative evidence supports the conclusion that in the United States as in other countries, the age of individualism and laissez-faire in economy and government is closing and a new age of collectivism is emerging." Id. at 102. Harold Laski, the British Socialist and friend of both Holmes and Felix Frankfurter, wrote in the New Republic of the Count-study: "At bottom, and stripped of its carefully neutral phrases, the report is an educational program for a socialist America." Id. The traditional subjects of history, geography, sociology, economics, political science, etc. were to be consolidated into "social studies." Id. at 105.
On December 31, 1934, Dewey wrote: "The reactionaries are in possession of force, in not only the army and police, but in the press and the schools." George Seldes, THE GREAT QUOTATIONS 203 (1966); N.Y. World-Telegram (December 31, 1934). Dewey also said: "We are all for some kind of socialism, call it by whatever name we please." Seldes, p. 205.
Harold Laski, in 1935, published THE STATE IN THEORY AND PRACTICE. This work was "a skillful exposition of the Marxist theory of the state." Carl J. Friedrich, THE NEW IMAGE OF THE COMMON MAN 52 (1950).
In the late 1930s and 1940s of the theory of "bureaucratic collectivism" emerged. The impact of the first War and the Great Depression has been summarized by Maurice W. Cranston, Professor of Political Science ath the London School of Economics and Political Science: "(F)abianism flourished when the double impact of WWI and the Great Depression had destroyed many other illusions. In spite of its claim to be a form of socialism, Fabianism became assimilated by liberals, as liberalism took on the ideas of state regulation of the economy, bureaucratic planning, income transfers to relieve poverty, and the subordination of civil and political rights to so-called social and economic rights. This is as true of American as of English liberals, despite America's deep traditional attachment to economic freedom." "1890-1990: up from Fabian Socialism," 27 SOCIETY 71 (Jan./Feb.1990).
In 1933 Felix Cohen published ETHICAL SYSTEMS AND LEGAL IDEALS. He "sought to employ Bentham's hedonistic utilitarianism to give philosophical content to Morris Cohen's ideal of 'natural law.'" David A. Hollinger, MORRIS R. COHEN AND THE SCIENTIFIC IDEAL 187 (MIT Press 1975). Morris Cohen used the phrase "natural law with a changing content" as the slogan for his jurisprudence. He acknowledged Stammler as the originator of the phrase. Id. at 194.
In 1933 Ernst Huber, Nazi party spokesman said: "The authority of the Fuhrer is not limited by checks and controls, by special autonomous bodies or individual rights, but it is free and independent, all-inclusive and unlimited." Peikoff, p. 16. Up went the State and down went the individual:"The concept of personal liberties of the individual as opposed to the authority of the state had to disappear . . . " Peikoff, p. 16. The Nazis had no use for inalienable rights: "There are no personal liberties of the individual which fall outside the realm of the state and which must be respected by the state . . . The constitution of the nationalistic Reich is therefore not based upon a system of inborn and inalienable rights of the individual." Peikoff, p. 16. In Hitler's Germany every detail of life was prescribed or proscribed; the only private individuals were those that were asleep. Peikoff, p. 17. Gobbels said: "To be a socialist is to submit the I to the thou; socialism is sacrificing the individual to the whole." Peikoff, p. 19. Germans were told the idea that totalitarians of every kind stress as the justification for a total state: collectivism. Peikoff, p. 17. Huber also wrote that private property was a reversal of true property. German socialism overcame the earlier version of the right of the individual to manage and to speculate with inherited or acquired property without regard to the general interests; all property was common property. Peikoff, p. 18.
In 1936 Chief Justice Charles Hughes stated that no distinction could be made between constitutional rights pertaining to liberty and those pertaining to property. St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, 52 (1936). Justice Brandeis, in his concurring opinion, however, said a distinction should be made when dealing with property. 298 U.S. 38, 77 (1936).
In 1937 there were still four rock-ribbed conservatives on the Supreme Court (McReynolds, Sutherland, Van Devanter and Butler). Three liberals were on the Court (Brandeis, Cardozo and Stone). Hughes and Roberts were considered unpredictable. Arthur Cecil Bining and Philip Shriver Klein, A HISTORY OF THE UNITED STATES 503 (1951). Congress passed a bill allowing retirement of justices at the age of 70. FDR eventually appointed eight new justices and named Harlan F. Stone Chief Justice. Arthur Cecil Bining and Philip Shriver Klein, A HISTORY OF THE UNITED STATES 506 (1951). A vacancy was created with the resignation of Van Devanter: "The turnabout of the Supreme Court resulted primarily from the attitude of Hughes and Roberts, who now joined Brandeis, Cardozo and Stone to constitute a liberal majority of five." Id. at 505. The Justices appointed by FDR were Hugo L. Black, Felix Frankfurter, Stanley Reed, William O. Douglas, Frank Murphy, Robert H. Jackson, James F. Byrnes and Wiley B. Rutledge. Id. at 506.
After FDR's court-packing scheme had been unveiled, the Supreme Court took "several steps to the left." Daniel Lazare, THE FROZEN REPUBLIC 160 (1996). The year 1937 represented the dividing line between the "negative, nightwatchman state" and the "Positive State." Arthur S. Miller, THE MODERN CORPORATE STATE: PRIVATE GOVERNMENTS AND THE AMERICAN CONSTITUTION 91 (1976). The turning point for "a new type of government" came when Chief Justice Hughes held: "In prohibiting that deprivation, the Constitution does not recognize an absolute and uncontrollable liberty. Liberty in each of its phases has its history and connotation. But the liberty safeguarded (by the 14th Amendment) is liberty in a social organization which requires the protection of law against the evils which menace the health, safety, morals, and welfare of the people. Liberty under the Constitution is thus necessarily subject to the restraints of due process, and regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process." Arthur S. Miller, THE SUPREME COURT: MYTH AND REALITY 352 (1978); West Coast Hotel Co. v. Parrish, 300 U.S. 370 (1937) (emphasis added by Miller).
For the first time due process could be "used to restrain liberty." Miller said this was the modern version of Thomas Hill Green's concept of "positive freedom" and of collective well-being. Id. The purpose of government, according to Green, was not to maximize individual freedom but "to insure the conditions for at least a minimum of well-being -- a standard of living, of education, and of security below which good policy requires that no considerable part of the population shall be allowed to fall." THE SUPREME COURT: MYTH AND REALITY 352 (1978); SABINE, A HISTORY OF POLITICAL THEORY 674 (1937). For the first time liberty "became a social, as distinquished from an individual, right." Arthur S. Miller, THE MODERN CORPORATE STATE: PRIVATE GOVERNMENTS AND THE AMERICAN CONSTITUTION 95 (1976). Edwin S. Corwin wrote: "From being a limitation on legislative power, the due process clause becomes an actual instigation to legislative action of a leveling nature." Id.; Corwin, LIBERTY AGAINST GOVERNMENT 161 (1948). It was at this time, with little contemporary appreciation, that "a quiet but massive constitutional revolution began." Arthur S. Miller, THE MODERN CORPORATE STATE: PRIVATE GOVERNMENTS AND THE AMERICAN CONSTITUTION 95 (1976).
T.H. Green, the founder of the Oxford idealist school, was one of the first to attract general attention to the Hegelian system. Although he was unable to embrace all the features of Hegel's radical etatism (statism), many of Green's successors were willing to go much further than Green himself. William Montgomery McGovern, From Luther To Hitler 266 (1941). In England Bernard Bosanquet and F.H. Bradley (1846-1924) adopted most, if not all, of Hegel's philosophy. Id. In the place of passive obedience Hegel substituted the doctrine of the supremacy of the state over the individual -- the state as the end in itself. William Montgomery McGovern, FROM LUTHER TO HITLER 299 (1941). Unlike past defenders of absolutism, Hegel did not attack the principles of liberty or freedom. He taught that the state was the "actualization of Freedom." Id. True freedom, however, was voluntary but complete subserviance to the dictates of the state. Hegel adopted the definition of liberty laid down by Kant, which was accepted in some form by Fichte, Carlyle and by Green -- that liberty consists of the ability to do what one ought to do. Id. at 301.
Social legislation and statutes of economic regulation will be held valid under the Constitution "unless in the light of facts made known or generally assumed it is of such character as to preclude the assumption that it rests upon some rational basis within the knowledge and experience of the legislature." United States v. Carolene Products Co., 304 U.S. 144 (1938). Attempts to limit civil liberties will "be subjected to a more exacting judicial scrutiny . . . than are most other types of legislation." 304 U.S. 152.
The Texas high court held in 1941: "It is not only the right, but the duty of the judicial branch to determine whether or not a Legislative Act contravenes or antagonizes the fundamental law; and in determining such we are unalterably wedded to the principle that the Constitution means what it meant when it was written." Friedman v. American Surety Company of New York, 151 S.W.2d 570, 580 (Tex. 1941); Swayne v. Chase, 88 Tex. 218, 30 S.W. 1049, 1053 (Tex. 1895).
In 1941 the Reverend William J. Kenealy, S.J. Dean of the Boston College Law School, stated that the alien philosophies of Kant, Hume, Herbert Spencer, John Stuart Mill, Hobbes, Marx and Holmes were "cutting away at the foundations of American jurisprudence," and might "topple the superstructure which we are proud and happy to call our American Way of Life." Biddle, p. 33.
In 1942 Mortimer Adler described legal positivism: "Positivism, which is the prevailing mood of modern thought generally, is also found in the special field of legal theory. In jurisprudence, the positivist denies natural law, affirming the contingent and variable enactments of political communities to be the only laws there are; as, more generally, the positivist denies the necessary truths of philosophical knowledge, affirming the contingent and variable conclusions of scientific research to be the only valid knowledge there is. And, in both cases, the same result occurs: positive law, like positive science, becomes unintelligible; positive law, like positive science, tends toward the dangerous extreme of being entirely conventional, entirely man-made and arbitrarily imposed." Mortimer J. Alder, A Question About Law, ESSAYS IN THOMISM 207 (Robert E. Brennan Ed. 1942).
In 1942 the lawmaker-centered view of was explained: "The state of the others' is thus the sole source of rights., that is to say that once man has arbitrarily decided that he wants to live, he finds that he must live with others and that when he lives with others, the others demand certain things of him and grant him certain rights. The state is the mouthpiece and overseers employed by the others. Rights and duties come from the state. The result then is that our rights depend on our brute power to demand and secure what we desire, and are duties are simply those things which we must do, because others will force us to do them." E.W. Simms, A Dissent From Greatness, 28 VA. L. REV. 467, 477-478 (1942). Simms added: "The principle that the individual has rights which he may assert, even as against the state, is the foundation stone of democracy." Id. at 480.
In 1944 Matthew Page Andrews (1879-1947) wrote Social Planning By Frontier Thinkers. The book opened with a quote from "The Witch's Curse" Comic Opera by Gilbert and Sullivan. The "Professor" was quoted: "Our Educational Planner are careful to avoid the term subversive'; but if the American way fails to provide the most abundant life, then it must give place to something better and more beautiful. As one Planner has said: Our frontier must be given the opportunity to create a design and the freedom to establish it.'" Matthew Page Andrews, SOCIAL PLANNING BY FRONTIER THINKERS 7-8 (1944). The Professor further stated: "The Brain Trust, not being amendable to any established order, will get around the Constitution or over-ride it." Id. at 10. In this same year G. Edward Merriam cited Aristotle as holding that the individual could not exist except as a stone hand: "The lone individual does not figure either in family relations, in neighborhood relations, in state relations, in social relations, or in the higher values of religion. Nowhere is he left without guiding social groups, personalities, and principles." PUBLIC AND PRIVATE GOVERNMENT 16 (1944).
In 1945 Ben Palmer wrote: "The fact that Holmes was a polished gentleman who did not go about like a storm trooper knocking people down and proclaiming the supremacy of the blonde beast should not blind us to his legal philosophy that might makes right, that law is the command of the dominant social group." Ben Palmer, Hobbes, Holmes, and Hitler, 31 A.B.A.J. 571, 572 (1945).
When the times emphasises individualism, individuals have rights. When stress is constantly made on community, the age is one of collectivism: "Man is an individual; he is also a member of society. As an individual, he demands freedom of action. As a member of a social group, he conforms and expects his fellows to conform to the established group standards. Individualism stresses the rights of the individual; collectivism stresses those of the community." Scott Nearing, UNITED WORLD 125 (1945). Talk about inalienable rights is a sign that the interests of the individuals in the society are not parallel to the ruling social groups. A One World proponent noted: "When the interests of the individual closely parallel those of the social group there is little talk of inalienable rights; little agitation for freedom. Under other circumstances, the group makes demands that lead the individual to take a stand against collective authority. If he carries his opposition far enough, he will be denounced, proscribed and punished for his refusal to accept group discipline." Scott Nearing, UNITED WORLD 125 (1945).
President Truman once said: "If we don't have a fundamental moral background, we will finally end up with a . . . government which does not believe in rights for anyone except the state." Steve C. Dawson, GOD'S PROVIDENCE IN AMERICAN HISTORY 13:1 (1988).
By 1947 it was said that the then prevailing teaching, of both political and legal philosophers "denies that the purpose of government is to secure these inherent and inalienable rights. It asserts that because there are no immutable principles of human conduct, there is no ultimate standard of justice and the lawmaker is responsible to nothing but his own unfettered will. It asserts tha since there are no natural rights, all man's rights come to him from the state, and what the state grants, the state may take away. It asserts that since men possess no natural, inherent rights, the purpose of government is not to secure these rights but rather the purpose of man is to serve the state." Harold R. McKinnon, The Higher Law: Reaction Has Permeated Our Legal Thinking, AM. BAR ASSOC. J. 106 (February 1947).
Professor Oliver P. Field stated in 1947: "The Court is still struggling with the problem of 'interest' on the part of those who seek to challenge the validity of statutes. Little can be done to extricate the law from the bog into which it has fallen on this point so long as the idea prevails that constitutionality should be sparingly dealt with by the courts. It should be just the opposite . . . " Oliver P. Field, "Separation and Delegation of Powers," 41 Am. Pol. Sci. Rev. 1161, 1168-1169 (1947).
Byron C. Utecht wrote in 1949:
The Texas Constitution consists of 105 printed pages, and for the most part, at least 95% of it, is written in such unmistakable, plain English that there is no chance for misunderstanding or misinterpretation. Statutes are verbose and full of legal twists and turns, but the Constitution is blunt and plain-spoken; nevertheless, there are plenty who seek to override it constantly, insisting that it does not mean what it says. There are many provisions in the Texas Constitution in the same status as the forgotten man or the unknown soldier, for these provisions are thrown overboard frequently, and there is no secret made of it. THE STATE OF TEXAS OR THE STATE OF TAXES? 52 (1949).
John P. Keith, shortly after World War II, wrote: "Constitutional revision is rooted in the field of politics and not in the field of law." John P. Keith, METHODS OF CONSTITUTIONAL REVISION 53 (Bureau of Municipal Research: U.T. 1949). In that same year, it was contended:
In the course of the many decades since our independence was declared, and since the Constitution was set up to protect our God-given rights against the encroachments of civil government, dry-rot has afflicted our jurisprudence, and some of the alien philosophies which our fore fathers fled have found willing protagonists here in America. So much is this the case that the very existence of the Natural Law is challenged, even in the highest courts of the land. What five men think is the will, or even the whim of the people, may come to have the force of statute. The 'divine right of kings' was not a more pernicious doctrine.
Rev. John F. O'Hara, Honorary Chairman, First Natural Law Institute Proceedings, I UNIVERSITY OF NOTRE DAME NATURAL LAW INSTITUTE PROCEEDINGS (1949).
Peter Drucker stated in 1950 that it is "the organization rather than the individual which is productive in an industrial system." THE NEW SOCIETY 6 (1950). In the same year John R. Commons stated: "This is an age of collective action." THE ECONOMICS OF COLLECTIVE ACTION 23 (1950). Those who favor absolute government have no belief in absolute individual rights. The Hutchins Commission's position on absolute (individual) rights was stated in 1950: "The notion of rights, costless, unconditional, conferred by the Creator at birth, was a marvelous fighting principle against arbitrary governments and had its historic work to do. But in the context of an acheived political freedom the need of limitation becomes evident. The unworkable and invalid conception of birth-rights, wholly divorced from the condition of duty, has tended to beget an arrogant type of individualism which makes a mockery of every free institution, including the press." Frank Hughes, PREJUDICE AND THE PRESS 165 (1950). Sidney Hook wrote: "Whoever then looks to Dewey to find out whether God or chance is the cause of the universe, whether the soul of man is immortal, whether life is good, bad, or has an absolute meaning, is doomed to disappointment." Neil Gerard McCluskey, PUBLIC SCHOOLS AND MORAL EDUCATION 194 (1958).
In 1951 Harvard Law Professor Hart commented on Holme's positivism: "It is not what the judges say which is important but what they do. It is not the reasons for decision which the judges think they follow to which we should look but the behaviorial patterns which, willy-nilly, they do follow. And so we arrive, if we take this path, at the monsterous conclusion that reason and argument, the conscious search for justice, are vain." Henry M. Hart, Jr., Holme's Positivism -- An Addendum, 64 HARV. L. REV. 929, 933 (1951).
In 1951 Justice Vinson stated for the U.S. Supreme Court: "Nothing is more certain in modern society than the principle that there are no absolutes, that a name, a phrases, a standard has meaning only when associated with the considerations which give birth to nomenclature. To those who would paralyze our Government in the face of impending threat by encasing it in a semantic strait-jacket, we must reply that all concepts are relative." Erik von Kuehnelt-Leddihn, LEFTISM 207 (1974). Felix Morley commented: "So it becomes definitely dangerous to the spiritual welfare of this Republic when the chief law officer of its government declares, irrelevantly and even irreverently, that 'all concepts are relative.'" Morley traced such relativism to the "positivist" school of philosophy. Lucy, p. 559; Felix Morley, "Affirmation of Materialism," Barron's 3 (June 18, 1951). Earl Latham wrote in 1952 that "the chief social values cherished by individuals in modern society are realized by groups." THE GROUP BASIS OF POLITICS 1 (1952).
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