'EQUALITY before the law' has been, And certainly it was no part of the task and still is, one of the favorite battle of the government to handicap men in cries of the democracy. 'Class legisla- the race for success. Yet to-day we tion' and 'special privilege' have been have such laws in profusion: laws that equally popular as objects of attack. put a special handicap on some indiBut there has not been a corresponding viduals, or give special advantages to unity of interpretation of these phrases others. And our Supreme Court has - of understanding as to what they are found it possible to approve, as constito mean in terms of specific legislation tutional, such measures. and social organization.

If by 'class legislation' we mean We condemn class legislation and legislation that favors or restricts some special privilege as severely as did our special group in the community, then predecessors. Modern industrial and many of our more important modern social development, however, has forced laws must plead guilty to this charge. us to a new conception of what belongs Tariff laws are designed to benefit parunder these categories. We insist as ticular groups — the manufacturers. strongly as they that men should be Labor laws benefit the workers. Antiequal, before the law, in opportunity, trust laws put a handicap on the organand in all their relations with their izers of business. Income and profit fellows. But we are finding that a taxes are collected from a very small new technique, a new kind of legisla- portion of the whole people. Even the tion, and a new attitude on the part of woman's suffrage amendment was class the government are necessary, if that legislation, since it benefited only a part equality is to be real and not merely of the community. Yet we find no theoretical.

great difficulty in approving such measI

ures, because we feel that, while they

may apply in practice to special groups, In the care-free days of rampant in they benefit the community as a whole. dividualism and the laissez-faire theory And we avoid a technical infringement in industry, the government was sup- of the principle of equality by stating posed to keep its hands off the organi- the special privileges, or the special zation and conduct of industry. Labor prohibitions, in terms of ways of acting laws, factory laws, anti-trust laws — rather than of persons, even though we all such were held to be violations of are well aware that in practice certain the fundamental right of individuals to specific persons, or groups of persons, pursue life, liberty, and happiness in will be directly affected. equality before the law. If some were It is little more than soothing selfmore successful than others in securing delusion to say that in this respect financial or other rewards for their ef- there is any essential difference beforts, they were to be congratulated. tween the stipulation in the Clayton


Anti-Trust Act of 1914, which exempted tween these claims. The difference labor organizations from the prohibi- as in the cases cited above — is not one tions of the Sherman Act, and the pro- of kind, but of degree. The question is visions of the old English law, by which not whether a person or a group shall the nobility could plead exemption from be given special privileges or be favored certain penalties of the law for the com- or handicapped by class legislation; mon people. Nor is there, from this rather it is, how far the principle of point of view, any essential difference favoring one group is to be carried, and between a tariff to 'protect’an 'infant of the relative size of the group favored. industry’and the feudal law that gave In other words, we are learning that the king administration of the estates it is impossible to obtain real equalof minor heirs. In each case speciality between men on an individualistic, groups are given special advantages. laissez-faire basis. And in actual prac

The difference, of course, is in the tice we are seeking that equality by social results. We approve the modern various sorts of special legislation, regulations in each case, — if we do ap

if we do ap- which favor one group as against anprove them, - and condemn the an- other. But our interpretation of the cient, because, as I have suggested, we doctrine of equality has lagged behind think the community as a whole is bene- our practice. fited, or injured, as the case may be.

II But we need to keep clearly in mind, in discussing these matters of special This inconsistency between the older privilege and equality before the law, conception of equality and much of our that most of the 'progressive' measures recent legislation has not escaped the on which we are inclined to pride our- notice of able students of politics. Nor selves are in reality class legislation; have some of them failed to point out and while we may not approve much the growth of a tendency to stratificaof the Socialist programme, we need to tion of the American people into classes be careful about throwing stones while delimited, if not actually created, by we have so much glass in the walls of legislation which definitely grants, or our own house.

does not positively deny, special privWe condemn, for example, the seizure ileges to special groups. This, for exof socially usable property by the gov- ample, is the point of Mr. George W. ernment of the Bolsheviki on the ground Alger's article on 'The Menace of that it is class legislation. Yet we ap- New Privilege,' in a recent issue of the prove an excess-profits tax, - at least,

at least, Atlantic Monthly. the majority of us do, as represented Many see in this tendency a grave by our lawmakers and our Supreme danger to American social organization Court, which is a seizure, in essen- as we know it, and a fundamental chaltially the same way, of socially usable lenge to democracy, just because it runs property. We deny the claim of a mon- counter to the older, and even now more arch that his kingdom is his private generally accepted, interpretation of property, to do with as he may choose.. the doctrine of equality. Mr. Alger exOf late, like the Bolsheviki, we have presses this point of view most effecbegun to deny the similar claim of a tively in his concluding paragraph:manufacturer as to his factory. But we 'In the final analysis, the question grant the claim to private control of resolves itself into whether we desire private property in most other cases. the development in America of classYet there is no essential difference be- war by recognizing class-distinctions,

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class-rights, and class-privileges, which weight of legislation into the scale make, not for peace, but for inevitable against the power of capital. All these

, conflict. The time has arrived when measures are class legislation, for they this great question must receive a far give special advantages to one part of more thorough and consistent study by the whole group as opposed to some the American people, not as classes, other part. But men have felt that it but as citizens; not as petitioners for was necessary to give such advantages, special privileges, which the nobles of in order to save the large majority feudalism surrendered, but as the will- from complete domination by a small ing participators in a system of law minority - that is, in order to preserve whose basis is equality, a system which equality. can have no other basis than equality,

III if democracy is not to perish from the earth.'

There can be no serious denial that But in this thorough and consistent the attempt to reëstablish equality by study' it will appear, I think, that, these means has had

many unfortunate crude and in many ways undesirable results, or that certain groups have in

, as this recent class legislation is, it is, sisted on special privileges for themafter all, the product of a real though selves at the expense of the people as a somewhat blind striving to reëstablish whole. But the labor organizations, the that real equality before the law, and farmers, the cotton-growers, and the in the relations between men, which rest, are by no means the only ones modern industrial development has de- guilty on this score. And neither can stroyed. One does not need to be a the claim be seriously advanced that ‘Red' to realize that in actual practice the developments in the capitalistic there is little more than a theoretical organization of industry, which are in equality before the law in America to- large measure the cause of this attempt, day. The accumulation of wealth in have been an entirely unmixed blessing. the hands of certain individuals and These developments, producing the necertain small groups has given them a cessity for large accumulations of capipower that has made almost a mock- tal to carry on industry, and the actual ery any talk of equality between all accumulation of capital to meet the men in any significant sphere of lif need, together with our conception of The tale of the special advantages that the rights of private property, have wealth has brought its possessors has given a disproportionate share of power been told too often to need repetition to a relatively small group in the comhere. But it is exactly this disturbance munity, and so have eliminated feal of the even balance of equality by the equality, whether before the law, or of power of accumulated capital that has opportunity, or in any vital sense. led to the whole movement for social But the fight for equality will go on. legislation of all kinds.

And, whether we like it or not, so long Labor laws, factory laws, the exemp- as the social organization and the laws tion of labor-unions from the operation permit certain menor certain small of the anti-trust laws, minimum-wage groups - to secure and hold more than legislation all these and the multi- their share of actual power and opportude of other attempts to better the tunity, so long will the effort be conconditions of living of the 'have-nots' tinued to right the balance by organiare fundamentally attempts to restore zation into groups and by legislation the balance of equality by putting the favoring the non-privileged groups.


Whether this attempt by the larger

IV groups, made up of the individually less powerful, to secure equality by insisting The fight for equality is not new; but upon ‘class-rights and class-privileges the recent attempts to secure equality will mean 'class-war' and 'inevitable have been along a somewhat new line. conflict' will depend principally on the Instead of taking the negative course vigor of the resistance made to the of denying special privileges, as our attempt by those who are favored by predecessors did, we more and more are the present inequality. Unquestionably, positively asserting the rights of special the problem must be faced by the

groups. American people, not as classes, but as When men first tried actually to citizens. But there is real danger in the build a society on the principle of equalpresent situation, not primarily because ity, the most pressing problem was to the large majority of the American peo- clear away the special privileges of cerple are ‘petitioners for special privi- tain classes. Magna Carta, for example,

, leges, but because a small minority, represented an attempt on the part of who possess special privileges, are reluc- the nobles, not primarily to secure powtant to give them up.

ers for themselves, but rather to take At present the attack on the citadel powers away from the king. Similarly, of privilege is being made more or less the long history of the development of independently by separate groups; and democratic control, until quite recenteach group, of defenders as well as of ly, is a record of progressively successattackers, is, naturally enough, more ful efforts on the part of the representakeenly awake to its own immediate in- tives of the people to wrest power from terest that of securing for its mem- the king or the aristocracy. When the bers full equality with the most favored rights of the people were positively asindividuals, or of protecting what priv- serted, it was not so much from lust ileges they possess — than to the inter- for power as such, - as the rights of ests of other groups. Hence the tend- the kings and the aristocracy had been ency to stratification into classes. But asserted against the people, — as from the fundamental cause of this stratifica- a desire to secure protection from the tion is not a lack of desire for equality abuse of power in the hands of the arison the part of those who are seeking tocracy. Equality was to be achieved, advantages, but a failure to unite into a as it were, by taking away the jewels single army the different bands fighting and rich clothing from the favored few in this cause. Men, however, are realiz- rather than by giving jewels and rich ing that this lack of unity delays the clothing to the many. final victory — or weakens the defense; Utilitarian individualism and the for there is a similar lack of unity laissez-faire doctrine were the natural among the privileged groups. Conse- results of this conception of how the quently, we are hearing more and more equality of men was to be realized. To about the necessity for presenting a carry on the figure: business practice united front on both sides, and are wit- and social legislation generally, for a nessing, not only in the United States, large part of the nineteenth century, but throughout the whole world, the were based on the assumption that steady growth of the tendency toward a everyone started out with a full suit merging of separate classes into the two of clothes, while, if anyone was clever great groups of the ‘haves' and the enough to get another man's coat away 'have-nots.'

from him, or to find jewels to wear, that

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was none of society's business. But to- order to maintain a balance of equality ward the end of the century, it became has had some unfortunate results. But obvious that a few people had virtually the solution of the problem of classcornered the supply of clothes and conflict will not come through returning jewels, so that in reality there no longer to the older attitude, even if that were was even a suit for everyone, except at possible. A continuation of the laissezthe pleasure of these few.

faire individualism of the nineteenth To drop the figure: with the accumu- century would have resulted in the lation of capital in the hands of a few, creation of a new aristocracy based on the emphasis in democratic legislation wealth rather than on birth, — in the

shifted. Such legislation sought less beginning, at least, — which, if unreand less to take privileges from a small strained, would have developed all the group

and more and more to assert objectionable features of feudalism. A them for larger groups. The difference return to this older attitude, the reinbetween the Sherman and the Clayton corporation into our legal and political Anti-Trust acts is a case in point. The practice of the older interpretation of first specifically denies the right to form equality before the law, would mean, certain kinds of combinations which not the saving of democracy, but its affected, as was intended, a group nu- destruction. merically small but financially power- Democracy will be saved, real equalful. The latter specifically asserts the ity, not only before the law, but in all right of other groups — the laborers, men's relations, will be secured, by the farmers, and so forth — to form making sure, through legislation or combinations of a sort which, in certain otherwise, that a balance is maintained, respects, would otherwise be in violation in spite of the weight on one side that of the Sherman Act.

comes through the possession of capital. As I have suggested, from the older Clearly, the balance is not even now.

, point of view the exemptions in the Equally clearly, we should not overClayton Act are clearly contrary to the weight it on the other side. But neither doctrine of equality before the law. should we forget that we must take acYet, as will be generally admitted, the tive steps to achieve a balance. NegaClayton Act gives special advantages tive effort toward taking away advanto labor organizations for the definite tages from the few will no longer suffice. purpose of helping the workers to secure Such efforts cleared the ground for the real equality in their relations with growth of the present inequalities; and their employers — an equality that had men will always find means to circumbeen destroyed by the power which the vent merely negative prohibitions. Our employers possessed through their con- task therefore is, with due consideratrol of capital. In reality, therefore, tion for the interests and rights of all, this act is the product of an attempt to to go forward along the positive line of make actual this theoretical equality, giving advantages to the many, so that rather than to destroy a real equality. they may achieve a real equality with

This newer tendency, through legis- those who have secured special advanlation, to give special advantages in tages for themselves.



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