material basis for a civilization. They brought with them, however, the traditions of a mature culture; their demands for law and for advanced political institutions had to be satisfied. Hence the founders of the nation took over the traditions of the mother country, England, especially the common law and the achievements of the Puritan Revolution, and embodied them in bills of rights and in state and federal constitutions. The result was that the American people was from the very beginning a people with a mature political philosophy and yet with very immature social, economic and political institutions. The great conceptions embodied in our political symbols set a goal of political achievement destined to remain for generations far ahead of the actual life of the people; contrast for example the lofty ideals of the Constitution and the Declaration of Independence with slavery which survived the promulgation of these instruments of liberty for over half a century.

The moral advantage of placing the crude and largely artificial American democracy under the tutelage of the Constitution can hardly be exaggerated. The early Americans were scattered groups differing widely in racial, religious and economic interests. They lacked social habits and mature and tested social institutions for the organizing of public sentiment; they did not have the background of national experiences and policies possessed by the older nations of Europe. It was almost indispensable, therefore, that their varied interests should have a central rallying point until the material foundations could be laid for civilization, until national habits of thought and common traditions could be formed, and the basis secured for a self-conscious democracy. It should not be forgotten, however, that the veneration for the Constitution and the feeling of the possession of a document which uttered the last word of political wisdom tended to discourage the critical spirit and educated the masses of Americans into careless indifference or good natured optimism on all national issues. This mental attitude was not conducive to the training of the highest and most efficient type of self-conscious democracy.

There was, however, no alternative. The founders of the American republic, having still in mind the struggles of seventeenth century England with despotism, feared absolute power in any form because they identified supreme power with brute force; they did not distinguish between the possession of supreme political power and the way in which that power is exercised. To be sure, they were determined to assert the sovereignty of the people; "The people alone have an incontestable, inalienable and indefeasible right to institute government, and to reform, alter or totally change the same when their protection, safety, prosperity and happiness require it." But to subject the young democracy to the absolute control of the popular will seemed to create a new despotism in the place of the old. This presented unpleasant alternatives. To follow out the implications of democracy and make the will of the people supreme was to put a new tyrant in the place of the old; to accept any other sovereignty than that of the people would defeat the spirit and intent of democracy.

A way out of the dilemma was suggested by the doctrine of natural rights expounded by Locke and thoroughly familiar to the thinkers of the seventeenth and eighteenth centuries. Starting with this doctrine the founders of American democracy reasoned thus: if the inalienable and unalterable rights of the individual could be outlined in a code and this code made superior to the will of the people, the principle of social righteousness upon which alone a democracy is founded would be conserved and at the same time protection would be provided against the abuse of absolute power by the popular will. The prevailing political philosophy which vested the eternal principles of political justice in a transcendental order of nature and reason prevented the framers of the Constitution and the bills of rights from perceiving that they were in reality merely taking over and adapting to their own particular problems the rights already formulated by Englishmen in their struggle for freedom. We have, therefore, this rather paradoxical situation that the fathers of the republic, while insisting at least theoretically upon the sovereignty of the people, were in reality

distrustful of the people. Hence they made king Lex to be the ruler over king Demos, whom they feared. This they justified under the eighteenth century doctrine that the rule of law was superior to the rule of irresponsible and dimly selfconscious Demos because law may be made to express the eternal and indefeasible principles of justice and the rights of the individual. The fathers formulated a code and then abdicated their power as a sovereign people to this creature of their own hands with the sublime assurance that only in this way could their national calling and election be made sure. Like the ancient Hebrews bowing before the golden image their own hands had made, they cried, "These be thy gods, O Israel, that brought thee up out of the land of Egypt and the house of bondage."

Paradoxical as it may sound, this undemocratic subordination of democracy to law was in the interest of democracy in the long run. The Constitution became the political schoolmaster to lead the masses to the far-off goal of an efficient and self-conscious democracy. "The Constitution," writes President Lowell," was to us what a king has often been to other nations. It was the symbol and pledge of our national existence and the only object on which the people could expend their new-born loyalty." It provided a body of noble political ideals which, though far from being organically related with the daily thought and life of the average American, served as a spiritual and moral leaven in the life of the nation. Even the curse of slavery was not powerful enough to make the nation forget its spiritual birthright.

83. THE RISE OF LAW-MADE DEMOCRACY

The subordination of the will of the people to a body of law was not altogether favorable to the development of an intelligent and self-sufficent democratic loyalty. Its immediate effect was to encourage a legalistic political conscience. As the inevitable process of social evolution went forward, new issues and new demands for social adjustment arose. There was need constantly for some sort of interpretation and appli

cation of the principles of the Constitution to these issues. The integrity of the local democracies as well as of the nation as a whole was in danger of being shipwrecked upon the ever recurring necessity for readjustment. It was felt that there was political wisdom enough in the Constitution. It was merely a question of interpretation and exposition; this of course became the task of the courts. In this wise it came to pass that government in its last analysis fell into the hands of the lawyers and judges of the courts. For it was only necessary to show that any legislative or administrative act violated the principles of right set forth in the Constitution to make this act null and void even though it enjoyed the hearty endorsement of the people. This was practically equivalent to making the courts the keepers of the conscience of Demos. The arguments of lawyers and the decisions of judges have indeed played a part in the life of the American people that is without a parallel in the history of free peoples. A recent writer thus describes the rôle of the Supreme Court in American democracy. "These philosophical jurists were actually possessed of an unique power which might have aroused the envy and admiration of the philosophical dogmatists of all ages-the power of making a real world conform without protest to their own ideas of what a world ought to be. They uttered words based upon a free rational interpretation of other words, and lo! men bowed their heads and submitted." 1

After all has been said in favor of the wisdom and the stability of a law-made democracy and the benevolent disciplinary régime that it provided for the immature political consciousness of the American nation, the question may still be asked as to whether it can ever give us the last word as to the meaning of democracy. Is the benevolent absolutism of law superior to the intelligent and self-directive will of the people? Is not the danger present that the conceptions of social justice ever taking shape in the social conscience may come to differ fundamentally from those embodied in a fixed 1 Croly, Progressive Democracy, p. 142.

code? The situation is further complicated by the fact that justice has become less an individual and more a social matter. The problem of justice is now not so much to assure to the individual the enjoyment of certain inalienable and indefeasible rights possessed independent of the social order in which he lives as it is a question of securing to each and all fit institutions that make it possible to live the just life and to achieve the largest measure of individual development.

We

The moral ideal, so far as the political order is concerned, is not attained when we remove all possible restrictions from the individual so that he may freely and successfully put into execution abstract rights he possesses by virtue of membership in an indefectible order of reason and of nature. now realize from our psychological knowledge of the developing self in society that the moral ideal is something to be achieved. We become moral and responsible by living ourselves into the social order. The state itself is a moral ideal. It lies to a large extent in the realm of moral possibilities. Each individual co-operates in the making of the political ideal actual in life. Political righteousness is something that is achieved through the intelligent and harmonious co-operation of human wills in the effort to realize a political program. Political integrity is ultimately a matter of the social worth of the acts and sentiments of the individual men and women as expressed on political issues. There is never at any one time any more righteousness in the community than there are men and women with mental attitudes or habits of will that make for social justice. The moral integrity of the state can never transcend the moral integrity of the rank and file of its citizenship. Laws, bills of rights or constitutions are at best merely programs, possible ways along which character may develop, ideal lines of political action which, however, wait upon concrete striving human wills to give them reality.

The legalistic political conscience that has grown up under the tutelage of our great political symbols and their eighteenth century philosophy owes its authority to the fact that the masses of men acquiesce in the finality of these symbols. This