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diff --git a/10485-0.txt b/10485-0.txt new file mode 100644 index 0000000..fb715b1 --- /dev/null +++ b/10485-0.txt @@ -0,0 +1,1245 @@ +*** 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 *** |