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.