TREND OF THE TIMES
A consideration of the constitutional guarantee that each state
shall have a republican form of government, and the warning of
Washington against making changes in the constitution.
Both the trend of thought and the current of events are away from
representative government and toward direct government.
Legislating by initiative or by referendum, the recall of judges, and
especially the recall of judicial decisions, come dangerously near
constituting a democratic form of government, against which the
Constitution of the United States guarantees. Its language you
remember: “The United States shall guarantee to every state in this
Union a republican form of government.”
Chief Justice Taney, interpreting this section, said: “It rests with
Congress to decide what government is the established one in a state,
for, as the United States guarantees to each state a republican form of
government, Congress must necessarily decide what government is
established in the state before it can determine whether it is
republican or not.”[1]
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Footnote 1:
Luther vs. Borden, 7 Howard 1.
Chief Justice Waite used the following language, the vital sentence of
which I have italicized: “All the states had governments when the
Constitution was adopted. In all, the people participated, to some
extent, _through their representatives selected in the manner specially
provided_. These governments the Constitution did not change. They were
accepted precisely as they were and it is therefore to be presumed that
they were such as it is the duty of the states to provide. Thus, we
have unmistakable evidence of what was republican in form within the
meaning of that term as employed in the Constitution.”[2]
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Footnote 2:
Minar vs. Happersatt, 21 Wall 112.
It is well to note that this participation in their government, which
the learned Chief Justice mentions, was “_through their
representatives_,” and in no other way.
More than one state has been required to change its constitution before
admission into the Union. Congress refused to admit Arizona under a
constitution providing for the recall of judges and judicial decisions.
It smacked too strongly of direct government. After her admission,
however, she amended her constitution and inserted the socialistic—the
“democratic”—provisions, the elimination of which Congress had made a
condition precedent to admission.
In his work, “The State,” Woodrow Wilson calls attention to the fact
that constitution-making is fast becoming “a cumbrous mode of
legislation.” The record in many states justifies this comment.
At the election of 1918, in the state of California there were
submitted through referendum nineteen proposed amendments to its
constitution, no one of which legitimately belongs in a constitution.
They were simply legislative acts sought to be inserted in the organic
law, or state charter, for the sole purpose of rendering them more
difficult of repeal when proved bad. The “people” had so little
confidence in themselves that they deemed it imprudent to trust to
their wisdom whether a law should be continued when found beneficial or
repealed when its effects were evil, and hence sought to tie their own
hands by placing the act in the constitution instead of in the revised
statutes.
George Washington, with prophetic vision, foresaw and in his immortal
Farewell Address warned against this tendency towards evolutionary
revolution and employed this language, the last sentence of which I
feel certain he would today italicize:
“Towards the preservation of your government and the permanency of your
present happy state, it is requisite not only that you speedily
discountenance irregular opposition to its acknowledged authority, but
also that you resist with care the spirit of innovation upon its
principles, however specious the pretext. _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._”
This trend towards a democratic form of government, or direct
government, finds fitting illustration in the fact that if you were to
locate a homestead in any one of several states, prove up and secure
your patent, and someone should contest your title, and the court
should find the land belonged to you, and should render decision
accordingly, the people might reverse this decree and give the land to
the contestant. It is not a question whether they are likely to do such
a thing. The fact that the people in several states have deliberately
provided the machinery by which they can thus defeat justice,
constitutes a perpetual menace that should adversely affect the market
value of all real estate in those states. When title to property is
made to rest upon the sentimental whim of the masses, as distinguished
from a decree of court, liberty itself is rendered unstable and
organized government is abandoned and socialism is substituted.