Слике страница
PDF
ePub

of fundamental rights, without having any experience of a federal state or nation, and even though they believe in the unitary rather than the federal form of organization. France, with its idea of the rights of man, and Great Britain with its idea of fundamental rights derived from the constitutional prohibitions upon certain forms of governmental action found by experience to be dangerous or destructive to these rights, show that the conception of a fundamental law and fundamental rights has no necessary connection with the federal form of government. The constitutional prohibitions adopted by the people of the United States in the Constitutional Bill of Rights are in fact collated from Magna Charta, from the English Petition of Right, from the English Habeas Corpus Act, and from the English Bill of Rights, as these were developed in the Massachusetts Body of Liberties, in the Virginia Declaration of Rights and in the original Constitutions of the States of the American Union.

The real difference between the United States and other naticns is thus not so much one of the philosophy of government, as of the system which we apply to make the fundamental law and the fundamental rights of the individual practical and effective. No other nation imposes constitutional prohibitions for the protection of these rights upon all its governments and all their branches and makes these prohibitions the most fundamental part of the supreme law of the land so as to make the courts the guardians of these fundamental rights. Though we may believe that this system is not perfect, it has the tremendous advantage of keeping the conception of fundamental law and fundamental rights alive in the minds and consciences of the people. The knowledge that the most insignificant individual may call to his aid the protection of the courts against the acts of his State legislature and even against the acts of the national Congress if these acts violate these fundamental constitutional prohibitions, dignifies the individual and keeps before the mind of all the people the moral worth of each human being simply as a human being, a creation of God, and a member of human society. It dignifies government by enabling the people to regard it in its proper aspect as an agency of the people having for the sole object of its institution the welfare and development of the individual. It compels the public official to exercise his power by judgment, since he is obliged in each case to decide before he acts whether he is acting within the jurisdiction assigned to him as an agent of the people to secure fundamental rights. There is no particular virtue in written constitutions in so far as they merely determine the frame of organization of the government and the distribution of functions between the different branches of the government and the different corporate members of the nation. Their virtue lies in the possibility of establishing, by means of them, constitutional prohibitions for the protection of the fundamental rights of the individual, and of making these prohibitions the fundamental part of the supreme law of the land. The limitations of power as between the different branches of government and the different corporate members of the nation may be established under unwritten constitutions, but the limitations of the power of a government as between itself and the individual can only be effectively established by a written constitution enacted by the people, in which are inserted constitutional prohibitions for the protection of the fundamental rights, which are by the people declared to be the fundamental part of the supreme law of the land, and which are interpreted and applied by the courts, subject perhaps to revision, in extraordinary cases, by an extraordinary tribunal established for the purpose.

It is because the people of the United States believe that they have a peculiar system of government which is essential not only to their own liberty and their own society, but to individual liberty and human society everywhere, and which they hold in trust for civilization, that they feel it their duty to protect their philosophy and their governmental system from such contact with other systems as might endanger its existence. This was the original basis of the Monroe Doctrine, and still continues to be its true basis. The belief in the fundamental rights of the individual which we hold, destroys all motive for conquest, since the only effect of conquest by us is to place upon us the difficult task of securing the fundamental rights of the individual in the countries annexed. We welcome the independence of nations which accept our philosophy and which honestly recognize the fundamental law and do their utmost to preserve fundamental rights. The rights of intervention in the affairs of the South American Republics, for the purpose of controlling them in the interest of Europe, was claimed in 1823 by the

allied powers of Continental Europe as a logical result of their political philosophy and system. President Monroe declared that “the political system of the allied Powers is essentially different in this respect from that of America" and that “this difference proceeds from that which exists in their respective governments.” Asserting that "to the defense of our own system, which has been achieved by the loss of so much blood and treasure, and matured by the wisdom of their most enlightened citizens, this whole nation is devoted," he concluded that we owed it “to candor, and to the amicable relations existing between the United States and those Powers, to declare that we should consider any attempt on their part to extend their system to any part of this hemisphere as dangerous to our peace and safety.”

The whole effect of the Monroe Doctrine was that the American people were determined that their philosophy and their system should have every chance of surviving in the competition of philosophies and systems to which it could reasonably be thought to be entitled. The philosophy of government then prevailing in Continental Europe denied the fundamental rights of the individual and asserted that all rights of men were created by the nation. The republics of Central and South America having established themselves and having nominally accepted the American philosophy of government and to some extent the American system, the United States asserted that the people of these nations should be free to develop themselves, hoping and believing that in the course of time they would fully accept the American philosophy of government and apply it effectively in their national affairs. The Monroe Doctrine is thus a doctrine of freedom. It had its origin in a conflict of philosophies. It had for its purpose the protection of the Central and South American Republics in developing and working out a philosophy and system which they had freely chosen. The Monroe Doctrine will die when nations of the world accept the belief in the fundamental rights of the individual and make these rights practical and effective; for by the acceptance of this belief and by the adoption of a practical system in accordance with this belief, all motive for conquest ceases, and nations will refrain from interfering in the internal affairs of other nations, since intervention will carry with it the heavy responsibility of securing the fundamental rights of the people of the invaded country, without possibility of great gains, and with only an uncertain compensation.

The fact that the American people hold this philosophy of government in which the securing of the fundamental rights of the individual is regarded as the object for which all government is instituted among men, profoundly affects the attitude which American statesmen must take in respect to every question growing out of our foreign as well as our domestic relations. The officials of our Department of Foreign Affairs—which for historical reasons we call the Department of State as well as our diplomatic officials, accustomed to regard the fundamental rights of the individual as the matter of prime importance, inevitably and properly apply our own constitutional tests to all proposals for joint action between the United States and any other nation, in the solution of questions arising between this nation and any other. To them the old conception of sovereignty, as a power of each nation to do what it wills, is impossible, since our philosophy compels us to hold that all national action is limited by the fundamental law.

The American philosophy and system of government-or more properly, the failure of other nations to accept our philosophy and system-particularly stands in the way of international arbitration and the judicial settlement of international disputes. With the drawing together of the whole world by the increased facilities for travel and communication, disputes tend more and more to be between an individual and a government or some branch of it. In every case of this kind there is a possibility that the question of the fundamental rights of the individual may be involved, so that in a similar case arising in the United States, the constitutional prohibitions for the protection of fundamental rights would be applied by the courts and the governmental action in question might be nullified. In this class of cases, when the United States is asked to submit to arbitration or judicial settlement, a grave difficulty arises. Inasmuch as the peoples of foreign nations do not impose constitutional prohibitions on their governments for the protection of fundamental rights and do not make these prohibitions the fundamental law of the land, the courts and the lawyers of European countries are not accustomed to issues being raised concerning the validity of acts of government as respects fundamental rights. As it is necessary that European jurists should be in the majority on most arbitral or judicial tribunals in international cases, it follows that these tribunals are likely to treat some governmental acts as valid which we would hold invalid and nullify as infringing fundamental rights. Thus the United States must, for the protection and preservation of its own philosophy and system, refrain from submitting to the decision of such a tribunal any case which, if arising within the United States, would be considered as involving the fundamental rights of the individual under our constitutional prohibitions. So long as this difference in philosophies and systems continues, the only hope for the extension of international arbitration or judicial settlement would seem to be in making all action of international arbitral or judicial tribunals advisory to the nations which are the parties. This would permit these nations themselves to review the decision from every standpoint and to protect their own philosophies and systems. Acceptance of a decision by the parties would greatly increase its weight as a precedent for other nations, and would insure the execution of the decision by the defeated party.

The American philosophy of government also stands in the way of the codification of international law. No American can, consistently with his own fundamental beliefs, subscribe to a code of international law which does not contain constitutional prohibitions forbidding to all peoples, nations and governments certain forms of action dangerous to or destructive of fundamental rights, and which does not make these constitutional prohibitions fundamental and supreme over all international and national law.

The United States is therefore at the present time in one sense a disturbing factor in the councils of the nations. Its disturbance is not of a physical kind, but of an intellectual and spiritual kind. It brings to the discussion of all international questions ideas of universal law, of fundamental rights of the individual as a created human being, of practical protection of these rights through constitutional prohibitions on all governments, based on popular and national recognition of fundamental law. To some these ideas may seem to be destructive, but they are really in the highest sense conservative and constructive; for the recognition of the rights of man is in no sense inconsistent with the recognition of the rights of nations. The American philosophy equally recog

« ПретходнаНастави »