diff options
| author | Roger Frank <rfrank@pglaf.org> | 2025-10-15 04:34:36 -0700 |
|---|---|---|
| committer | Roger Frank <rfrank@pglaf.org> | 2025-10-15 04:34:36 -0700 |
| commit | 7618148abed49c430849790241fa58a3fe5d3cc8 (patch) | |
| tree | c2170d00611d44f5d697aed10dab4aaf8d85d8e9 /10485-h/10485-h.htm | |
Diffstat (limited to '10485-h/10485-h.htm')
| -rw-r--r-- | 10485-h/10485-h.htm | 1307 |
1 files changed, 1307 insertions, 0 deletions
diff --git a/10485-h/10485-h.htm b/10485-h/10485-h.htm new file mode 100644 index 0000000..8138d61 --- /dev/null +++ b/10485-h/10485-h.htm @@ -0,0 +1,1307 @@ +<!DOCTYPE html PUBLIC "-//W3C//DTD XHTML 1.0 Transitional//EN" + "http://www.w3.org/TR/xhtml1/DTD/xhtml1-transitional.dtd"> +<html> +<head> +<meta http-equiv="Content-Type" content="text/html; charset=UTF-8" /> +<title>The Project Gutenberg eBook of Experiments in Government and the Essentials of the Constitution, by Elihu Root</title> +<style type="text/css"> + /*<![CDATA[*/ + <!-- +body {margin-left: 10%; margin-right: 10%;} +p {text-align: justify;} +blockquote {text-align: justify;} +h1,h2,h3,h4,h5,h6 {text-align: center;} +pre {font-size: 0.7em;} + +hr {text-align: center; width: 50%;} +html>body hr {margin-right: 25%; margin-left: 25%; width: 50%;} +hr.full {width: 100%;} +html>body hr.full {margin-right: 0%; margin-left: 0%; width: 100%;} + +.note, .footnote {margin-left: 10%; margin-right: 10%; font-size: 0.9em;} + +.greek {cursor: help;} + +.poem {margin-left:10%; margin-right:10%; text-align: left;} +.poem .stanza {margin: 1em 0em 1em 0em;} +.poem p {margin: 0; padding-left: 3em; text-indent: -3em;} +.poem p.i2 {margin-left: 2em;} +.poem p.i4 {margin-left: 4em;} + --> + /*]]>*/ +</style> +</head> +<body> +<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—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.</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—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—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—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—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—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—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.</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—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—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—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.</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—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> +</body> +</html> |