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.