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+*** START OF THE PROJECT GUTENBERG EBOOK 10485 ***
+
+EXPERIMENTS IN GOVERNMENT AND THE ESSENTIALS OF THE CONSTITUTION
+
+BY
+
+ELIHU ROOT
+
+1913
+
+
+
+
+
+
+
+PREFACE
+
+
+The familiar saying that nothing is settled until it is settled right
+expresses only a half truth. Questions of general and permanent importance
+are seldom finally settled. A very wise man has said that "short of the
+multiplication table there is no truth and no fact which must not be proved
+over again as if it had never been proved, from time to time." Conceptions
+of social rights and obligations and the institutions based upon them
+continue unquestioned for long periods as postulates in all discussions
+upon questions of government. Whatever conduct conforms to them is assumed
+to be right. Whatever is at variance with them is assumed to be wrong.
+Then a time comes when, with apparent suddenness, the ground of discussion
+shifts and the postulates are denied. They cease to be accepted without
+proof and the whole controversy in which they were originally established
+is fought over again.
+
+The people of the United States appear now to have entered upon such a
+period of re-examination of their system of government. Not only are
+political parties denouncing old abuses and demanding new laws, but
+essential principles embodied in the Federal Constitution of 1787, and long
+followed in the constitutions of all the states, are questioned and denied.
+The wisdom of the founders of the Republic is disputed and the political
+ideas which they repudiated are urged for approval.
+
+I wish in these lectures to present some observations which may have a
+useful application in the course of this process.
+
+
+
+
+I
+
+EXPERIMENTS
+
+
+There are two separate processes going on among the civilized nations at
+the present time. One is an assault by socialism against the individualism
+which underlies the social system of western civilization. The other is
+an assault against existing institutions upon the ground that they do not
+adequately protect and develop the existing social order. It is of this
+latter process in our own country that I wish to speak, and I assume an
+agreement, that the right of individual liberty and the inseparable right
+of private property which lie at the foundation of our modern civilization
+ought to be maintained.
+
+The conditions of life in America have changed very much since the
+Constitution of the United States was adopted. In 1787 each state entering
+into the Federal Union had preserved the separate organic life of the
+original colony. Each had its center of social and business and political
+life. Each was separated from the others by the barriers of slow and
+difficult communication. In a vast territory, without railroads or
+steamships or telegraph or telephone, each community lived within itself.
+
+Now, there has been a general social and industrial rearrangement.
+Production and commerce pay no attention to state lines. The life of the
+country is no longer grouped about state capitals, but about the great
+centers of continental production and trade. The organic growth which must
+ultimately determine the form of institutions has been away from the
+mere union of states towards the union of individuals in the relation of
+national citizenship.
+
+The same causes have greatly reduced the independence of personal and
+family life. In the eighteenth century life was simple. The producer and
+consumer were near together and could find each other. Every one who had an
+equivalent to give in property or service could readily secure the support
+of himself and his family without asking anything from government except
+the preservation of order. To-day almost all Americans are dependent upon
+the action of a great number of other persons mostly unknown. About half
+of our people are crowded into the cities and large towns. Their food,
+clothes, fuel, light, water--all come from distant sources, of which
+they are in the main ignorant, through a vast, complicated machinery of
+production and distribution with which they have little direct relation.
+If anything occurs to interfere with the working of the machinery, the
+consumer is individually helpless. To be certain that he and his family may
+continue to live he must seek the power of combination with others, and in
+the end he inevitably calls upon that great combination of all citizens
+which we call government to do something more than merely keep the
+peace--to regulate the machinery of production and distribution and
+safeguard it from interference so that it shall continue to work.
+
+A similar change has taken place in the conditions under which a great part
+of our people engage in the industries by which they get their living.
+Under comparatively simple industrial conditions the relation between
+employer and employee was mainly a relation of individual to individual,
+with individual freedom of contract and freedom of opportunity essential to
+equality in the commerce of life. Now, in the great manufacturing, mining,
+and transportation industries of the country, instead of the free give
+and take of individual contract there is substituted a vast system of
+collective bargaining between great masses of men organized and acting
+through their representatives, or the individual on the one side accepts
+what he can get from superior power on the other. In the movement of these
+mighty forces of organization the individual laborer, the individual
+stockholder, the individual consumer, is helpless.
+
+There has been another change of conditions through the development of
+political organization. The theory of political activity which had its
+origin approximately in the administration of President Jackson, and which
+is characterized by Marcy's declaration that "to the victors belong
+the spoils," tended to make the possession of office the primary and
+all-absorbing purpose of political conflict. A complicated system of party
+organization and representation grew up under which a disciplined body of
+party workers in each state supported each other, controlled the machinery
+of nomination, and thus controlled nominations. The members of state
+legislatures and other officers, when elected, felt a more acute
+responsibility to the organization which could control their renomination
+than to the electors, and therefore became accustomed to shape their
+conduct according to the wishes of the nominating organization. Accordingly
+the real power of government came to be vested to a high degree in these
+unofficial political organizations, and where there was a strong man at
+the head of an organization his control came to be something very closely
+approaching dictatorship. Another feature of this system aggravated its
+evils. As population grew, political campaigns became more expensive.
+At the same time, as wealth grew, corporations for production and
+transportation increased in capital and extent of operations and became
+more dependent upon the protection or toleration of government. They found
+a ready means to secure this by contributing heavily to the campaign funds
+of political organizations, and therefore their influence played a large
+part in determining who should be nominated and elected to office. So
+that in many states political organizations controlled the operations of
+government, in accordance with the wishes of the managers of the great
+corporations. Under these circumstances our governmental institutions were
+not working as they were intended to work, and a desire to break up and
+get away from this extra constitutional method of controlling our
+constitutional government has caused a great part of the new political
+methods of the last few years. It is manifest that the laws which were
+entirely adequate under the conditions of a century ago to secure
+individual and public welfare must be in many respects inadequate to
+accomplish the same results under all these new conditions; and our people
+are now engaged in the difficult but imperative duty of adapting their laws
+to the life of to-day. The changes in conditions have come very rapidly
+and a good deal of experiment will be necessary to find out just what
+government can do and ought to do to meet them.
+
+The process of devising and trying new laws to meet new conditions
+naturally leads to the question whether we need not merely to make new laws
+but also to modify the principles upon which our government is based and
+the institutions of government designed for the application of those
+principles to the affairs of life. Upon this question it is of the utmost
+importance that we proceed with considerate wisdom.
+
+By institutions of government I mean the established rule or order of
+action through which the sovereign (in our case the sovereign people)
+attains the ends of government. The governmental institutions of Great
+Britain have been established by the growth through many centuries of a
+great body of accepted rules and customs which, taken together, are
+called the British Constitution. In this country we have set forth in the
+Declaration of Independence the principles which we consider to lie at
+the basis of civil society "that all men are created equal; that they are
+endowed, by their Creator, with certain unalienable rights; that among
+these are life, liberty, and the pursuit of happiness. That to secure these
+rights, governments are instituted among men, deriving their just powers
+from the consent of the governed."
+
+In our Federal and State Constitutions we have established the institutions
+through which these rights are to be secured. We have declared what
+officers shall make the laws, what officers shall execute them, what
+officers shall sit in judgment upon claims of right under them. We have
+prescribed how these officers shall be selected and the tenure by which
+they shall hold their offices. We have limited them in the powers which
+they are to exercise, and, where it has been deemed necessary, we have
+imposed specific duties upon them. The body of rules thus prescribed
+constitute the governmental institutions of the United States.
+
+When proposals are made to change these institutions there are certain
+general considerations which should be observed.
+
+The first consideration is that free government is impossible except
+through prescribed and established governmental institutions, which work
+out the ends of government through many separate human agents, each doing
+his part in obedience to law. Popular will cannot execute itself directly
+except through a mob. Popular will cannot get itself executed through an
+irresponsible executive, for that is simple autocracy. An executive
+limited only by the direct expression of popular will cannot be held to
+responsibility against his will, because, having possession of all the
+powers of government, he can prevent any true, free, and general expression
+adverse to himself, and unless he yields voluntarily he can be overturned
+only by a revolution. The familiar Spanish-American dictatorships are
+illustrations of this. A dictator once established by what is or is alleged
+to be public choice never permits an expression of public will which will
+displace him, and he goes out only through a new revolution because he
+alone controls the machinery through which he could be displaced peaceably.
+A system with a plebiscite at one end and Louis Napoleon at the other could
+not give France free government; and it was only after the humiliation of
+defeat in a great war and the horrors of the Commune that the French people
+were able to establish a government that would really execute their will
+through carefully devised institutions in which they gave their chief
+executive very little power indeed.
+
+We should, therefore, reject every proposal which involves the idea that
+the people can rule merely by voting, or merely by voting and having one
+man or group of men to execute their will.
+
+A second consideration is that in estimating the value of any system of
+governmental institutions due regard must be had to the true functions
+of government and to the limitations imposed by nature upon what it is
+possible for government to accomplish. We all know of course that we cannot
+abolish all the evils in this world by statute or by the enforcement of
+statutes, nor can we prevent the inexorable law of nature which decrees
+that suffering shall follow vice, and all the evil passions and folly of
+mankind. Law cannot give to depravity the rewards of virtue, to indolence
+the rewards of industry, to indifference the rewards of ambition, or to
+ignorance the rewards of learning. The utmost that government can do is
+measurably to protect men, not against the wrong they do themselves but
+against wrong done by others and to promote the long, slow process of
+educating mind and character to a better knowledge and nobler standards of
+life and conduct. We know all this, but when we see how much misery there
+is in the world and instinctively cry out against it, and when we see some
+things that government may do to mitigate it, we are apt to forget how
+little after all it is possible for any government to do, and to hold the
+particular government of the time and place to a standard of responsibility
+which no government can possibly meet. The chief motive power which has
+moved mankind along the course of development that we call the progress of
+civilization has been the sum total of intelligent selfishness in a vast
+number of individuals, each working for his own support, his own gain, his
+own betterment. It is that which has cleared the forests and cultivated
+the fields and built the ships and railroads, made the discoveries and
+inventions, covered the earth with commerce, softened by intercourse the
+enmities of nations and races, and made possible the wonders of literature
+and of art. Gradually, during the long process, selfishness has grown more
+intelligent, with a broader view of individual benefit from the common
+good, and gradually the influences of nobler standards of altruism, of
+justice, and human sympathy have impressed themselves upon the conception
+of right conduct among civilized men. But the complete control of such
+motives will be the millennium. Any attempt to enforce a millennial
+standard now by law must necessarily fail, and any judgment which assumes
+government's responsibility to enforce such a standard must be an unjust
+judgment. Indeed, no such standard can ever be forced. It must come, not by
+superior force, but from the changed nature of man, from his willingness to
+be altogether just and merciful.
+
+A third consideration is that it is not merely useless but injurious for
+government to attempt too much. It is manifest that to enable it to deal
+with the new conditions I have described we must invest government with
+authority to interfere with the individual conduct of the citizen to a
+degree hitherto unknown in this country. When government undertakes to
+give the individual citizen protection by regulating the conduct of others
+towards him in the field where formerly he protected himself by his freedom
+of contract, it is limiting the liberty of the citizen whose conduct is
+regulated and taking a step in the direction of paternal government. While
+the new conditions of industrial life make it plainly necessary that many
+such steps shall be taken, they should be taken only so far as they are
+necessary and are effective. Interference with individual liberty by
+government should be jealously watched and restrained, because the habit of
+undue interference destroys that independence of character without which in
+its citizens no free government can endure.
+
+We should not forget that while institutions receive their form from
+national character they have a powerful reflex influence upon that
+character. Just so far as a nation allows its institutions to be moulded
+by its weaknesses of character rather than by its strength it creates an
+influence to increase weakness at the expense of strength.
+
+The habit of undue interference by government in private affairs breeds the
+habit of undue reliance upon government in private affairs at the expense
+of individual initiative, energy, enterprise, courage, independent manhood.
+
+The strength of self-government and the motive power of progress must be
+found in the characters of the individual citizens who make up a nation.
+Weaken individual character among a people by comfortable reliance
+upon paternal government and a nation soon becomes incapable of free
+self-government and fit only to be governed: the higher and nobler
+qualities of national life that make for ideals and effort and achievement
+become atrophied and the nation is decadent.
+
+A fourth consideration is that in the nature of things all government must
+be imperfect because men are imperfect. Every system has its shortcomings
+and inconveniences; and these are seen and felt as they exist in the system
+under which we live, while the shortcomings and inconveniences of other
+systems are forgotten or ignored.
+
+It is not unusual to see governmental methods reformed and after a time,
+long enough to forget the evils that caused the change, to have a new
+movement for a reform which consists in changing back to substantially the
+same old methods that were cast out by the first reform.
+
+The recognition of shortcomings or inconveniences in government is not by
+itself sufficient to warrant a change of system. There should be also an
+effort to estimate and compare the shortcomings and inconveniences of the
+system to be substituted, for although they may be different they will
+certainly exist.
+
+A fifth consideration is that whatever changes in government are to be
+made, we should follow the method which undertakes as one of its cardinal
+points to hold fast that which is good. Francis Lieber, whose affection
+for the country of his birth equalled his loyalty to the country of his
+adoption, once said:
+
+   "There is this difference between the English, French, and Germans:
+   that the English only change what is necessary and as far as it is
+   necessary; the French plunge into all sorts of novelties by whole
+   masses, get into a chaos, see that they are fools and retrace their
+   steps as quickly, with a high degree of practical sense in all this
+   impracticability; the Germans attempt no change without first recurring
+   to first principles and metaphysics beyond them, systematizing the
+   smallest details in their minds; and when at last they mean to apply
+   all their meditation, opportunity, with its wide and swift wings
+   of a gull, is gone."
+
+This was written more than sixty years ago before the present French
+Republic and the present German Empire, and Lieber would doubtless have
+modified his conclusions in view of those great achievements in government
+if he were writing to-day. But he does correctly indicate the differences
+of method and the dangers avoided by the practical course which he ascribes
+to the English, and in accordance with which the great structure of British
+and American liberty has been built up generation after generation and
+century after century. Through all the seven hundred years since Magna
+Charta we have been shaping, adjusting, adapting our system to the new
+conditions of life as they have arisen, but we have always held on to
+everything essentially good that we have ever had in the system. We have
+never undertaken to begin over again and build up a new system under the
+idea that we could do it better. We have never let go of Magna Charta or
+the Bill of Rights or the Declaration of Independence or the Constitution.
+When we take account of all that governments have sought to do and have
+failed to do in this selfish and sinful world, we find that as a rule the
+application of new theories of government, though devised by the most
+brilliant constructive genius, have availed but little to preserve the
+people of any considerable regions of the earth for any long periods from
+the evils of despotism on the one hand or of anarchy on the other, or
+to raise any considerable portion of the mass of mankind above the hard
+conditions of oppression and misery. And we find that our system of
+government which has been built up in this practical way through so many
+centuries, and the whole history of which is potent in the provisions of
+our Constitution, has done more to preserve liberty, justice, security, and
+freedom of opportunity for many people for a long period and over a great
+portion of the earth, than any other system of government ever devised by
+man. Human nature does not change very much. The forces of evil are hard
+to control now as they always have been. It is easy to fail and hard
+to succeed in reconciling liberty and order. In dealing with this most
+successful body of governmental institutions the question should not be
+what sort of government do you or I think we should have. What you and I
+think on such a subject is of very little value indeed. The question should
+be:
+
+How can we adapt our laws and the workings of our government to the new
+conditions which confront us without sacrificing any essential element of
+this system of government which has so nobly stood the test of time and
+without abandoning the political principles which have inspired the growth
+of its institutions? For there are political principles, and nothing can
+be more fatal to self-government than to lose sight of them under the
+influence of apparent expediency.
+
+In attempting to answer this question we need not trouble ourselves very
+much about the multitude of excited controversies which have arisen over
+new methods of extra constitutional-political organization and procedure.
+Direct nominations, party enrollments, instructions to delegates,
+presidential preference primaries, independent nominations, all relate
+to forms of voluntary action outside the proper field of governmental
+institutions. All these new political methods are the result of efforts of
+the rank and file of voluntary parties to avoid being controlled by the
+agents of their own party organization, and to get away from real evils
+in the form of undue control by organized minorities with the support of
+organized capital. None of these expedients is an end in itself. They are
+tentative, experimental. They are movements not towards something definite
+but away from something definite. They may be inconvenient or distasteful
+to some of us, but no one need be seriously disturbed by the idea that
+they threaten our system of government. If they work well they will be
+an advantage. If they work badly they will be abandoned and some other
+expedient will be tried, and the ultimate outcome will doubtless be an
+improvement upon the old methods.
+
+There is another class of new methods which do relate to the structure of
+government and which call for more serious consideration here. Chief in
+this class are:
+
+The Initiative; that is to say, direct legislation by vote of the people
+upon laws proposed by a specified number or proportion of the electors.
+
+The Compulsory Referendum; that is to say, a requirement that under certain
+conditions laws that have been agreed upon by a legislative body shall
+be referred to a popular vote and become operative only upon receiving a
+majority vote.
+
+The Recall of Officers before the expiration of the terms for which they
+have been elected by a vote of the electors to be had upon the demand of a
+specified number or proportion of them.
+
+The Popular Review of Judicial Decisions upon constitutional questions;
+that is to say, a provision, under which, when a court of last resort
+has decided that a particular law is invalid, because in conflict with
+a constitutional provision, the law may nevertheless be made valid by a
+popular vote.
+
+Some of these methods have been made a part of the constitutional system of
+a considerable number of our states. They have been accompanied invariably
+by provisions for very short and easy changes of state constitutions, and,
+so long as they are confined to the particular states which have chosen to
+adopt them, they may be regarded as experiments which we may watch with
+interest, whatever may be our opinions as to the outcome, and with the
+expectation that if they do not work well they also will be abandoned. This
+is especially true because, since the adoption of the Fourteenth Amendment
+to the Constitution, the states are prohibited from violating in their own
+affairs the most important principles of the National Constitution. It
+is not to be expected, however, that new methods and rules of action in
+government shall become universal in the states and not ultimately bring
+about a change in the national system. It will be useful, therefore, to
+consider whether these new methods if carried into the national system
+would sacrifice any of the essentials of that system which ought to be
+preserved.
+
+The Constitution of the United States deals in the main with essentials.
+There are some non-essential directions such as those relating to the
+methods of election and of legislation, but in the main it sets forth the
+foundations of government in clear, simple, concise terms. It is for this
+reason that it has stood the test of more than a century with but slight
+amendment, while the modern state constitutions, into which a multitude of
+ordinary statutory provisions are crowded, have to be changed from year to
+year. The peculiar and essential qualities of the government established by
+the Constitution are:
+
+First, it is representative.
+
+Second, it recognizes the liberty of the individual citizen as
+distinguished from the total mass of citizens, and it protects that liberty
+by specific limitations upon the power of government.
+
+Third, it distributes the legislative, executive and judicial powers, which
+make up the sum total of all government, into three separate departments,
+and specifically limits the powers of the officers in each department.
+
+Fourth, it superimposes upon a federation of state governments, a national
+government with sovereignty acting directly not merely upon the states, but
+upon the citizens of each state, within a line of limitation drawn
+between the powers of the national government and the powers of the state
+governments.
+
+Fifth, it makes observance of its limitations requisite to the validity of
+laws, whether passed by the nation or by the states, to be judged by the
+courts of law in each concrete case as it arises.
+
+Every one of these five characteristics of the government established by
+the Constitution was a distinct advance beyond the ancient attempts at
+popular government, and the elimination of any one of them would be a
+retrograde movement and a reversion to a former and discarded type of
+government. In each case it would be the abandonment of a distinctive
+feature of government which has succeeded, in order to go back and try
+again the methods of government which have failed. Of course we ought
+not to take such a backward step except under the pressure of inevitable
+necessity.
+
+The first two of the characteristics which I have enumerated, those which
+embrace the conception of representative government and the conception of
+individual liberty, were the products of the long process of development of
+freedom in England and America. They were not invented by the makers of the
+Constitution. They have been called inventions of the Anglo-Saxon race.
+They are the chief contributions of that race to the political development
+of civilization.
+
+The expedient of representation first found its beginning in the Saxon
+witenagemot. It was lost in the Norman conquest. It was restored step by
+step, through the centuries in which parliament established its power as an
+institution through the granting or withholding of aids and taxes for the
+king's use. It was brought to America by the English colonists. It was the
+practice of the colonies which formed the Federal Union. It entered into
+the constitution as a matter of course, because it was the method by which
+modern liberty had been steadily growing stronger and broader for six
+centuries as opposed to the direct, unrepresentative method of government
+in which the Greek and Roman and Italian republics had failed. This
+representative system has in its turn impressed itself upon the nations
+which derived their political ideas from Rome and has afforded the method
+through which popular liberty has been winning forward in its struggle
+against royal and aristocratic power and privilege the world over.
+Bluntschli, the great Heidelberg publicist of the last century, says:
+
+   "Representative government and self-government are the great works of
+   the English and American peoples. The English have produced
+   representative monarchy with parliamentary legislation and
+   parliamentary government. The Americans have produced the
+   representative republic. We Europeans upon the Continent recognize
+   in our turn that in representative government alone lies the hoped-for
+   union between civil order and popular liberty."
+
+The Initiative and Compulsory Referendum are attempts to cure the evils
+which have developed in our practice of representative government by means
+of a return to the old, unsuccessful, and discarded method of direct
+legislation and by rehabilitating one of the most impracticable of
+Rousseau's theories. Every candid student of our governmental affairs must
+agree that the evils to be cured have been real and that the motive which
+has prompted the proposal of the Initiative and Referendum is commendable.
+I do not think that these expedients will prove wise or successful ways of
+curing these evils for reasons which I will presently indicate; but it is
+not necessary to assume that their trial will be destructive of our system
+of government. They do not aim to destroy representative government, but to
+modify and control it, and were it not that the effect of these particular
+methods is likely to go beyond the intention of their advocates they would
+not interfere seriously with representative government except in so far as
+they might ultimately prove to be successful expedients. If they did
+not work satisfactorily they would be abandoned, leaving representative
+government still in full force and effectiveness.
+
+There is now a limited use of the Referendum upon certain comparatively
+simple questions. No one has ever successfully controverted the view
+expressed by Burke in his letter to the electors of Bristol, that his
+constituents were entitled not merely to his vote but to his judgment, even
+though they might not agree with it. But there are some questions upon
+which the determining fact must be the preference of the people of the
+country or of a community; such as the question where a capital city or a
+county seat shall be located; the question whether a debt shall be incurred
+that will be a lien on their property for a specific purpose; the question
+whether the sale of intoxicating liquors shall he permitted. Upon certain
+great simple questions which are susceptible of a _yes_ or _no_ answer it
+is appropriate that the people should be called upon to express their
+wish by a vote just as they express their choice of the persons who shall
+exercise the powers of government by a vote. This, however, is very
+different from undertaking to have the ordinary powers of legislation
+exercised at the ballot box.
+
+In this field the weakness, both of the Initiative and of the Compulsory
+Referendum, is that they are based upon a radical error as to what
+constitutes the true difficulty of wise legislation. The difficulty is
+not to determine what ought to be accomplished but to determine how to
+accomplish it. The affairs with which statutes have to deal as a rule
+involve the working of a great number and variety of motives incident to
+human nature, and the working of those motives depends upon complicated
+and often obscure facts of production, trade, social life, with which men
+generally are not familiar and which require study and investigation to
+understand. Thrusting a rigid prohibition or command into the operation of
+these forces is apt to produce quite unexpected and unintended results.
+Moreover, we already have a great body of laws, both statutory and
+customary, and a great body of judicial decisions as to the meaning and
+effect of existing laws. The result of adding a new law to this existing
+body of laws is that we get, not the simple consequence which the words,
+taken by themselves, would seem to require, but a resultant of forces from
+the new law taken in connection with all existing laws. A very large part
+of the litigation, injustice, dissatisfaction, and contempt for law which
+we deplore, results from ignorant and inconsiderate legislation with
+perfectly good intentions. The only safeguard against such evils and the
+only method by which intelligent legislation can be reached is the method
+of full discussion, comparison of views, modification and amendment of
+proposed legislation in the light of discussion and the contribution and
+conflict of many minds. This process can be had only through the procedure
+of representative legislative bodies. Representative government is
+something more than a device to enable the people to have their say when
+they are too numerous to get together and say it. It is something more than
+the employment of experts in legislation. Through legislative procedure
+a different kind of treatment for legislative questions is secured by
+concentration of responsibility, by discussion, and by opportunity to meet
+objection with amendment. For this reason the attempt to legislate by
+calling upon the people by popular vote to say yes or no to complicated
+statutes must prove unsatisfactory and on the whole injurious. In ordinary
+cases the voters will not and cannot possibly bring to the consideration of
+proposed statutes the time, attention, and knowledge required to determine
+whether such statutes will accomplish what they are intended to accomplish;
+and the vote usually will turn upon the avowed intention of such proposals
+rather than upon their adequacy to give effect to the intention.
+
+This would be true if only one statute were to be considered at one
+election; but such simplicity is not practicable. There always will be, and
+if the direct system is to amount to anything there must be, many proposals
+urged upon the voters at each opportunity.
+
+The measures, submitted at one time in some of the Western States now fill
+considerable volumes.
+
+With each proposal the voter's task becomes more complicated and difficult.
+
+Yet our ballots are already too complicated. The great blanket sheets with
+scores of officers and hundreds of names to be marked are quite beyond the
+intelligent action in detail of nine men out of ten.
+
+The most thoughtful reformers are already urging that the voter's task be
+made more simple by giving him fewer things to consider and act upon at the
+same time.
+
+This is the substance of what is called the "Short Ballot" reform; and
+it is right, for the more questions divide public attention the fewer
+questions the voters really decide for themselves on their own judgment and
+the greater the power of the professional politician.
+
+There is moreover a serious danger to be apprehended from the attempt at
+legislation by the Initiative and Compulsory Referendum, arising from its
+probable effect on the character of representative bodies. These expedients
+result from distrust of legislatures. They are based on the assertion that
+the people are not faithfully represented in their legislative bodies, but
+are misrepresented. The same distrust has led to the encumbering of
+modern state constitutions by a great variety of minute limitations upon
+legislative power. Many of these constitutions, instead of being simple
+frameworks of government, are bulky and detailed statutes legislating upon
+subjects which the people are unwilling to trust the legislature to deal
+with. So between the new constitutions, which exclude the legislatures from
+power, and the Referendum, by which the people overrule what they do,
+and the Initiative, by which the people legislate in their place, the
+legislative representatives who were formerly honored, are hampered, shorn
+of power, relieved of responsibility, discredited, and treated as unworthy
+of confidence. The unfortunate effect of such treatment upon the character
+of legislatures and the kind of men who will he willing to serve in them
+can well be imagined. It is the influence of such treatment that threatens
+representative institutions in our country. Granting that there have been
+evils in our legislative system which ought to be cured, I cannot think
+that this is the right way to cure them. It would seem that the true way
+is for the people of the country to address themselves to the better
+performance of their own duty in selecting their legislative
+representatives and in holding those representatives to strict
+responsibility for their action. The system of direct nominations, which
+is easy of application in the simple proceeding of selecting members of a
+legislature, and the Short Ballot reform aim at accomplishing that result.
+I think that along these lines the true remedy is to be found. No system of
+self-government will continue successful unless the voters have sufficient
+public spirit to perform their own duty at the polls, and the attempt to
+reform government by escaping from the duty of selecting honest and capable
+representatives, under the idea that the same voters who fail to perform
+that duty will faithfully perform the far more onerous and difficult duty
+of legislation, seems an exhibition of weakness rather than of progress.
+
+
+
+
+II
+
+ESSENTIALS
+
+
+In the first of these lectures I specified certain essential
+characteristics of our system of government, and discussed the preservation
+of the first--its representative character. The four other characteristics
+specified have one feature in common. They all aim to preserve rights by
+limiting power.
+
+Of these the most fundamental is the preservation in our Constitution of
+the Anglo-Saxon idea of individual liberty. The republics of Greece and
+Rome had no such conception. All political ideas necessarily concern man as
+a social animal, as a member of society--a member of the state. The ancient
+republics, however, put the state first and regarded the individual only as
+a member of the state. They had in view the public rights of the state in
+which all its members shared, and the rights of the members as parts of the
+whole, but they did not think of individuals as having rights independent
+of the state, or against the state. They never escaped from the attitude
+towards public and individual civil rights, which was dictated by the
+original and ever-present necessity of military organization and defense.
+
+The Anglo-Saxon idea, on the other hand, looked first to the individual.
+In the early days of English history, without theorizing much upon the
+subject, the Anglo-Saxons began to work out their political institutions
+along the line expressed in our Declaration of Independence, that the
+individual citizen has certain inalienable rights--the right to life, to
+liberty, to the pursuit of happiness, and that government is not the source
+of these rights, but is the instrument for the preservation and promotion
+of them. So when a century and a half after the conquest the barons of
+England set themselves to limit the power of the Crown they did not demand
+a grant of rights. They asserted the rights of individual freedom and
+demanded observance of them, and they laid the corner-stone of our system
+of government in this solemn pledge of the Great Charter:
+
+   "No freeman shall be taken, or imprisoned, or be disseized of his free
+   hold, or his liberties, or his free customs, or be outlawed, or exiled,
+   or otherwise destroyed, but by the lawful judgment of his peers, or by
+   the law of the land."
+
+Again and again in the repeated confirmations of the Great Charter, in the
+Petition of Rights, in the Habeas Corpus Act, in the Bill of Rights, in
+the Massachusetts Body of Liberties, in the Virginia Bill of Rights, and,
+finally, in the immortal Declaration of 1776--in all the great utterances
+of striving for broader freedom which have marked the development of modern
+liberty, sounds the same dominant note of insistence upon the inalienable
+right of individual manhood under government but independent of government,
+and, if need be, against government, to life and liberty.
+
+It is impossible to overestimate the importance of the consequences which
+followed from these two distinct and opposed theories of government. The
+one gave us the dominion, but also the decline and fall of, Rome. It
+followed the French Declaration of the Rights of Man, with the negation of
+those rights in the oppression of the Reign of Terror, the despotism of
+Napoleon, the popular submission to the second empire and the subservience
+of the individual citizen to official superiority which still prevails so
+widely on the continent of Europe. The tremendous potency of the other
+subdued the victorious Normans to the conquered Saxon's conception of
+justice, rejected the claims of divine right by the Stewarts, established
+capacity for self-government upon the independence of individual character
+that knows no superior but the law, and supplied the amazing formative
+power which has molded, according to the course and practice of the common
+law, the thought and custom of the hundred millions of men drawn from all
+lands and all races who inhabit this continent north of the Rio Grande.
+
+The mere declaration of a principle, however, is of little avail unless it
+be supported by practical and specific rules of conduct through which
+the principle shall receive effect. So Magna Charta imposed specific
+limitations upon royal authority to the end that individual liberty might
+be preserved, and so to the same end our Declaration of Independence
+was followed by those great rules of right conduct which we call the
+limitations of the constitution. Magna Charta imposed its limitations upon
+the kings of England and all their officers and agents. Our constitution
+imposed its limitations upon the sovereign people and all their officers
+and agents, excluding all the agencies of popular government from authority
+to do the particular things which would destroy or impair the declared
+inalienable right of the individual.
+
+Thus the constitution provides: No law shall be made by Congress
+prohibiting the free exercise of religion, or abridging the freedom of
+speech or of the press. The right of the people to keep and bear arms shall
+not be infringed. The right of the people to be secure in their persons,
+houses, papers and effects, against unreasonable searches and seizures,
+shall not be violated. No person shall be subject for the same offense to
+be twice put in jeopardy of life or limb; nor be compelled, in any criminal
+case, to be a witness against himself; nor be deprived of life, liberty, or
+property without due process of law; nor shall private property be taken
+for public use without just compensation. In all criminal prosecutions, the
+accused shall enjoy the right to a speedy and public trial, by an impartial
+jury of the state and district wherein the crime shall have been committed;
+and to be informed of the nature and cause of the accusation, to be
+confronted with the witnesses against him, to have compulsory process for
+obtaining witnesses in his favor, and to have the assistance of counsel
+for his defense. Excessive bail shall not he required, nor excessive fines
+imposed, nor cruel and unusual punishment inflicted. The privilege of the
+writ of habeas corpus shall not be suspended, except in case of rebellion
+or invasion. No bill of attainder or ex post facto law shall be passed. And
+by the Fourteenth Amendment, no state shall deprive any person of life,
+liberty, or property, without due process of law; nor deny to any person
+within its jurisdiction the equal protection of the law.
+
+We have lived so long under the protection of these rules that most of us
+have forgotten their importance. They have been unquestioned in America so
+long that most of us have forgotten the reasons for them. But if we lose
+them we shall learn the reasons by hard experience. And we are in some
+danger of losing them, not all at once but gradually, by indifference.
+
+As Professor Sohm says: "The greatest and most far reaching revolutions in
+history are not consciously observed at the time of their occurrence."
+
+Every one of these provisions has a history. Every one stops a way
+through which the overwhelming power of government has oppressed the
+weak individual citizen, and may do so again if the way be opened. Such
+provisions as these are not mere commands. They withhold power. The instant
+any officer, of whatever kind or grade, transgresses them he ceases to act
+as an officer. The power of sovereignty no longer supports him. The majesty
+of the law no longer gives him authority. The shield of the law no longer
+protects him. He becomes a trespasser, a despoiler, a law breaker, and
+all the machinery of the law may be set in motion for his restraint or
+punishment. It is true that the people who have made these rules may repeal
+them. As restraints upon the people themselves they are but self-denying
+ordinances which the people may revoke, but the supreme test of
+capacity for popular self-government is the possession of that power of
+self-restraint through which a people can subject its own conduct to the
+control of declared principles of action.
+
+These rules of constitutional limitation differ from ordinary statutes in
+this, that these rules are made impersonally, abstractly, dispassionately,
+impartially, as the people's expression of what they believe to be right
+and necessary for the preservation of their idea of liberty and justice.
+The process of amendment is so guarded by the constitution itself as
+to require the lapse of time and opportunity for deliberation and
+consideration and the passing away of disturbing influences which may be
+caused by special exigencies or excitements, before any change can be
+made. On the contrary, ordinary acts of legislation are subject to the
+considerations of expediency for the attainment of the particular objects
+of the moment, to selfish interests, momentary impulses, passions,
+prejudices, temptations. If there be no general rules which control
+particular action, general principles are obscured or set aside by the
+desires and impulses of the occasion. Our knowledge of the weakness of
+human nature and countless illustrations from the history of legislation
+in our own country point equally to the conclusion that if governmental
+authority is to be controlled by rules of action, it cannot be relied upon
+to impose those rules upon itself at the time of action, but must have them
+prescribed beforehand.
+
+The second class of limitations upon official power provided in our
+constitution prescribe and maintain the distribution of power to the
+different departments of government and the limitations upon the officers
+invested with authority in each department. This distribution follows the
+natural and logical lines of the distinction between the different kinds of
+power--legislative, executive, and judicial. But the precise allotment of
+power and lines of distinction are not so important as it is that there
+shall be distribution, and that each officer shall be limited in accordance
+with that distribution, for without such limitations there can be no
+security for liberty. If, whatever great officer of state happens to be the
+most forceful, skillful, and ambitious, is permitted to overrun and absorb
+to himself the powers of all other officers and to control their action,
+there ensues that concentration of power which destroys the working of free
+institutions, enables the holder to continue himself in power, and leaves
+no opportunity to the people for a change except through a revolution.
+Numerous instances of this very process are furnished by the history of
+some of the Spanish-American republics. It is of little consequence that
+the officer who usurps the power of others may design only to advance the
+public interest and to govern well. The system which permits an honest
+and well-meaning man to do this will afford equal opportunity for selfish
+ambition to usurp power in its own interest. Unlimited official power
+concentrated in one person is despotism, and it is only by carefully
+observed and jealously maintained limitations upon the power of every
+public officer that the workings of free institutions can be continued.
+
+The rigid limitation of official power is necessary not only to prevent the
+deprivation of substantial rights by acts of oppression, but to maintain
+that equality of political condition which is so important for the
+independence of individual character among the people of the country. When
+an officer has authority over us only to enforce certain specific laws at
+particular times and places, and has no authority regarding anything else,
+we pay deference to the law which he represents, but the personal relation
+is one of equality. Give to that officer, however, unlimited power, or
+power which we do not know to be limited, and the relation at once becomes
+that of an inferior to a superior. The inevitable result of such a relation
+long continued is to deprive the people of the country of the individual
+habit of independence. This may be observed in many of the countries of
+Continental Europe, where official persons are treated with the kind of
+deference, and exercise the kind of authority, which are appropriate only
+to the relations between superior and inferior.
+
+So the Massachusetts Constitution of 1780, after limiting the powers of
+each department to its own field, declares that this is done "to the end it
+may be a government of laws and not of men."
+
+The third class of limitations I have mentioned are those made necessary by
+the novel system which I have described as superimposing upon a federation
+of state governments, a national government acting directly upon the
+individual citizens of the states. This expedient was wholly unknown before
+the adoption of our constitution. All the confederations which had been
+attempted before that time were simply leagues of states, and whatever
+central authority there was derived its authority from and had its
+relations with the states as separate bodies politic. This was so of the
+old confederation. Each citizen owed his allegiance to his own state
+and each state had its obligations to the confederation. Under our
+constitutional system in every part of the territory of every state
+there are two sovereigns, and every citizen owes allegiance to both
+sovereigns--to his state and to his nation. In regard to some matters,
+which may generally be described as local, the state is supreme. In regard
+to other matters, which may generally be described as national, the nation
+is supreme. It is plain that to maintain the line between these two
+sovereignties operating in the same territory and upon the same citizens is
+a matter of no little difficulty and delicacy. Nothing has involved more
+constant discussion in our political history than questions of conflict
+between these two powers, and we fought the great Civil War to determine
+the question whether in case of conflict the allegiance to the state or the
+allegiance to the nation was of superior obligation. We should observe that
+the Civil War arose because the constitution did not draw a clear line
+between the national and state powers regarding slavery. It is of very
+great importance that both of these authorities, state and national, shall
+be preserved together and that the limitations which keep each within its
+proper province shall be maintained. If the power of the states were to
+override the power of the nation we should ultimately cease to have a
+nation and become only a body of really separate, although confederated,
+state sovereignties continually forced apart by diverse interests and
+ultimately quarreling with each other and separating altogether. On the
+other hand, if the power of the nation were to override that of the states
+and usurp their functions we should have this vast country, with its great
+population, inhabiting widely separated regions, differing in climate, in
+production, in industrial and social interests and ideas, governed in all
+its local affairs by one all-powerful, central government at Washington,
+imposing upon the home life and behavior of each community the opinions
+and ideas of propriety of distant majorities. Not only would this be
+intolerable and alien to the idea of free self-government, but it would be
+beyond the power of a central government to do directly. Decentralization
+would be made necessary by the mass of government business to be
+transacted, and so our separate localities would come to be governed by
+delegated authority--by proconsuls authorized from Washington to execute
+the will of the great majority of the whole people. No one can doubt that
+this also would lead by its different route to the separation of our Union.
+Preservation of our dual system of government, carefully restrained in each
+of its parts by the limitations of the constitution, has made possible our
+growth in local self-government and national power in the past, and, so far
+as we can see, it is essential to the continuance of that government in the
+future.
+
+All of these three classes of constitutional limitations are therefore
+necessary to the perpetuity of our government. I do not wish to be
+understood as saying that every single limitation is essential. There are
+some limitations that might be changed and something different substituted.
+But the system of limitation must be continued if our governmental system
+is to continue--if we are not to lose the fundamental principles of
+government upon which our Union is maintained and upon which our race has
+won the liberty secured by law for which it has stood foremost in the
+world.
+
+Lincoln covered this subject in one of his comprehensive statements that
+cannot be quoted too often. He said in the first inaugural:
+
+   "A majority held in restraint by constitutional checks and limitations
+   and always changing easily with deliberate changes of popular opinion
+   and sentiments the only true sovereign of a free people. Whoever
+   rejects it does of necessity fly to anarchy or despotism."
+
+Rules of limitation, however, are useless unless they are enforced. The
+reason for restraining rules arises from a tendency to do the things
+prohibited. Otherwise no rule would be needed. Against all practical rules
+of limitation--all rules limiting official conduct, there is a constant
+pressure from one side or the other. Honest differences of opinion as
+to the extent of power, arising from different points of view make this
+inevitable, to say nothing of those weaknesses and faults of human nature
+which lead men to press the exercise of power to the utmost under the
+influence of ambition, of impatience with opposition to their designs, of
+selfish interest and the arrogance of office. No mere paper rules will
+restrain these powerful and common forces of human nature.
+
+The agency by which, under our system of government, observance of
+constitutional limitation is enforced is the judicial power. The
+constitution provides that "This constitution, and the laws of the United
+States which shall be made in pursuance thereof, and all treaties made, or
+which shall be made, under the authority of the United States, shall be
+the supreme law of the land; and the judges in every state shall be bound
+thereby, anything in the constitution or laws of any state to the contrary
+notwithstanding." Under this provision an enactment by Congress not made in
+pursuance of the constitution, or an enactment of a state contrary to the
+constitution, is not a law. Such an enactment should strictly have no more
+legal effect than the resolution of any private debating society. The
+constitution also provides that the judicial power of the United States
+shall extend to all cases in law and equity arising under the constitution
+and laws of the United States. Whenever, therefore, in a case before a
+Federal court rights are asserted under or against some law which is
+claimed to violate some limitation of the constitution, the court is
+obliged to say whether the law does violate the constitution or not,
+because if it does not violate the constitution the court must give effect
+to it as law, while if it does violate the constitution it is no law at all
+and the court is not at liberty to give effect to it. The courts do not
+render decisions like imperial rescripts declaring laws valid or invalid.
+They merely render judgment on the rights of the litigants in particular
+cases, and in arriving at their judgment they refuse to give effect to
+statutes which they find clearly not to be made in pursuance of the
+constitution and therefore to be no laws at all. Their judgments are
+technically binding only in the particular case decided, but the knowledge
+that the court of last resort has reached such a conclusion concerning a
+statute, and that a similar conclusion would undoubtedly be reached in
+every case of an attempt to found rights upon the same statute, leads to a
+general acceptance of the invalidity of the statute.
+
+There is only one alternative to having the courts decide upon the validity
+of legislative acts, and that is by requiring the courts to treat the
+opinion of the legislature upon the validity of its statutes, evidenced
+by their passage, as conclusive. But the effect of this would be that the
+legislature would not be limited at all except by its own will. All the
+provisions designed to maintain a government carried on by officers of
+limited powers, all the distinctions between what is permitted to the
+national government and what is permitted to the state governments, all
+the safeguards of the life, liberty and property of the citizen against
+arbitrary power, would cease to bind Congress, and on the same theory they
+would cease also to bind the legislatures of the states. Instead of the
+constitution being superior to the laws the laws would be superior to
+the constitution, and the essential principles of our government would
+disappear. More than one hundred years ago, Chief Justice Marshall, in the
+great case of Marbury _vs_. Madison, set forth the view upon which our
+government has ever since proceeded. He said:
+
+   "The powers of the legislature are defined and limited; and that those
+   limits may not be mistaken or forgotten, the constitution is written.
+   To what purpose are powers limited, and to what purpose is that limit
+   committed to writing, if these limits may, at any time, be passed by
+   those intended to be restrained? The distinction between a government
+   with limited and unlimited powers is abolished, if those limits do not
+   confine the persons on whom they are imposed, and if acts prohibited
+   and acts allowed are of equal obligation. It is a proposition too plain
+   to be contested, that the constitution controls any legislative act
+   repugnant to it; or that the legislature may alter the constitution
+   by an ordinary act.
+
+   "Between these alternatives, there is no middle ground. The constitution
+   is either a superior, paramount law, unchangeable by ordinary means, or
+   it is on a level with ordinary legislative acts, and, like other acts,
+   is alterable when the legislature shall please to alter it. If the
+   former part of the alternative be true, then a legislative act, contrary
+   to the constitution, is not law: if the latter part be true, then
+   written constitutions are absurd attempts, on the part of the people, to
+   limit a power, in its own nature, inimitable.
+
+   "Certainly, all those who have framed written constitutions contemplate
+   them as forming the fundamental and paramount law of the nation, and
+   consequently, the theory of every such government must be, that an act
+   of the legislature, repugnant to the constitution, is void. This theory
+   is essentially attached to a written constitution, and is, consequently,
+   to be considered by this court as one of the fundamental principles of
+   our society."
+
+And of the same opinion was Montesquieu who gave the high authority of the
+_Esprit des Lois_ to the declaration that
+
+   "There is no liberty if the power of judging be not separate from the
+   legislative and executive powers; were it joined with the legislative
+   the life and liberty of the subject would be exposed to arbitrary
+   control."
+
+It is to be observed that the wit of man has not yet devised any better
+way of reaching a just conclusion as to whether a statute does or does not
+conflict with a constitutional limitation upon legislative power than the
+submission of the question to an independent and impartial court. The
+courts are not parties to the transactions upon which they pass. They are
+withdrawn by the conditions of their office from participation in business
+and political affairs out of which litigations arise. Their action is
+free from the chief dangers which threaten the undue extension of power,
+because, as Hamilton points out in The Federalist, they are the weakest
+branch of government: they neither hold the purse, as does the legislature,
+nor the sword, as does the executive. During all our history they have
+commanded and deserved the respect and confidence of the people. General
+acceptance of their conclusions has been the chief agency in preventing
+here the discord and strife which afflict so many lands, and in preserving
+peace and order and respect for law.
+
+Indeed in the effort to emasculate representative government to which I
+have already referred, the people of the experimenting states have greatly
+increased their reliance upon the courts. Every new constitution with
+detailed orders to the legislature is a forcible assertion that the people
+will not trust legislatures to determine the extent of their own powers,
+but will trust the courts.
+
+Two of the new proposals in government, which have been much discussed,
+directly relate to this system of constitutional limitations made effective
+through the judgment of the courts. One is the proposal for the Recall of
+Judges, and the other for the Popular Review of Decisions, sometimes spoken
+of as the Recall of Decisions.
+
+Under the first of these proposals, if a specified proportion of the voters
+are dissatisfied with a judge's decision they are empowered to require that
+at the next election, or at a special election called for that purpose,
+the question shall be presented to the electors whether the judge shall be
+permitted to continue in office or some other specified person shall be
+substituted in his place. This ordeal differs radically from the popular
+judgment which a judge is called upon to meet at the end of his term of
+office, however short that may be, because when his term has expired he is
+judged upon his general course of conduct while he has been in office and
+stands or falls upon that as a whole. Under the Recall a judge may be
+brought to the bar of public judgment immediately upon the rendering of a
+particular decision which excites public interest and he will be subject to
+punishment if that decision is unpopular. Judges will naturally be afraid
+to render unpopular decisions. They will hear and decide cases with a
+stronger incentive to avoid condemnation themselves than to do justice to
+the litigant or the accused. Instead of independent and courageous judges
+we shall have timid and time-serving judges. That highest duty of the
+judicial power to extend the protection of the law to the weak, the
+friendless, the unpopular, will in a great measure fail. Indirectly the
+effect will be to prevent the enforcement of the essential limitations upon
+official power because the judges will be afraid to declare that there is a
+violation when the violation is to accomplish some popular object.
+
+The Recall of Decisions aims directly at the same result. Under such an
+arrangement, if the courts have found a particular law to be a violation of
+one of the fundamental rules of limitation prescribed in the constitution,
+and the public feeling of the time is in favor of disregarding that
+limitation in that case, an election is to be held, and if the people in
+the election vote that the law shall stand, it is to stand, although it be
+a violation of the constitution; that is to say, if at any time a majority
+of the voters of a state (and ultimately the same would be true of the
+people of the United States) choose not to be bound in any particular case
+by the rule of right conduct which they have established for themselves,
+they are not to be bound. This is sometimes spoken of as a Popular Reversal
+of the Decisions of Courts. That I take to be an incorrect view. The power
+which would be exercised by the people under such an arrangement would be,
+not judicial, but legislative. The action would not be a decision that the
+court was wrong in finding a law unconstitutional, but it would be making
+a law valid which was invalid before because unconstitutional. In such
+an election the majority of the voters would make a law where no law had
+existed before; and they would make that law in violation of the rules of
+conduct by which the people themselves had solemnly declared they ought
+to be bound. The exercise of such a power, if it is to exist, cannot be
+limited to the particular cases which you or I or any man now living may
+have in mind. It must be general. If it can be exercised at all it can and
+will be exercised by the majority whenever they wish to exercise it. If it
+can be employed to make a Workmen's Compensation Act in such terms as to
+violate the constitution, it can be employed to prohibit the worship of an
+unpopular religious sect, or to take away the property of an unpopular rich
+man without compensation, or to prohibit freedom of speech and of the press
+in opposition to prevailing opinion, or to deprive one accused of crime of
+a fair trial when he has been condemned already by the newspapers. In every
+case the question whether the majority shall be bound by those general
+principles of action which the people have prescribed for themselves will
+be determined in that case by the will of the majority, and therefore in no
+case will the majority be bound except by its own will at the time.
+
+The exercise of such a power would strike at the very foundation of our
+system of government. It would be a reversion to the system of the ancient
+republics where the state was everything and the individual nothing
+except as a part of the state, and where liberty perished. It would be a
+repudiation of the fundamental principle of Anglo-Saxon liberty which we
+inherit and maintain, for it is the very soul of our political institutions
+that they protect the individual against the majority. "All men," says
+the Declaration, "are endowed by their Creator with inalienable rights.
+Governments are instituted to secure these rights." The rights are not
+derived from any majority. They are not disposable by any majority. They
+are superior to all majorities. The weakest minority, the most despised
+sect, exist by their own right. The most friendless and lonely human being
+on American soil holds his right to life and liberty and the pursuit of
+happiness, and all that goes to make them up by title indefeasible against
+the world, and it is the glory of American self-government that by the
+limitations of the constitution we have protected that right against even
+ourselves. That protection cannot be continued and that right cannot be
+maintained, except by jealously preserving at all times and under all
+circumstances the rule of principle which is eternal over the will of
+majorities which shift and pass away.
+
+Democratic absolutism is just as repulsive, and history has shown it to
+be just as fatal, to the rights of individual manhood as is monarchical
+absolutism.
+
+But it is not necessary to violate the rules of action which we have
+established for ourselves in the constitution in order to deal by law with
+the new conditions of the time, for these rules of action are themselves
+subject to popular control. If the rules are so stated that they are
+thought to prevent the doing of something which is not contrary to the
+principles of liberty but demanded by them, the true remedy is to be found
+in reconsidering what the rules ought to be and, if need be, in restating
+them so that they will give more complete effect to the principles they are
+designed to enforce. If, as I believe, there ought to be in my own state,
+for example, a Workman's Compensation Act to supersede the present
+unsatisfactory system of accident litigation, and if the constitution
+forbids such a law--which I very much doubt--the true remedy is not to cast
+to the winds all systematic self-restraint and to inaugurate a new system
+of doing whatever we please whenever we please, unrestrained by declared
+rules of conduct; but it is to follow the orderly and ordinary method of
+amending the constitution so that the rule protecting the right to property
+shall not be so broadly stated as to prevent legislation which the
+principle underlying the rule demands.
+
+The difference between the proposed practice of overriding the constitution
+by a vote and amending the constitution is vital. It is the difference
+between breaking a rule and making a rule; between acting without any rule
+in a particular case and determining what ought to be the rule of action
+applicable to all cases.
+
+Our legislatures frequently try to evade constitutional provisions, and
+doubtless popular majorities seeking specific objects would vote the same
+way, but set the same people to consider what the fundamental law ought
+to be, and confront them with the question whether they will abandon in
+general the principles and the practical rules of conduct according to
+principles, upon which our government rests, and they will instantly
+refuse. While their minds are consciously and avowedly addressed to that
+subject they will stand firm for the general rules that will protect them
+and their children against oppression and usurpation, and they will change
+those rules only if need be to make them enforce more perfectly the
+principles which underlie them.
+
+Communities, like individuals, will declare for what they believe to be
+just and right; but communities, like individuals, can be led away from
+their principles step by step under the temptations of specific desires and
+supposed expediencies until the principles are a dead letter and allegiance
+to them is a mere sham.
+
+And that is the way in which popular governments lose their vitality and
+perish.
+
+The Roman consuls derived their power from the people and were responsible
+to the people; but Rome went on pretending that the emperors and their
+servants were consuls long after the Praetorians were the only source of
+power and the only power exercised was that of irresponsible despotism.
+
+A number of countries have copied our constitution coupled with a provision
+that the constitutional guarantees may be suspended in case of necessity.
+We are all familiar with the result. The guarantees of liberty and justice
+and order have been forgotten: the government is dictatorship and the
+popular will is expressed only by revolution.
+
+Nor, so far as our national system is concerned has there yet appeared any
+reason to suppose that suitable laws to meet the new conditions cannot be
+enacted without either overriding or amending the constitution. The liberty
+of contract and the right of private property which are protected by the
+limitations of the constitution are held subject to the police power of
+government to pass and enforce laws for the protection of the public
+health, public morals, and public safety. The scope and character of the
+regulations required to accomplish these objects vary as the conditions
+of life in the country vary. Many interferences with contract and with
+property which would have been unjustifiable a century ago are demanded by
+the conditions which exist now and are permissible without violating any
+constitutional limitation. What will promote these objects the legislative
+power decides with large discretion, and the courts have no authority to
+review the exercise of that discretion. It is only when laws are passed
+under color of the police power and having no real or substantial relation
+to the purposes for which the power exists, that the courts can refuse to
+give them effect. By a multitude of judicial decisions in recent years our
+courts have sustained the exercise of this vast and progressive power
+in dealing with the new conditions of life under a great variety of
+circumstances. The principal difficulty in sustaining the exercise of the
+power has been caused ordinarily by the fact that carelessly or ignorantly
+drawn statutes either have failed to exhibit the true relation between the
+regulation proposed and the object sought, or have gone farther than the
+attainment of the legitimate object justified. A very good illustration
+of this is to be found in the Federal Employer's Liability Act which
+was carelessly drawn and passed by Congress in 1906 and was declared
+unconstitutional by the Supreme Court, but which was carefully drawn and
+passed by Congress in 1908 and was declared constitutional by the same
+court.
+
+Insistence upon hasty and violent methods rather than orderly and
+deliberate methods is really a result of impatience with the slow methods
+of true progress in popular government. We should probably make little
+progress were there not in every generation some men who, realizing evils,
+are eager for reform, impatient of delay, indignant at opposition, and
+intolerant of the long, slow processes by which the great body of the
+people may consider new proposals in all their relations, weigh their
+advantages and disadvantages, discuss their merits, and become educated
+either to their acceptance or rejection. Yet that is the method of progress
+in which no step, once taken, needs to be retraced; and it is the only way
+in which a democracy can avoid destroying its institutions by the impulsive
+substitution of novel and attractive but impracticable expedients.
+
+The wisest of all the fathers of the Republic has spoken, not for his
+own day alone but for all generations to come after him, in the solemn
+admonitions of the Farewell Address. It was to us that Washington spoke
+when he said:
+
+   "The basis of our political systems is the right of the people to make
+   and to alter their constitutions of government; but the Constitution
+   which at any time exists, till changed by an explicit and authentic
+   act of the whole people, is sacredly obligatory upon all.... Towards
+   the preservation of your government, and the permanency of your present
+   happy state, it is requisite, not only that you steadily discountenance
+   irregular oppositions to its acknowledged authority, but also that you
+   resist with care the spirit of innovation upon its principles, however
+   specious the pretexts. One method of assault may be to effect, in the
+   forms of the Constitution, alterations which will impair the energy of
+   the system, and thus to undermine what cannot be directly overthrown. In
+   all the changes to which you may be invited, remember that time and
+   habit are at least as necessary to fix the true character of governments
+   as of other human institutions; that experience is the surest standard
+   by which to test the real tendency of the existing constitution of a
+   country; that facility in changes, upon the credit of mere hypothesis
+   and opinion, exposes to perpetual changes, from the endless variety of
+   hypothesis and opinion."
+
+While, in the nature of things, each generation must assume the task of
+adapting the working of its government to new conditions of life as they
+arise, it would be the folly of ignorant conceit for any generation to
+assume that it can lightly and easily improve upon the work of the founders
+in those matters which are, by their nature, of universal application to
+the permanent relations of men in civil society.
+
+Religion, the philosophy of morals, the teaching of history, the experience
+of every human life, point to the same conclusion--that in the practical
+conduct of life the most difficult and the most necessary virtue is
+self-restraint. It is the first lesson of childhood; it is the quality for
+which great monarchs are most highly praised; the man who has it not is
+feared and shunned; it is needed most where power is greatest; it is needed
+more by men acting in a mass than by individuals, because men in the mass
+are more irresponsible and difficult of control than individuals. The
+makers of our constitution, wise and earnest students of history and
+of life, discerned the great truth that self-restraint is the supreme
+necessity and the supreme virtue of a democracy. The people of the United
+States have exercised that virtue by the establishment of rules of right
+action in what we call the limitations of the constitution, and until
+this day they have rigidly observed those rules. The general judgment of
+students of government is that the success and permanency of the American
+system of government are due to the establishment and observance of
+such general rules of conduct. Let us change and adapt our laws as the
+shifting-conditions of the times require, but let us never abandon or
+weaken this fundamental and essential characteristic of our ordered
+liberty.
+
+*** END OF THE PROJECT GUTENBERG EBOOK 10485 ***
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+<div>*** START OF THE PROJECT GUTENBERG EBOOK 10485 ***</div>
+<h1>The Project Gutenberg eBook, Experiments in Government and the Essentials
+of the Constitution, by Elihu Root</h1>
+<br />
+<br />
+<br />
+<hr class="full" />
+<br />
+<h1>EXPERIMENTS IN GOVERNMENT AND THE ESSENTIALS OF THE
+CONSTITUTION</h1>
+<h2>BY ELIHU ROOT</h2>
+<hr />
+<h2>PREFACE</h2>
+<p>The familiar saying that nothing is settled until it is settled
+right expresses only a half truth. Questions of general and
+permanent importance are seldom finally settled. A very wise man
+has said that "short of the multiplication table there is no truth
+and no fact which must not be proved over again as if it had never
+been proved, from time to time." Conceptions of social rights and
+obligations and the institutions based upon them continue
+unquestioned for long periods as postulates in all discussions upon
+questions of government. Whatever conduct conforms to them is
+assumed to be right. Whatever is at variance with them is assumed
+to be wrong. Then a time comes when, with apparent suddenness, the
+ground of discussion shifts and the postulates are denied. They
+cease to be accepted without proof and the whole controversy in
+which they were originally established is fought over again.</p>
+<p>The people of the United States appear now to have entered upon
+such a period of re-examination of their system of government. Not
+only are political parties denouncing old abuses and demanding new
+laws, but essential principles embodied in the Federal Constitution
+of 1787, and long followed in the constitutions of all the states,
+are questioned and denied. The wisdom of the founders of the
+Republic is disputed and the political ideas which they repudiated
+are urged for approval.</p>
+<p>I wish in these lectures to present some observations which may
+have a useful application in the course of this process.</p>
+<h3>I - EXPERIMENTS</h3>
+<p>There are two separate processes going on among the civilized
+nations at the present time. One is an assault by socialism against
+the individualism which underlies the social system of western
+civilization. The other is an assault against existing institutions
+upon the ground that they do not adequately protect and develop the
+existing social order. It is of this latter process in our own
+country that I wish to speak, and I assume an agreement, that the
+right of individual liberty and the inseparable right of private
+property which lie at the foundation of our modern civilization
+ought to be maintained.</p>
+<p>The conditions of life in America have changed very much since
+the Constitution of the United States was adopted. In 1787 each
+state entering into the Federal Union had preserved the separate
+organic life of the original colony. Each had its center of social
+and business and political life. Each was separated from the others
+by the barriers of slow and difficult communication. In a vast
+territory, without railroads or steamships or telegraph or
+telephone, each community lived within itself.</p>
+<p>Now, there has been a general social and industrial
+rearrangement. Production and commerce pay no attention to state
+lines. The life of the country is no longer grouped about state
+capitals, but about the great centers of continental production and
+trade. The organic growth which must ultimately determine the form
+of institutions has been away from the mere union of states towards
+the union of individuals in the relation of national
+citizenship.</p>
+<p>The same causes have greatly reduced the independence of
+personal and family life. In the eighteenth century life was
+simple. The producer and consumer were near together and could find
+each other. Every one who had an equivalent to give in property or
+service could readily secure the support of himself and his family
+without asking anything from government except the preservation of
+order. To-day almost all Americans are dependent upon the action of
+a great number of other persons mostly unknown. About half of our
+people are crowded into the cities and large towns. Their food,
+clothes, fuel, light, water&mdash;all come from distant sources, of
+which they are in the main ignorant, through a vast, complicated
+machinery of production and distribution with which they have
+little direct relation. If anything occurs to interfere with the
+working of the machinery, the consumer is individually helpless. To
+be certain that he and his family may continue to live he must seek
+the power of combination with others, and in the end he inevitably
+calls upon that great combination of all citizens which we call
+government to do something more than merely keep the peace&mdash;to
+regulate the machinery of production and distribution and safeguard
+it from interference so that it shall continue to work.</p>
+<p>A similar change has taken place in the conditions under which a
+great part of our people engage in the industries by which they get
+their living. Under comparatively simple industrial conditions the
+relation between employer and employee was mainly a relation of
+individual to individual, with individual freedom of contract and
+freedom of opportunity essential to equality in the commerce of
+life. Now, in the great manufacturing, mining, and transportation
+industries of the country, instead of the free give and take of
+individual contract there is substituted a vast system of
+collective bargaining between great masses of men organized and
+acting through their representatives, or the individual on the one
+side accepts what he can get from superior power on the other. In
+the movement of these mighty forces of organization the individual
+laborer, the individual stockholder, the individual consumer, is
+helpless.</p>
+<p>There has been another change of conditions through the
+development of political organization. The theory of political
+activity which had its origin approximately in the administration
+of President Jackson, and which is characterized by Marcy's
+declaration that "to the victors belong the spoils," tended to make
+the possession of office the primary and all-absorbing purpose of
+political conflict. A complicated system of party organization and
+representation grew up under which a disciplined body of party
+workers in each state supported each other, controlled the
+machinery of nomination, and thus controlled nominations. The
+members of state legislatures and other officers, when elected,
+felt a more acute responsibility to the organization which could
+control their renomination than to the electors, and therefore
+became accustomed to shape their conduct according to the wishes of
+the nominating organization. Accordingly the real power of
+government came to be vested to a high degree in these unofficial
+political organizations, and where there was a strong man at the
+head of an organization his control came to be something very
+closely approaching dictatorship. Another feature of this system
+aggravated its evils. As population grew, political campaigns
+became more expensive. At the same time, as wealth grew,
+corporations for production and transportation increased in capital
+and extent of operations and became more dependent upon the
+protection or toleration of government. They found a ready means to
+secure this by contributing heavily to the campaign funds of
+political organizations, and therefore their influence played a
+large part in determining who should be nominated and elected to
+office. So that in many states political organizations controlled
+the operations of government, in accordance with the wishes of the
+managers of the great corporations. Under these circumstances our
+governmental institutions were not working as they were intended to
+work, and a desire to break up and get away from this extra
+constitutional method of controlling our constitutional government
+has caused a great part of the new political methods of the last
+few years. It is manifest that the laws which were entirely
+adequate under the conditions of a century ago to secure individual
+and public welfare must be in many respects inadequate to
+accomplish the same results under all these new conditions; and our
+people are now engaged in the difficult but imperative duty of
+adapting their laws to the life of to-day. The changes in
+conditions have come very rapidly and a good deal of experiment
+will be necessary to find out just what government can do and ought
+to do to meet them.</p>
+<p>The process of devising and trying new laws to meet new
+conditions naturally leads to the question whether we need not
+merely to make new laws but also to modify the principles upon
+which our government is based and the institutions of government
+designed for the application of those principles to the affairs of
+life. Upon this question it is of the utmost importance that we
+proceed with considerate wisdom.</p>
+<p>By institutions of government I mean the established rule or
+order of action through which the sovereign (in our case the
+sovereign people) attains the ends of government. The governmental
+institutions of Great Britain have been established by the growth
+through many centuries of a great body of accepted rules and
+customs which, taken together, are called the British Constitution.
+In this country we have set forth in the Declaration of
+Independence the principles which we consider to lie at the basis
+of civil society "that all men are created equal; that they are
+endowed, by their Creator, with certain unalienable rights; that
+among these are life, liberty, and the pursuit of happiness. That
+to secure these rights, governments are instituted among men,
+deriving their just powers from the consent of the governed."</p>
+<p>In our Federal and State Constitutions we have established the
+institutions through which these rights are to be secured. We have
+declared what officers shall make the laws, what officers shall
+execute them, what officers shall sit in judgment upon claims of
+right under them. We have prescribed how these officers shall be
+selected and the tenure by which they shall hold their offices. We
+have limited them in the powers which they are to exercise, and,
+where it has been deemed necessary, we have imposed specific duties
+upon them. The body of rules thus prescribed constitute the
+governmental institutions of the United States.</p>
+<p>When proposals are made to change these institutions there are
+certain general considerations which should be observed.</p>
+<p>The first consideration is that free government is impossible
+except through prescribed and established governmental
+institutions, which work out the ends of government through many
+separate human agents, each doing his part in obedience to law.
+Popular will cannot execute itself directly except through a mob.
+Popular will cannot get itself executed through an irresponsible
+executive, for that is simple autocracy. An executive limited only
+by the direct expression of popular will cannot be held to
+responsibility against his will, because, having possession of all
+the powers of government, he can prevent any true, free, and
+general expression adverse to himself, and unless he yields
+voluntarily he can be overturned only by a revolution. The familiar
+Spanish-American dictatorships are illustrations of this. A
+dictator once established by what is or is alleged to be public
+choice never permits an expression of public will which will
+displace him, and he goes out only through a new revolution because
+he alone controls the machinery through which he could be displaced
+peaceably. A system with a plebiscite at one end and Louis Napoleon
+at the other could not give France free government; and it was only
+after the humiliation of defeat in a great war and the horrors of
+the Commune that the French people were able to establish a
+government that would really execute their will through carefully
+devised institutions in which they gave their chief executive very
+little power indeed.</p>
+<p>We should, therefore, reject every proposal which involves the
+idea that the people can rule merely by voting, or merely by voting
+and having one man or group of men to execute their will.</p>
+<p>A second consideration is that in estimating the value of any
+system of governmental institutions due regard must be had to the
+true functions of government and to the limitations imposed by
+nature upon what it is possible for government to accomplish. We
+all know of course that we cannot abolish all the evils in this
+world by statute or by the enforcement of statutes, nor can we
+prevent the inexorable law of nature which decrees that suffering
+shall follow vice, and all the evil passions and folly of mankind.
+Law cannot give to depravity the rewards of virtue, to indolence
+the rewards of industry, to indifference the rewards of ambition,
+or to ignorance the rewards of learning. The utmost that government
+can do is measurably to protect men, not against the wrong they do
+themselves but against wrong done by others and to promote the
+long, slow process of educating mind and character to a better
+knowledge and nobler standards of life and conduct. We know all
+this, but when we see how much misery there is in the world and
+instinctively cry out against it, and when we see some things that
+government may do to mitigate it, we are apt to forget how little
+after all it is possible for any government to do, and to hold the
+particular government of the time and place to a standard of
+responsibility which no government can possibly meet. The chief
+motive power which has moved mankind along the course of
+development that we call the progress of civilization has been the
+sum total of intelligent selfishness in a vast number of
+individuals, each working for his own support, his own gain, his
+own betterment. It is that which has cleared the forests and
+cultivated the fields and built the ships and railroads, made the
+discoveries and inventions, covered the earth with commerce,
+softened by intercourse the enmities of nations and races, and made
+possible the wonders of literature and of art. Gradually, during
+the long process, selfishness has grown more intelligent, with a
+broader view of individual benefit from the common good, and
+gradually the influences of nobler standards of altruism, of
+justice, and human sympathy have impressed themselves upon the
+conception of right conduct among civilized men. But the complete
+control of such motives will be the millennium. Any attempt to
+enforce a millennial standard now by law must necessarily fail, and
+any judgment which assumes government's responsibility to enforce
+such a standard must be an unjust judgment. Indeed, no such
+standard can ever be forced. It must come, not by superior force,
+but from the changed nature of man, from his willingness to be
+altogether just and merciful.</p>
+<p>A third consideration is that it is not merely useless but
+injurious for government to attempt too much. It is manifest that
+to enable it to deal with the new conditions I have described we
+must invest government with authority to interfere with the
+individual conduct of the citizen to a degree hitherto unknown in
+this country. When government undertakes to give the individual
+citizen protection by regulating the conduct of others towards him
+in the field where formerly he protected himself by his freedom of
+contract, it is limiting the liberty of the citizen whose conduct
+is regulated and taking a step in the direction of paternal
+government. While the new conditions of industrial life make it
+plainly necessary that many such steps shall be taken, they should
+be taken only so far as they are necessary and are effective.
+Interference with individual liberty by government should be
+jealously watched and restrained, because the habit of undue
+interference destroys that independence of character without which
+in its citizens no free government can endure.</p>
+<p>We should not forget that while institutions receive their form
+from national character they have a powerful reflex influence upon
+that character. Just so far as a nation allows its institutions to
+be moulded by its weaknesses of character rather than by its
+strength it creates an influence to increase weakness at the
+expense of strength.</p>
+<p>The habit of undue interference by government in private affairs
+breeds the habit of undue reliance upon government in private
+affairs at the expense of individual initiative, energy,
+enterprise, courage, independent manhood.</p>
+<p>The strength of self-government and the motive power of progress
+must be found in the characters of the individual citizens who make
+up a nation. Weaken individual character among a people by
+comfortable reliance upon paternal government and a nation soon
+becomes incapable of free self-government and fit only to be
+governed: the higher and nobler qualities of national life that
+make for ideals and effort and achievement become atrophied and the
+nation is decadent.</p>
+<p>A fourth consideration is that in the nature of things all
+government must be imperfect because men are imperfect. Every
+system has its shortcomings and inconveniences; and these are seen
+and felt as they exist in the system under which we live, while the
+shortcomings and inconveniences of other systems are forgotten or
+ignored.</p>
+<p>It is not unusual to see governmental methods reformed and after
+a time, long enough to forget the evils that caused the change, to
+have a new movement for a reform which consists in changing back to
+substantially the same old methods that were cast out by the first
+reform.</p>
+<p>The recognition of shortcomings or inconveniences in government
+is not by itself sufficient to warrant a change of system. There
+should be also an effort to estimate and compare the shortcomings
+and inconveniences of the system to be substituted, for although
+they may be different they will certainly exist.</p>
+<p>A fifth consideration is that whatever changes in government are
+to be made, we should follow the method which undertakes as one of
+its cardinal points to hold fast that which is good. Francis
+Lieber, whose affection for the country of his birth equalled his
+loyalty to the country of his adoption, once said:</p>
+<blockquote>"There is this difference between the English, French,
+and Germans: that the English only change what is necessary and as
+far as it is necessary; the French plunge into all sorts of
+novelties by whole masses, get into a chaos, see that they are
+fools and retrace their steps as quickly, with a high degree of
+practical sense in all this impracticability; the Germans attempt
+no change without first recurring to first principles and
+metaphysics beyond them, systematizing the smallest details in
+their minds; and when at last they mean to apply all their
+meditation, opportunity, with its wide and swift wings of a gull,
+is gone."</blockquote>
+<p>This was written more than sixty years ago before the present
+French Republic and the present German Empire, and Lieber would
+doubtless have modified his conclusions in view of those great
+achievements in government if he were writing to-day. But he does
+correctly indicate the differences of method and the dangers
+avoided by the practical course which he ascribes to the English,
+and in accordance with which the great structure of British and
+American liberty has been built up generation after generation and
+century after century. Through all the seven hundred years since
+Magna Charta we have been shaping, adjusting, adapting our system
+to the new conditions of life as they have arisen, but we have
+always held on to everything essentially good that we have ever had
+in the system. We have never undertaken to begin over again and
+build up a new system under the idea that we could do it better. We
+have never let go of Magna Charta or the Bill of Rights or the
+Declaration of Independence or the Constitution. When we take
+account of all that governments have sought to do and have failed
+to do in this selfish and sinful world, we find that as a rule the
+application of new theories of government, though devised by the
+most brilliant constructive genius, have availed but little to
+preserve the people of any considerable regions of the earth for
+any long periods from the evils of despotism on the one hand or of
+anarchy on the other, or to raise any considerable portion of the
+mass of mankind above the hard conditions of oppression and misery.
+And we find that our system of government which has been built up
+in this practical way through so many centuries, and the whole
+history of which is potent in the provisions of our Constitution,
+has done more to preserve liberty, justice, security, and freedom
+of opportunity for many people for a long period and over a great
+portion of the earth, than any other system of government ever
+devised by man. Human nature does not change very much. The forces
+of evil are hard to control now as they always have been. It is
+easy to fail and hard to succeed in reconciling liberty and order.
+In dealing with this most successful body of governmental
+institutions the question should not be what sort of government do
+you or I think we should have. What you and I think on such a
+subject is of very little value indeed. The question should be:</p>
+<p>How can we adapt our laws and the workings of our government to
+the new conditions which confront us without sacrificing any
+essential element of this system of government which has so nobly
+stood the test of time and without abandoning the political
+principles which have inspired the growth of its institutions? For
+there are political principles, and nothing can be more fatal to
+self-government than to lose sight of them under the influence of
+apparent expediency.</p>
+<p>In attempting to answer this question we need not trouble
+ourselves very much about the multitude of excited controversies
+which have arisen over new methods of extra
+constitutional-political organization and procedure. Direct
+nominations, party enrollments, instructions to delegates,
+presidential preference primaries, independent nominations, all
+relate to forms of voluntary action outside the proper field of
+governmental institutions. All these new political methods are the
+result of efforts of the rank and file of voluntary parties to
+avoid being controlled by the agents of their own party
+organization, and to get away from real evils in the form of undue
+control by organized minorities with the support of organized
+capital. None of these expedients is an end in itself. They are
+tentative, experimental. They are movements not towards something
+definite but away from something definite. They may be inconvenient
+or distasteful to some of us, but no one need be seriously
+disturbed by the idea that they threaten our system of government.
+If they work well they will be an advantage. If they work badly
+they will be abandoned and some other expedient will be tried, and
+the ultimate outcome will doubtless be an improvement upon the old
+methods.</p>
+<p>There is another class of new methods which do relate to the
+structure of government and which call for more serious
+consideration here. Chief in this class are:</p>
+<p>The Initiative; that is to say, direct legislation by vote of
+the people upon laws proposed by a specified number or proportion
+of the electors.</p>
+<p>The Compulsory Referendum; that is to say, a requirement that
+under certain conditions laws that have been agreed upon by a
+legislative body shall be referred to a popular vote and become
+operative only upon receiving a majority vote.</p>
+<p>The Recall of Officers before the expiration of the terms for
+which they have been elected by a vote of the electors to be had
+upon the demand of a specified number or proportion of them.</p>
+<p>The Popular Review of Judicial Decisions upon constitutional
+questions; that is to say, a provision, under which, when a court
+of last resort has decided that a particular law is invalid,
+because in conflict with a constitutional provision, the law may
+nevertheless be made valid by a popular vote.</p>
+<p>Some of these methods have been made a part of the
+constitutional system of a considerable number of our states. They
+have been accompanied invariably by provisions for very short and
+easy changes of state constitutions, and, so long as they are
+confined to the particular states which have chosen to adopt them,
+they may be regarded as experiments which we may watch with
+interest, whatever may be our opinions as to the outcome, and with
+the expectation that if they do not work well they also will be
+abandoned. This is especially true because, since the adoption of
+the Fourteenth Amendment to the Constitution, the states are
+prohibited from violating in their own affairs the most important
+principles of the National Constitution. It is not to be expected,
+however, that new methods and rules of action in government shall
+become universal in the states and not ultimately bring about a
+change in the national system. It will be useful, therefore, to
+consider whether these new methods if carried into the national
+system would sacrifice any of the essentials of that system which
+ought to be preserved.</p>
+<p>The Constitution of the United States deals in the main with
+essentials. There are some non-essential directions such as those
+relating to the methods of election and of legislation, but in the
+main it sets forth the foundations of government in clear, simple,
+concise terms. It is for this reason that it has stood the test of
+more than a century with but slight amendment, while the modern
+state constitutions, into which a multitude of ordinary statutory
+provisions are crowded, have to be changed from year to year. The
+peculiar and essential qualities of the government established by
+the Constitution are:</p>
+<p>First, it is representative.</p>
+<p>Second, it recognizes the liberty of the individual citizen as
+distinguished from the total mass of citizens, and it protects that
+liberty by specific limitations upon the power of government.</p>
+<p>Third, it distributes the legislative, executive and judicial
+powers, which make up the sum total of all government, into three
+separate departments, and specifically limits the powers of the
+officers in each department.</p>
+<p>Fourth, it superimposes upon a federation of state governments,
+a national government with sovereignty acting directly not merely
+upon the states, but upon the citizens of each state, within a line
+of limitation drawn between the powers of the national government
+and the powers of the state governments.</p>
+<p>Fifth, it makes observance of its limitations requisite to the
+validity of laws, whether passed by the nation or by the states, to
+be judged by the courts of law in each concrete case as it
+arises.</p>
+<p>Every one of these five characteristics of the government
+established by the Constitution was a distinct advance beyond the
+ancient attempts at popular government, and the elimination of any
+one of them would be a retrograde movement and a reversion to a
+former and discarded type of government. In each case it would be
+the abandonment of a distinctive feature of government which has
+succeeded, in order to go back and try again the methods of
+government which have failed. Of course we ought not to take such a
+backward step except under the pressure of inevitable
+necessity.</p>
+<p>The first two of the characteristics which I have enumerated,
+those which embrace the conception of representative government and
+the conception of individual liberty, were the products of the long
+process of development of freedom in England and America. They were
+not invented by the makers of the Constitution. They have been
+called inventions of the Anglo-Saxon race. They are the chief
+contributions of that race to the political development of
+civilization.</p>
+<p>The expedient of representation first found its beginning in the
+Saxon witenagemot. It was lost in the Norman conquest. It was
+restored step by step, through the centuries in which parliament
+established its power as an institution through the granting or
+withholding of aids and taxes for the king's use. It was brought to
+America by the English colonists. It was the practice of the
+colonies which formed the Federal Union. It entered into the
+constitution as a matter of course, because it was the method by
+which modern liberty had been steadily growing stronger and broader
+for six centuries as opposed to the direct, unrepresentative method
+of government in which the Greek and Roman and Italian republics
+had failed. This representative system has in its turn impressed
+itself upon the nations which derived their political ideas from
+Rome and has afforded the method through which popular liberty has
+been winning forward in its struggle against royal and aristocratic
+power and privilege the world over. Bluntschli, the great
+Heidelberg publicist of the last century, says:</p>
+<blockquote>"Representative government and self-government are the
+great works of the English and American peoples. The English have
+produced representative monarchy with parliamentary legislation and
+parliamentary government. The Americans have produced the
+representative republic. We Europeans upon the Continent recognize
+in our turn that in representative government alone lies the
+hoped-for union between civil order and popular
+liberty."</blockquote>
+<p>The Initiative and Compulsory Referendum are attempts to cure
+the evils which have developed in our practice of representative
+government by means of a return to the old, unsuccessful, and
+discarded method of direct legislation and by rehabilitating one of
+the most impracticable of Rousseau's theories. Every candid student
+of our governmental affairs must agree that the evils to be cured
+have been real and that the motive which has prompted the proposal
+of the Initiative and Referendum is commendable. I do not think
+that these expedients will prove wise or successful ways of curing
+these evils for reasons which I will presently indicate; but it is
+not necessary to assume that their trial will be destructive of our
+system of government. They do not aim to destroy representative
+government, but to modify and control it, and were it not that the
+effect of these particular methods is likely to go beyond the
+intention of their advocates they would not interfere seriously
+with representative government except in so far as they might
+ultimately prove to be successful expedients. If they did not work
+satisfactorily they would be abandoned, leaving representative
+government still in full force and effectiveness.</p>
+<p>There is now a limited use of the Referendum upon certain
+comparatively simple questions. No one has ever successfully
+controverted the view expressed by Burke in his letter to the
+electors of Bristol, that his constituents were entitled not merely
+to his vote but to his judgment, even though they might not agree
+with it. But there are some questions upon which the determining
+fact must be the preference of the people of the country or of a
+community; such as the question where a capital city or a county
+seat shall be located; the question whether a debt shall be
+incurred that will be a lien on their property for a specific
+purpose; the question whether the sale of intoxicating liquors
+shall he permitted. Upon certain great simple questions which are
+susceptible of a <i>yes</i> or <i>no</i> answer it is appropriate
+that the people should be called upon to express their wish by a
+vote just as they express their choice of the persons who shall
+exercise the powers of government by a vote. This, however, is very
+different from undertaking to have the ordinary powers of
+legislation exercised at the ballot box.</p>
+<p>In this field the weakness, both of the Initiative and of the
+Compulsory Referendum, is that they are based upon a radical error
+as to what constitutes the true difficulty of wise legislation. The
+difficulty is not to determine what ought to be accomplished but to
+determine how to accomplish it. The affairs with which statutes
+have to deal as a rule involve the working of a great number and
+variety of motives incident to human nature, and the working of
+those motives depends upon complicated and often obscure facts of
+production, trade, social life, with which men generally are not
+familiar and which require study and investigation to understand.
+Thrusting a rigid prohibition or command into the operation of
+these forces is apt to produce quite unexpected and unintended
+results. Moreover, we already have a great body of laws, both
+statutory and customary, and a great body of judicial decisions as
+to the meaning and effect of existing laws. The result of adding a
+new law to this existing body of laws is that we get, not the
+simple consequence which the words, taken by themselves, would seem
+to require, but a resultant of forces from the new law taken in
+connection with all existing laws. A very large part of the
+litigation, injustice, dissatisfaction, and contempt for law which
+we deplore, results from ignorant and inconsiderate legislation
+with perfectly good intentions. The only safeguard against such
+evils and the only method by which intelligent legislation can be
+reached is the method of full discussion, comparison of views,
+modification and amendment of proposed legislation in the light of
+discussion and the contribution and conflict of many minds. This
+process can be had only through the procedure of representative
+legislative bodies. Representative government is something more
+than a device to enable the people to have their say when they are
+too numerous to get together and say it. It is something more than
+the employment of experts in legislation. Through legislative
+procedure a different kind of treatment for legislative questions
+is secured by concentration of responsibility, by discussion, and
+by opportunity to meet objection with amendment. For this reason
+the attempt to legislate by calling upon the people by popular vote
+to say yes or no to complicated statutes must prove unsatisfactory
+and on the whole injurious. In ordinary cases the voters will not
+and cannot possibly bring to the consideration of proposed statutes
+the time, attention, and knowledge required to determine whether
+such statutes will accomplish what they are intended to accomplish;
+and the vote usually will turn upon the avowed intention of such
+proposals rather than upon their adequacy to give effect to the
+intention.</p>
+<p>This would be true if only one statute were to be considered at
+one election; but such simplicity is not practicable. There always
+will be, and if the direct system is to amount to anything there
+must be, many proposals urged upon the voters at each
+opportunity.</p>
+<p>The measures, submitted at one time in some of the Western
+States now fill considerable volumes.</p>
+<p>With each proposal the voter's task becomes more complicated and
+difficult.</p>
+<p>Yet our ballots are already too complicated. The great blanket
+sheets with scores of officers and hundreds of names to be marked
+are quite beyond the intelligent action in detail of nine men out
+of ten.</p>
+<p>The most thoughtful reformers are already urging that the
+voter's task be made more simple by giving him fewer things to
+consider and act upon at the same time.</p>
+<p>This is the substance of what is called the "Short Ballot"
+reform; and it is right, for the more questions divide public
+attention the fewer questions the voters really decide for
+themselves on their own judgment and the greater the power of the
+professional politician.</p>
+<p>There is moreover a serious danger to be apprehended from the
+attempt at legislation by the Initiative and Compulsory Referendum,
+arising from its probable effect on the character of representative
+bodies. These expedients result from distrust of legislatures. They
+are based on the assertion that the people are not faithfully
+represented in their legislative bodies, but are misrepresented.
+The same distrust has led to the encumbering of modern state
+constitutions by a great variety of minute limitations upon
+legislative power. Many of these constitutions, instead of being
+simple frameworks of government, are bulky and detailed statutes
+legislating upon subjects which the people are unwilling to trust
+the legislature to deal with. So between the new constitutions,
+which exclude the legislatures from power, and the Referendum, by
+which the people overrule what they do, and the Initiative, by
+which the people legislate in their place, the legislative
+representatives who were formerly honored, are hampered, shorn of
+power, relieved of responsibility, discredited, and treated as
+unworthy of confidence. The unfortunate effect of such treatment
+upon the character of legislatures and the kind of men who will he
+willing to serve in them can well be imagined. It is the influence
+of such treatment that threatens representative institutions in our
+country. Granting that there have been evils in our legislative
+system which ought to be cured, I cannot think that this is the
+right way to cure them. It would seem that the true way is for the
+people of the country to address themselves to the better
+performance of their own duty in selecting their legislative
+representatives and in holding those representatives to strict
+responsibility for their action. The system of direct nominations,
+which is easy of application in the simple proceeding of selecting
+members of a legislature, and the Short Ballot reform aim at
+accomplishing that result. I think that along these lines the true
+remedy is to be found. No system of self-government will continue
+successful unless the voters have sufficient public spirit to
+perform their own duty at the polls, and the attempt to reform
+government by escaping from the duty of selecting honest and
+capable representatives, under the idea that the same voters who
+fail to perform that duty will faithfully perform the far more
+onerous and difficult duty of legislation, seems an exhibition of
+weakness rather than of progress.</p>
+<hr />
+<h3>II - ESSENTIALS</h3>
+<p>In the first of these lectures I specified certain essential
+characteristics of our system of government, and discussed the
+preservation of the first&mdash;its representative character. The
+four other characteristics specified have one feature in common.
+They all aim to preserve rights by limiting power.</p>
+<p>Of these the most fundamental is the preservation in our
+Constitution of the Anglo-Saxon idea of individual liberty. The
+republics of Greece and Rome had no such conception. All political
+ideas necessarily concern man as a social animal, as a member of
+society&mdash;a member of the state. The ancient republics,
+however, put the state first and regarded the individual only as a
+member of the state. They had in view the public rights of the
+state in which all its members shared, and the rights of the
+members as parts of the whole, but they did not think of
+individuals as having rights independent of the state, or against
+the state. They never escaped from the attitude towards public and
+individual civil rights, which was dictated by the original and
+ever-present necessity of military organization and defense.</p>
+<p>The Anglo-Saxon idea, on the other hand, looked first to the
+individual. In the early days of English history, without
+theorizing much upon the subject, the Anglo-Saxons began to work
+out their political institutions along the line expressed in our
+Declaration of Independence, that the individual citizen has
+certain inalienable rights&mdash;the right to life, to liberty, to
+the pursuit of happiness, and that government is not the source of
+these rights, but is the instrument for the preservation and
+promotion of them. So when a century and a half after the conquest
+the barons of England set themselves to limit the power of the
+Crown they did not demand a grant of rights. They asserted the
+rights of individual freedom and demanded observance of them, and
+they laid the corner-stone of our system of government in this
+solemn pledge of the Great Charter:</p>
+<blockquote>"No freeman shall be taken, or imprisoned, or be
+disseized of his free hold, or his liberties, or his free customs,
+or be outlawed, or exiled, or otherwise destroyed, but by the
+lawful judgment of his peers, or by the law of the
+land."</blockquote>
+<p>Again and again in the repeated confirmations of the Great
+Charter, in the Petition of Rights, in the Habeas Corpus Act, in
+the Bill of Rights, in the Massachusetts Body of Liberties, in the
+Virginia Bill of Rights, and, finally, in the immortal Declaration
+of 1776&mdash;in all the great utterances of striving for broader
+freedom which have marked the development of modern liberty, sounds
+the same dominant note of insistence upon the inalienable right of
+individual manhood under government but independent of government,
+and, if need be, against government, to life and liberty.</p>
+<p>It is impossible to overestimate the importance of the
+consequences which followed from these two distinct and opposed
+theories of government. The one gave us the dominion, but also the
+decline and fall of, Rome. It followed the French Declaration of
+the Rights of Man, with the negation of those rights in the
+oppression of the Reign of Terror, the despotism of Napoleon, the
+popular submission to the second empire and the subservience of the
+individual citizen to official superiority which still prevails so
+widely on the continent of Europe. The tremendous potency of the
+other subdued the victorious Normans to the conquered Saxon's
+conception of justice, rejected the claims of divine right by the
+Stewarts, established capacity for self-government upon the
+independence of individual character that knows no superior but the
+law, and supplied the amazing formative power which has molded,
+according to the course and practice of the common law, the thought
+and custom of the hundred millions of men drawn from all lands and
+all races who inhabit this continent north of the Rio Grande.</p>
+<p>The mere declaration of a principle, however, is of little avail
+unless it be supported by practical and specific rules of conduct
+through which the principle shall receive effect. So Magna Charta
+imposed specific limitations upon royal authority to the end that
+individual liberty might be preserved, and so to the same end our
+Declaration of Independence was followed by those great rules of
+right conduct which we call the limitations of the constitution.
+Magna Charta imposed its limitations upon the kings of England and
+all their officers and agents. Our constitution imposed its
+limitations upon the sovereign people and all their officers and
+agents, excluding all the agencies of popular government from
+authority to do the particular things which would destroy or impair
+the declared inalienable right of the individual.</p>
+<p>Thus the constitution provides: No law shall be made by Congress
+prohibiting the free exercise of religion, or abridging the freedom
+of speech or of the press. The right of the people to keep and bear
+arms shall not be infringed. The right of the people to be secure
+in their persons, houses, papers and effects, against unreasonable
+searches and seizures, shall not be violated. No person shall be
+subject for the same offense to be twice put in jeopardy of life or
+limb; nor be compelled, in any criminal case, to be a witness
+against himself; nor be deprived of life, liberty, or property
+without due process of law; nor shall private property be taken for
+public use without just compensation. In all criminal prosecutions,
+the accused shall enjoy the right to a speedy and public trial, by
+an impartial jury of the state and district wherein the crime shall
+have been committed; and to be informed of the nature and cause of
+the accusation, to be confronted with the witnesses against him, to
+have compulsory process for obtaining witnesses in his favor, and
+to have the assistance of counsel for his defense. Excessive bail
+shall not he required, nor excessive fines imposed, nor cruel and
+unusual punishment inflicted. The privilege of the writ of habeas
+corpus shall not be suspended, except in case of rebellion or
+invasion. No bill of attainder or ex post facto law shall be
+passed. And by the Fourteenth Amendment, no state shall deprive any
+person of life, liberty, or property, without due process of law;
+nor deny to any person within its jurisdiction the equal protection
+of the law.</p>
+<p>We have lived so long under the protection of these rules that
+most of us have forgotten their importance. They have been
+unquestioned in America so long that most of us have forgotten the
+reasons for them. But if we lose them we shall learn the reasons by
+hard experience. And we are in some danger of losing them, not all
+at once but gradually, by indifference.</p>
+<p>As Professor Sohm says: "The greatest and most far reaching
+revolutions in history are not consciously observed at the time of
+their occurrence."</p>
+<p>Every one of these provisions has a history. Every one stops a
+way through which the overwhelming power of government has
+oppressed the weak individual citizen, and may do so again if the
+way be opened. Such provisions as these are not mere commands. They
+withhold power. The instant any officer, of whatever kind or grade,
+transgresses them he ceases to act as an officer. The power of
+sovereignty no longer supports him. The majesty of the law no
+longer gives him authority. The shield of the law no longer
+protects him. He becomes a trespasser, a despoiler, a law breaker,
+and all the machinery of the law may be set in motion for his
+restraint or punishment. It is true that the people who have made
+these rules may repeal them. As restraints upon the people
+themselves they are but self-denying ordinances which the people
+may revoke, but the supreme test of capacity for popular
+self-government is the possession of that power of self-restraint
+through which a people can subject its own conduct to the control
+of declared principles of action.</p>
+<p>These rules of constitutional limitation differ from ordinary
+statutes in this, that these rules are made impersonally,
+abstractly, dispassionately, impartially, as the people's
+expression of what they believe to be right and necessary for the
+preservation of their idea of liberty and justice. The process of
+amendment is so guarded by the constitution itself as to require
+the lapse of time and opportunity for deliberation and
+consideration and the passing away of disturbing influences which
+may be caused by special exigencies or excitements, before any
+change can be made. On the contrary, ordinary acts of legislation
+are subject to the considerations of expediency for the attainment
+of the particular objects of the moment, to selfish interests,
+momentary impulses, passions, prejudices, temptations. If there be
+no general rules which control particular action, general
+principles are obscured or set aside by the desires and impulses of
+the occasion. Our knowledge of the weakness of human nature and
+countless illustrations from the history of legislation in our own
+country point equally to the conclusion that if governmental
+authority is to be controlled by rules of action, it cannot be
+relied upon to impose those rules upon itself at the time of
+action, but must have them prescribed beforehand.</p>
+<p>The second class of limitations upon official power provided in
+our constitution prescribe and maintain the distribution of power
+to the different departments of government and the limitations upon
+the officers invested with authority in each department. This
+distribution follows the natural and logical lines of the
+distinction between the different kinds of power&mdash;legislative,
+executive, and judicial. But the precise allotment of power and
+lines of distinction are not so important as it is that there shall
+be distribution, and that each officer shall be limited in
+accordance with that distribution, for without such limitations
+there can be no security for liberty. If, whatever great officer of
+state happens to be the most forceful, skillful, and ambitious, is
+permitted to overrun and absorb to himself the powers of all other
+officers and to control their action, there ensues that
+concentration of power which destroys the working of free
+institutions, enables the holder to continue himself in power, and
+leaves no opportunity to the people for a change except through a
+revolution. Numerous instances of this very process are furnished
+by the history of some of the Spanish-American republics. It is of
+little consequence that the officer who usurps the power of others
+may design only to advance the public interest and to govern well.
+The system which permits an honest and well-meaning man to do this
+will afford equal opportunity for selfish ambition to usurp power
+in its own interest. Unlimited official power concentrated in one
+person is despotism, and it is only by carefully observed and
+jealously maintained limitations upon the power of every public
+officer that the workings of free institutions can be
+continued.</p>
+<p>The rigid limitation of official power is necessary not only to
+prevent the deprivation of substantial rights by acts of
+oppression, but to maintain that equality of political condition
+which is so important for the independence of individual character
+among the people of the country. When an officer has authority over
+us only to enforce certain specific laws at particular times and
+places, and has no authority regarding anything else, we pay
+deference to the law which he represents, but the personal relation
+is one of equality. Give to that officer, however, unlimited power,
+or power which we do not know to be limited, and the relation at
+once becomes that of an inferior to a superior. The inevitable
+result of such a relation long continued is to deprive the people
+of the country of the individual habit of independence. This may be
+observed in many of the countries of Continental Europe, where
+official persons are treated with the kind of deference, and
+exercise the kind of authority, which are appropriate only to the
+relations between superior and inferior.</p>
+<p>So the Massachusetts Constitution of 1780, after limiting the
+powers of each department to its own field, declares that this is
+done "to the end it may be a government of laws and not of
+men."</p>
+<p>The third class of limitations I have mentioned are those made
+necessary by the novel system which I have described as
+superimposing upon a federation of state governments, a national
+government acting directly upon the individual citizens of the
+states. This expedient was wholly unknown before the adoption of
+our constitution. All the confederations which had been attempted
+before that time were simply leagues of states, and whatever
+central authority there was derived its authority from and had its
+relations with the states as separate bodies politic. This was so
+of the old confederation. Each citizen owed his allegiance to his
+own state and each state had its obligations to the confederation.
+Under our constitutional system in every part of the territory of
+every state there are two sovereigns, and every citizen owes
+allegiance to both sovereigns&mdash;to his state and to his nation.
+In regard to some matters, which may generally be described as
+local, the state is supreme. In regard to other matters, which may
+generally be described as national, the nation is supreme. It is
+plain that to maintain the line between these two sovereignties
+operating in the same territory and upon the same citizens is a
+matter of no little difficulty and delicacy. Nothing has involved
+more constant discussion in our political history than questions of
+conflict between these two powers, and we fought the great Civil
+War to determine the question whether in case of conflict the
+allegiance to the state or the allegiance to the nation was of
+superior obligation. We should observe that the Civil War arose
+because the constitution did not draw a clear line between the
+national and state powers regarding slavery. It is of very great
+importance that both of these authorities, state and national,
+shall be preserved together and that the limitations which keep
+each within its proper province shall be maintained. If the power
+of the states were to override the power of the nation we should
+ultimately cease to have a nation and become only a body of really
+separate, although confederated, state sovereignties continually
+forced apart by diverse interests and ultimately quarreling with
+each other and separating altogether. On the other hand, if the
+power of the nation were to override that of the states and usurp
+their functions we should have this vast country, with its great
+population, inhabiting widely separated regions, differing in
+climate, in production, in industrial and social interests and
+ideas, governed in all its local affairs by one all-powerful,
+central government at Washington, imposing upon the home life and
+behavior of each community the opinions and ideas of propriety of
+distant majorities. Not only would this be intolerable and alien to
+the idea of free self-government, but it would be beyond the power
+of a central government to do directly. Decentralization would be
+made necessary by the mass of government business to be transacted,
+and so our separate localities would come to be governed by
+delegated authority&mdash;by proconsuls authorized from Washington
+to execute the will of the great majority of the whole people. No
+one can doubt that this also would lead by its different route to
+the separation of our Union. Preservation of our dual system of
+government, carefully restrained in each of its parts by the
+limitations of the constitution, has made possible our growth in
+local self-government and national power in the past, and, so far
+as we can see, it is essential to the continuance of that
+government in the future.</p>
+<p>All of these three classes of constitutional limitations are
+therefore necessary to the perpetuity of our government. I do not
+wish to be understood as saying that every single limitation is
+essential. There are some limitations that might be changed and
+something different substituted. But the system of limitation must
+be continued if our governmental system is to continue&mdash;if we
+are not to lose the fundamental principles of government upon which
+our Union is maintained and upon which our race has won the liberty
+secured by law for which it has stood foremost in the world.</p>
+<p>Lincoln covered this subject in one of his comprehensive
+statements that cannot be quoted too often. He said in the first
+inaugural:</p>
+<blockquote>"A majority held in restraint by constitutional checks
+and limitations and always changing easily with deliberate changes
+of popular opinion and sentiments the only true sovereign of a free
+people. Whoever rejects it does of necessity fly to anarchy or
+despotism."</blockquote>
+<p>Rules of limitation, however, are useless unless they are
+enforced. The reason for restraining rules arises from a tendency
+to do the things prohibited. Otherwise no rule would be needed.
+Against all practical rules of limitation&mdash;all rules limiting
+official conduct, there is a constant pressure from one side or the
+other. Honest differences of opinion as to the extent of power,
+arising from different points of view make this inevitable, to say
+nothing of those weaknesses and faults of human nature which lead
+men to press the exercise of power to the utmost under the
+influence of ambition, of impatience with opposition to their
+designs, of selfish interest and the arrogance of office. No mere
+paper rules will restrain these powerful and common forces of human
+nature.</p>
+<p>The agency by which, under our system of government, observance
+of constitutional limitation is enforced is the judicial power. The
+constitution provides that "This constitution, and the laws of the
+United States which shall be made in pursuance thereof, and all
+treaties made, or which shall be made, under the authority of the
+United States, shall be the supreme law of the land; and the judges
+in every state shall be bound thereby, anything in the constitution
+or laws of any state to the contrary notwithstanding." Under this
+provision an enactment by Congress not made in pursuance of the
+constitution, or an enactment of a state contrary to the
+constitution, is not a law. Such an enactment should strictly have
+no more legal effect than the resolution of any private debating
+society. The constitution also provides that the judicial power of
+the United States shall extend to all cases in law and equity
+arising under the constitution and laws of the United States.
+Whenever, therefore, in a case before a Federal court rights are
+asserted under or against some law which is claimed to violate some
+limitation of the constitution, the court is obliged to say whether
+the law does violate the constitution or not, because if it does
+not violate the constitution the court must give effect to it as
+law, while if it does violate the constitution it is no law at all
+and the court is not at liberty to give effect to it. The courts do
+not render decisions like imperial rescripts declaring laws valid
+or invalid. They merely render judgment on the rights of the
+litigants in particular cases, and in arriving at their judgment
+they refuse to give effect to statutes which they find clearly not
+to be made in pursuance of the constitution and therefore to be no
+laws at all. Their judgments are technically binding only in the
+particular case decided, but the knowledge that the court of last
+resort has reached such a conclusion concerning a statute, and that
+a similar conclusion would undoubtedly be reached in every case of
+an attempt to found rights upon the same statute, leads to a
+general acceptance of the invalidity of the statute.</p>
+<p>There is only one alternative to having the courts decide upon
+the validity of legislative acts, and that is by requiring the
+courts to treat the opinion of the legislature upon the validity of
+its statutes, evidenced by their passage, as conclusive. But the
+effect of this would be that the legislature would not be limited
+at all except by its own will. All the provisions designed to
+maintain a government carried on by officers of limited powers, all
+the distinctions between what is permitted to the national
+government and what is permitted to the state governments, all the
+safeguards of the life, liberty and property of the citizen against
+arbitrary power, would cease to bind Congress, and on the same
+theory they would cease also to bind the legislatures of the
+states. Instead of the constitution being superior to the laws the
+laws would be superior to the constitution, and the essential
+principles of our government would disappear. More than one hundred
+years ago, Chief Justice Marshall, in the great case of Marbury
+<i>vs</i>. Madison, set forth the view upon which our government
+has ever since proceeded. He said:</p>
+<blockquote>"The powers of the legislature are defined and limited;
+and that those limits may not be mistaken or forgotten, the
+constitution is written. To what purpose are powers limited, and to
+what purpose is that limit committed to writing, if these limits
+may, at any time, be passed by those intended to be restrained? The
+distinction between a government with limited and unlimited powers
+is abolished, if those limits do not confine the persons on whom
+they are imposed, and if acts prohibited and acts allowed are of
+equal obligation. It is a proposition too plain to be contested,
+that the constitution controls any legislative act repugnant to it;
+or that the legislature may alter the constitution by an ordinary
+act.</blockquote>
+<blockquote>"Between these alternatives, there is no middle ground.
+The constitution is either a superior, paramount law, unchangeable
+by ordinary means, or it is on a level with ordinary legislative
+acts, and, like other acts, is alterable when the legislature shall
+please to alter it. If the former part of the alternative be true,
+then a legislative act, contrary to the constitution, is not law:
+if the latter part be true, then written constitutions are absurd
+attempts, on the part of the people, to limit a power, in its own
+nature, inimitable.</blockquote>
+<blockquote>"Certainly, all those who have framed written
+constitutions contemplate them as forming the fundamental and
+paramount law of the nation, and consequently, the theory of every
+such government must be, that an act of the legislature, repugnant
+to the constitution, is void. This theory is essentially attached
+to a written constitution, and is, consequently, to be considered
+by this court as one of the fundamental principles of our
+society."</blockquote>
+<p>And of the same opinion was Montesquieu who gave the high
+authority of the <i>Esprit des Lois</i> to the declaration that</p>
+<blockquote>"There is no liberty if the power of judging be not
+separate from the legislative and executive powers; were it joined
+with the legislative the life and liberty of the subject would be
+exposed to arbitrary control."</blockquote>
+<p>It is to be observed that the wit of man has not yet devised any
+better way of reaching a just conclusion as to whether a statute
+does or does not conflict with a constitutional limitation upon
+legislative power than the submission of the question to an
+independent and impartial court. The courts are not parties to the
+transactions upon which they pass. They are withdrawn by the
+conditions of their office from participation in business and
+political affairs out of which litigations arise. Their action is
+free from the chief dangers which threaten the undue extension of
+power, because, as Hamilton points out in The Federalist, they are
+the weakest branch of government: they neither hold the purse, as
+does the legislature, nor the sword, as does the executive. During
+all our history they have commanded and deserved the respect and
+confidence of the people. General acceptance of their conclusions
+has been the chief agency in preventing here the discord and strife
+which afflict so many lands, and in preserving peace and order and
+respect for law.</p>
+<p>Indeed in the effort to emasculate representative government to
+which I have already referred, the people of the experimenting
+states have greatly increased their reliance upon the courts. Every
+new constitution with detailed orders to the legislature is a
+forcible assertion that the people will not trust legislatures to
+determine the extent of their own powers, but will trust the
+courts.</p>
+<p>Two of the new proposals in government, which have been much
+discussed, directly relate to this system of constitutional
+limitations made effective through the judgment of the courts. One
+is the proposal for the Recall of Judges, and the other for the
+Popular Review of Decisions, sometimes spoken of as the Recall of
+Decisions.</p>
+<p>Under the first of these proposals, if a specified proportion of
+the voters are dissatisfied with a judge's decision they are
+empowered to require that at the next election, or at a special
+election called for that purpose, the question shall be presented
+to the electors whether the judge shall be permitted to continue in
+office or some other specified person shall be substituted in his
+place. This ordeal differs radically from the popular judgment
+which a judge is called upon to meet at the end of his term of
+office, however short that may be, because when his term has
+expired he is judged upon his general course of conduct while he
+has been in office and stands or falls upon that as a whole. Under
+the Recall a judge may be brought to the bar of public judgment
+immediately upon the rendering of a particular decision which
+excites public interest and he will be subject to punishment if
+that decision is unpopular. Judges will naturally be afraid to
+render unpopular decisions. They will hear and decide cases with a
+stronger incentive to avoid condemnation themselves than to do
+justice to the litigant or the accused. Instead of independent and
+courageous judges we shall have timid and time-serving judges. That
+highest duty of the judicial power to extend the protection of the
+law to the weak, the friendless, the unpopular, will in a great
+measure fail. Indirectly the effect will be to prevent the
+enforcement of the essential limitations upon official power
+because the judges will be afraid to declare that there is a
+violation when the violation is to accomplish some popular
+object.</p>
+<p>The Recall of Decisions aims directly at the same result. Under
+such an arrangement, if the courts have found a particular law to
+be a violation of one of the fundamental rules of limitation
+prescribed in the constitution, and the public feeling of the time
+is in favor of disregarding that limitation in that case, an
+election is to be held, and if the people in the election vote that
+the law shall stand, it is to stand, although it be a violation of
+the constitution; that is to say, if at any time a majority of the
+voters of a state (and ultimately the same would be true of the
+people of the United States) choose not to be bound in any
+particular case by the rule of right conduct which they have
+established for themselves, they are not to be bound. This is
+sometimes spoken of as a Popular Reversal of the Decisions of
+Courts. That I take to be an incorrect view. The power which would
+be exercised by the people under such an arrangement would be, not
+judicial, but legislative. The action would not be a decision that
+the court was wrong in finding a law unconstitutional, but it would
+be making a law valid which was invalid before because
+unconstitutional. In such an election the majority of the voters
+would make a law where no law had existed before; and they would
+make that law in violation of the rules of conduct by which the
+people themselves had solemnly declared they ought to be bound. The
+exercise of such a power, if it is to exist, cannot be limited to
+the particular cases which you or I or any man now living may have
+in mind. It must be general. If it can be exercised at all it can
+and will be exercised by the majority whenever they wish to
+exercise it. If it can be employed to make a Workmen's Compensation
+Act in such terms as to violate the constitution, it can be
+employed to prohibit the worship of an unpopular religious sect, or
+to take away the property of an unpopular rich man without
+compensation, or to prohibit freedom of speech and of the press in
+opposition to prevailing opinion, or to deprive one accused of
+crime of a fair trial when he has been condemned already by the
+newspapers. In every case the question whether the majority shall
+be bound by those general principles of action which the people
+have prescribed for themselves will be determined in that case by
+the will of the majority, and therefore in no case will the
+majority be bound except by its own will at the time.</p>
+<p>The exercise of such a power would strike at the very foundation
+of our system of government. It would be a reversion to the system
+of the ancient republics where the state was everything and the
+individual nothing except as a part of the state, and where liberty
+perished. It would be a repudiation of the fundamental principle of
+Anglo-Saxon liberty which we inherit and maintain, for it is the
+very soul of our political institutions that they protect the
+individual against the majority. "All men," says the Declaration,
+"are endowed by their Creator with inalienable rights. Governments
+are instituted to secure these rights." The rights are not derived
+from any majority. They are not disposable by any majority. They
+are superior to all majorities. The weakest minority, the most
+despised sect, exist by their own right. The most friendless and
+lonely human being on American soil holds his right to life and
+liberty and the pursuit of happiness, and all that goes to make
+them up by title indefeasible against the world, and it is the
+glory of American self-government that by the limitations of the
+constitution we have protected that right against even ourselves.
+That protection cannot be continued and that right cannot be
+maintained, except by jealously preserving at all times and under
+all circumstances the rule of principle which is eternal over the
+will of majorities which shift and pass away.</p>
+<p>Democratic absolutism is just as repulsive, and history has
+shown it to be just as fatal, to the rights of individual manhood
+as is monarchical absolutism.</p>
+<p>But it is not necessary to violate the rules of action which we
+have established for ourselves in the constitution in order to deal
+by law with the new conditions of the time, for these rules of
+action are themselves subject to popular control. If the rules are
+so stated that they are thought to prevent the doing of something
+which is not contrary to the principles of liberty but demanded by
+them, the true remedy is to be found in reconsidering what the
+rules ought to be and, if need be, in restating them so that they
+will give more complete effect to the principles they are designed
+to enforce. If, as I believe, there ought to be in my own state,
+for example, a Workman's Compensation Act to supersede the present
+unsatisfactory system of accident litigation, and if the
+constitution forbids such a law&mdash;which I very much
+doubt&mdash;the true remedy is not to cast to the winds all
+systematic self-restraint and to inaugurate a new system of doing
+whatever we please whenever we please, unrestrained by declared
+rules of conduct; but it is to follow the orderly and ordinary
+method of amending the constitution so that the rule protecting the
+right to property shall not be so broadly stated as to prevent
+legislation which the principle underlying the rule demands.</p>
+<p>The difference between the proposed practice of overriding the
+constitution by a vote and amending the constitution is vital. It
+is the difference between breaking a rule and making a rule;
+between acting without any rule in a particular case and
+determining what ought to be the rule of action applicable to all
+cases.</p>
+<p>Our legislatures frequently try to evade constitutional
+provisions, and doubtless popular majorities seeking specific
+objects would vote the same way, but set the same people to
+consider what the fundamental law ought to be, and confront them
+with the question whether they will abandon in general the
+principles and the practical rules of conduct according to
+principles, upon which our government rests, and they will
+instantly refuse. While their minds are consciously and avowedly
+addressed to that subject they will stand firm for the general
+rules that will protect them and their children against oppression
+and usurpation, and they will change those rules only if need be to
+make them enforce more perfectly the principles which underlie
+them.</p>
+<p>Communities, like individuals, will declare for what they
+believe to be just and right; but communities, like individuals,
+can be led away from their principles step by step under the
+temptations of specific desires and supposed expediencies until the
+principles are a dead letter and allegiance to them is a mere
+sham.</p>
+<p>And that is the way in which popular governments lose their
+vitality and perish.</p>
+<p>The Roman consuls derived their power from the people and were
+responsible to the people; but Rome went on pretending that the
+emperors and their servants were consuls long after the Praetorians
+were the only source of power and the only power exercised was that
+of irresponsible despotism.</p>
+<p>A number of countries have copied our constitution coupled with
+a provision that the constitutional guarantees may be suspended in
+case of necessity. We are all familiar with the result. The
+guarantees of liberty and justice and order have been forgotten:
+the government is dictatorship and the popular will is expressed
+only by revolution.</p>
+<p>Nor, so far as our national system is concerned has there yet
+appeared any reason to suppose that suitable laws to meet the new
+conditions cannot be enacted without either overriding or amending
+the constitution. The liberty of contract and the right of private
+property which are protected by the limitations of the constitution
+are held subject to the police power of government to pass and
+enforce laws for the protection of the public health, public
+morals, and public safety. The scope and character of the
+regulations required to accomplish these objects vary as the
+conditions of life in the country vary. Many interferences with
+contract and with property which would have been unjustifiable a
+century ago are demanded by the conditions which exist now and are
+permissible without violating any constitutional limitation. What
+will promote these objects the legislative power decides with large
+discretion, and the courts have no authority to review the exercise
+of that discretion. It is only when laws are passed under color of
+the police power and having no real or substantial relation to the
+purposes for which the power exists, that the courts can refuse to
+give them effect. By a multitude of judicial decisions in recent
+years our courts have sustained the exercise of this vast and
+progressive power in dealing with the new conditions of life under
+a great variety of circumstances. The principal difficulty in
+sustaining the exercise of the power has been caused ordinarily by
+the fact that carelessly or ignorantly drawn statutes either have
+failed to exhibit the true relation between the regulation proposed
+and the object sought, or have gone farther than the attainment of
+the legitimate object justified. A very good illustration of this
+is to be found in the Federal Employer's Liability Act which was
+carelessly drawn and passed by Congress in 1906 and was declared
+unconstitutional by the Supreme Court, but which was carefully
+drawn and passed by Congress in 1908 and was declared
+constitutional by the same court.</p>
+<p>Insistence upon hasty and violent methods rather than orderly
+and deliberate methods is really a result of impatience with the
+slow methods of true progress in popular government. We should
+probably make little progress were there not in every generation
+some men who, realizing evils, are eager for reform, impatient of
+delay, indignant at opposition, and intolerant of the long, slow
+processes by which the great body of the people may consider new
+proposals in all their relations, weigh their advantages and
+disadvantages, discuss their merits, and become educated either to
+their acceptance or rejection. Yet that is the method of progress
+in which no step, once taken, needs to be retraced; and it is the
+only way in which a democracy can avoid destroying its institutions
+by the impulsive substitution of novel and attractive but
+impracticable expedients.</p>
+<p>The wisest of all the fathers of the Republic has spoken, not
+for his own day alone but for all generations to come after him, in
+the solemn admonitions of the Farewell Address. It was to us that
+Washington spoke when he said:</p>
+<blockquote>"The basis of our political systems is the right of the
+people to make and to alter their constitutions of government; but
+the Constitution which at any time exists, till changed by an
+explicit and authentic act of the whole people, is sacredly
+obligatory upon all.... Towards the preservation of your
+government, and the permanency of your present happy state, it is
+requisite, not only that you steadily discountenance irregular
+oppositions to its acknowledged authority, but also that you resist
+with care the spirit of innovation upon its principles, however
+specious the pretexts. One method of assault may be to effect, in
+the forms of the Constitution, alterations which will impair the
+energy of the system, and thus to undermine what cannot be directly
+overthrown. In all the changes to which you may be invited,
+remember that time and habit are at least as necessary to fix the
+true character of governments as of other human institutions; that
+experience is the surest standard by which to test the real
+tendency of the existing constitution of a country; that facility
+in changes, upon the credit of mere hypothesis and opinion, exposes
+to perpetual changes, from the endless variety of hypothesis and
+opinion."</blockquote>
+<p>While, in the nature of things, each generation must assume the
+task of adapting the working of its government to new conditions of
+life as they arise, it would be the folly of ignorant conceit for
+any generation to assume that it can lightly and easily improve
+upon the work of the founders in those matters which are, by their
+nature, of universal application to the permanent relations of men
+in civil society.</p>
+<p>Religion, the philosophy of morals, the teaching of history, the
+experience of every human life, point to the same
+conclusion&mdash;that in the practical conduct of life the most
+difficult and the most necessary virtue is self-restraint. It is
+the first lesson of childhood; it is the quality for which great
+monarchs are most highly praised; the man who has it not is feared
+and shunned; it is needed most where power is greatest; it is
+needed more by men acting in a mass than by individuals, because
+men in the mass are more irresponsible and difficult of control
+than individuals. The makers of our constitution, wise and earnest
+students of history and of life, discerned the great truth that
+self-restraint is the supreme necessity and the supreme virtue of a
+democracy. The people of the United States have exercised that
+virtue by the establishment of rules of right action in what we
+call the limitations of the constitution, and until this day they
+have rigidly observed those rules. The general judgment of students
+of government is that the success and permanency of the American
+system of government are due to the establishment and observance of
+such general rules of conduct. Let us change and adapt our laws as
+the shifting-conditions of the times require, but let us never
+abandon or weaken this fundamental and essential characteristic of
+our ordered liberty.</p>
+<br />
+<div>*** END OF THE PROJECT GUTENBERG EBOOK 10485 ***</div>
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+<h1>The Project Gutenberg eBook, Experiments in Government and the Essentials
+of the Constitution, by Elihu Root</h1>
+<pre>
+This eBook is for the use of anyone anywhere at no cost and with
+almost no restrictions whatsoever.  You may copy it, give it away or
+re-use it under the terms of the Project Gutenberg License included
+with this eBook or online at <a href = "https://www.gutenberg.org">www.gutenberg.org</a></pre>
+<p>Title: Experiments in Government and the Essentials of the Constitution</p>
+<p>Author: Elihu Root</p>
+<p>Release Date: December 17, 2003  [eBook #10485]</p>
+<p>Language: English</p>
+<p>Character set encoding: US-ASCII</p>
+<p>***START OF THE PROJECT GUTENBERG EBOOK EXPERIMENTS IN GOVERNMENT AND THE ESSENTIALS OF THE CONSTITUTION***</p>
+<br />
+<br />
+<center><h3>E-text prepared by Afra Ullah, Lazar Liveanu, David King,<br />
+            and the Project Gutenberg Online Distributed Proofreading Team</h3></center>
+<br />
+<hr class="full" />
+<br />
+<h1>EXPERIMENTS IN GOVERNMENT AND THE ESSENTIALS OF THE
+CONSTITUTION</h1>
+<h2>BY ELIHU ROOT</h2>
+<hr />
+<h2>PREFACE</h2>
+<p>The familiar saying that nothing is settled until it is settled
+right expresses only a half truth. Questions of general and
+permanent importance are seldom finally settled. A very wise man
+has said that "short of the multiplication table there is no truth
+and no fact which must not be proved over again as if it had never
+been proved, from time to time." Conceptions of social rights and
+obligations and the institutions based upon them continue
+unquestioned for long periods as postulates in all discussions upon
+questions of government. Whatever conduct conforms to them is
+assumed to be right. Whatever is at variance with them is assumed
+to be wrong. Then a time comes when, with apparent suddenness, the
+ground of discussion shifts and the postulates are denied. They
+cease to be accepted without proof and the whole controversy in
+which they were originally established is fought over again.</p>
+<p>The people of the United States appear now to have entered upon
+such a period of re-examination of their system of government. Not
+only are political parties denouncing old abuses and demanding new
+laws, but essential principles embodied in the Federal Constitution
+of 1787, and long followed in the constitutions of all the states,
+are questioned and denied. The wisdom of the founders of the
+Republic is disputed and the political ideas which they repudiated
+are urged for approval.</p>
+<p>I wish in these lectures to present some observations which may
+have a useful application in the course of this process.</p>
+<h3>I - EXPERIMENTS</h3>
+<p>There are two separate processes going on among the civilized
+nations at the present time. One is an assault by socialism against
+the individualism which underlies the social system of western
+civilization. The other is an assault against existing institutions
+upon the ground that they do not adequately protect and develop the
+existing social order. It is of this latter process in our own
+country that I wish to speak, and I assume an agreement, that the
+right of individual liberty and the inseparable right of private
+property which lie at the foundation of our modern civilization
+ought to be maintained.</p>
+<p>The conditions of life in America have changed very much since
+the Constitution of the United States was adopted. In 1787 each
+state entering into the Federal Union had preserved the separate
+organic life of the original colony. Each had its center of social
+and business and political life. Each was separated from the others
+by the barriers of slow and difficult communication. In a vast
+territory, without railroads or steamships or telegraph or
+telephone, each community lived within itself.</p>
+<p>Now, there has been a general social and industrial
+rearrangement. Production and commerce pay no attention to state
+lines. The life of the country is no longer grouped about state
+capitals, but about the great centers of continental production and
+trade. The organic growth which must ultimately determine the form
+of institutions has been away from the mere union of states towards
+the union of individuals in the relation of national
+citizenship.</p>
+<p>The same causes have greatly reduced the independence of
+personal and family life. In the eighteenth century life was
+simple. The producer and consumer were near together and could find
+each other. Every one who had an equivalent to give in property or
+service could readily secure the support of himself and his family
+without asking anything from government except the preservation of
+order. To-day almost all Americans are dependent upon the action of
+a great number of other persons mostly unknown. About half of our
+people are crowded into the cities and large towns. Their food,
+clothes, fuel, light, water&mdash;all come from distant sources, of
+which they are in the main ignorant, through a vast, complicated
+machinery of production and distribution with which they have
+little direct relation. If anything occurs to interfere with the
+working of the machinery, the consumer is individually helpless. To
+be certain that he and his family may continue to live he must seek
+the power of combination with others, and in the end he inevitably
+calls upon that great combination of all citizens which we call
+government to do something more than merely keep the peace&mdash;to
+regulate the machinery of production and distribution and safeguard
+it from interference so that it shall continue to work.</p>
+<p>A similar change has taken place in the conditions under which a
+great part of our people engage in the industries by which they get
+their living. Under comparatively simple industrial conditions the
+relation between employer and employee was mainly a relation of
+individual to individual, with individual freedom of contract and
+freedom of opportunity essential to equality in the commerce of
+life. Now, in the great manufacturing, mining, and transportation
+industries of the country, instead of the free give and take of
+individual contract there is substituted a vast system of
+collective bargaining between great masses of men organized and
+acting through their representatives, or the individual on the one
+side accepts what he can get from superior power on the other. In
+the movement of these mighty forces of organization the individual
+laborer, the individual stockholder, the individual consumer, is
+helpless.</p>
+<p>There has been another change of conditions through the
+development of political organization. The theory of political
+activity which had its origin approximately in the administration
+of President Jackson, and which is characterized by Marcy's
+declaration that "to the victors belong the spoils," tended to make
+the possession of office the primary and all-absorbing purpose of
+political conflict. A complicated system of party organization and
+representation grew up under which a disciplined body of party
+workers in each state supported each other, controlled the
+machinery of nomination, and thus controlled nominations. The
+members of state legislatures and other officers, when elected,
+felt a more acute responsibility to the organization which could
+control their renomination than to the electors, and therefore
+became accustomed to shape their conduct according to the wishes of
+the nominating organization. Accordingly the real power of
+government came to be vested to a high degree in these unofficial
+political organizations, and where there was a strong man at the
+head of an organization his control came to be something very
+closely approaching dictatorship. Another feature of this system
+aggravated its evils. As population grew, political campaigns
+became more expensive. At the same time, as wealth grew,
+corporations for production and transportation increased in capital
+and extent of operations and became more dependent upon the
+protection or toleration of government. They found a ready means to
+secure this by contributing heavily to the campaign funds of
+political organizations, and therefore their influence played a
+large part in determining who should be nominated and elected to
+office. So that in many states political organizations controlled
+the operations of government, in accordance with the wishes of the
+managers of the great corporations. Under these circumstances our
+governmental institutions were not working as they were intended to
+work, and a desire to break up and get away from this extra
+constitutional method of controlling our constitutional government
+has caused a great part of the new political methods of the last
+few years. It is manifest that the laws which were entirely
+adequate under the conditions of a century ago to secure individual
+and public welfare must be in many respects inadequate to
+accomplish the same results under all these new conditions; and our
+people are now engaged in the difficult but imperative duty of
+adapting their laws to the life of to-day. The changes in
+conditions have come very rapidly and a good deal of experiment
+will be necessary to find out just what government can do and ought
+to do to meet them.</p>
+<p>The process of devising and trying new laws to meet new
+conditions naturally leads to the question whether we need not
+merely to make new laws but also to modify the principles upon
+which our government is based and the institutions of government
+designed for the application of those principles to the affairs of
+life. Upon this question it is of the utmost importance that we
+proceed with considerate wisdom.</p>
+<p>By institutions of government I mean the established rule or
+order of action through which the sovereign (in our case the
+sovereign people) attains the ends of government. The governmental
+institutions of Great Britain have been established by the growth
+through many centuries of a great body of accepted rules and
+customs which, taken together, are called the British Constitution.
+In this country we have set forth in the Declaration of
+Independence the principles which we consider to lie at the basis
+of civil society "that all men are created equal; that they are
+endowed, by their Creator, with certain unalienable rights; that
+among these are life, liberty, and the pursuit of happiness. That
+to secure these rights, governments are instituted among men,
+deriving their just powers from the consent of the governed."</p>
+<p>In our Federal and State Constitutions we have established the
+institutions through which these rights are to be secured. We have
+declared what officers shall make the laws, what officers shall
+execute them, what officers shall sit in judgment upon claims of
+right under them. We have prescribed how these officers shall be
+selected and the tenure by which they shall hold their offices. We
+have limited them in the powers which they are to exercise, and,
+where it has been deemed necessary, we have imposed specific duties
+upon them. The body of rules thus prescribed constitute the
+governmental institutions of the United States.</p>
+<p>When proposals are made to change these institutions there are
+certain general considerations which should be observed.</p>
+<p>The first consideration is that free government is impossible
+except through prescribed and established governmental
+institutions, which work out the ends of government through many
+separate human agents, each doing his part in obedience to law.
+Popular will cannot execute itself directly except through a mob.
+Popular will cannot get itself executed through an irresponsible
+executive, for that is simple autocracy. An executive limited only
+by the direct expression of popular will cannot be held to
+responsibility against his will, because, having possession of all
+the powers of government, he can prevent any true, free, and
+general expression adverse to himself, and unless he yields
+voluntarily he can be overturned only by a revolution. The familiar
+Spanish-American dictatorships are illustrations of this. A
+dictator once established by what is or is alleged to be public
+choice never permits an expression of public will which will
+displace him, and he goes out only through a new revolution because
+he alone controls the machinery through which he could be displaced
+peaceably. A system with a plebiscite at one end and Louis Napoleon
+at the other could not give France free government; and it was only
+after the humiliation of defeat in a great war and the horrors of
+the Commune that the French people were able to establish a
+government that would really execute their will through carefully
+devised institutions in which they gave their chief executive very
+little power indeed.</p>
+<p>We should, therefore, reject every proposal which involves the
+idea that the people can rule merely by voting, or merely by voting
+and having one man or group of men to execute their will.</p>
+<p>A second consideration is that in estimating the value of any
+system of governmental institutions due regard must be had to the
+true functions of government and to the limitations imposed by
+nature upon what it is possible for government to accomplish. We
+all know of course that we cannot abolish all the evils in this
+world by statute or by the enforcement of statutes, nor can we
+prevent the inexorable law of nature which decrees that suffering
+shall follow vice, and all the evil passions and folly of mankind.
+Law cannot give to depravity the rewards of virtue, to indolence
+the rewards of industry, to indifference the rewards of ambition,
+or to ignorance the rewards of learning. The utmost that government
+can do is measurably to protect men, not against the wrong they do
+themselves but against wrong done by others and to promote the
+long, slow process of educating mind and character to a better
+knowledge and nobler standards of life and conduct. We know all
+this, but when we see how much misery there is in the world and
+instinctively cry out against it, and when we see some things that
+government may do to mitigate it, we are apt to forget how little
+after all it is possible for any government to do, and to hold the
+particular government of the time and place to a standard of
+responsibility which no government can possibly meet. The chief
+motive power which has moved mankind along the course of
+development that we call the progress of civilization has been the
+sum total of intelligent selfishness in a vast number of
+individuals, each working for his own support, his own gain, his
+own betterment. It is that which has cleared the forests and
+cultivated the fields and built the ships and railroads, made the
+discoveries and inventions, covered the earth with commerce,
+softened by intercourse the enmities of nations and races, and made
+possible the wonders of literature and of art. Gradually, during
+the long process, selfishness has grown more intelligent, with a
+broader view of individual benefit from the common good, and
+gradually the influences of nobler standards of altruism, of
+justice, and human sympathy have impressed themselves upon the
+conception of right conduct among civilized men. But the complete
+control of such motives will be the millennium. Any attempt to
+enforce a millennial standard now by law must necessarily fail, and
+any judgment which assumes government's responsibility to enforce
+such a standard must be an unjust judgment. Indeed, no such
+standard can ever be forced. It must come, not by superior force,
+but from the changed nature of man, from his willingness to be
+altogether just and merciful.</p>
+<p>A third consideration is that it is not merely useless but
+injurious for government to attempt too much. It is manifest that
+to enable it to deal with the new conditions I have described we
+must invest government with authority to interfere with the
+individual conduct of the citizen to a degree hitherto unknown in
+this country. When government undertakes to give the individual
+citizen protection by regulating the conduct of others towards him
+in the field where formerly he protected himself by his freedom of
+contract, it is limiting the liberty of the citizen whose conduct
+is regulated and taking a step in the direction of paternal
+government. While the new conditions of industrial life make it
+plainly necessary that many such steps shall be taken, they should
+be taken only so far as they are necessary and are effective.
+Interference with individual liberty by government should be
+jealously watched and restrained, because the habit of undue
+interference destroys that independence of character without which
+in its citizens no free government can endure.</p>
+<p>We should not forget that while institutions receive their form
+from national character they have a powerful reflex influence upon
+that character. Just so far as a nation allows its institutions to
+be moulded by its weaknesses of character rather than by its
+strength it creates an influence to increase weakness at the
+expense of strength.</p>
+<p>The habit of undue interference by government in private affairs
+breeds the habit of undue reliance upon government in private
+affairs at the expense of individual initiative, energy,
+enterprise, courage, independent manhood.</p>
+<p>The strength of self-government and the motive power of progress
+must be found in the characters of the individual citizens who make
+up a nation. Weaken individual character among a people by
+comfortable reliance upon paternal government and a nation soon
+becomes incapable of free self-government and fit only to be
+governed: the higher and nobler qualities of national life that
+make for ideals and effort and achievement become atrophied and the
+nation is decadent.</p>
+<p>A fourth consideration is that in the nature of things all
+government must be imperfect because men are imperfect. Every
+system has its shortcomings and inconveniences; and these are seen
+and felt as they exist in the system under which we live, while the
+shortcomings and inconveniences of other systems are forgotten or
+ignored.</p>
+<p>It is not unusual to see governmental methods reformed and after
+a time, long enough to forget the evils that caused the change, to
+have a new movement for a reform which consists in changing back to
+substantially the same old methods that were cast out by the first
+reform.</p>
+<p>The recognition of shortcomings or inconveniences in government
+is not by itself sufficient to warrant a change of system. There
+should be also an effort to estimate and compare the shortcomings
+and inconveniences of the system to be substituted, for although
+they may be different they will certainly exist.</p>
+<p>A fifth consideration is that whatever changes in government are
+to be made, we should follow the method which undertakes as one of
+its cardinal points to hold fast that which is good. Francis
+Lieber, whose affection for the country of his birth equalled his
+loyalty to the country of his adoption, once said:</p>
+<blockquote>"There is this difference between the English, French,
+and Germans: that the English only change what is necessary and as
+far as it is necessary; the French plunge into all sorts of
+novelties by whole masses, get into a chaos, see that they are
+fools and retrace their steps as quickly, with a high degree of
+practical sense in all this impracticability; the Germans attempt
+no change without first recurring to first principles and
+metaphysics beyond them, systematizing the smallest details in
+their minds; and when at last they mean to apply all their
+meditation, opportunity, with its wide and swift wings of a gull,
+is gone."</blockquote>
+<p>This was written more than sixty years ago before the present
+French Republic and the present German Empire, and Lieber would
+doubtless have modified his conclusions in view of those great
+achievements in government if he were writing to-day. But he does
+correctly indicate the differences of method and the dangers
+avoided by the practical course which he ascribes to the English,
+and in accordance with which the great structure of British and
+American liberty has been built up generation after generation and
+century after century. Through all the seven hundred years since
+Magna Charta we have been shaping, adjusting, adapting our system
+to the new conditions of life as they have arisen, but we have
+always held on to everything essentially good that we have ever had
+in the system. We have never undertaken to begin over again and
+build up a new system under the idea that we could do it better. We
+have never let go of Magna Charta or the Bill of Rights or the
+Declaration of Independence or the Constitution. When we take
+account of all that governments have sought to do and have failed
+to do in this selfish and sinful world, we find that as a rule the
+application of new theories of government, though devised by the
+most brilliant constructive genius, have availed but little to
+preserve the people of any considerable regions of the earth for
+any long periods from the evils of despotism on the one hand or of
+anarchy on the other, or to raise any considerable portion of the
+mass of mankind above the hard conditions of oppression and misery.
+And we find that our system of government which has been built up
+in this practical way through so many centuries, and the whole
+history of which is potent in the provisions of our Constitution,
+has done more to preserve liberty, justice, security, and freedom
+of opportunity for many people for a long period and over a great
+portion of the earth, than any other system of government ever
+devised by man. Human nature does not change very much. The forces
+of evil are hard to control now as they always have been. It is
+easy to fail and hard to succeed in reconciling liberty and order.
+In dealing with this most successful body of governmental
+institutions the question should not be what sort of government do
+you or I think we should have. What you and I think on such a
+subject is of very little value indeed. The question should be:</p>
+<p>How can we adapt our laws and the workings of our government to
+the new conditions which confront us without sacrificing any
+essential element of this system of government which has so nobly
+stood the test of time and without abandoning the political
+principles which have inspired the growth of its institutions? For
+there are political principles, and nothing can be more fatal to
+self-government than to lose sight of them under the influence of
+apparent expediency.</p>
+<p>In attempting to answer this question we need not trouble
+ourselves very much about the multitude of excited controversies
+which have arisen over new methods of extra
+constitutional-political organization and procedure. Direct
+nominations, party enrollments, instructions to delegates,
+presidential preference primaries, independent nominations, all
+relate to forms of voluntary action outside the proper field of
+governmental institutions. All these new political methods are the
+result of efforts of the rank and file of voluntary parties to
+avoid being controlled by the agents of their own party
+organization, and to get away from real evils in the form of undue
+control by organized minorities with the support of organized
+capital. None of these expedients is an end in itself. They are
+tentative, experimental. They are movements not towards something
+definite but away from something definite. They may be inconvenient
+or distasteful to some of us, but no one need be seriously
+disturbed by the idea that they threaten our system of government.
+If they work well they will be an advantage. If they work badly
+they will be abandoned and some other expedient will be tried, and
+the ultimate outcome will doubtless be an improvement upon the old
+methods.</p>
+<p>There is another class of new methods which do relate to the
+structure of government and which call for more serious
+consideration here. Chief in this class are:</p>
+<p>The Initiative; that is to say, direct legislation by vote of
+the people upon laws proposed by a specified number or proportion
+of the electors.</p>
+<p>The Compulsory Referendum; that is to say, a requirement that
+under certain conditions laws that have been agreed upon by a
+legislative body shall be referred to a popular vote and become
+operative only upon receiving a majority vote.</p>
+<p>The Recall of Officers before the expiration of the terms for
+which they have been elected by a vote of the electors to be had
+upon the demand of a specified number or proportion of them.</p>
+<p>The Popular Review of Judicial Decisions upon constitutional
+questions; that is to say, a provision, under which, when a court
+of last resort has decided that a particular law is invalid,
+because in conflict with a constitutional provision, the law may
+nevertheless be made valid by a popular vote.</p>
+<p>Some of these methods have been made a part of the
+constitutional system of a considerable number of our states. They
+have been accompanied invariably by provisions for very short and
+easy changes of state constitutions, and, so long as they are
+confined to the particular states which have chosen to adopt them,
+they may be regarded as experiments which we may watch with
+interest, whatever may be our opinions as to the outcome, and with
+the expectation that if they do not work well they also will be
+abandoned. This is especially true because, since the adoption of
+the Fourteenth Amendment to the Constitution, the states are
+prohibited from violating in their own affairs the most important
+principles of the National Constitution. It is not to be expected,
+however, that new methods and rules of action in government shall
+become universal in the states and not ultimately bring about a
+change in the national system. It will be useful, therefore, to
+consider whether these new methods if carried into the national
+system would sacrifice any of the essentials of that system which
+ought to be preserved.</p>
+<p>The Constitution of the United States deals in the main with
+essentials. There are some non-essential directions such as those
+relating to the methods of election and of legislation, but in the
+main it sets forth the foundations of government in clear, simple,
+concise terms. It is for this reason that it has stood the test of
+more than a century with but slight amendment, while the modern
+state constitutions, into which a multitude of ordinary statutory
+provisions are crowded, have to be changed from year to year. The
+peculiar and essential qualities of the government established by
+the Constitution are:</p>
+<p>First, it is representative.</p>
+<p>Second, it recognizes the liberty of the individual citizen as
+distinguished from the total mass of citizens, and it protects that
+liberty by specific limitations upon the power of government.</p>
+<p>Third, it distributes the legislative, executive and judicial
+powers, which make up the sum total of all government, into three
+separate departments, and specifically limits the powers of the
+officers in each department.</p>
+<p>Fourth, it superimposes upon a federation of state governments,
+a national government with sovereignty acting directly not merely
+upon the states, but upon the citizens of each state, within a line
+of limitation drawn between the powers of the national government
+and the powers of the state governments.</p>
+<p>Fifth, it makes observance of its limitations requisite to the
+validity of laws, whether passed by the nation or by the states, to
+be judged by the courts of law in each concrete case as it
+arises.</p>
+<p>Every one of these five characteristics of the government
+established by the Constitution was a distinct advance beyond the
+ancient attempts at popular government, and the elimination of any
+one of them would be a retrograde movement and a reversion to a
+former and discarded type of government. In each case it would be
+the abandonment of a distinctive feature of government which has
+succeeded, in order to go back and try again the methods of
+government which have failed. Of course we ought not to take such a
+backward step except under the pressure of inevitable
+necessity.</p>
+<p>The first two of the characteristics which I have enumerated,
+those which embrace the conception of representative government and
+the conception of individual liberty, were the products of the long
+process of development of freedom in England and America. They were
+not invented by the makers of the Constitution. They have been
+called inventions of the Anglo-Saxon race. They are the chief
+contributions of that race to the political development of
+civilization.</p>
+<p>The expedient of representation first found its beginning in the
+Saxon witenagemot. It was lost in the Norman conquest. It was
+restored step by step, through the centuries in which parliament
+established its power as an institution through the granting or
+withholding of aids and taxes for the king's use. It was brought to
+America by the English colonists. It was the practice of the
+colonies which formed the Federal Union. It entered into the
+constitution as a matter of course, because it was the method by
+which modern liberty had been steadily growing stronger and broader
+for six centuries as opposed to the direct, unrepresentative method
+of government in which the Greek and Roman and Italian republics
+had failed. This representative system has in its turn impressed
+itself upon the nations which derived their political ideas from
+Rome and has afforded the method through which popular liberty has
+been winning forward in its struggle against royal and aristocratic
+power and privilege the world over. Bluntschli, the great
+Heidelberg publicist of the last century, says:</p>
+<blockquote>"Representative government and self-government are the
+great works of the English and American peoples. The English have
+produced representative monarchy with parliamentary legislation and
+parliamentary government. The Americans have produced the
+representative republic. We Europeans upon the Continent recognize
+in our turn that in representative government alone lies the
+hoped-for union between civil order and popular
+liberty."</blockquote>
+<p>The Initiative and Compulsory Referendum are attempts to cure
+the evils which have developed in our practice of representative
+government by means of a return to the old, unsuccessful, and
+discarded method of direct legislation and by rehabilitating one of
+the most impracticable of Rousseau's theories. Every candid student
+of our governmental affairs must agree that the evils to be cured
+have been real and that the motive which has prompted the proposal
+of the Initiative and Referendum is commendable. I do not think
+that these expedients will prove wise or successful ways of curing
+these evils for reasons which I will presently indicate; but it is
+not necessary to assume that their trial will be destructive of our
+system of government. They do not aim to destroy representative
+government, but to modify and control it, and were it not that the
+effect of these particular methods is likely to go beyond the
+intention of their advocates they would not interfere seriously
+with representative government except in so far as they might
+ultimately prove to be successful expedients. If they did not work
+satisfactorily they would be abandoned, leaving representative
+government still in full force and effectiveness.</p>
+<p>There is now a limited use of the Referendum upon certain
+comparatively simple questions. No one has ever successfully
+controverted the view expressed by Burke in his letter to the
+electors of Bristol, that his constituents were entitled not merely
+to his vote but to his judgment, even though they might not agree
+with it. But there are some questions upon which the determining
+fact must be the preference of the people of the country or of a
+community; such as the question where a capital city or a county
+seat shall be located; the question whether a debt shall be
+incurred that will be a lien on their property for a specific
+purpose; the question whether the sale of intoxicating liquors
+shall he permitted. Upon certain great simple questions which are
+susceptible of a <i>yes</i> or <i>no</i> answer it is appropriate
+that the people should be called upon to express their wish by a
+vote just as they express their choice of the persons who shall
+exercise the powers of government by a vote. This, however, is very
+different from undertaking to have the ordinary powers of
+legislation exercised at the ballot box.</p>
+<p>In this field the weakness, both of the Initiative and of the
+Compulsory Referendum, is that they are based upon a radical error
+as to what constitutes the true difficulty of wise legislation. The
+difficulty is not to determine what ought to be accomplished but to
+determine how to accomplish it. The affairs with which statutes
+have to deal as a rule involve the working of a great number and
+variety of motives incident to human nature, and the working of
+those motives depends upon complicated and often obscure facts of
+production, trade, social life, with which men generally are not
+familiar and which require study and investigation to understand.
+Thrusting a rigid prohibition or command into the operation of
+these forces is apt to produce quite unexpected and unintended
+results. Moreover, we already have a great body of laws, both
+statutory and customary, and a great body of judicial decisions as
+to the meaning and effect of existing laws. The result of adding a
+new law to this existing body of laws is that we get, not the
+simple consequence which the words, taken by themselves, would seem
+to require, but a resultant of forces from the new law taken in
+connection with all existing laws. A very large part of the
+litigation, injustice, dissatisfaction, and contempt for law which
+we deplore, results from ignorant and inconsiderate legislation
+with perfectly good intentions. The only safeguard against such
+evils and the only method by which intelligent legislation can be
+reached is the method of full discussion, comparison of views,
+modification and amendment of proposed legislation in the light of
+discussion and the contribution and conflict of many minds. This
+process can be had only through the procedure of representative
+legislative bodies. Representative government is something more
+than a device to enable the people to have their say when they are
+too numerous to get together and say it. It is something more than
+the employment of experts in legislation. Through legislative
+procedure a different kind of treatment for legislative questions
+is secured by concentration of responsibility, by discussion, and
+by opportunity to meet objection with amendment. For this reason
+the attempt to legislate by calling upon the people by popular vote
+to say yes or no to complicated statutes must prove unsatisfactory
+and on the whole injurious. In ordinary cases the voters will not
+and cannot possibly bring to the consideration of proposed statutes
+the time, attention, and knowledge required to determine whether
+such statutes will accomplish what they are intended to accomplish;
+and the vote usually will turn upon the avowed intention of such
+proposals rather than upon their adequacy to give effect to the
+intention.</p>
+<p>This would be true if only one statute were to be considered at
+one election; but such simplicity is not practicable. There always
+will be, and if the direct system is to amount to anything there
+must be, many proposals urged upon the voters at each
+opportunity.</p>
+<p>The measures, submitted at one time in some of the Western
+States now fill considerable volumes.</p>
+<p>With each proposal the voter's task becomes more complicated and
+difficult.</p>
+<p>Yet our ballots are already too complicated. The great blanket
+sheets with scores of officers and hundreds of names to be marked
+are quite beyond the intelligent action in detail of nine men out
+of ten.</p>
+<p>The most thoughtful reformers are already urging that the
+voter's task be made more simple by giving him fewer things to
+consider and act upon at the same time.</p>
+<p>This is the substance of what is called the "Short Ballot"
+reform; and it is right, for the more questions divide public
+attention the fewer questions the voters really decide for
+themselves on their own judgment and the greater the power of the
+professional politician.</p>
+<p>There is moreover a serious danger to be apprehended from the
+attempt at legislation by the Initiative and Compulsory Referendum,
+arising from its probable effect on the character of representative
+bodies. These expedients result from distrust of legislatures. They
+are based on the assertion that the people are not faithfully
+represented in their legislative bodies, but are misrepresented.
+The same distrust has led to the encumbering of modern state
+constitutions by a great variety of minute limitations upon
+legislative power. Many of these constitutions, instead of being
+simple frameworks of government, are bulky and detailed statutes
+legislating upon subjects which the people are unwilling to trust
+the legislature to deal with. So between the new constitutions,
+which exclude the legislatures from power, and the Referendum, by
+which the people overrule what they do, and the Initiative, by
+which the people legislate in their place, the legislative
+representatives who were formerly honored, are hampered, shorn of
+power, relieved of responsibility, discredited, and treated as
+unworthy of confidence. The unfortunate effect of such treatment
+upon the character of legislatures and the kind of men who will he
+willing to serve in them can well be imagined. It is the influence
+of such treatment that threatens representative institutions in our
+country. Granting that there have been evils in our legislative
+system which ought to be cured, I cannot think that this is the
+right way to cure them. It would seem that the true way is for the
+people of the country to address themselves to the better
+performance of their own duty in selecting their legislative
+representatives and in holding those representatives to strict
+responsibility for their action. The system of direct nominations,
+which is easy of application in the simple proceeding of selecting
+members of a legislature, and the Short Ballot reform aim at
+accomplishing that result. I think that along these lines the true
+remedy is to be found. No system of self-government will continue
+successful unless the voters have sufficient public spirit to
+perform their own duty at the polls, and the attempt to reform
+government by escaping from the duty of selecting honest and
+capable representatives, under the idea that the same voters who
+fail to perform that duty will faithfully perform the far more
+onerous and difficult duty of legislation, seems an exhibition of
+weakness rather than of progress.</p>
+<hr />
+<h3>II - ESSENTIALS</h3>
+<p>In the first of these lectures I specified certain essential
+characteristics of our system of government, and discussed the
+preservation of the first&mdash;its representative character. The
+four other characteristics specified have one feature in common.
+They all aim to preserve rights by limiting power.</p>
+<p>Of these the most fundamental is the preservation in our
+Constitution of the Anglo-Saxon idea of individual liberty. The
+republics of Greece and Rome had no such conception. All political
+ideas necessarily concern man as a social animal, as a member of
+society&mdash;a member of the state. The ancient republics,
+however, put the state first and regarded the individual only as a
+member of the state. They had in view the public rights of the
+state in which all its members shared, and the rights of the
+members as parts of the whole, but they did not think of
+individuals as having rights independent of the state, or against
+the state. They never escaped from the attitude towards public and
+individual civil rights, which was dictated by the original and
+ever-present necessity of military organization and defense.</p>
+<p>The Anglo-Saxon idea, on the other hand, looked first to the
+individual. In the early days of English history, without
+theorizing much upon the subject, the Anglo-Saxons began to work
+out their political institutions along the line expressed in our
+Declaration of Independence, that the individual citizen has
+certain inalienable rights&mdash;the right to life, to liberty, to
+the pursuit of happiness, and that government is not the source of
+these rights, but is the instrument for the preservation and
+promotion of them. So when a century and a half after the conquest
+the barons of England set themselves to limit the power of the
+Crown they did not demand a grant of rights. They asserted the
+rights of individual freedom and demanded observance of them, and
+they laid the corner-stone of our system of government in this
+solemn pledge of the Great Charter:</p>
+<blockquote>"No freeman shall be taken, or imprisoned, or be
+disseized of his free hold, or his liberties, or his free customs,
+or be outlawed, or exiled, or otherwise destroyed, but by the
+lawful judgment of his peers, or by the law of the
+land."</blockquote>
+<p>Again and again in the repeated confirmations of the Great
+Charter, in the Petition of Rights, in the Habeas Corpus Act, in
+the Bill of Rights, in the Massachusetts Body of Liberties, in the
+Virginia Bill of Rights, and, finally, in the immortal Declaration
+of 1776&mdash;in all the great utterances of striving for broader
+freedom which have marked the development of modern liberty, sounds
+the same dominant note of insistence upon the inalienable right of
+individual manhood under government but independent of government,
+and, if need be, against government, to life and liberty.</p>
+<p>It is impossible to overestimate the importance of the
+consequences which followed from these two distinct and opposed
+theories of government. The one gave us the dominion, but also the
+decline and fall of, Rome. It followed the French Declaration of
+the Rights of Man, with the negation of those rights in the
+oppression of the Reign of Terror, the despotism of Napoleon, the
+popular submission to the second empire and the subservience of the
+individual citizen to official superiority which still prevails so
+widely on the continent of Europe. The tremendous potency of the
+other subdued the victorious Normans to the conquered Saxon's
+conception of justice, rejected the claims of divine right by the
+Stewarts, established capacity for self-government upon the
+independence of individual character that knows no superior but the
+law, and supplied the amazing formative power which has molded,
+according to the course and practice of the common law, the thought
+and custom of the hundred millions of men drawn from all lands and
+all races who inhabit this continent north of the Rio Grande.</p>
+<p>The mere declaration of a principle, however, is of little avail
+unless it be supported by practical and specific rules of conduct
+through which the principle shall receive effect. So Magna Charta
+imposed specific limitations upon royal authority to the end that
+individual liberty might be preserved, and so to the same end our
+Declaration of Independence was followed by those great rules of
+right conduct which we call the limitations of the constitution.
+Magna Charta imposed its limitations upon the kings of England and
+all their officers and agents. Our constitution imposed its
+limitations upon the sovereign people and all their officers and
+agents, excluding all the agencies of popular government from
+authority to do the particular things which would destroy or impair
+the declared inalienable right of the individual.</p>
+<p>Thus the constitution provides: No law shall be made by Congress
+prohibiting the free exercise of religion, or abridging the freedom
+of speech or of the press. The right of the people to keep and bear
+arms shall not be infringed. The right of the people to be secure
+in their persons, houses, papers and effects, against unreasonable
+searches and seizures, shall not be violated. No person shall be
+subject for the same offense to be twice put in jeopardy of life or
+limb; nor be compelled, in any criminal case, to be a witness
+against himself; nor be deprived of life, liberty, or property
+without due process of law; nor shall private property be taken for
+public use without just compensation. In all criminal prosecutions,
+the accused shall enjoy the right to a speedy and public trial, by
+an impartial jury of the state and district wherein the crime shall
+have been committed; and to be informed of the nature and cause of
+the accusation, to be confronted with the witnesses against him, to
+have compulsory process for obtaining witnesses in his favor, and
+to have the assistance of counsel for his defense. Excessive bail
+shall not he required, nor excessive fines imposed, nor cruel and
+unusual punishment inflicted. The privilege of the writ of habeas
+corpus shall not be suspended, except in case of rebellion or
+invasion. No bill of attainder or ex post facto law shall be
+passed. And by the Fourteenth Amendment, no state shall deprive any
+person of life, liberty, or property, without due process of law;
+nor deny to any person within its jurisdiction the equal protection
+of the law.</p>
+<p>We have lived so long under the protection of these rules that
+most of us have forgotten their importance. They have been
+unquestioned in America so long that most of us have forgotten the
+reasons for them. But if we lose them we shall learn the reasons by
+hard experience. And we are in some danger of losing them, not all
+at once but gradually, by indifference.</p>
+<p>As Professor Sohm says: "The greatest and most far reaching
+revolutions in history are not consciously observed at the time of
+their occurrence."</p>
+<p>Every one of these provisions has a history. Every one stops a
+way through which the overwhelming power of government has
+oppressed the weak individual citizen, and may do so again if the
+way be opened. Such provisions as these are not mere commands. They
+withhold power. The instant any officer, of whatever kind or grade,
+transgresses them he ceases to act as an officer. The power of
+sovereignty no longer supports him. The majesty of the law no
+longer gives him authority. The shield of the law no longer
+protects him. He becomes a trespasser, a despoiler, a law breaker,
+and all the machinery of the law may be set in motion for his
+restraint or punishment. It is true that the people who have made
+these rules may repeal them. As restraints upon the people
+themselves they are but self-denying ordinances which the people
+may revoke, but the supreme test of capacity for popular
+self-government is the possession of that power of self-restraint
+through which a people can subject its own conduct to the control
+of declared principles of action.</p>
+<p>These rules of constitutional limitation differ from ordinary
+statutes in this, that these rules are made impersonally,
+abstractly, dispassionately, impartially, as the people's
+expression of what they believe to be right and necessary for the
+preservation of their idea of liberty and justice. The process of
+amendment is so guarded by the constitution itself as to require
+the lapse of time and opportunity for deliberation and
+consideration and the passing away of disturbing influences which
+may be caused by special exigencies or excitements, before any
+change can be made. On the contrary, ordinary acts of legislation
+are subject to the considerations of expediency for the attainment
+of the particular objects of the moment, to selfish interests,
+momentary impulses, passions, prejudices, temptations. If there be
+no general rules which control particular action, general
+principles are obscured or set aside by the desires and impulses of
+the occasion. Our knowledge of the weakness of human nature and
+countless illustrations from the history of legislation in our own
+country point equally to the conclusion that if governmental
+authority is to be controlled by rules of action, it cannot be
+relied upon to impose those rules upon itself at the time of
+action, but must have them prescribed beforehand.</p>
+<p>The second class of limitations upon official power provided in
+our constitution prescribe and maintain the distribution of power
+to the different departments of government and the limitations upon
+the officers invested with authority in each department. This
+distribution follows the natural and logical lines of the
+distinction between the different kinds of power&mdash;legislative,
+executive, and judicial. But the precise allotment of power and
+lines of distinction are not so important as it is that there shall
+be distribution, and that each officer shall be limited in
+accordance with that distribution, for without such limitations
+there can be no security for liberty. If, whatever great officer of
+state happens to be the most forceful, skillful, and ambitious, is
+permitted to overrun and absorb to himself the powers of all other
+officers and to control their action, there ensues that
+concentration of power which destroys the working of free
+institutions, enables the holder to continue himself in power, and
+leaves no opportunity to the people for a change except through a
+revolution. Numerous instances of this very process are furnished
+by the history of some of the Spanish-American republics. It is of
+little consequence that the officer who usurps the power of others
+may design only to advance the public interest and to govern well.
+The system which permits an honest and well-meaning man to do this
+will afford equal opportunity for selfish ambition to usurp power
+in its own interest. Unlimited official power concentrated in one
+person is despotism, and it is only by carefully observed and
+jealously maintained limitations upon the power of every public
+officer that the workings of free institutions can be
+continued.</p>
+<p>The rigid limitation of official power is necessary not only to
+prevent the deprivation of substantial rights by acts of
+oppression, but to maintain that equality of political condition
+which is so important for the independence of individual character
+among the people of the country. When an officer has authority over
+us only to enforce certain specific laws at particular times and
+places, and has no authority regarding anything else, we pay
+deference to the law which he represents, but the personal relation
+is one of equality. Give to that officer, however, unlimited power,
+or power which we do not know to be limited, and the relation at
+once becomes that of an inferior to a superior. The inevitable
+result of such a relation long continued is to deprive the people
+of the country of the individual habit of independence. This may be
+observed in many of the countries of Continental Europe, where
+official persons are treated with the kind of deference, and
+exercise the kind of authority, which are appropriate only to the
+relations between superior and inferior.</p>
+<p>So the Massachusetts Constitution of 1780, after limiting the
+powers of each department to its own field, declares that this is
+done "to the end it may be a government of laws and not of
+men."</p>
+<p>The third class of limitations I have mentioned are those made
+necessary by the novel system which I have described as
+superimposing upon a federation of state governments, a national
+government acting directly upon the individual citizens of the
+states. This expedient was wholly unknown before the adoption of
+our constitution. All the confederations which had been attempted
+before that time were simply leagues of states, and whatever
+central authority there was derived its authority from and had its
+relations with the states as separate bodies politic. This was so
+of the old confederation. Each citizen owed his allegiance to his
+own state and each state had its obligations to the confederation.
+Under our constitutional system in every part of the territory of
+every state there are two sovereigns, and every citizen owes
+allegiance to both sovereigns&mdash;to his state and to his nation.
+In regard to some matters, which may generally be described as
+local, the state is supreme. In regard to other matters, which may
+generally be described as national, the nation is supreme. It is
+plain that to maintain the line between these two sovereignties
+operating in the same territory and upon the same citizens is a
+matter of no little difficulty and delicacy. Nothing has involved
+more constant discussion in our political history than questions of
+conflict between these two powers, and we fought the great Civil
+War to determine the question whether in case of conflict the
+allegiance to the state or the allegiance to the nation was of
+superior obligation. We should observe that the Civil War arose
+because the constitution did not draw a clear line between the
+national and state powers regarding slavery. It is of very great
+importance that both of these authorities, state and national,
+shall be preserved together and that the limitations which keep
+each within its proper province shall be maintained. If the power
+of the states were to override the power of the nation we should
+ultimately cease to have a nation and become only a body of really
+separate, although confederated, state sovereignties continually
+forced apart by diverse interests and ultimately quarreling with
+each other and separating altogether. On the other hand, if the
+power of the nation were to override that of the states and usurp
+their functions we should have this vast country, with its great
+population, inhabiting widely separated regions, differing in
+climate, in production, in industrial and social interests and
+ideas, governed in all its local affairs by one all-powerful,
+central government at Washington, imposing upon the home life and
+behavior of each community the opinions and ideas of propriety of
+distant majorities. Not only would this be intolerable and alien to
+the idea of free self-government, but it would be beyond the power
+of a central government to do directly. Decentralization would be
+made necessary by the mass of government business to be transacted,
+and so our separate localities would come to be governed by
+delegated authority&mdash;by proconsuls authorized from Washington
+to execute the will of the great majority of the whole people. No
+one can doubt that this also would lead by its different route to
+the separation of our Union. Preservation of our dual system of
+government, carefully restrained in each of its parts by the
+limitations of the constitution, has made possible our growth in
+local self-government and national power in the past, and, so far
+as we can see, it is essential to the continuance of that
+government in the future.</p>
+<p>All of these three classes of constitutional limitations are
+therefore necessary to the perpetuity of our government. I do not
+wish to be understood as saying that every single limitation is
+essential. There are some limitations that might be changed and
+something different substituted. But the system of limitation must
+be continued if our governmental system is to continue&mdash;if we
+are not to lose the fundamental principles of government upon which
+our Union is maintained and upon which our race has won the liberty
+secured by law for which it has stood foremost in the world.</p>
+<p>Lincoln covered this subject in one of his comprehensive
+statements that cannot be quoted too often. He said in the first
+inaugural:</p>
+<blockquote>"A majority held in restraint by constitutional checks
+and limitations and always changing easily with deliberate changes
+of popular opinion and sentiments the only true sovereign of a free
+people. Whoever rejects it does of necessity fly to anarchy or
+despotism."</blockquote>
+<p>Rules of limitation, however, are useless unless they are
+enforced. The reason for restraining rules arises from a tendency
+to do the things prohibited. Otherwise no rule would be needed.
+Against all practical rules of limitation&mdash;all rules limiting
+official conduct, there is a constant pressure from one side or the
+other. Honest differences of opinion as to the extent of power,
+arising from different points of view make this inevitable, to say
+nothing of those weaknesses and faults of human nature which lead
+men to press the exercise of power to the utmost under the
+influence of ambition, of impatience with opposition to their
+designs, of selfish interest and the arrogance of office. No mere
+paper rules will restrain these powerful and common forces of human
+nature.</p>
+<p>The agency by which, under our system of government, observance
+of constitutional limitation is enforced is the judicial power. The
+constitution provides that "This constitution, and the laws of the
+United States which shall be made in pursuance thereof, and all
+treaties made, or which shall be made, under the authority of the
+United States, shall be the supreme law of the land; and the judges
+in every state shall be bound thereby, anything in the constitution
+or laws of any state to the contrary notwithstanding." Under this
+provision an enactment by Congress not made in pursuance of the
+constitution, or an enactment of a state contrary to the
+constitution, is not a law. Such an enactment should strictly have
+no more legal effect than the resolution of any private debating
+society. The constitution also provides that the judicial power of
+the United States shall extend to all cases in law and equity
+arising under the constitution and laws of the United States.
+Whenever, therefore, in a case before a Federal court rights are
+asserted under or against some law which is claimed to violate some
+limitation of the constitution, the court is obliged to say whether
+the law does violate the constitution or not, because if it does
+not violate the constitution the court must give effect to it as
+law, while if it does violate the constitution it is no law at all
+and the court is not at liberty to give effect to it. The courts do
+not render decisions like imperial rescripts declaring laws valid
+or invalid. They merely render judgment on the rights of the
+litigants in particular cases, and in arriving at their judgment
+they refuse to give effect to statutes which they find clearly not
+to be made in pursuance of the constitution and therefore to be no
+laws at all. Their judgments are technically binding only in the
+particular case decided, but the knowledge that the court of last
+resort has reached such a conclusion concerning a statute, and that
+a similar conclusion would undoubtedly be reached in every case of
+an attempt to found rights upon the same statute, leads to a
+general acceptance of the invalidity of the statute.</p>
+<p>There is only one alternative to having the courts decide upon
+the validity of legislative acts, and that is by requiring the
+courts to treat the opinion of the legislature upon the validity of
+its statutes, evidenced by their passage, as conclusive. But the
+effect of this would be that the legislature would not be limited
+at all except by its own will. All the provisions designed to
+maintain a government carried on by officers of limited powers, all
+the distinctions between what is permitted to the national
+government and what is permitted to the state governments, all the
+safeguards of the life, liberty and property of the citizen against
+arbitrary power, would cease to bind Congress, and on the same
+theory they would cease also to bind the legislatures of the
+states. Instead of the constitution being superior to the laws the
+laws would be superior to the constitution, and the essential
+principles of our government would disappear. More than one hundred
+years ago, Chief Justice Marshall, in the great case of Marbury
+<i>vs</i>. Madison, set forth the view upon which our government
+has ever since proceeded. He said:</p>
+<blockquote>"The powers of the legislature are defined and limited;
+and that those limits may not be mistaken or forgotten, the
+constitution is written. To what purpose are powers limited, and to
+what purpose is that limit committed to writing, if these limits
+may, at any time, be passed by those intended to be restrained? The
+distinction between a government with limited and unlimited powers
+is abolished, if those limits do not confine the persons on whom
+they are imposed, and if acts prohibited and acts allowed are of
+equal obligation. It is a proposition too plain to be contested,
+that the constitution controls any legislative act repugnant to it;
+or that the legislature may alter the constitution by an ordinary
+act.</blockquote>
+<blockquote>"Between these alternatives, there is no middle ground.
+The constitution is either a superior, paramount law, unchangeable
+by ordinary means, or it is on a level with ordinary legislative
+acts, and, like other acts, is alterable when the legislature shall
+please to alter it. If the former part of the alternative be true,
+then a legislative act, contrary to the constitution, is not law:
+if the latter part be true, then written constitutions are absurd
+attempts, on the part of the people, to limit a power, in its own
+nature, inimitable.</blockquote>
+<blockquote>"Certainly, all those who have framed written
+constitutions contemplate them as forming the fundamental and
+paramount law of the nation, and consequently, the theory of every
+such government must be, that an act of the legislature, repugnant
+to the constitution, is void. This theory is essentially attached
+to a written constitution, and is, consequently, to be considered
+by this court as one of the fundamental principles of our
+society."</blockquote>
+<p>And of the same opinion was Montesquieu who gave the high
+authority of the <i>Esprit des Lois</i> to the declaration that</p>
+<blockquote>"There is no liberty if the power of judging be not
+separate from the legislative and executive powers; were it joined
+with the legislative the life and liberty of the subject would be
+exposed to arbitrary control."</blockquote>
+<p>It is to be observed that the wit of man has not yet devised any
+better way of reaching a just conclusion as to whether a statute
+does or does not conflict with a constitutional limitation upon
+legislative power than the submission of the question to an
+independent and impartial court. The courts are not parties to the
+transactions upon which they pass. They are withdrawn by the
+conditions of their office from participation in business and
+political affairs out of which litigations arise. Their action is
+free from the chief dangers which threaten the undue extension of
+power, because, as Hamilton points out in The Federalist, they are
+the weakest branch of government: they neither hold the purse, as
+does the legislature, nor the sword, as does the executive. During
+all our history they have commanded and deserved the respect and
+confidence of the people. General acceptance of their conclusions
+has been the chief agency in preventing here the discord and strife
+which afflict so many lands, and in preserving peace and order and
+respect for law.</p>
+<p>Indeed in the effort to emasculate representative government to
+which I have already referred, the people of the experimenting
+states have greatly increased their reliance upon the courts. Every
+new constitution with detailed orders to the legislature is a
+forcible assertion that the people will not trust legislatures to
+determine the extent of their own powers, but will trust the
+courts.</p>
+<p>Two of the new proposals in government, which have been much
+discussed, directly relate to this system of constitutional
+limitations made effective through the judgment of the courts. One
+is the proposal for the Recall of Judges, and the other for the
+Popular Review of Decisions, sometimes spoken of as the Recall of
+Decisions.</p>
+<p>Under the first of these proposals, if a specified proportion of
+the voters are dissatisfied with a judge's decision they are
+empowered to require that at the next election, or at a special
+election called for that purpose, the question shall be presented
+to the electors whether the judge shall be permitted to continue in
+office or some other specified person shall be substituted in his
+place. This ordeal differs radically from the popular judgment
+which a judge is called upon to meet at the end of his term of
+office, however short that may be, because when his term has
+expired he is judged upon his general course of conduct while he
+has been in office and stands or falls upon that as a whole. Under
+the Recall a judge may be brought to the bar of public judgment
+immediately upon the rendering of a particular decision which
+excites public interest and he will be subject to punishment if
+that decision is unpopular. Judges will naturally be afraid to
+render unpopular decisions. They will hear and decide cases with a
+stronger incentive to avoid condemnation themselves than to do
+justice to the litigant or the accused. Instead of independent and
+courageous judges we shall have timid and time-serving judges. That
+highest duty of the judicial power to extend the protection of the
+law to the weak, the friendless, the unpopular, will in a great
+measure fail. Indirectly the effect will be to prevent the
+enforcement of the essential limitations upon official power
+because the judges will be afraid to declare that there is a
+violation when the violation is to accomplish some popular
+object.</p>
+<p>The Recall of Decisions aims directly at the same result. Under
+such an arrangement, if the courts have found a particular law to
+be a violation of one of the fundamental rules of limitation
+prescribed in the constitution, and the public feeling of the time
+is in favor of disregarding that limitation in that case, an
+election is to be held, and if the people in the election vote that
+the law shall stand, it is to stand, although it be a violation of
+the constitution; that is to say, if at any time a majority of the
+voters of a state (and ultimately the same would be true of the
+people of the United States) choose not to be bound in any
+particular case by the rule of right conduct which they have
+established for themselves, they are not to be bound. This is
+sometimes spoken of as a Popular Reversal of the Decisions of
+Courts. That I take to be an incorrect view. The power which would
+be exercised by the people under such an arrangement would be, not
+judicial, but legislative. The action would not be a decision that
+the court was wrong in finding a law unconstitutional, but it would
+be making a law valid which was invalid before because
+unconstitutional. In such an election the majority of the voters
+would make a law where no law had existed before; and they would
+make that law in violation of the rules of conduct by which the
+people themselves had solemnly declared they ought to be bound. The
+exercise of such a power, if it is to exist, cannot be limited to
+the particular cases which you or I or any man now living may have
+in mind. It must be general. If it can be exercised at all it can
+and will be exercised by the majority whenever they wish to
+exercise it. If it can be employed to make a Workmen's Compensation
+Act in such terms as to violate the constitution, it can be
+employed to prohibit the worship of an unpopular religious sect, or
+to take away the property of an unpopular rich man without
+compensation, or to prohibit freedom of speech and of the press in
+opposition to prevailing opinion, or to deprive one accused of
+crime of a fair trial when he has been condemned already by the
+newspapers. In every case the question whether the majority shall
+be bound by those general principles of action which the people
+have prescribed for themselves will be determined in that case by
+the will of the majority, and therefore in no case will the
+majority be bound except by its own will at the time.</p>
+<p>The exercise of such a power would strike at the very foundation
+of our system of government. It would be a reversion to the system
+of the ancient republics where the state was everything and the
+individual nothing except as a part of the state, and where liberty
+perished. It would be a repudiation of the fundamental principle of
+Anglo-Saxon liberty which we inherit and maintain, for it is the
+very soul of our political institutions that they protect the
+individual against the majority. "All men," says the Declaration,
+"are endowed by their Creator with inalienable rights. Governments
+are instituted to secure these rights." The rights are not derived
+from any majority. They are not disposable by any majority. They
+are superior to all majorities. The weakest minority, the most
+despised sect, exist by their own right. The most friendless and
+lonely human being on American soil holds his right to life and
+liberty and the pursuit of happiness, and all that goes to make
+them up by title indefeasible against the world, and it is the
+glory of American self-government that by the limitations of the
+constitution we have protected that right against even ourselves.
+That protection cannot be continued and that right cannot be
+maintained, except by jealously preserving at all times and under
+all circumstances the rule of principle which is eternal over the
+will of majorities which shift and pass away.</p>
+<p>Democratic absolutism is just as repulsive, and history has
+shown it to be just as fatal, to the rights of individual manhood
+as is monarchical absolutism.</p>
+<p>But it is not necessary to violate the rules of action which we
+have established for ourselves in the constitution in order to deal
+by law with the new conditions of the time, for these rules of
+action are themselves subject to popular control. If the rules are
+so stated that they are thought to prevent the doing of something
+which is not contrary to the principles of liberty but demanded by
+them, the true remedy is to be found in reconsidering what the
+rules ought to be and, if need be, in restating them so that they
+will give more complete effect to the principles they are designed
+to enforce. If, as I believe, there ought to be in my own state,
+for example, a Workman's Compensation Act to supersede the present
+unsatisfactory system of accident litigation, and if the
+constitution forbids such a law&mdash;which I very much
+doubt&mdash;the true remedy is not to cast to the winds all
+systematic self-restraint and to inaugurate a new system of doing
+whatever we please whenever we please, unrestrained by declared
+rules of conduct; but it is to follow the orderly and ordinary
+method of amending the constitution so that the rule protecting the
+right to property shall not be so broadly stated as to prevent
+legislation which the principle underlying the rule demands.</p>
+<p>The difference between the proposed practice of overriding the
+constitution by a vote and amending the constitution is vital. It
+is the difference between breaking a rule and making a rule;
+between acting without any rule in a particular case and
+determining what ought to be the rule of action applicable to all
+cases.</p>
+<p>Our legislatures frequently try to evade constitutional
+provisions, and doubtless popular majorities seeking specific
+objects would vote the same way, but set the same people to
+consider what the fundamental law ought to be, and confront them
+with the question whether they will abandon in general the
+principles and the practical rules of conduct according to
+principles, upon which our government rests, and they will
+instantly refuse. While their minds are consciously and avowedly
+addressed to that subject they will stand firm for the general
+rules that will protect them and their children against oppression
+and usurpation, and they will change those rules only if need be to
+make them enforce more perfectly the principles which underlie
+them.</p>
+<p>Communities, like individuals, will declare for what they
+believe to be just and right; but communities, like individuals,
+can be led away from their principles step by step under the
+temptations of specific desires and supposed expediencies until the
+principles are a dead letter and allegiance to them is a mere
+sham.</p>
+<p>And that is the way in which popular governments lose their
+vitality and perish.</p>
+<p>The Roman consuls derived their power from the people and were
+responsible to the people; but Rome went on pretending that the
+emperors and their servants were consuls long after the Praetorians
+were the only source of power and the only power exercised was that
+of irresponsible despotism.</p>
+<p>A number of countries have copied our constitution coupled with
+a provision that the constitutional guarantees may be suspended in
+case of necessity. We are all familiar with the result. The
+guarantees of liberty and justice and order have been forgotten:
+the government is dictatorship and the popular will is expressed
+only by revolution.</p>
+<p>Nor, so far as our national system is concerned has there yet
+appeared any reason to suppose that suitable laws to meet the new
+conditions cannot be enacted without either overriding or amending
+the constitution. The liberty of contract and the right of private
+property which are protected by the limitations of the constitution
+are held subject to the police power of government to pass and
+enforce laws for the protection of the public health, public
+morals, and public safety. The scope and character of the
+regulations required to accomplish these objects vary as the
+conditions of life in the country vary. Many interferences with
+contract and with property which would have been unjustifiable a
+century ago are demanded by the conditions which exist now and are
+permissible without violating any constitutional limitation. What
+will promote these objects the legislative power decides with large
+discretion, and the courts have no authority to review the exercise
+of that discretion. It is only when laws are passed under color of
+the police power and having no real or substantial relation to the
+purposes for which the power exists, that the courts can refuse to
+give them effect. By a multitude of judicial decisions in recent
+years our courts have sustained the exercise of this vast and
+progressive power in dealing with the new conditions of life under
+a great variety of circumstances. The principal difficulty in
+sustaining the exercise of the power has been caused ordinarily by
+the fact that carelessly or ignorantly drawn statutes either have
+failed to exhibit the true relation between the regulation proposed
+and the object sought, or have gone farther than the attainment of
+the legitimate object justified. A very good illustration of this
+is to be found in the Federal Employer's Liability Act which was
+carelessly drawn and passed by Congress in 1906 and was declared
+unconstitutional by the Supreme Court, but which was carefully
+drawn and passed by Congress in 1908 and was declared
+constitutional by the same court.</p>
+<p>Insistence upon hasty and violent methods rather than orderly
+and deliberate methods is really a result of impatience with the
+slow methods of true progress in popular government. We should
+probably make little progress were there not in every generation
+some men who, realizing evils, are eager for reform, impatient of
+delay, indignant at opposition, and intolerant of the long, slow
+processes by which the great body of the people may consider new
+proposals in all their relations, weigh their advantages and
+disadvantages, discuss their merits, and become educated either to
+their acceptance or rejection. Yet that is the method of progress
+in which no step, once taken, needs to be retraced; and it is the
+only way in which a democracy can avoid destroying its institutions
+by the impulsive substitution of novel and attractive but
+impracticable expedients.</p>
+<p>The wisest of all the fathers of the Republic has spoken, not
+for his own day alone but for all generations to come after him, in
+the solemn admonitions of the Farewell Address. It was to us that
+Washington spoke when he said:</p>
+<blockquote>"The basis of our political systems is the right of the
+people to make and to alter their constitutions of government; but
+the Constitution which at any time exists, till changed by an
+explicit and authentic act of the whole people, is sacredly
+obligatory upon all.... Towards the preservation of your
+government, and the permanency of your present happy state, it is
+requisite, not only that you steadily discountenance irregular
+oppositions to its acknowledged authority, but also that you resist
+with care the spirit of innovation upon its principles, however
+specious the pretexts. One method of assault may be to effect, in
+the forms of the Constitution, alterations which will impair the
+energy of the system, and thus to undermine what cannot be directly
+overthrown. In all the changes to which you may be invited,
+remember that time and habit are at least as necessary to fix the
+true character of governments as of other human institutions; that
+experience is the surest standard by which to test the real
+tendency of the existing constitution of a country; that facility
+in changes, upon the credit of mere hypothesis and opinion, exposes
+to perpetual changes, from the endless variety of hypothesis and
+opinion."</blockquote>
+<p>While, in the nature of things, each generation must assume the
+task of adapting the working of its government to new conditions of
+life as they arise, it would be the folly of ignorant conceit for
+any generation to assume that it can lightly and easily improve
+upon the work of the founders in those matters which are, by their
+nature, of universal application to the permanent relations of men
+in civil society.</p>
+<p>Religion, the philosophy of morals, the teaching of history, the
+experience of every human life, point to the same
+conclusion&mdash;that in the practical conduct of life the most
+difficult and the most necessary virtue is self-restraint. It is
+the first lesson of childhood; it is the quality for which great
+monarchs are most highly praised; the man who has it not is feared
+and shunned; it is needed most where power is greatest; it is
+needed more by men acting in a mass than by individuals, because
+men in the mass are more irresponsible and difficult of control
+than individuals. The makers of our constitution, wise and earnest
+students of history and of life, discerned the great truth that
+self-restraint is the supreme necessity and the supreme virtue of a
+democracy. The people of the United States have exercised that
+virtue by the establishment of rules of right action in what we
+call the limitations of the constitution, and until this day they
+have rigidly observed those rules. The general judgment of students
+of government is that the success and permanency of the American
+system of government are due to the establishment and observance of
+such general rules of conduct. Let us change and adapt our laws as
+the shifting-conditions of the times require, but let us never
+abandon or weaken this fundamental and essential characteristic of
+our ordered liberty.</p>
+<br />
+<hr class="full" />
+<p>***END OF THE PROJECT GUTENBERG EBOOK EXPERIMENTS IN GOVERNMENT AND THE ESSENTIALS OF THE CONSTITUTION***</p>
+<p>******* This file should be named 10485-h.txt or 10485-h.zip *******</p>
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+The Project Gutenberg eBook, Experiments in Government and the Essentials
+of the Constitution, by Elihu Root
+
+
+This eBook is for the use of anyone anywhere at no cost and with
+almost no restrictions whatsoever.  You may copy it, give it away or
+re-use it under the terms of the Project Gutenberg License included
+with this eBook or online at www.gutenberg.org
+
+
+
+
+
+
+
+
+Title: Experiments in Government and the Essentials of the Constitution
+
+Author: Elihu Root
+
+Release Date: December 17, 2003  [eBook #10485]
+
+Language: English
+
+Character set encoding: US-ASCII
+
+
+***START OF THE PROJECT GUTENBERG EBOOK EXPERIMENTS IN GOVERNMENT AND THE
+ESSENTIALS OF THE CONSTITUTION***
+
+
+E-text prepared by Afra Ullah, Lazar Liveanu, David King, and the Project
+Gutenberg Online Distributed Proofreading Team
+
+
+
+EXPERIMENTS IN GOVERNMENT AND THE ESSENTIALS OF THE CONSTITUTION
+
+BY
+
+ELIHU ROOT
+
+1913
+
+
+
+
+
+
+
+PREFACE
+
+
+The familiar saying that nothing is settled until it is settled right
+expresses only a half truth. Questions of general and permanent importance
+are seldom finally settled. A very wise man has said that "short of the
+multiplication table there is no truth and no fact which must not be proved
+over again as if it had never been proved, from time to time." Conceptions
+of social rights and obligations and the institutions based upon them
+continue unquestioned for long periods as postulates in all discussions
+upon questions of government. Whatever conduct conforms to them is assumed
+to be right. Whatever is at variance with them is assumed to be wrong.
+Then a time comes when, with apparent suddenness, the ground of discussion
+shifts and the postulates are denied. They cease to be accepted without
+proof and the whole controversy in which they were originally established
+is fought over again.
+
+The people of the United States appear now to have entered upon such a
+period of re-examination of their system of government. Not only are
+political parties denouncing old abuses and demanding new laws, but
+essential principles embodied in the Federal Constitution of 1787, and long
+followed in the constitutions of all the states, are questioned and denied.
+The wisdom of the founders of the Republic is disputed and the political
+ideas which they repudiated are urged for approval.
+
+I wish in these lectures to present some observations which may have a
+useful application in the course of this process.
+
+
+
+
+I
+
+EXPERIMENTS
+
+
+There are two separate processes going on among the civilized nations at
+the present time. One is an assault by socialism against the individualism
+which underlies the social system of western civilization. The other is
+an assault against existing institutions upon the ground that they do not
+adequately protect and develop the existing social order. It is of this
+latter process in our own country that I wish to speak, and I assume an
+agreement, that the right of individual liberty and the inseparable right
+of private property which lie at the foundation of our modern civilization
+ought to be maintained.
+
+The conditions of life in America have changed very much since the
+Constitution of the United States was adopted. In 1787 each state entering
+into the Federal Union had preserved the separate organic life of the
+original colony. Each had its center of social and business and political
+life. Each was separated from the others by the barriers of slow and
+difficult communication. In a vast territory, without railroads or
+steamships or telegraph or telephone, each community lived within itself.
+
+Now, there has been a general social and industrial rearrangement.
+Production and commerce pay no attention to state lines. The life of the
+country is no longer grouped about state capitals, but about the great
+centers of continental production and trade. The organic growth which must
+ultimately determine the form of institutions has been away from the
+mere union of states towards the union of individuals in the relation of
+national citizenship.
+
+The same causes have greatly reduced the independence of personal and
+family life. In the eighteenth century life was simple. The producer and
+consumer were near together and could find each other. Every one who had an
+equivalent to give in property or service could readily secure the support
+of himself and his family without asking anything from government except
+the preservation of order. To-day almost all Americans are dependent upon
+the action of a great number of other persons mostly unknown. About half
+of our people are crowded into the cities and large towns. Their food,
+clothes, fuel, light, water--all come from distant sources, of which
+they are in the main ignorant, through a vast, complicated machinery of
+production and distribution with which they have little direct relation.
+If anything occurs to interfere with the working of the machinery, the
+consumer is individually helpless. To be certain that he and his family may
+continue to live he must seek the power of combination with others, and in
+the end he inevitably calls upon that great combination of all citizens
+which we call government to do something more than merely keep the
+peace--to regulate the machinery of production and distribution and
+safeguard it from interference so that it shall continue to work.
+
+A similar change has taken place in the conditions under which a great part
+of our people engage in the industries by which they get their living.
+Under comparatively simple industrial conditions the relation between
+employer and employee was mainly a relation of individual to individual,
+with individual freedom of contract and freedom of opportunity essential to
+equality in the commerce of life. Now, in the great manufacturing, mining,
+and transportation industries of the country, instead of the free give
+and take of individual contract there is substituted a vast system of
+collective bargaining between great masses of men organized and acting
+through their representatives, or the individual on the one side accepts
+what he can get from superior power on the other. In the movement of these
+mighty forces of organization the individual laborer, the individual
+stockholder, the individual consumer, is helpless.
+
+There has been another change of conditions through the development of
+political organization. The theory of political activity which had its
+origin approximately in the administration of President Jackson, and which
+is characterized by Marcy's declaration that "to the victors belong
+the spoils," tended to make the possession of office the primary and
+all-absorbing purpose of political conflict. A complicated system of party
+organization and representation grew up under which a disciplined body of
+party workers in each state supported each other, controlled the machinery
+of nomination, and thus controlled nominations. The members of state
+legislatures and other officers, when elected, felt a more acute
+responsibility to the organization which could control their renomination
+than to the electors, and therefore became accustomed to shape their
+conduct according to the wishes of the nominating organization. Accordingly
+the real power of government came to be vested to a high degree in these
+unofficial political organizations, and where there was a strong man at
+the head of an organization his control came to be something very closely
+approaching dictatorship. Another feature of this system aggravated its
+evils. As population grew, political campaigns became more expensive.
+At the same time, as wealth grew, corporations for production and
+transportation increased in capital and extent of operations and became
+more dependent upon the protection or toleration of government. They found
+a ready means to secure this by contributing heavily to the campaign funds
+of political organizations, and therefore their influence played a large
+part in determining who should be nominated and elected to office. So
+that in many states political organizations controlled the operations of
+government, in accordance with the wishes of the managers of the great
+corporations. Under these circumstances our governmental institutions were
+not working as they were intended to work, and a desire to break up and
+get away from this extra constitutional method of controlling our
+constitutional government has caused a great part of the new political
+methods of the last few years. It is manifest that the laws which were
+entirely adequate under the conditions of a century ago to secure
+individual and public welfare must be in many respects inadequate to
+accomplish the same results under all these new conditions; and our people
+are now engaged in the difficult but imperative duty of adapting their laws
+to the life of to-day. The changes in conditions have come very rapidly
+and a good deal of experiment will be necessary to find out just what
+government can do and ought to do to meet them.
+
+The process of devising and trying new laws to meet new conditions
+naturally leads to the question whether we need not merely to make new laws
+but also to modify the principles upon which our government is based and
+the institutions of government designed for the application of those
+principles to the affairs of life. Upon this question it is of the utmost
+importance that we proceed with considerate wisdom.
+
+By institutions of government I mean the established rule or order of
+action through which the sovereign (in our case the sovereign people)
+attains the ends of government. The governmental institutions of Great
+Britain have been established by the growth through many centuries of a
+great body of accepted rules and customs which, taken together, are
+called the British Constitution. In this country we have set forth in the
+Declaration of Independence the principles which we consider to lie at
+the basis of civil society "that all men are created equal; that they are
+endowed, by their Creator, with certain unalienable rights; that among
+these are life, liberty, and the pursuit of happiness. That to secure these
+rights, governments are instituted among men, deriving their just powers
+from the consent of the governed."
+
+In our Federal and State Constitutions we have established the institutions
+through which these rights are to be secured. We have declared what
+officers shall make the laws, what officers shall execute them, what
+officers shall sit in judgment upon claims of right under them. We have
+prescribed how these officers shall be selected and the tenure by which
+they shall hold their offices. We have limited them in the powers which
+they are to exercise, and, where it has been deemed necessary, we have
+imposed specific duties upon them. The body of rules thus prescribed
+constitute the governmental institutions of the United States.
+
+When proposals are made to change these institutions there are certain
+general considerations which should be observed.
+
+The first consideration is that free government is impossible except
+through prescribed and established governmental institutions, which work
+out the ends of government through many separate human agents, each doing
+his part in obedience to law. Popular will cannot execute itself directly
+except through a mob. Popular will cannot get itself executed through an
+irresponsible executive, for that is simple autocracy. An executive
+limited only by the direct expression of popular will cannot be held to
+responsibility against his will, because, having possession of all the
+powers of government, he can prevent any true, free, and general expression
+adverse to himself, and unless he yields voluntarily he can be overturned
+only by a revolution. The familiar Spanish-American dictatorships are
+illustrations of this. A dictator once established by what is or is alleged
+to be public choice never permits an expression of public will which will
+displace him, and he goes out only through a new revolution because he
+alone controls the machinery through which he could be displaced peaceably.
+A system with a plebiscite at one end and Louis Napoleon at the other could
+not give France free government; and it was only after the humiliation of
+defeat in a great war and the horrors of the Commune that the French people
+were able to establish a government that would really execute their will
+through carefully devised institutions in which they gave their chief
+executive very little power indeed.
+
+We should, therefore, reject every proposal which involves the idea that
+the people can rule merely by voting, or merely by voting and having one
+man or group of men to execute their will.
+
+A second consideration is that in estimating the value of any system of
+governmental institutions due regard must be had to the true functions
+of government and to the limitations imposed by nature upon what it is
+possible for government to accomplish. We all know of course that we cannot
+abolish all the evils in this world by statute or by the enforcement of
+statutes, nor can we prevent the inexorable law of nature which decrees
+that suffering shall follow vice, and all the evil passions and folly of
+mankind. Law cannot give to depravity the rewards of virtue, to indolence
+the rewards of industry, to indifference the rewards of ambition, or to
+ignorance the rewards of learning. The utmost that government can do is
+measurably to protect men, not against the wrong they do themselves but
+against wrong done by others and to promote the long, slow process of
+educating mind and character to a better knowledge and nobler standards of
+life and conduct. We know all this, but when we see how much misery there
+is in the world and instinctively cry out against it, and when we see some
+things that government may do to mitigate it, we are apt to forget how
+little after all it is possible for any government to do, and to hold the
+particular government of the time and place to a standard of responsibility
+which no government can possibly meet. The chief motive power which has
+moved mankind along the course of development that we call the progress of
+civilization has been the sum total of intelligent selfishness in a vast
+number of individuals, each working for his own support, his own gain, his
+own betterment. It is that which has cleared the forests and cultivated
+the fields and built the ships and railroads, made the discoveries and
+inventions, covered the earth with commerce, softened by intercourse the
+enmities of nations and races, and made possible the wonders of literature
+and of art. Gradually, during the long process, selfishness has grown more
+intelligent, with a broader view of individual benefit from the common
+good, and gradually the influences of nobler standards of altruism, of
+justice, and human sympathy have impressed themselves upon the conception
+of right conduct among civilized men. But the complete control of such
+motives will be the millennium. Any attempt to enforce a millennial
+standard now by law must necessarily fail, and any judgment which assumes
+government's responsibility to enforce such a standard must be an unjust
+judgment. Indeed, no such standard can ever be forced. It must come, not by
+superior force, but from the changed nature of man, from his willingness to
+be altogether just and merciful.
+
+A third consideration is that it is not merely useless but injurious for
+government to attempt too much. It is manifest that to enable it to deal
+with the new conditions I have described we must invest government with
+authority to interfere with the individual conduct of the citizen to a
+degree hitherto unknown in this country. When government undertakes to
+give the individual citizen protection by regulating the conduct of others
+towards him in the field where formerly he protected himself by his freedom
+of contract, it is limiting the liberty of the citizen whose conduct is
+regulated and taking a step in the direction of paternal government. While
+the new conditions of industrial life make it plainly necessary that many
+such steps shall be taken, they should be taken only so far as they are
+necessary and are effective. Interference with individual liberty by
+government should be jealously watched and restrained, because the habit of
+undue interference destroys that independence of character without which in
+its citizens no free government can endure.
+
+We should not forget that while institutions receive their form from
+national character they have a powerful reflex influence upon that
+character. Just so far as a nation allows its institutions to be moulded
+by its weaknesses of character rather than by its strength it creates an
+influence to increase weakness at the expense of strength.
+
+The habit of undue interference by government in private affairs breeds the
+habit of undue reliance upon government in private affairs at the expense
+of individual initiative, energy, enterprise, courage, independent manhood.
+
+The strength of self-government and the motive power of progress must be
+found in the characters of the individual citizens who make up a nation.
+Weaken individual character among a people by comfortable reliance
+upon paternal government and a nation soon becomes incapable of free
+self-government and fit only to be governed: the higher and nobler
+qualities of national life that make for ideals and effort and achievement
+become atrophied and the nation is decadent.
+
+A fourth consideration is that in the nature of things all government must
+be imperfect because men are imperfect. Every system has its shortcomings
+and inconveniences; and these are seen and felt as they exist in the system
+under which we live, while the shortcomings and inconveniences of other
+systems are forgotten or ignored.
+
+It is not unusual to see governmental methods reformed and after a time,
+long enough to forget the evils that caused the change, to have a new
+movement for a reform which consists in changing back to substantially the
+same old methods that were cast out by the first reform.
+
+The recognition of shortcomings or inconveniences in government is not by
+itself sufficient to warrant a change of system. There should be also an
+effort to estimate and compare the shortcomings and inconveniences of the
+system to be substituted, for although they may be different they will
+certainly exist.
+
+A fifth consideration is that whatever changes in government are to be
+made, we should follow the method which undertakes as one of its cardinal
+points to hold fast that which is good. Francis Lieber, whose affection
+for the country of his birth equalled his loyalty to the country of his
+adoption, once said:
+
+   "There is this difference between the English, French, and Germans:
+   that the English only change what is necessary and as far as it is
+   necessary; the French plunge into all sorts of novelties by whole
+   masses, get into a chaos, see that they are fools and retrace their
+   steps as quickly, with a high degree of practical sense in all this
+   impracticability; the Germans attempt no change without first recurring
+   to first principles and metaphysics beyond them, systematizing the
+   smallest details in their minds; and when at last they mean to apply
+   all their meditation, opportunity, with its wide and swift wings
+   of a gull, is gone."
+
+This was written more than sixty years ago before the present French
+Republic and the present German Empire, and Lieber would doubtless have
+modified his conclusions in view of those great achievements in government
+if he were writing to-day. But he does correctly indicate the differences
+of method and the dangers avoided by the practical course which he ascribes
+to the English, and in accordance with which the great structure of British
+and American liberty has been built up generation after generation and
+century after century. Through all the seven hundred years since Magna
+Charta we have been shaping, adjusting, adapting our system to the new
+conditions of life as they have arisen, but we have always held on to
+everything essentially good that we have ever had in the system. We have
+never undertaken to begin over again and build up a new system under the
+idea that we could do it better. We have never let go of Magna Charta or
+the Bill of Rights or the Declaration of Independence or the Constitution.
+When we take account of all that governments have sought to do and have
+failed to do in this selfish and sinful world, we find that as a rule the
+application of new theories of government, though devised by the most
+brilliant constructive genius, have availed but little to preserve the
+people of any considerable regions of the earth for any long periods from
+the evils of despotism on the one hand or of anarchy on the other, or
+to raise any considerable portion of the mass of mankind above the hard
+conditions of oppression and misery. And we find that our system of
+government which has been built up in this practical way through so many
+centuries, and the whole history of which is potent in the provisions of
+our Constitution, has done more to preserve liberty, justice, security, and
+freedom of opportunity for many people for a long period and over a great
+portion of the earth, than any other system of government ever devised by
+man. Human nature does not change very much. The forces of evil are hard
+to control now as they always have been. It is easy to fail and hard
+to succeed in reconciling liberty and order. In dealing with this most
+successful body of governmental institutions the question should not be
+what sort of government do you or I think we should have. What you and I
+think on such a subject is of very little value indeed. The question should
+be:
+
+How can we adapt our laws and the workings of our government to the new
+conditions which confront us without sacrificing any essential element of
+this system of government which has so nobly stood the test of time and
+without abandoning the political principles which have inspired the growth
+of its institutions? For there are political principles, and nothing can
+be more fatal to self-government than to lose sight of them under the
+influence of apparent expediency.
+
+In attempting to answer this question we need not trouble ourselves very
+much about the multitude of excited controversies which have arisen over
+new methods of extra constitutional-political organization and procedure.
+Direct nominations, party enrollments, instructions to delegates,
+presidential preference primaries, independent nominations, all relate
+to forms of voluntary action outside the proper field of governmental
+institutions. All these new political methods are the result of efforts of
+the rank and file of voluntary parties to avoid being controlled by the
+agents of their own party organization, and to get away from real evils
+in the form of undue control by organized minorities with the support of
+organized capital. None of these expedients is an end in itself. They are
+tentative, experimental. They are movements not towards something definite
+but away from something definite. They may be inconvenient or distasteful
+to some of us, but no one need be seriously disturbed by the idea that
+they threaten our system of government. If they work well they will be
+an advantage. If they work badly they will be abandoned and some other
+expedient will be tried, and the ultimate outcome will doubtless be an
+improvement upon the old methods.
+
+There is another class of new methods which do relate to the structure of
+government and which call for more serious consideration here. Chief in
+this class are:
+
+The Initiative; that is to say, direct legislation by vote of the people
+upon laws proposed by a specified number or proportion of the electors.
+
+The Compulsory Referendum; that is to say, a requirement that under certain
+conditions laws that have been agreed upon by a legislative body shall
+be referred to a popular vote and become operative only upon receiving a
+majority vote.
+
+The Recall of Officers before the expiration of the terms for which they
+have been elected by a vote of the electors to be had upon the demand of a
+specified number or proportion of them.
+
+The Popular Review of Judicial Decisions upon constitutional questions;
+that is to say, a provision, under which, when a court of last resort
+has decided that a particular law is invalid, because in conflict with
+a constitutional provision, the law may nevertheless be made valid by a
+popular vote.
+
+Some of these methods have been made a part of the constitutional system of
+a considerable number of our states. They have been accompanied invariably
+by provisions for very short and easy changes of state constitutions, and,
+so long as they are confined to the particular states which have chosen to
+adopt them, they may be regarded as experiments which we may watch with
+interest, whatever may be our opinions as to the outcome, and with the
+expectation that if they do not work well they also will be abandoned. This
+is especially true because, since the adoption of the Fourteenth Amendment
+to the Constitution, the states are prohibited from violating in their own
+affairs the most important principles of the National Constitution. It
+is not to be expected, however, that new methods and rules of action in
+government shall become universal in the states and not ultimately bring
+about a change in the national system. It will be useful, therefore, to
+consider whether these new methods if carried into the national system
+would sacrifice any of the essentials of that system which ought to be
+preserved.
+
+The Constitution of the United States deals in the main with essentials.
+There are some non-essential directions such as those relating to the
+methods of election and of legislation, but in the main it sets forth the
+foundations of government in clear, simple, concise terms. It is for this
+reason that it has stood the test of more than a century with but slight
+amendment, while the modern state constitutions, into which a multitude of
+ordinary statutory provisions are crowded, have to be changed from year to
+year. The peculiar and essential qualities of the government established by
+the Constitution are:
+
+First, it is representative.
+
+Second, it recognizes the liberty of the individual citizen as
+distinguished from the total mass of citizens, and it protects that liberty
+by specific limitations upon the power of government.
+
+Third, it distributes the legislative, executive and judicial powers, which
+make up the sum total of all government, into three separate departments,
+and specifically limits the powers of the officers in each department.
+
+Fourth, it superimposes upon a federation of state governments, a national
+government with sovereignty acting directly not merely upon the states, but
+upon the citizens of each state, within a line of limitation drawn
+between the powers of the national government and the powers of the state
+governments.
+
+Fifth, it makes observance of its limitations requisite to the validity of
+laws, whether passed by the nation or by the states, to be judged by the
+courts of law in each concrete case as it arises.
+
+Every one of these five characteristics of the government established by
+the Constitution was a distinct advance beyond the ancient attempts at
+popular government, and the elimination of any one of them would be a
+retrograde movement and a reversion to a former and discarded type of
+government. In each case it would be the abandonment of a distinctive
+feature of government which has succeeded, in order to go back and try
+again the methods of government which have failed. Of course we ought
+not to take such a backward step except under the pressure of inevitable
+necessity.
+
+The first two of the characteristics which I have enumerated, those which
+embrace the conception of representative government and the conception of
+individual liberty, were the products of the long process of development of
+freedom in England and America. They were not invented by the makers of the
+Constitution. They have been called inventions of the Anglo-Saxon race.
+They are the chief contributions of that race to the political development
+of civilization.
+
+The expedient of representation first found its beginning in the Saxon
+witenagemot. It was lost in the Norman conquest. It was restored step by
+step, through the centuries in which parliament established its power as an
+institution through the granting or withholding of aids and taxes for the
+king's use. It was brought to America by the English colonists. It was the
+practice of the colonies which formed the Federal Union. It entered into
+the constitution as a matter of course, because it was the method by which
+modern liberty had been steadily growing stronger and broader for six
+centuries as opposed to the direct, unrepresentative method of government
+in which the Greek and Roman and Italian republics had failed. This
+representative system has in its turn impressed itself upon the nations
+which derived their political ideas from Rome and has afforded the method
+through which popular liberty has been winning forward in its struggle
+against royal and aristocratic power and privilege the world over.
+Bluntschli, the great Heidelberg publicist of the last century, says:
+
+   "Representative government and self-government are the great works of
+   the English and American peoples. The English have produced
+   representative monarchy with parliamentary legislation and
+   parliamentary government. The Americans have produced the
+   representative republic. We Europeans upon the Continent recognize
+   in our turn that in representative government alone lies the hoped-for
+   union between civil order and popular liberty."
+
+The Initiative and Compulsory Referendum are attempts to cure the evils
+which have developed in our practice of representative government by means
+of a return to the old, unsuccessful, and discarded method of direct
+legislation and by rehabilitating one of the most impracticable of
+Rousseau's theories. Every candid student of our governmental affairs must
+agree that the evils to be cured have been real and that the motive which
+has prompted the proposal of the Initiative and Referendum is commendable.
+I do not think that these expedients will prove wise or successful ways of
+curing these evils for reasons which I will presently indicate; but it is
+not necessary to assume that their trial will be destructive of our system
+of government. They do not aim to destroy representative government, but to
+modify and control it, and were it not that the effect of these particular
+methods is likely to go beyond the intention of their advocates they would
+not interfere seriously with representative government except in so far as
+they might ultimately prove to be successful expedients. If they did
+not work satisfactorily they would be abandoned, leaving representative
+government still in full force and effectiveness.
+
+There is now a limited use of the Referendum upon certain comparatively
+simple questions. No one has ever successfully controverted the view
+expressed by Burke in his letter to the electors of Bristol, that his
+constituents were entitled not merely to his vote but to his judgment, even
+though they might not agree with it. But there are some questions upon
+which the determining fact must be the preference of the people of the
+country or of a community; such as the question where a capital city or a
+county seat shall be located; the question whether a debt shall be incurred
+that will be a lien on their property for a specific purpose; the question
+whether the sale of intoxicating liquors shall he permitted. Upon certain
+great simple questions which are susceptible of a _yes_ or _no_ answer it
+is appropriate that the people should be called upon to express their
+wish by a vote just as they express their choice of the persons who shall
+exercise the powers of government by a vote. This, however, is very
+different from undertaking to have the ordinary powers of legislation
+exercised at the ballot box.
+
+In this field the weakness, both of the Initiative and of the Compulsory
+Referendum, is that they are based upon a radical error as to what
+constitutes the true difficulty of wise legislation. The difficulty is
+not to determine what ought to be accomplished but to determine how to
+accomplish it. The affairs with which statutes have to deal as a rule
+involve the working of a great number and variety of motives incident to
+human nature, and the working of those motives depends upon complicated
+and often obscure facts of production, trade, social life, with which men
+generally are not familiar and which require study and investigation to
+understand. Thrusting a rigid prohibition or command into the operation of
+these forces is apt to produce quite unexpected and unintended results.
+Moreover, we already have a great body of laws, both statutory and
+customary, and a great body of judicial decisions as to the meaning and
+effect of existing laws. The result of adding a new law to this existing
+body of laws is that we get, not the simple consequence which the words,
+taken by themselves, would seem to require, but a resultant of forces from
+the new law taken in connection with all existing laws. A very large part
+of the litigation, injustice, dissatisfaction, and contempt for law which
+we deplore, results from ignorant and inconsiderate legislation with
+perfectly good intentions. The only safeguard against such evils and the
+only method by which intelligent legislation can be reached is the method
+of full discussion, comparison of views, modification and amendment of
+proposed legislation in the light of discussion and the contribution and
+conflict of many minds. This process can be had only through the procedure
+of representative legislative bodies. Representative government is
+something more than a device to enable the people to have their say when
+they are too numerous to get together and say it. It is something more than
+the employment of experts in legislation. Through legislative procedure
+a different kind of treatment for legislative questions is secured by
+concentration of responsibility, by discussion, and by opportunity to meet
+objection with amendment. For this reason the attempt to legislate by
+calling upon the people by popular vote to say yes or no to complicated
+statutes must prove unsatisfactory and on the whole injurious. In ordinary
+cases the voters will not and cannot possibly bring to the consideration of
+proposed statutes the time, attention, and knowledge required to determine
+whether such statutes will accomplish what they are intended to accomplish;
+and the vote usually will turn upon the avowed intention of such proposals
+rather than upon their adequacy to give effect to the intention.
+
+This would be true if only one statute were to be considered at one
+election; but such simplicity is not practicable. There always will be, and
+if the direct system is to amount to anything there must be, many proposals
+urged upon the voters at each opportunity.
+
+The measures, submitted at one time in some of the Western States now fill
+considerable volumes.
+
+With each proposal the voter's task becomes more complicated and difficult.
+
+Yet our ballots are already too complicated. The great blanket sheets with
+scores of officers and hundreds of names to be marked are quite beyond the
+intelligent action in detail of nine men out of ten.
+
+The most thoughtful reformers are already urging that the voter's task be
+made more simple by giving him fewer things to consider and act upon at the
+same time.
+
+This is the substance of what is called the "Short Ballot" reform; and
+it is right, for the more questions divide public attention the fewer
+questions the voters really decide for themselves on their own judgment and
+the greater the power of the professional politician.
+
+There is moreover a serious danger to be apprehended from the attempt at
+legislation by the Initiative and Compulsory Referendum, arising from its
+probable effect on the character of representative bodies. These expedients
+result from distrust of legislatures. They are based on the assertion that
+the people are not faithfully represented in their legislative bodies, but
+are misrepresented. The same distrust has led to the encumbering of
+modern state constitutions by a great variety of minute limitations upon
+legislative power. Many of these constitutions, instead of being simple
+frameworks of government, are bulky and detailed statutes legislating upon
+subjects which the people are unwilling to trust the legislature to deal
+with. So between the new constitutions, which exclude the legislatures from
+power, and the Referendum, by which the people overrule what they do,
+and the Initiative, by which the people legislate in their place, the
+legislative representatives who were formerly honored, are hampered, shorn
+of power, relieved of responsibility, discredited, and treated as unworthy
+of confidence. The unfortunate effect of such treatment upon the character
+of legislatures and the kind of men who will he willing to serve in them
+can well be imagined. It is the influence of such treatment that threatens
+representative institutions in our country. Granting that there have been
+evils in our legislative system which ought to be cured, I cannot think
+that this is the right way to cure them. It would seem that the true way
+is for the people of the country to address themselves to the better
+performance of their own duty in selecting their legislative
+representatives and in holding those representatives to strict
+responsibility for their action. The system of direct nominations, which
+is easy of application in the simple proceeding of selecting members of a
+legislature, and the Short Ballot reform aim at accomplishing that result.
+I think that along these lines the true remedy is to be found. No system of
+self-government will continue successful unless the voters have sufficient
+public spirit to perform their own duty at the polls, and the attempt to
+reform government by escaping from the duty of selecting honest and capable
+representatives, under the idea that the same voters who fail to perform
+that duty will faithfully perform the far more onerous and difficult duty
+of legislation, seems an exhibition of weakness rather than of progress.
+
+
+
+
+II
+
+ESSENTIALS
+
+
+In the first of these lectures I specified certain essential
+characteristics of our system of government, and discussed the preservation
+of the first--its representative character. The four other characteristics
+specified have one feature in common. They all aim to preserve rights by
+limiting power.
+
+Of these the most fundamental is the preservation in our Constitution of
+the Anglo-Saxon idea of individual liberty. The republics of Greece and
+Rome had no such conception. All political ideas necessarily concern man as
+a social animal, as a member of society--a member of the state. The ancient
+republics, however, put the state first and regarded the individual only as
+a member of the state. They had in view the public rights of the state in
+which all its members shared, and the rights of the members as parts of the
+whole, but they did not think of individuals as having rights independent
+of the state, or against the state. They never escaped from the attitude
+towards public and individual civil rights, which was dictated by the
+original and ever-present necessity of military organization and defense.
+
+The Anglo-Saxon idea, on the other hand, looked first to the individual.
+In the early days of English history, without theorizing much upon the
+subject, the Anglo-Saxons began to work out their political institutions
+along the line expressed in our Declaration of Independence, that the
+individual citizen has certain inalienable rights--the right to life, to
+liberty, to the pursuit of happiness, and that government is not the source
+of these rights, but is the instrument for the preservation and promotion
+of them. So when a century and a half after the conquest the barons of
+England set themselves to limit the power of the Crown they did not demand
+a grant of rights. They asserted the rights of individual freedom and
+demanded observance of them, and they laid the corner-stone of our system
+of government in this solemn pledge of the Great Charter:
+
+   "No freeman shall be taken, or imprisoned, or be disseized of his free
+   hold, or his liberties, or his free customs, or be outlawed, or exiled,
+   or otherwise destroyed, but by the lawful judgment of his peers, or by
+   the law of the land."
+
+Again and again in the repeated confirmations of the Great Charter, in the
+Petition of Rights, in the Habeas Corpus Act, in the Bill of Rights, in
+the Massachusetts Body of Liberties, in the Virginia Bill of Rights, and,
+finally, in the immortal Declaration of 1776--in all the great utterances
+of striving for broader freedom which have marked the development of modern
+liberty, sounds the same dominant note of insistence upon the inalienable
+right of individual manhood under government but independent of government,
+and, if need be, against government, to life and liberty.
+
+It is impossible to overestimate the importance of the consequences which
+followed from these two distinct and opposed theories of government. The
+one gave us the dominion, but also the decline and fall of, Rome. It
+followed the French Declaration of the Rights of Man, with the negation of
+those rights in the oppression of the Reign of Terror, the despotism of
+Napoleon, the popular submission to the second empire and the subservience
+of the individual citizen to official superiority which still prevails so
+widely on the continent of Europe. The tremendous potency of the other
+subdued the victorious Normans to the conquered Saxon's conception of
+justice, rejected the claims of divine right by the Stewarts, established
+capacity for self-government upon the independence of individual character
+that knows no superior but the law, and supplied the amazing formative
+power which has molded, according to the course and practice of the common
+law, the thought and custom of the hundred millions of men drawn from all
+lands and all races who inhabit this continent north of the Rio Grande.
+
+The mere declaration of a principle, however, is of little avail unless it
+be supported by practical and specific rules of conduct through which
+the principle shall receive effect. So Magna Charta imposed specific
+limitations upon royal authority to the end that individual liberty might
+be preserved, and so to the same end our Declaration of Independence
+was followed by those great rules of right conduct which we call the
+limitations of the constitution. Magna Charta imposed its limitations upon
+the kings of England and all their officers and agents. Our constitution
+imposed its limitations upon the sovereign people and all their officers
+and agents, excluding all the agencies of popular government from authority
+to do the particular things which would destroy or impair the declared
+inalienable right of the individual.
+
+Thus the constitution provides: No law shall be made by Congress
+prohibiting the free exercise of religion, or abridging the freedom of
+speech or of the press. The right of the people to keep and bear arms shall
+not be infringed. The right of the people to be secure in their persons,
+houses, papers and effects, against unreasonable searches and seizures,
+shall not be violated. No person shall be subject for the same offense to
+be twice put in jeopardy of life or limb; nor be compelled, in any criminal
+case, to be a witness against himself; nor be deprived of life, liberty, or
+property without due process of law; nor shall private property be taken
+for public use without just compensation. In all criminal prosecutions, the
+accused shall enjoy the right to a speedy and public trial, by an impartial
+jury of the state and district wherein the crime shall have been committed;
+and to be informed of the nature and cause of the accusation, to be
+confronted with the witnesses against him, to have compulsory process for
+obtaining witnesses in his favor, and to have the assistance of counsel
+for his defense. Excessive bail shall not he required, nor excessive fines
+imposed, nor cruel and unusual punishment inflicted. The privilege of the
+writ of habeas corpus shall not be suspended, except in case of rebellion
+or invasion. No bill of attainder or ex post facto law shall be passed. And
+by the Fourteenth Amendment, no state shall deprive any person of life,
+liberty, or property, without due process of law; nor deny to any person
+within its jurisdiction the equal protection of the law.
+
+We have lived so long under the protection of these rules that most of us
+have forgotten their importance. They have been unquestioned in America so
+long that most of us have forgotten the reasons for them. But if we lose
+them we shall learn the reasons by hard experience. And we are in some
+danger of losing them, not all at once but gradually, by indifference.
+
+As Professor Sohm says: "The greatest and most far reaching revolutions in
+history are not consciously observed at the time of their occurrence."
+
+Every one of these provisions has a history. Every one stops a way
+through which the overwhelming power of government has oppressed the
+weak individual citizen, and may do so again if the way be opened. Such
+provisions as these are not mere commands. They withhold power. The instant
+any officer, of whatever kind or grade, transgresses them he ceases to act
+as an officer. The power of sovereignty no longer supports him. The majesty
+of the law no longer gives him authority. The shield of the law no longer
+protects him. He becomes a trespasser, a despoiler, a law breaker, and
+all the machinery of the law may be set in motion for his restraint or
+punishment. It is true that the people who have made these rules may repeal
+them. As restraints upon the people themselves they are but self-denying
+ordinances which the people may revoke, but the supreme test of
+capacity for popular self-government is the possession of that power of
+self-restraint through which a people can subject its own conduct to the
+control of declared principles of action.
+
+These rules of constitutional limitation differ from ordinary statutes in
+this, that these rules are made impersonally, abstractly, dispassionately,
+impartially, as the people's expression of what they believe to be right
+and necessary for the preservation of their idea of liberty and justice.
+The process of amendment is so guarded by the constitution itself as
+to require the lapse of time and opportunity for deliberation and
+consideration and the passing away of disturbing influences which may be
+caused by special exigencies or excitements, before any change can be
+made. On the contrary, ordinary acts of legislation are subject to the
+considerations of expediency for the attainment of the particular objects
+of the moment, to selfish interests, momentary impulses, passions,
+prejudices, temptations. If there be no general rules which control
+particular action, general principles are obscured or set aside by the
+desires and impulses of the occasion. Our knowledge of the weakness of
+human nature and countless illustrations from the history of legislation
+in our own country point equally to the conclusion that if governmental
+authority is to be controlled by rules of action, it cannot be relied upon
+to impose those rules upon itself at the time of action, but must have them
+prescribed beforehand.
+
+The second class of limitations upon official power provided in our
+constitution prescribe and maintain the distribution of power to the
+different departments of government and the limitations upon the officers
+invested with authority in each department. This distribution follows the
+natural and logical lines of the distinction between the different kinds of
+power--legislative, executive, and judicial. But the precise allotment of
+power and lines of distinction are not so important as it is that there
+shall be distribution, and that each officer shall be limited in accordance
+with that distribution, for without such limitations there can be no
+security for liberty. If, whatever great officer of state happens to be the
+most forceful, skillful, and ambitious, is permitted to overrun and absorb
+to himself the powers of all other officers and to control their action,
+there ensues that concentration of power which destroys the working of free
+institutions, enables the holder to continue himself in power, and leaves
+no opportunity to the people for a change except through a revolution.
+Numerous instances of this very process are furnished by the history of
+some of the Spanish-American republics. It is of little consequence that
+the officer who usurps the power of others may design only to advance the
+public interest and to govern well. The system which permits an honest
+and well-meaning man to do this will afford equal opportunity for selfish
+ambition to usurp power in its own interest. Unlimited official power
+concentrated in one person is despotism, and it is only by carefully
+observed and jealously maintained limitations upon the power of every
+public officer that the workings of free institutions can be continued.
+
+The rigid limitation of official power is necessary not only to prevent the
+deprivation of substantial rights by acts of oppression, but to maintain
+that equality of political condition which is so important for the
+independence of individual character among the people of the country. When
+an officer has authority over us only to enforce certain specific laws at
+particular times and places, and has no authority regarding anything else,
+we pay deference to the law which he represents, but the personal relation
+is one of equality. Give to that officer, however, unlimited power, or
+power which we do not know to be limited, and the relation at once becomes
+that of an inferior to a superior. The inevitable result of such a relation
+long continued is to deprive the people of the country of the individual
+habit of independence. This may be observed in many of the countries of
+Continental Europe, where official persons are treated with the kind of
+deference, and exercise the kind of authority, which are appropriate only
+to the relations between superior and inferior.
+
+So the Massachusetts Constitution of 1780, after limiting the powers of
+each department to its own field, declares that this is done "to the end it
+may be a government of laws and not of men."
+
+The third class of limitations I have mentioned are those made necessary by
+the novel system which I have described as superimposing upon a federation
+of state governments, a national government acting directly upon the
+individual citizens of the states. This expedient was wholly unknown before
+the adoption of our constitution. All the confederations which had been
+attempted before that time were simply leagues of states, and whatever
+central authority there was derived its authority from and had its
+relations with the states as separate bodies politic. This was so of the
+old confederation. Each citizen owed his allegiance to his own state
+and each state had its obligations to the confederation. Under our
+constitutional system in every part of the territory of every state
+there are two sovereigns, and every citizen owes allegiance to both
+sovereigns--to his state and to his nation. In regard to some matters,
+which may generally be described as local, the state is supreme. In regard
+to other matters, which may generally be described as national, the nation
+is supreme. It is plain that to maintain the line between these two
+sovereignties operating in the same territory and upon the same citizens is
+a matter of no little difficulty and delicacy. Nothing has involved more
+constant discussion in our political history than questions of conflict
+between these two powers, and we fought the great Civil War to determine
+the question whether in case of conflict the allegiance to the state or the
+allegiance to the nation was of superior obligation. We should observe that
+the Civil War arose because the constitution did not draw a clear line
+between the national and state powers regarding slavery. It is of very
+great importance that both of these authorities, state and national, shall
+be preserved together and that the limitations which keep each within its
+proper province shall be maintained. If the power of the states were to
+override the power of the nation we should ultimately cease to have a
+nation and become only a body of really separate, although confederated,
+state sovereignties continually forced apart by diverse interests and
+ultimately quarreling with each other and separating altogether. On the
+other hand, if the power of the nation were to override that of the states
+and usurp their functions we should have this vast country, with its great
+population, inhabiting widely separated regions, differing in climate, in
+production, in industrial and social interests and ideas, governed in all
+its local affairs by one all-powerful, central government at Washington,
+imposing upon the home life and behavior of each community the opinions
+and ideas of propriety of distant majorities. Not only would this be
+intolerable and alien to the idea of free self-government, but it would be
+beyond the power of a central government to do directly. Decentralization
+would be made necessary by the mass of government business to be
+transacted, and so our separate localities would come to be governed by
+delegated authority--by proconsuls authorized from Washington to execute
+the will of the great majority of the whole people. No one can doubt that
+this also would lead by its different route to the separation of our Union.
+Preservation of our dual system of government, carefully restrained in each
+of its parts by the limitations of the constitution, has made possible our
+growth in local self-government and national power in the past, and, so far
+as we can see, it is essential to the continuance of that government in the
+future.
+
+All of these three classes of constitutional limitations are therefore
+necessary to the perpetuity of our government. I do not wish to be
+understood as saying that every single limitation is essential. There are
+some limitations that might be changed and something different substituted.
+But the system of limitation must be continued if our governmental system
+is to continue--if we are not to lose the fundamental principles of
+government upon which our Union is maintained and upon which our race has
+won the liberty secured by law for which it has stood foremost in the
+world.
+
+Lincoln covered this subject in one of his comprehensive statements that
+cannot be quoted too often. He said in the first inaugural:
+
+   "A majority held in restraint by constitutional checks and limitations
+   and always changing easily with deliberate changes of popular opinion
+   and sentiments the only true sovereign of a free people. Whoever
+   rejects it does of necessity fly to anarchy or despotism."
+
+Rules of limitation, however, are useless unless they are enforced. The
+reason for restraining rules arises from a tendency to do the things
+prohibited. Otherwise no rule would be needed. Against all practical rules
+of limitation--all rules limiting official conduct, there is a constant
+pressure from one side or the other. Honest differences of opinion as
+to the extent of power, arising from different points of view make this
+inevitable, to say nothing of those weaknesses and faults of human nature
+which lead men to press the exercise of power to the utmost under the
+influence of ambition, of impatience with opposition to their designs, of
+selfish interest and the arrogance of office. No mere paper rules will
+restrain these powerful and common forces of human nature.
+
+The agency by which, under our system of government, observance of
+constitutional limitation is enforced is the judicial power. The
+constitution provides that "This constitution, and the laws of the United
+States which shall be made in pursuance thereof, and all treaties made, or
+which shall be made, under the authority of the United States, shall be
+the supreme law of the land; and the judges in every state shall be bound
+thereby, anything in the constitution or laws of any state to the contrary
+notwithstanding." Under this provision an enactment by Congress not made in
+pursuance of the constitution, or an enactment of a state contrary to the
+constitution, is not a law. Such an enactment should strictly have no more
+legal effect than the resolution of any private debating society. The
+constitution also provides that the judicial power of the United States
+shall extend to all cases in law and equity arising under the constitution
+and laws of the United States. Whenever, therefore, in a case before a
+Federal court rights are asserted under or against some law which is
+claimed to violate some limitation of the constitution, the court is
+obliged to say whether the law does violate the constitution or not,
+because if it does not violate the constitution the court must give effect
+to it as law, while if it does violate the constitution it is no law at all
+and the court is not at liberty to give effect to it. The courts do not
+render decisions like imperial rescripts declaring laws valid or invalid.
+They merely render judgment on the rights of the litigants in particular
+cases, and in arriving at their judgment they refuse to give effect to
+statutes which they find clearly not to be made in pursuance of the
+constitution and therefore to be no laws at all. Their judgments are
+technically binding only in the particular case decided, but the knowledge
+that the court of last resort has reached such a conclusion concerning a
+statute, and that a similar conclusion would undoubtedly be reached in
+every case of an attempt to found rights upon the same statute, leads to a
+general acceptance of the invalidity of the statute.
+
+There is only one alternative to having the courts decide upon the validity
+of legislative acts, and that is by requiring the courts to treat the
+opinion of the legislature upon the validity of its statutes, evidenced
+by their passage, as conclusive. But the effect of this would be that the
+legislature would not be limited at all except by its own will. All the
+provisions designed to maintain a government carried on by officers of
+limited powers, all the distinctions between what is permitted to the
+national government and what is permitted to the state governments, all
+the safeguards of the life, liberty and property of the citizen against
+arbitrary power, would cease to bind Congress, and on the same theory they
+would cease also to bind the legislatures of the states. Instead of the
+constitution being superior to the laws the laws would be superior to
+the constitution, and the essential principles of our government would
+disappear. More than one hundred years ago, Chief Justice Marshall, in the
+great case of Marbury _vs_. Madison, set forth the view upon which our
+government has ever since proceeded. He said:
+
+   "The powers of the legislature are defined and limited; and that those
+   limits may not be mistaken or forgotten, the constitution is written.
+   To what purpose are powers limited, and to what purpose is that limit
+   committed to writing, if these limits may, at any time, be passed by
+   those intended to be restrained? The distinction between a government
+   with limited and unlimited powers is abolished, if those limits do not
+   confine the persons on whom they are imposed, and if acts prohibited
+   and acts allowed are of equal obligation. It is a proposition too plain
+   to be contested, that the constitution controls any legislative act
+   repugnant to it; or that the legislature may alter the constitution
+   by an ordinary act.
+
+   "Between these alternatives, there is no middle ground. The constitution
+   is either a superior, paramount law, unchangeable by ordinary means, or
+   it is on a level with ordinary legislative acts, and, like other acts,
+   is alterable when the legislature shall please to alter it. If the
+   former part of the alternative be true, then a legislative act, contrary
+   to the constitution, is not law: if the latter part be true, then
+   written constitutions are absurd attempts, on the part of the people, to
+   limit a power, in its own nature, inimitable.
+
+   "Certainly, all those who have framed written constitutions contemplate
+   them as forming the fundamental and paramount law of the nation, and
+   consequently, the theory of every such government must be, that an act
+   of the legislature, repugnant to the constitution, is void. This theory
+   is essentially attached to a written constitution, and is, consequently,
+   to be considered by this court as one of the fundamental principles of
+   our society."
+
+And of the same opinion was Montesquieu who gave the high authority of the
+_Esprit des Lois_ to the declaration that
+
+   "There is no liberty if the power of judging be not separate from the
+   legislative and executive powers; were it joined with the legislative
+   the life and liberty of the subject would be exposed to arbitrary
+   control."
+
+It is to be observed that the wit of man has not yet devised any better
+way of reaching a just conclusion as to whether a statute does or does not
+conflict with a constitutional limitation upon legislative power than the
+submission of the question to an independent and impartial court. The
+courts are not parties to the transactions upon which they pass. They are
+withdrawn by the conditions of their office from participation in business
+and political affairs out of which litigations arise. Their action is
+free from the chief dangers which threaten the undue extension of power,
+because, as Hamilton points out in The Federalist, they are the weakest
+branch of government: they neither hold the purse, as does the legislature,
+nor the sword, as does the executive. During all our history they have
+commanded and deserved the respect and confidence of the people. General
+acceptance of their conclusions has been the chief agency in preventing
+here the discord and strife which afflict so many lands, and in preserving
+peace and order and respect for law.
+
+Indeed in the effort to emasculate representative government to which I
+have already referred, the people of the experimenting states have greatly
+increased their reliance upon the courts. Every new constitution with
+detailed orders to the legislature is a forcible assertion that the people
+will not trust legislatures to determine the extent of their own powers,
+but will trust the courts.
+
+Two of the new proposals in government, which have been much discussed,
+directly relate to this system of constitutional limitations made effective
+through the judgment of the courts. One is the proposal for the Recall of
+Judges, and the other for the Popular Review of Decisions, sometimes spoken
+of as the Recall of Decisions.
+
+Under the first of these proposals, if a specified proportion of the voters
+are dissatisfied with a judge's decision they are empowered to require that
+at the next election, or at a special election called for that purpose,
+the question shall be presented to the electors whether the judge shall be
+permitted to continue in office or some other specified person shall be
+substituted in his place. This ordeal differs radically from the popular
+judgment which a judge is called upon to meet at the end of his term of
+office, however short that may be, because when his term has expired he is
+judged upon his general course of conduct while he has been in office and
+stands or falls upon that as a whole. Under the Recall a judge may be
+brought to the bar of public judgment immediately upon the rendering of a
+particular decision which excites public interest and he will be subject to
+punishment if that decision is unpopular. Judges will naturally be afraid
+to render unpopular decisions. They will hear and decide cases with a
+stronger incentive to avoid condemnation themselves than to do justice to
+the litigant or the accused. Instead of independent and courageous judges
+we shall have timid and time-serving judges. That highest duty of the
+judicial power to extend the protection of the law to the weak, the
+friendless, the unpopular, will in a great measure fail. Indirectly the
+effect will be to prevent the enforcement of the essential limitations upon
+official power because the judges will be afraid to declare that there is a
+violation when the violation is to accomplish some popular object.
+
+The Recall of Decisions aims directly at the same result. Under such an
+arrangement, if the courts have found a particular law to be a violation of
+one of the fundamental rules of limitation prescribed in the constitution,
+and the public feeling of the time is in favor of disregarding that
+limitation in that case, an election is to be held, and if the people in
+the election vote that the law shall stand, it is to stand, although it be
+a violation of the constitution; that is to say, if at any time a majority
+of the voters of a state (and ultimately the same would be true of the
+people of the United States) choose not to be bound in any particular case
+by the rule of right conduct which they have established for themselves,
+they are not to be bound. This is sometimes spoken of as a Popular Reversal
+of the Decisions of Courts. That I take to be an incorrect view. The power
+which would be exercised by the people under such an arrangement would be,
+not judicial, but legislative. The action would not be a decision that the
+court was wrong in finding a law unconstitutional, but it would be making
+a law valid which was invalid before because unconstitutional. In such
+an election the majority of the voters would make a law where no law had
+existed before; and they would make that law in violation of the rules of
+conduct by which the people themselves had solemnly declared they ought
+to be bound. The exercise of such a power, if it is to exist, cannot be
+limited to the particular cases which you or I or any man now living may
+have in mind. It must be general. If it can be exercised at all it can and
+will be exercised by the majority whenever they wish to exercise it. If it
+can be employed to make a Workmen's Compensation Act in such terms as to
+violate the constitution, it can be employed to prohibit the worship of an
+unpopular religious sect, or to take away the property of an unpopular rich
+man without compensation, or to prohibit freedom of speech and of the press
+in opposition to prevailing opinion, or to deprive one accused of crime of
+a fair trial when he has been condemned already by the newspapers. In every
+case the question whether the majority shall be bound by those general
+principles of action which the people have prescribed for themselves will
+be determined in that case by the will of the majority, and therefore in no
+case will the majority be bound except by its own will at the time.
+
+The exercise of such a power would strike at the very foundation of our
+system of government. It would be a reversion to the system of the ancient
+republics where the state was everything and the individual nothing
+except as a part of the state, and where liberty perished. It would be a
+repudiation of the fundamental principle of Anglo-Saxon liberty which we
+inherit and maintain, for it is the very soul of our political institutions
+that they protect the individual against the majority. "All men," says
+the Declaration, "are endowed by their Creator with inalienable rights.
+Governments are instituted to secure these rights." The rights are not
+derived from any majority. They are not disposable by any majority. They
+are superior to all majorities. The weakest minority, the most despised
+sect, exist by their own right. The most friendless and lonely human being
+on American soil holds his right to life and liberty and the pursuit of
+happiness, and all that goes to make them up by title indefeasible against
+the world, and it is the glory of American self-government that by the
+limitations of the constitution we have protected that right against even
+ourselves. That protection cannot be continued and that right cannot be
+maintained, except by jealously preserving at all times and under all
+circumstances the rule of principle which is eternal over the will of
+majorities which shift and pass away.
+
+Democratic absolutism is just as repulsive, and history has shown it to
+be just as fatal, to the rights of individual manhood as is monarchical
+absolutism.
+
+But it is not necessary to violate the rules of action which we have
+established for ourselves in the constitution in order to deal by law with
+the new conditions of the time, for these rules of action are themselves
+subject to popular control. If the rules are so stated that they are
+thought to prevent the doing of something which is not contrary to the
+principles of liberty but demanded by them, the true remedy is to be found
+in reconsidering what the rules ought to be and, if need be, in restating
+them so that they will give more complete effect to the principles they are
+designed to enforce. If, as I believe, there ought to be in my own state,
+for example, a Workman's Compensation Act to supersede the present
+unsatisfactory system of accident litigation, and if the constitution
+forbids such a law--which I very much doubt--the true remedy is not to cast
+to the winds all systematic self-restraint and to inaugurate a new system
+of doing whatever we please whenever we please, unrestrained by declared
+rules of conduct; but it is to follow the orderly and ordinary method of
+amending the constitution so that the rule protecting the right to property
+shall not be so broadly stated as to prevent legislation which the
+principle underlying the rule demands.
+
+The difference between the proposed practice of overriding the constitution
+by a vote and amending the constitution is vital. It is the difference
+between breaking a rule and making a rule; between acting without any rule
+in a particular case and determining what ought to be the rule of action
+applicable to all cases.
+
+Our legislatures frequently try to evade constitutional provisions, and
+doubtless popular majorities seeking specific objects would vote the same
+way, but set the same people to consider what the fundamental law ought
+to be, and confront them with the question whether they will abandon in
+general the principles and the practical rules of conduct according to
+principles, upon which our government rests, and they will instantly
+refuse. While their minds are consciously and avowedly addressed to that
+subject they will stand firm for the general rules that will protect them
+and their children against oppression and usurpation, and they will change
+those rules only if need be to make them enforce more perfectly the
+principles which underlie them.
+
+Communities, like individuals, will declare for what they believe to be
+just and right; but communities, like individuals, can be led away from
+their principles step by step under the temptations of specific desires and
+supposed expediencies until the principles are a dead letter and allegiance
+to them is a mere sham.
+
+And that is the way in which popular governments lose their vitality and
+perish.
+
+The Roman consuls derived their power from the people and were responsible
+to the people; but Rome went on pretending that the emperors and their
+servants were consuls long after the Praetorians were the only source of
+power and the only power exercised was that of irresponsible despotism.
+
+A number of countries have copied our constitution coupled with a provision
+that the constitutional guarantees may be suspended in case of necessity.
+We are all familiar with the result. The guarantees of liberty and justice
+and order have been forgotten: the government is dictatorship and the
+popular will is expressed only by revolution.
+
+Nor, so far as our national system is concerned has there yet appeared any
+reason to suppose that suitable laws to meet the new conditions cannot be
+enacted without either overriding or amending the constitution. The liberty
+of contract and the right of private property which are protected by the
+limitations of the constitution are held subject to the police power of
+government to pass and enforce laws for the protection of the public
+health, public morals, and public safety. The scope and character of the
+regulations required to accomplish these objects vary as the conditions
+of life in the country vary. Many interferences with contract and with
+property which would have been unjustifiable a century ago are demanded by
+the conditions which exist now and are permissible without violating any
+constitutional limitation. What will promote these objects the legislative
+power decides with large discretion, and the courts have no authority to
+review the exercise of that discretion. It is only when laws are passed
+under color of the police power and having no real or substantial relation
+to the purposes for which the power exists, that the courts can refuse to
+give them effect. By a multitude of judicial decisions in recent years our
+courts have sustained the exercise of this vast and progressive power
+in dealing with the new conditions of life under a great variety of
+circumstances. The principal difficulty in sustaining the exercise of the
+power has been caused ordinarily by the fact that carelessly or ignorantly
+drawn statutes either have failed to exhibit the true relation between the
+regulation proposed and the object sought, or have gone farther than the
+attainment of the legitimate object justified. A very good illustration
+of this is to be found in the Federal Employer's Liability Act which
+was carelessly drawn and passed by Congress in 1906 and was declared
+unconstitutional by the Supreme Court, but which was carefully drawn and
+passed by Congress in 1908 and was declared constitutional by the same
+court.
+
+Insistence upon hasty and violent methods rather than orderly and
+deliberate methods is really a result of impatience with the slow methods
+of true progress in popular government. We should probably make little
+progress were there not in every generation some men who, realizing evils,
+are eager for reform, impatient of delay, indignant at opposition, and
+intolerant of the long, slow processes by which the great body of the
+people may consider new proposals in all their relations, weigh their
+advantages and disadvantages, discuss their merits, and become educated
+either to their acceptance or rejection. Yet that is the method of progress
+in which no step, once taken, needs to be retraced; and it is the only way
+in which a democracy can avoid destroying its institutions by the impulsive
+substitution of novel and attractive but impracticable expedients.
+
+The wisest of all the fathers of the Republic has spoken, not for his
+own day alone but for all generations to come after him, in the solemn
+admonitions of the Farewell Address. It was to us that Washington spoke
+when he said:
+
+   "The basis of our political systems is the right of the people to make
+   and to alter their constitutions of government; but the Constitution
+   which at any time exists, till changed by an explicit and authentic
+   act of the whole people, is sacredly obligatory upon all.... Towards
+   the preservation of your government, and the permanency of your present
+   happy state, it is requisite, not only that you steadily discountenance
+   irregular oppositions to its acknowledged authority, but also that you
+   resist with care the spirit of innovation upon its principles, however
+   specious the pretexts. One method of assault may be to effect, in the
+   forms of the Constitution, alterations which will impair the energy of
+   the system, and thus to undermine what cannot be directly overthrown. In
+   all the changes to which you may be invited, remember that time and
+   habit are at least as necessary to fix the true character of governments
+   as of other human institutions; that experience is the surest standard
+   by which to test the real tendency of the existing constitution of a
+   country; that facility in changes, upon the credit of mere hypothesis
+   and opinion, exposes to perpetual changes, from the endless variety of
+   hypothesis and opinion."
+
+While, in the nature of things, each generation must assume the task of
+adapting the working of its government to new conditions of life as they
+arise, it would be the folly of ignorant conceit for any generation to
+assume that it can lightly and easily improve upon the work of the founders
+in those matters which are, by their nature, of universal application to
+the permanent relations of men in civil society.
+
+Religion, the philosophy of morals, the teaching of history, the experience
+of every human life, point to the same conclusion--that in the practical
+conduct of life the most difficult and the most necessary virtue is
+self-restraint. It is the first lesson of childhood; it is the quality for
+which great monarchs are most highly praised; the man who has it not is
+feared and shunned; it is needed most where power is greatest; it is needed
+more by men acting in a mass than by individuals, because men in the mass
+are more irresponsible and difficult of control than individuals. The
+makers of our constitution, wise and earnest students of history and
+of life, discerned the great truth that self-restraint is the supreme
+necessity and the supreme virtue of a democracy. The people of the United
+States have exercised that virtue by the establishment of rules of right
+action in what we call the limitations of the constitution, and until
+this day they have rigidly observed those rules. The general judgment of
+students of government is that the success and permanency of the American
+system of government are due to the establishment and observance of
+such general rules of conduct. Let us change and adapt our laws as the
+shifting-conditions of the times require, but let us never abandon or
+weaken this fundamental and essential characteristic of our ordered
+liberty.
+
+
+
+***END OF THE PROJECT GUTENBERG EBOOK EXPERIMENTS IN GOVERNMENT AND THE
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