THE NECESSITY OF MAINTAINING UNDIMINISHED THE CONSTITUTIONAL
LIMITATIONS AND THE POWER OF THE COURTS TO ENFORCE THEM.--CONCLUSION
Despite the lessons of history showing the need of specified
limitations upon the legislative power to ensure personal liberty and
justice, it is still urged by the impatient that this check upon
legislative action should be removed, or at least that the legislature
should itself be the judge of the constitutionality of its acts, and
that the legislatures as the representatives of the people may be
trusted to observe constitutional requirements and limitations. From
the beginning, however, the people of this country have not fully
trusted their legislatures. They have not only set bounds to
legislative power, but within those bounds they have imposed in most
instances the check of an executive veto. They have also complained of
their legislatures far more loudly than they have of their courts, and
latterly have subjected them to the initiative and referendum and in
some instances to the recall.
Perhaps the judgment of those urging that the legislature should be
trusted not to trespass on the constitutional rights of the people may
be enlightened by recalling some instances of legislative action upon
constitutional questions left to its decision by the constitution
itself. It is hardly necessary to cite instances of the abuse of this
power in the matter of determining who are entitled to seats in the
legislature. It is common knowledge that, in the past at least, both
law and fact have often been over-ridden for partisan advantage. As an
illustration of how far a legislature will sometimes go in this
direction I may cite a recent instance in Maine. The constitution of
that state provides (Art. IV, Pt. 3, Sec. 11) that "no person holding
any office under the United States (post officers excepted) shall
have a seat in either house of the legislature during his continuing
in such office." This provision was in the original constitution of
1821, and until the legislative session of 1913 the exception of "post
officers" was understood to refer to officers in the postal service
and such officers often held seats in the legislature without
question. In 1913, however, the House of Representatives held for
awhile that the exception referred only to military officers of the
United States stationed at military posts within the state, though no
such officer had ever held a seat in the legislature.
That legislatures are prone to disregard constitutional provisions is
also manifest in the vast amount of special legislation enacted
despite constitutional prohibitions of such legislation. There are
also numerous instances where legislatures while perfunctorily heeding
the letter of the constitution consciously violate its spirit and
evade its requirements. In many states there is a constitutional
provision that no legislative act shall become effective until after
a specified time has elapsed from its enactment "except in cases of
emergency," which emergency, however, is to be declared in the act
itself. This provision, of course, is to give the people time to
understand the statute and prepare to obey it. The word "emergency" in
the exception implies a sudden, unexpected happening. It is defined in
Webster as a "pressing necessity; an unforeseen occurrence or
combination of circumstances which calls for immediate action or
remedy." In Indiana in one legislative session, out of 200 acts, 155
were made to take effect at once by a recital that an emergency
existed therefor. In Illinois a two-thirds vote of all the members
elected to each house is required for the adoption of the emergency
clause. Among the acts of the last session containing the emergency
clause was one appropriating $600 for printing the report of a
monument association. In Tennessee the exception was of cases where
"the public welfare" required an earlier date. Out of 265 laws passed
at one session 230 contained the declaration that the public welfare
required their going into effect immediately. In Texas the
constitution provides that no bill shall be passed until it has been
read on three several days in each house and free discussion allowed
thereon, but that "in cases of imperative public necessity four-fifths
of the house may suspend the rule." Out of 118 laws passed at one
session all but five contained the statement that "imperative public
necessity" required suspension of the rule.
Legislatures also seem prone to disregard the constitutional provision
for the referendum despite the strong, explicit language of that
provision. In California the constitutional provision is as follows:
"No act shall go into effect until ninety days after the adjournment
of the legislature which passed such act ... except urgency measures
necessary for the immediate preservation of the public peace, health
or safety, passed by a two-thirds vote of all the members elected to
each house." Surely the language of the exception is strong and
forceful. Two-thirds of all the members elected to each house must
hold that the measure is urgent, not admitting of delay, that the
public peace, health or safety, not the mere interests or convenience
of individuals or localities, is threatened and that the danger is
imminent, requiring immediate action. Among other instances, the
legislature of California at its special session of 1911 adjudged an
act to validate certain defective registrations of voters in some
municipalities to be an urgency measure within the language of the
exception; also an act to change the boundaries in a Reclamation
District. Oregon has a similar constitutional requirement and
exception which its legislature does not always observe. At the
session of 1911, among other cases the legislature adjudged an act
authorizing a county to levy a tax for advertising the county's
resources to be within the exception; also an act dividing a road
district; but an act appropriating money to guard against the bubonic
plague was not declared to be within the exception. In Oklahoma with a
similar constitutional provision and exception, the legislature seems
to have run riot. At the session of 1910 a very large proportion, if
not a majority, of the statutes were adjudged to be within the
exception. Among them was an act to pay the mileage and per diem of
the members; an act providing stenographers for the Supreme Court; an
act authorizing the sale of four tracts of land at public sale; an act
to pay J. J. O'Rourke $238.10 for room rent. On the other hand, an act
to reimburse the Governor $5000 expended by him for state purposes,
and an act to reimburse a sheriff $4000 expended by him in the support
of state prisoners were not so considered.
True, Oklahoma is a new and radical state, but let us turn to the
extreme east, to Maine with its heritage of law-abiding traditions
from the parent state of Massachusetts. Maine has also adopted the
referendum in language similar to that in the California
constitution, including the exception. The state had got along quite
comfortably without making Lincoln's birthday a legal holiday, but in
1909 the legislature awoke to the imminent danger to the public peace,
health or safety of the state in longer delay and so established such
a holiday at once without according to the people their right of
review. The town of Eden, in which is situated Bar Harbor, a summer
resort, had by vote for sometime excluded automobiles without any
apparent danger to the public peace, health or safety, but at its last
session in 1913 the legislature by a two-thirds vote of all the
members elected to each house adjudged that the public peace, health
or safety would be imperiled by postponing for ninety days the
operation of an act authorizing a repeal of the vote.
In all the instances cited, which are but few out of many, it is
difficult to see how the ninety days' postponement of the operation
of the acts cited could imperil the peace, health or safety of the
public, however much it might inconvenience or annoy individuals or
localities. These instances should, however, throw considerable doubt
upon the proposition that the constitutional rights of the people are
safe in the hands of the legislative department without the check of
the judiciary. I have somewhere seen the statement that during recent
years upwards of 500 acts of federal and state legislation have been
held by the courts to be in violation of some constitutional
provision, and that this fact should arouse the people to put some
check on such exercise of the judicial power. On the contrary, it
should arouse the people to insist on the retention of that power, and
to elect wiser legislators who will more faithfully respect their
oaths to observe constitutional limitations.
But another and different proposition is urged upon us. It is not to
leave the legislature without check upon the tendency to disregard
constitutional limitations upon its power, but to subject the judicial
check itself to reversal by a majority of that part of the electorate
choosing to act on the matter. It is proposed that whenever a court of
last resort shall adjudge that a statute trespasses upon the reserved
constitutional rights of the individual, an appeal may be taken direct
to the electorate, and that if a majority of those choosing to vote on
the question desire the statute to stand, the constitution shall
thereafter be held to be amended to that extent. It is submitted that
such a procedure would destroy all constitutional guaranties, no
matter what safeguards are attempted. Is there any assurance that such
a majority would be more considerate of the individual's right to
life, liberty, and property than their representatives whom they have
selected or should have selected for their virtue and wisdom, and who
are sworn, as well as the judges, to respect constitutional
guaranties?
Under the present procedure for amendment to constitutions,
propositions for amendment are first considered and debated face to
face in a legislature or constitutional convention by representatives
of the people, and cannot be submitted to the people until after
opportunity for full and free discussion by their representatives, and
the people themselves have thereby been more or less prepared for its
consideration. Even under this procedure, amendments have been adopted
that the people have afterward regretted. There is now much agitation
for the "short ballot," for restoring to the chief executive the power
of appointment of important officials, a power at first possessed by
him, but taken away by later constitutional amendments. The adoption
of the "initiative and referendum" has not produced the beneficial
results expected. It is found that the initiative sometimes produces
defective, unworkable statutes, and that the referendum can be used to
delay and even veto expedient legislation.
Under the proposed procedure the questions whether the constitution
should be amended and as to the nature of the amendment are sprung
upon the people without this preliminary examination, debate and
approval by their chosen representatives, and this often, if not
always, in times of popular excitement. With such a procedure I can
see no more stability of right, no more security for justice, than
under any unlimited, absolute government.
How unstable popular sentiment may be at times may be seen in the
classic example of the citizens of Rome applauding Marius and Sulla in
turn with equal fervor, and in the lesser and very recent example of
the voters of the city of Seattle, who elected a mayor, then soon
recalled him, and but little later re-elected him by a larger majority
than before. Constitutions to be of any value as bulwarks of liberty
should not be immediately changeable with the popular sentiment of the
day, but slowly and only after long reflection and discussion. They
should contain only the results of long thought and long experience.
Legislation is ever active, ever moving this way and that way, ever
experimenting, enacting new statutes and amending and repealing old
ones, now imposing fetters on individual liberty, now striking them
off and perhaps imposing others. Even in England and America, where
personal liberty of action is most prized, time was when statutes were
enacted almost putting people and business in strait-jackets. In
English Norfolk as late as Henry VIII's time no one was to "dye, shear
or calender" cloth except in the town of Norwich; and no one in the
northern counties was to make "worsted coverlets" except in the city
of York. In the reign of Elizabeth a statute was passed forbidding the
eating of meat on Wednesday and Saturdays and this not on the score of
health or religion but avowedly to increase the price of fish.
Statutes fixing the weight and price of loaves of bread and the size
and price of a glass of ale were not formally repealed till 1824. The
famous Statute of Laborers forbade laboring men to ask or receive more
than a prescribed low sum for their labor and also forbade their
moving about seeking employment. The statutes against forestalling,
regrating, and engrossing were not formally repealed until 1844. In
early times in New England also, statutory attempts were made to fix
the price of various commodities and the wages of various kinds of
workmen. Men were fined for accepting higher than the prescribed
wages. The Sunday laws in some places forbade walking about on Sunday
except "reverently to go to and return from meeting." Everywhere was
the ever present tendency of the legislative power to invade and
direct every function of society,--social, religious, political, and
economical. It should be noted that all these and similar statutes
were under governments unrestrained by written constitutions and bills
of right enforced by an independent judiciary.
Though from time to time many restrictive statutes have been modified
and many repealed, other restrictive statutes have been enacted. Today
the same process is going on. While now and then restrictions and
embargoes of longer or shorter standing are removed, there is still
the same tendency to enact other restrictions and prohibitions. At
every session of Congress and of the state legislatures measures are
constantly proposed hampering in some way the freedom of the citizen
in his occupation, in his pursuit of happiness. Demands are being made
upon the legislative department by one class or interest for
legislation to restrain other classes or interests, but for exemption
for itself. In earlier times there were statutes fixing a maximum wage
for labor, and though these proved ineffectual it is now proposed to
fix a minimum wage, even though it should prove to be much more than
the labor is worth. There are also proposed, and in many instances
enacted, statutes restricting the freedom of the workman as to his
output, of the employer as to his direction of his business. The
natural activities of men are sought to be hampered and handicapped in
vexatious ways. In illustration, I quote the following from the
"Boston Herald" of June 5, 1914:
"Twenty-five states and the United States itself forbid any
discrimination by an employer against union men. Utah alone has a law
to protect the non-union men from organized discrimination of union
labor to drive him from his trade. Several of our states require that
all public printing shall bear the union label. One extends that rule
to all stationery. Twelve states require employers advertising for
help to mention in the advertisement the existence of a strike. The
Minnesota statute provides that, per contra, no employer shall require
any statement from a person seeking employment as to his participation
in a strike. Eight states have enacted statutes exempting labor
organizations from their respective anti-trust laws. The unscrupulous
employer may yet find the labor union the best means of throttling his
competitors and securing a monopoly." There seems at times to be a
frenzy for such legislation. Only a vivid imagination can adequately
picture what might result if Congress and the state legislatures, or
the inconstant majority of the electorate, were freed from all
constitutional limitations or from the check of an independent
judiciary.
Though Great Britain, our mother country, has no written constitution
and no judiciary empowered to enforce its limitations, it is the happy
possessor of a practically homogeneous people of the Anglo-Saxon race,
little affected by immigration, and imbued for centuries with a deep
regard for personal liberty and private rights. Yet, even there today,
statutes are demanded and sometimes enacted in derogation of them. In
this country the population as the result of great immigration is more
heterogeneous. It comprises races and peoples of diverse temperaments,
of diverse experiences, of diverse traditions, many unschooled in
self-government and lacking in that traditional reverence for liberty
and order so characteristic of the Teutonic races. We even find some
classes openly declaring that if they can get possession of the
government they will exploit the rest of the people for their own
benefit. They essay also to bargain their votes for special
legislation in their favor at the expense of the people at large and
without regard to the principles of equality of right.
With such a population with its universal suffrage, were it not for
our written constitutions with their Bills of Rights and with an
independent judiciary to guard them, there would be no security here
for personal liberty and rights. We should be in the condition of the
people of France as depicted by Wm. S. Lilly in his recent book, "The
New France." He wrote: "It is now more than a century since the
principles of 1789 were formulated there. But in no country, not even
in Russia, is individual freedom less. The state is as ubiquitous and
as autocratic as under the worst Bourbon or Oriental despots. Nowhere
is its hand so heavy upon the subject in every department of human
life. Nowhere is the negation of the value and of the rights of
personal independence more absolute, more complete, and more
effective." Yet France is a republic with manhood suffrage and with an
elective legislature. But its courts are not vested with any power to
conserve any rights of the people against legislative caprice.
CONCLUSION
The thesis I have endeavored to support in these lectures, so far as I
have a thesis, is this: (1) that, after all, human justice consists in
securing to each individual as much liberty of action in the exercise
of his physical and mental powers and as much liberty to enjoy the
fruits of such action as is consistent with like liberty for other
individuals, and with such restrictions only as are necessary for the
welfare of society as a whole without discrimination for or against
any individual; and (2) that that justice is more firmly secured by
a government with a division of powers, with a written constitution
excluding from governmental interference such personal rights as
long experience has shown to be necessary both for the happiness
and efficiency of the individual subject and for the welfare and
efficiency of all; and (3) finally with an independent judiciary to
defend those rights when assailed, as they often have been, and will
be, by impatient and changeable majorities.
It may be admitted that the courts sometimes err in their
interpretation of the constitution and the laws, since judges, however
carefully selected, are but men; but there must be somewhere in the
body politic of a free state some body of men with the power of
authoritative interpretation of the fundamental law as well as other
laws. Does earlier history or later experience point to any better
equipped, more stable, more safe tribunal? Should not the people
endeavor to raise rather than lower the position of the courts; to
conserve rather than impair that freedom, impartiality, and
independence of the judges declared by the people of Massachusetts in
their Declaration of Rights, after years of galling experience of the
contrary, to be "essential to the preservation of every individual,
his life, liberty, property and character"? Are not they the
reactionaries who, despite the lessons of history, would revert to
the days of a dependent, recallable, and hence timid judiciary?
But justice is not fully and certainly secured by the maintenance
of particular political institutions, however excellent. Political
institutions are not self-acting. They are only instrumentalities
for the action of society. They are not only to be established and
maintained; they are to be administered, and the best institutions may
be maladministered. Even under such a system of government as I have
endeavored to show to be the best yet devised to secure justice,
injustice is still often suffered by the individual or by society.
Oppressive statutes within the legislative power are too readily
enacted. Abuses in administration are too long permitted to exist. The
only remedy for these is a more enlightened public opinion, a wider
diffusion of the spirit of impartiality, a greater realization of the
right and need of every person to life, liberty, and the results of
his industry and economy.
Nor are the judgments of our courts always righteous. Some of the
instances of unrighteous judgments result from failure to ascertain
and apply the truth as to the facts of the case; some from errors in
judgment; some from lack of firmness in judges in enforcing the known
rights of the individual on the one hand, or those of society on the
other; and perhaps a very few from incompetency or corruption. These
causes can be removed to a large extent, by a more rigid insistence on
skill, ability, industry, learning, and courage on the part of those
assuming to administer justice as attorneys and counselors. The same
insistence in the selection of judges will lessen the injustice
resulting from their errors in judgment and from their lack of
firmness.
There is yet another cause of injustice, the delay and expense in
obtaining even righteous judgments. It is an axiom, that justice
delayed is justice denied. This delay and expense are often charged
against the courts and judges, as if they had full control over
judicial procedure. It is not the judges but the legislature that
shapes the judicial system and prescribes the judicial procedure,
so far as they are not fixed by the constitution.
It is not the courts but the legislatures that provide for so many
appeals and allow so many stays and consequent delays. Judges and
lawyers the country over are urging a more simplified, a more speedy,
and less expensive procedure. They are also urging the establishment
of more courts with more judges to cope with the constantly increasing
litigation, in order that the wrongs against the individual and the
wrongs against society may be redressed with a minimum of delay and
cost. It is the legislatures that hesitate and often it is the
legislatures that tie the hands of the judges. In some states it is
sought to deprive the judges of their proper influence in jury trials.
In some states it is even sought to prevent them from saying more than
yes or no to proposed instructions to a jury. In many states nearly
the whole matter of procedure, its various steps, are fixed by statute
and become difficult of improvement. If courts could have more power
and the legislatures would interfere less in matters of procedure, I
am sure the cause of justice would be better served.
In conclusion, perfect justice may not be attainable by us imperfect
men. As said by Addison, "omniscience and omnipotence are requisite
for its full attainment." Yet it is our duty and especially the duty
of those of the legal profession to attain to such approximation as
may be possible. No more noble work can engage our powers; no greater
service can be rendered mankind. I do not except the endowment of
schools, colleges, libraries, and the like, nor the endowment of
hospitals and other charitable institutions. Great as are the virtues
of charity, benevolence, philanthropy, piety and the like, justice
is a yet greater virtue. To quote Addison again, "There is no virtue
so truly great and godlike as justice"; and in the words of Daniel
Webster's eulogy: "Whoever labors on this edifice of justice, clears
its foundations, strengthens its pillars, adorns its entablatures,
or contributes to raise its august dome still higher in the skies,
connects himself in name, fame, and character with that which is, and
must be, as durable as the frame of human society."
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