A Reviewer's Notebook - 1972/6

Morris C. Shumiatcher’s Welfare: Hidden Backlash (Toronto: McClelland and Stewart, Limited, $10.00), is one of the saddest books I have ever read. The sadness has a double focus. First, the book tells the story of what the white man, through his blindness, did to the Indian in Canada. But even more ominous (for it could carry both the white and the Indian into the same bitter trough of degradation), there is the between-the-lines story of what compulsory State welfare philosophy threatens to do to everybody in Canada who is within reach of a paternalistic legislature in Ottawa.

The white man in Canada can’t say that he hasn’t had plenty of warning. Mr. Shumiatcher, a lawyer who once served as assistant to the socialist premier of Saskatchewan, was once imbued with the idealistic notion that the only thing needed to abolish any wrong to an individual was a generous appropriation of money. He lived to learn that the worst thing you could do to a human being, whether white, red — or, by extension, black — was to make him a ward of government. A house cat, even though fed in a protected kitchen on choicest liver, still manages to maintain an aura of self-respect. Not so the human animal when fed by government, as Mr. Shumiatcher discovered in the days of his socialist novitiate and during his subsequent travels as a legal counsel for the Indians in western Canada.

The Queen’s commissioners had good intentions back in the Eighteen Seventies when they embarked on the idealistic course of protecting the Indian. They thought of him as a potential white man who could become self-supporting if settled on the land. The assumption need not have been fatal if the Indians had been permitted to match their wits in the market place with the new settlers who were pouring into western Canada.

The Perils of Protectionism

True enough, the Indian was not an agriculturalist. But he could have learned the hard way, through crop failures. The trouble with the Queen’s philosophy (Did you know that Queen Victoria was a socialist?) is that it insisted that the Indian be protected against the possibility of being rooked in a trade with an unscrupulous capitalist. Penned in on his reserved lands, the Indian was not allowed to farm for the market place. The white man who was supposed to be the Indian’s keeper became his jailer, shutting him behind a buckskin curtain for a wholly questionable good.

With enough welfare money in his pocket to buy firewater, the Indian was under no compulsion to take jobs building the railroads or clearing the forests. Japanese and Chinese laborers came in to do the strong-arm work and remained to become self-respecting gardeners and restaurant owners. While strong-backed people from Eastern Europe made farms for themselves and took their chances in the market, the Indian sank deeper and deeper into sloth. His children, taken from the wild and forced to sit in government schools, learned little of value to a future on a reservation or in a city ghetto.

The crowning blow came when the Northern Indian was forced to become a "protected" trapper. Originally, the Indian trapper could sell his furs where he pleased. The Hudson’s Bay Company was the big buyer. To get a continuing supply of furs, the Hudson’s Bay Company would advance the Indian enough money for a season’s grubstake. The socialists of Saskatchewan thought it demeaning for the Indian to have to go to a capitalist organization for a livelihood. Accordingly, they set up a State Marketing Service and made it a punishable offense for the Indian to sell his furs elsewhere.

Unfortunately the socialists failed to follow through with any of the capitalist services that the Hudson’s Bay Company had provided. Where the Indian trapper had once been able to get $400 in credit and food to go on the trap line for a full season, the socialists insisted on pay-as-you-go. They limited the size of the initial amount a trapper could borrow to some twenty dollars. This meant that the trapper could only stay out for a week at a time. When he returned with his pelts, he had to wait around for the Marketing Service check. It seldom came on time. Naturally the Indian’s periods of drunkenness became more frequent and more prolonged. But the wicked capitalist — i.e., the Hudson’s Bay Company — had been defeated.

A Century of Medicare

The Indians of Canada have had socialized medicine for a far longer period than their white brothers. But in Saskatchewan, according to Mr. Shumiatcher’s evidence, the incidence of sickness, particularly of communicable disease, is greater among the Indians than among the population as a whole. The life expectancy of the Indian has fallen behind that of the general population. Tuberculosis and venereal disease once threatened to end the "Indian problem" by depleting their bands. The deplorable health record of the reservation Indian was compiled at a time when he had a right to claim medical and hospital services "without money and without price." After watching what bureaucratic medicine has done to the Indian, Mr. Shumiatcher trembles to think what may happen to the population as a whole now that all Canadians have the same medical "rights" that the Indian has had for five generations.

Looking into the future, Mr. Shumiatcher suspects that the whole of Canada will become a vast reservation for everybody. Unfeeling people have talked about the "seven deadly sins of the Indian." First, the Indian is dirty. Second, he is withdrawn from normal society. Third, he won’t work. Fourth, he is unreliable and aimless. Fifth, he is a school dropout. Sixth, he is promiscuous. And seventh, he escapes from reality through alcohol and peyote. These are the sins that develop when one is not forced to compete in the world. Mr. Shumiatcher sees all these deadly sins repeated in the white hippie pads that have been spreading over Canada.

Reservations for Everyone?

The bloom goes quickly from the flower children. Promiscuity in the pads and communes has increased venereal disease among the young in a terrifying way; one estimate is that the increase has gone as high as 1,000 per cent in five years. The hippie is supported in his indolence by a mixture of panhandling, shoplifting, and remittances from spineless parents. This is welfarism of a sort, especially when the panhandling and shoplifting is condoned. Mr. Shumiatcher has an uneasy feeling that the hippie way of life will more and more spread to the general population as the politicians, seek-in votes, offer bigger and better handouts, thus emulating the spineless parents who have allowed their offspring to grow up with the impression that affluence is no longer dependent on dedication, training and work.

Though Mr. Shumiatcher’s book is limited to Canada, it could, presumably, have drawn upon "south of the border" material to make the same points. The U.S. has done badly by its Indians by following practices that are very similar to those instituted by the Queen’s commissioners in Canada. If our hippie problem has been mitigated, it is largely because many of our flower children have gone to Toronto and other Canadian cities to escape the Vietnam War. As for our State Welfarism, it grows apace.

 

JOSEPH STORY AND THE AMERICAN CONSTITUTION by James McClellan (Norman, Oklahoma: University of Oklahoma Press, 1971) xvii, 413 pp, $12.50.

Reviewed by Gottfried Dietze

The great hope of the American Revolution was that self-government would lead to an increasing emancipation of the individual. Fortunately, the Founding Fathers, in what John Fiske called the critical period of American history, also knew that excesses of democracy could be detrimental to freedom by opening the door to majoritarianism and anarchy. Displaying the kind of common sense Blackstone hoped would prevail among the members of Parliament — who would consider themselves bound by the common law and refrain from oppressing life, liberty and property — Americans, in order to secure free government, adopted a Constitution providing for a more perfect Union. Implied in this Union was a balance between the rights and powers of the states and the nation, acting as mutual checks upon arbitrary government. Since the new nation was to be formed out of existing states and since the powers of the national government were few and defined, whereas those of the states were many and not enumerated, the immediate implementation of the federal balance involved a strengthening of the national government. The difficulty of that task is reflected in Alexander Hamilton’s letter to Gouverneur Morris of February 27, 1802, in which he writes that he was "still laboring to prop the frail and worthless fabric." Earlier, The Federalist had left no doubt that the more perfect union was a mere means for securing the rights of the individual. In essay 78 of that commentary, Hamilton also stated that the judiciary was to be the guardian of the Constitution and the free government it created.

In the exercise of that guardianship during the first decades of the new nation, Chief Justice Marshall generally is credited with having played the major part. However, upon reading McClellan’s attractive, scholarly book, the student of government may well decide that at least as much credit is due to Justice Story. Story was only 32 years old when in 1811 President Madison named him to the Supreme Court. At that time, the high bench had been presided over by John Marshall for ten years and he was to continue to head it for nearly another quarter of a century. While this reviewer feels that the Marshall Court had distinguished itself before it was joined by Story, through such important decisions as Marbury v. Madison (1803) and Fletcher v. Peck (1810), Mr. McClellan emphasizes the importance of Justice Story for American constitutional development, showing the broad range of Story’s interests and achievements.

When appointed to the Court, Story had been a member of Congress, a Speaker of the House in his home state, Massachusetts, the author of various books on the law and a volume on poetry. While on the Court, he published his classic Commentaries on the Constitution and became a founder of the Harvard Law School where he taught for sixteen years. The author marshalls evidence that Story was a true renaissance man. He could have added that Story translated and commented upon Robert von Mohl’s work on the American Constitution, a study which indicates that the outstanding German constitutionalist of his time had insights similar to those of Tocqueville.

The author emphasizes that Story is unique in that he was the first and only disciple of Edmund Burke ever to sit on the Supreme Court. This may be technically correct if discipleship implies an unequivocal acknowledgment of influence. There were, of course, many conservatives on the high bench who, like Story, felt that the Constitution was no mere reflection of temporary whims of the American general will but was a transmutation of constitutionalist principles which had gradually become embodied in Western civilization, such as Christian ethics, natural law and the common law. The fact that in recent years the Court has moved away from these principles must not lead us to forget that up to Franklin Roosevelt’s court-packing plan, the Court generally was considered a conservative institution and a bulwark for laissez faire.

A strong defender of private property, Story, in the famous Charles River Bridge case of 1837, dissented from the majority of the Court. "In a powerful, exhaustive dissent, Story proudly excoriated the Court in the name of property and the constitutionally protected rights of the common law. This last great undertaking on behalf of property was his best, a magnum opus which epitomized years of study spanning more than three decades of dedicated effort." Declaring that he stood behind Marshall’s decision in Fletcher v. Peck, a decision which gave broad protection to property rights through the doctrine of implied limitations, Story exclaimed: "I stand upon the old law, upon law established more than three centuries ago, in cases contested with as much ability and learning as any in the annals of our jurisprudence, in resisting any such encroachments upon the rights and liberties of the citizens, secured by public grants. I will not consent to shake their title deeds by any speculative niceties or novelties." There was "no surer plan to arrest all public improvements, founded on private capital and enterprise, than to make the outlay of that capital uncertain and questionable, both as to security and as to productiveness." Negating Marshall’s doctrine of implied limitations amounted to an infringement upon the constitutional provision that no state shall make laws impairing the obligation of contracts —laws which had prompted the desire for the Philadelphia Convention and a more perfect union.

Like Marshall, Story favored a strong national government. Since our time had been characterized by a march of power to Washington to the detriment of freedom, it could be argued that Story’s emphasis on national power potentially hurt the very values he was favoring, namely, Christian ethics, natural law, the common law and the Constitution with their far-reaching protection of human rights, including those of property. Such a verdict would be unfair to Story who wanted national power (rudimentary as it was at his time) only as a means for the protection of those rights from the states, whose power at that time was considerable. Just as he resented oppression by the state governments, he also would have disliked a despotic national government. Similarly, it would be unfair to blame Story for favoring judicial review. For, again, he conceived of that institution as a mere means for the preservation of free government and not as one for the promotion of social legislation and perverted concepts of civil rights.

Mr. McClellan is to be congratulated for having shed new light on one of America’s greatest jurists — perhaps the greatest of them all. Given the recent publication of Gerald T. Dunne’s Justice Joseph Story and the Rise of the Supreme Court, the important role Justice Story played in the development of the American Constitution at last may well get the recognition that has long been its due. 

Further Reading

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