THE SECOND-CHAMBER PROBLEM[21]
The institution of private property is still with us and likely
to remain for some time. The acquisition and holding of private
property is still the main object of our existence and doubtless will
continue to be so. It is privately held property which pays taxes
and supports the state. In any government property is entitled to
fair consideration and protection. Special differentiated classes
of property, such as railroads and other public-service plants,
manufacturing interests, mines, and landlords’ and farmers’ holdings
are entitled to fair consideration and protection. Indeed, the state
that permitted indiscriminate assaults upon private property or upon
differentiated classes of private property could not long endure.
Certainly its prosperity would be short-lived. These premises have not
been questioned in the past. Not many in this day would be found to
controvert them.
What sort of demand, then, was there, when our state governments
were first organized, for governmental arrangements suitable to
protect property interests? How was that demand answered in our
mid-nineteenth-century plans of government? What is the character of
that same demand today and how do our present governmental arrangements
answer it? These are important inquiries preliminary to our ultimate
question: How are property interests to be protected when the
principles of the commission form of government are applied to the
state?
It is the object of this chapter to attempt to answer in outline these
questions.
Our federal government was established in a territory which was mostly
a wilderness, with a fringe of frontier and colonial communities
on the Atlantic seaboard. Whenever a state government has been
first established, the territory of which it has been composed has
been either wholly or very largely of a frontier character. In such
communities opportunity was abundant and pretty much equal to all.
Men started with not much advantage except that with which nature
had endowed them. The differences in wealth were not such as to be
beyond the hope of most men to bridge in a lifetime. The population
was controlled by a community of feeling and a certain similarity of
occupation. In such a society any attack upon property interests was
bound to come home to too many to make such an attack possible. The
practical danger was that states would permit the resident debtor class
to repudiate its obligations to a non-resident creditor class. This was
headed off by the very practical provision of the federal constitution
that no state should pass any law impairing the obligation of
contracts. Apart from this the governmental devices adopted to protect
property interests were largely theoretical and academic. They were for
the most part directed to preventing all sudden legislative action.
Legislation must in every case be the result of “sober second thought.”
No distinction was made between legislation which affected property
interests and any other sort. The safeguards for securing the “sober
second thought” of the electorate or legislature were as applicable to
the most trivial legislative matters as to the most important. Thus we
have the separation of the legislature into two houses. The members
of both are elected. The only difference is that the number of the
upper house is smaller and the term a little longer. We have also the
limited veto power of the governor. Although not in terms provided for
in our constitution, it has become a part of our scheme of government
that the courts shall exercise the power of declaring void acts of the
legislature which are forbidden by the written constitution. As these
written constitutions have contained almost universally the provision
that “no person shall be deprived of life, liberty, or property
without due process of law,” the courts have had the power to declare
void acts of the legislature which they deemed to be a taking of the
“liberty” or “property” of any person “without due process of law.”
When exercised this power has amounted in effect to a judicial veto.
If the court deem the act in question to have been forbidden by the
constitution the act is invalid until such time as the constitution
shall have been changed and the general prohibition eliminated, at
least so far as the offending act in question is concerned. It was,
however, only the taking “_without due process of law_” which was
forbidden. But legislation was itself “due process of law” unless it
was arbitrary and irrational in its operation.[22] Thus an act which
forbade the consumption of liquor by red-haired persons and which
imposed a fine for the offense would be arbitrary and irrational in its
application, and the imposition of a fine pursuant to the act would
be a taking of the property of the individual without due process of
law. But more than this, the arbitrary character of the legislative act
must be clear beyond all reasonable doubt.[23] It must be so clear
that two rational men could not differ about the matter.[24] These
were the limits of the power of the court as originally laid down. It
is apparent that with these limitations conscientiously observed the
veto power of the court over legislation was of largely theoretical
and academic value in protecting property interests. The fact is that
this power of the courts to declare laws unconstitutional because they
took some person’s life, liberty, or property without due process of
law remained practically unused during the first half of the nineteenth
century. Perhaps there was no call for the protection of property
interests from the legislature. Perhaps the limitations upon the
exercise of the power of the court were too faithfully observed. It is
not unlikely that both reasons contributed to the results.
Before 1860 the Atlantic seaboard states ceased to be provincial or
frontier communities. Since 1860 an enormous area in the Mississippi
Valley has ceased to be a frontier community. Great cities have arisen.
Whole states have been brought under cultivation. Manufacturing has
constantly gone forward. Facility in transportation has diminished
the size of the country twenty-fold in many areas. The increase in
the value and quantity of private property has been fabulous. So
enormous an increase in so short a time has necessarily resulted in
the concentration of immense fortunes in the hands of a considerable
number of individuals. Even more marked has been the concentration
of collective property holdings in corporations. The financial
difference between persons of some property and those with vast
fortunes is so great that the bridging of the gap by even the
exceptional individual in his lifetime is out of the question. The
financial difference between the position of persons possessing some
property and the collective wealth of great corporations is beyond
the actual comprehension of the human intelligence. Opportunity is
no longer anywhere near equal and many start the race in life with a
lead which puts them out of sight of all but a very few. The result
is that a constantly increasing number of people think not in terms
of property and the interests of property, but as individuals, and in
many instances as one of a collection of individuals. They have begun
to consider whether the state is so run and legislation so framed
that they as individuals, or as one of a collective organization of
individuals similarly situated, are enabled to live satisfactorily.
They are readily inclined to believe that specially organized property
interests are attempting to make the laws, or to block the making
of laws in the interests of property and against the interests of
the individual, either singly or in organized groups. Such specially
organized property interests have become liable to persistent and
sometimes vicious and retaliatory attacks by a majority of the
electorate. The fact that this majority is composed of persons who
are, to some extent, holders of property does not prevent them from
thinking in terms of their position as individuals. Thus spectacular
onslaughts by the electorate have been made upon such organized
property interests as railroads, public-service corporations, and
mine-owners. Legislation to promote social justice and in the actual
or pretended exercise of the police power may be in effect an attack
upon some legitimate business. Yet the general object of such acts will
receive an overwhelming popular approval.
Step by step with the development of this antagonism in the state
between specially organized property interests and the individual has
grown the effort of such interests to combine for protection from the
electorate. Naturally they use all the means at their disposal in the
governmental scheme to secure that protection. The governor’s veto,
however, has proved of less and less value, for the governor is so
conspicuous an officer as frequently to be a popular choice. Property
interests have fallen back upon the legislative lobby, an alliance
with the extra-legal government, and the constant urging of the courts
to go farther and farther in the exercise of their veto power over
legislation. The lobby has gained power through the assistance and
sanction of the leaders of the extra-legal government. That government
has been stimulated to the highest efficiency and the greatest
activity by reason of the prizes coming to its leaders as the result
of their alliance and partnership with collectively organized property
interests. As a last resort the courts have again and again been
importuned to veto legislation inimical to specially organized property
interests, and all property interests when attacked at once become
specially organized at the point of attack. These importunities come in
the form of arguments to the court on behalf of property interests that
are unfavorably affected by the legislation in question. Frequently
the act which they complain of has been badly drawn and is really
vicious and unfair in some of its workings, although the main principle
may be sound. This intensifies the appeal of the individual for its
overthrow. Such complaints from the interests affected, together with
the social and economic theories of the judges themselves, and no doubt
in some cases, the direct influence of the extra-legal government,
have been pressed upon the judges in an effort to cause them to
abandon the academic, theoretical, and bloodless function which was
conceded to them when the power of the courts to declare acts of the
legislature unconstitutional originally was asserted, and to expand
this power so as to present an efficient barrier to the onslaughts
of the proletariat upon property interests. At times and to a very
considerable extent state courts have yielded to this pressure. It is
the demand of specially organized property interests for protection
and fair treatment and the inclination of the courts to give it that
has presented in the last thirty years so long a list in every state
of legislative acts held unconstitutional because they took the
liberty or property of some person without due process of law.[25]
It is, no doubt, the desire of these same property interests that the
clause of the fourteenth amendment of the federal constitution, which
provides that “no state shall pass any law depriving any person of
life, liberty, or property without due process of law,” may in the
hands of the United States Supreme Court afford the same practical and
effective protection to property interests which similar clauses in
the state constitutions have done through the action of state supreme
courts.
Such is the actual situation into which it is now proposed to project
alterations in our scheme of government which will eliminate
extra-legal government by politocrats and thereby lessen, if not
entirely do away with, the lobby which is backed by the extra-legal
government. The same changes are to give us a single legislative
chamber which shall be really representative, highly sensitive, and
quickly responsive to the popular will. Very naturally property
interests, particularly those most frequently subject to legislative
attack, will wish to know how they are to be protected from the
onslaughts of the proletariat or from the hasty judgments of an
ordinarily conservative and fair majority. Property can point to
the fact that the commonwealth under Cromwell gave up the single
legislative chamber and reverted to the bicameral plan;[26] that
the single chamber adopted by the French Constitution of 1791 was
abandoned for a bicameral arrangement in 1795, and never again, except
for a brief space under the Second Republic of 1848, did France
renew the experiment. It can point to the opinions of Mill,[27]
Lecky,[28] Maine,[29] Bagehot,[30] and Sidgwick[31] in favor of the
second-chamber plan and to the well-nigh universal practice of such
a method of constituting the legislature. Furthermore, the second
chambers established outside of the United States and perhaps Australia
have in practice acted on the whole as the representatives of property
interests and the protectors of those interests from the acts of the
popular house. These experiences may contain no lesson for us and the
opinions referred to may be hopelessly reactionary, but they would at
least seem to justify property in humbly asking what is to be done to
protect it from the actions of the single popular legislative chamber
in which is united the executive and legislative power.
There are two ways at least of meeting this question:
The first is to do nothing at all. Property is to be persuaded that it
is in the long run entirely safe at the hands of a legislature which
is really expressive of the will of the majority and sensitive to that
will; that property has money with which to advocate its cause and
can buy newspapers, circulate pamphlets, and hire speakers; that the
mass of the electorate are in general entirely fair and conservative
toward property; that property is protected by the courts and by
constitutional provisions prohibiting the taking of property without
due process of law from sudden and violent legislative action.
This attitude will, however, hardly satisfy property interests. How
they will be treated by a single legislative chamber representing the
popular will cannot be determined till the experiment is actually
tried. All a priori views are merely speculative opinions made up
from data wholly incomplete and inconclusive. Property interests
will naturally regard it as unfair that they should take the risk of
a new experiment in government. Nor will property be satisfied with
protection by the courts as now constituted. The fact that judges are
for the most part elected by popular vote, that the recall of judges
and of judicial decisions is being violently advocated, will hardly
tend to reassure property in the protection from the electorate by the
courts to which it believes itself fairly entitled.
The second method of meeting the demand of property for protection
from the single popular legislative chamber is to give it a direct
representation in the legislature and a voice in the enactment of the
laws at the time they are in the process of making. The representatives
of property should have power to propose legislation, to amend that
which comes from the popular legislative chamber, and to enter into
compromises respecting it. They should have in addition at least a
limited veto on the passage of laws. The exercise of such powers
should be open and legal, but at the same time entirely subordinate
to the power of the representatives of the electorate in the single
popular chamber. This requires the establishment of a second
legislative chamber in which the representatives of property interests
shall sit.
The most direct method of constituting such a second chamber is to
divide the state into as many senatorial districts as there are to be
members of the second chamber--let us say one-fourth of the number of
the popular house. The districts should be created on the basis of an
equal amount of taxable property in each. One representative should
be sent from each district. One vote should be given each taxpayer in
the district who during the preceding year had paid a given amount or
less in taxes. Each taxpayer should have one vote in addition for each
similar amount which he paid in taxes, and should vote as a taxpayer,
whether a corporation or a non-resident citizen of the United States.
It might be desirable to elect the senators at large from a few
districts, the voting by taxpayers to be according to the Hare plan,
thus allowing groups of taxpayers to send their representatives.
A less direct method would be to fill the second chamber with members
holding for life and appointed by the executive council of state.
The natural tendency of such a life tenure of office, coupled with
appointment from among successful men, is to produce a conservative
second chamber. If, however, one party is in power for a long period
it also results in the packing of the second chamber by one party for
its own purposes and this brings renewed party strife and legislative
deadlocks.[32] Such a second chamber will, however, in the long run, it
is believed, represent property interests.
It would be, of course, of vital importance that a second chamber
constituted in either of the above ways be kept in strict subordination
to the chamber which represents the electorate at large. The principal
means for accomplishing this has already been provided for in the plan
for the union of the executive and legislative functions in the lower
house. The fact that the entire executive power of the state is placed
in the hands of the leaders of the legislative majority of the lower
house must always make that the more powerful organ of government. But
we can go farther. It may be provided that the second chamber shall
never have the right to reject an appropriation bill. This will prevent
its ever interfering with the conduct of the government through the
collection of taxes and the expenditure of money. Then a suitable
method of “steam-rollering” the second chamber with regard to the
passage of legislation may be provided as follows:
After the rejection of any bill passed by the lower house in two
successive sessions, the vote upon such bill shall be taken, with both
branches of the legislature sitting in joint session and a majority of
the votes in such joint session shall be sufficient to give the bill
the effect of law.
By such devices the second chamber representing property interests as
such will have been given only a properly limited veto power upon
legislation. At the same time, as a second chamber, it will have power
to approve that which passes the popular house and to enter into
compromises respecting it. The second chamber can undertake a popular
defense of its action. These are important privileges. They aid in the
production of laws which are fair to all. On the other hand, the second
chamber is equally clearly cut off from ever gaining any ascendancy
over that branch of the legislature which represents and is sensitive
to the popular will.
We may, however, in the establishment of a second chamber representing
property interests proceed with still greater indirectness and the
utmost caution along a path on which we are already started.
Our highest state judicial tribunal is already possessed of a
substantial veto upon legislation in the interests of property by
reason of its power to declare acts of the legislature void because
they take property “without due process of law.” There are few, if
any, constitutions today in the United States which do not contain
other prohibitions upon the legislature under which acts may be
declared unconstitutional in the interests of property. The courts
have already gone beyond the mere academic function of declaring acts
of the legislature void only when they are utterly irrational and
arbitrary in their discriminatory operation. The courts now boldly
perform the function of protecting property from hasty, ill-advised,
and unjust legislation. Heretofore, at least, public opinion has
sustained the courts in the exercise of this function. The placing
of this power in the hands of judges has insured its exercise by men
who at least are not prejudiced against property and are inclined to
give it a fair hearing. Judges must be selected from among lawyers,
and hence must be men of some education and intellectual attainments.
Since the main business of judges is to decide litigated cases arising
between individuals, there is very naturally a demand that judges be
selected from among the leaders at the bar. This means that there is
a constant and legitimate pressure in favor of the selection of men
who will naturally give property as full protection as the power of
the court will permit. Even lawyers of only fair success and ability
in fifteen or twenty years of practice will acquire the property point
of view. Practically all lawyers live in an atmosphere of enforcement
of property interests. They cannot avoid being educated to see the
unfairness of legislation which affects unfavorably property interests.
It is not improbable that among those who secure seats in the highest
court some will regard themselves as specially appointed to stand
between property and the proletariat, and will do so with great
determination, vigor, and judicial independence. Once selected, the
judge in our highest courts holds for a longer term than other judges,
and this fact fortifies him in a determination that property interests
shall be dealt with fairly. All this has been accomplished without the
electorate at large fully perceiving what has happened. The voter is
still submissive to the apparently fair proposition that only lawyers
of excellent standing and ability should be elected to the highest
court of the state. Little does he understand that success in selecting
such men has established the rudiments of a second chamber which is
designed to protect property.
The present arrangement, however, is on the verge of some
reorganization. It is plain that the judicial veto is too drastic.
It may stop all desired legislation along a given line till the
constitution is changed. The difficulties of securing the desired
amendment may not be surmounted for many years. Hence has arisen the
plan for “steam-rollering” the judicial veto by a constitutional
provision that whenever an act of the legislature has been passed
at two different sessions and sustained by the electorate upon a
referendum, it shall be deemed not to infringe the “life, liberty, and
property” clause of the state constitution.[33] The electorate today
is also becoming increasingly alive to the fact that the courts, in
holding legislation unconstitutional, have really abandoned a purely
judicial function and have undertaken in a degree the political
function of a second chamber in protecting property interests from the
legislature. True, the action of the court is in form still judicial.
It purports to apply the constitutional prohibition to the legislation
involved in the particular litigated case arising between contending
parties. But the court’s decision, once made, is now acquiesced in
by all departments of the government and all public officers, as a
complete disposition of the act held void. The compiler of the statutes
omits it from the compiled laws as being no law at all. The court
does in fact veto out of existence an act of the legislature for the
entire state government and the inhabitants of the state. It does this
also in response to a very general prohibition upon the legislature,
such as that “no person shall be deprived of property without due
process of law”--a phrase so vague that it gives the court a discretion
which approaches that of the legislature in considering whether a
proposed act is wise and fair to property or not. The disclosure to
the electorate that courts, in using their judicial veto, are really
exercising a great political power has resulted in an increasing
demand that judges should be elected as political officers; that
their economic and social bias be known--in short, that they have a
politico-judicial platform and be subject to the recall.
The tendency thus disclosed to treat the judges of our highest courts
as political officers whose social and economic bias regarding
legislation must be known in advance is, of course, ruinous to the
performance of their ordinary judicial functions. The electorate will
obtain what it wants, and perhaps what it may be entitled to, from the
judges, but at the expense of the disruption of the whole judicial
system. That would indeed be a calamity. Disorganization in the
administration of justice, due to the popular attitude toward judges
and the courts, is even now beginning to be felt. It will very soon
become apparent that in the rebuilding of our judicial system courts
which handle the general mass of litigation must be confined strictly
to judicial functions. They must administer the law as established by
the legislature and always in subordination to the legislature. If,
then, we are to keep our present plan of protecting property by means
of a court and a constitution, a special court of last resort must be
established for deciding all constitutional questions, the validity
of all municipal ordinances, and all other classes of cases where
the issue is drawn between the electorate acting through a popular
legislative body, and property interests. In order that the veto of the
court may not be too drastic in its effect, there should be given to
the single chamber legislature the power to “steam-roller” its judicial
veto by a second passage of the act after a suitable interval and its
approval on a referendum. Thus we shall have evolved a practicable
second chamber protecting property interests.
It would be only a short step to provide for the submission of all
acts to such a court before they became laws, with a right on the part
of litigants to bring up the question of the validity of the acts as
upon a rehearing. Then it would seem most reasonable that when an act
was presented to the special court of appeal before it became law and
found to be unconstitutional, the court should have power to redraft
the act so that it would accomplish what was desired so far as the
same was permitted by the constitution. If ultimately the right of
litigants to attack the validity of any act which had passed both the
legislature and the court should be cut off, and if the constitutional
limitations upon the legislature should entirely disappear, while at
the same time the members of the body which scrutinized the acts passed
by the popular chamber were appointed by the council of state and held
office for a considerable period, we should have, in what started as a
judicial tribunal, a real second chamber functioning like other second
chambers in furnishing an additional security against legislation which
was unfair to property interests.[34]
It is not the purpose of the present writer to advocate either the
second chamber representing property interests or the establishment
of a unicameral legislature in which all legislative and executive
powers are united and which is extremely sensitive to the popular will
without any special protection to property interests other than that
which their numerical strength and property holding gives them. It is
enough that the difficulties of the situation be faced and the several
general lines of procedure be indicated. It will be time enough to have
opinions when we are brought, by constitution-making, nearer to the
practical settlement of the difficulty.
FOOTNOTES:
[21] Much of the argument in this volume is in support of the Short
Ballot movement. It is only fair to say, however, that the leaders of
this movement in the National Short Ballot Organization dissent from
the suggestions put forward in this chapter as to the need of special
protection to property interests, and the methods suggested of working
out such special protection are, therefore, no part of the Short Ballot
doctrine.
[22] _Hurtado_ v. _California_, 110 U.S. 516.
[23] James Bradley Thayer, “The Origin and Scope of the American
Doctrine of Constitutional Law,” 7 _Harv. Law Rev._, 129, 139 ff.
[24] “The validity of a law ought not, then, to be questioned, unless
it is so obviously repugnant to the constitution, that when pointed out
by the judges, all men of sense and reflection in the community may
perceive the repugnancy.”--Per Chancellor Waties in _Adm’rs of Byrne_
v. _Adm’rs of Stewart_, 3 Des. 466 (South Carolina, 1812).
[25] The results reached by the Illinois Supreme Court, especially
when contrasted with those reached by the United States Supreme Court,
exhibit an extreme exercise of the power of courts to hold legislation
void because it takes the property or liberty of individuals without
due process of law.
Since 1886 the Illinois Supreme Court has held void acts of the
legislature compelling mine-owners to weigh coal mined and to pay
the miners on the basis of such weight, because such acts took the
mine-owner’s liberty and property without due process of law contrary
to the provisions of the state constitution: _Millett_ v. _The People_,
117 Ill. 294 (1896); _Ramsey_ v. _The People_, 142 Ill. 380 (1892);
_Harding_ v. _The People_, 160 Ill. 459 (1896). The United States
Supreme Court, however, has held that a similar act from Arkansas did
not violate the “life, liberty, or property” clause of the fourteenth
amendment: _McLean_ v. _Arkansas_, 211 U.S. 539 (1908).
Since 1892 the Illinois Supreme Court has held void state acts
regulating the keeping of truck stores by owners of coal mines and
factories, because they deprived such owners of liberty and property
without due process of law, contrary to the state constitution:
_Frorer_ v. _The People_, 141 Ill. 171 (1892); _Kellyville Coal Co._
v. _Harrier_, 207 Ill. 624 (1904). In 1886 the Pennsylvania Supreme
Court held void an act which prohibited the payment of wages to miners
in anything but money: _Godcharles_ v. _Wigeman_, 113 Pa. 431 (1886).
Yet the United States Supreme Court holds that such acts are not in
violation of the “life, liberty, or property” clause of the fourteenth
amendment: _Knoxville Coal Co._ v. _Harrison_, 183 U.S. 13 (1901).
In 1896 the Illinois Supreme Court held void the barbers’ Sunday
law, which forbade the employment of barbers on Sunday, because the
act violated the “life, liberty, or property” clause of the state
constitution: _Eden_ v. _The People_, 161 Ill. 296 (1896). But the
United States Supreme Court sustained a like act from Minnesota,
declaring that it did not violate the “life, liberty, or property”
clause of the federal constitution: _Petit_ v. _Minnesota_, 177 U.S.
164 (1898).
In 1900 the Illinois Supreme Court held void the state flag law which
prohibited the use of the American flag for advertising purposes,
because it deprived advertisers of liberty and property without due
process of law, contrary to the provision of the state constitution:
_Ruhstrat_ v. _The People_, 185 Ill. 133 (1900). The United States
Supreme Court, however, sustained a similar act from Nebraska holding
that it was not in violation of the “life, liberty, or property” clause
of the fourteenth amendment: _Halter_ v. _Nebraska_, 205 U.S. 34 (1907).
In 1908 the Illinois Supreme Court held void the bulk sales acts
regulating sales of stocks of goods in bulk otherwise than in the usual
course of trade, because it violated the “life, liberty, or property”
clause of the state constitution: _Off &. Co._ v. _Morehead_, 235
Ill. 40 (1908). But the United States Supreme Court has held similar
statutes from Connecticut and Michigan valid and not in violation of
the “life, liberty, or property” clause of the fourteenth amendment:
_Lemieux_ v. _Young_, 211 U.S. 489 (1908); _Kidd, Dater & Price Co_. v.
_Musselman Grocer Co._, 217 U.S. 461 (1910).
In 1909 the Illinois Supreme Court held void the loan-shark act
regulating the assignment of future wages as security for money
borrowed and requiring the assignment to be recorded and signed by the
wife. Again the reason was that the “life, liberty, or property” clause
of the state constitution was violated: _Massie_ v. _Cessna_, 239 Ill.
352 (1909). But the United States Supreme Court has sustained a similar
act passed in Massachusetts on the ground that it did not infringe
the “life, liberty, or property” clause of the fourteenth amendment:
_Mutual Loan Company_ v. _Martell_, 222 U.S. 225 (1911).
The Illinois Supreme Court has also held void, as infringing the “life,
liberty, or property” clause of the state constitution, the following
acts: (_a_) An act penalizing employers in the importation of workmen
from another state by reason of deceit touching the matter of the
existence of a strike or the sanitary condition of the employment:
_Josma_ v. _Western Steel Car Co._, 249 Ill. 508 (1911); compare,
however, _Williams_ v. _Fears_, 179 U.S. 270; (_b_) An act providing
that no public contractor shall employ alien labor on any public
work: _City of Chicago_ v. _Hulbert_, 205 Ill. 346 (1903). But in
_Atkin_ v. _Kansas_, 191 U.S. 207 (1903), the United States Supreme
Court held valid an act of Kansas making it a criminal offense for a
public contractor to permit or require an employee to perform labor
upon public work in excess of eight hours each day; (_c_) The miners’
washroom act, requiring owners of mines to provide a washroom at the
top of the mine for the use of the miners: _Starne_ v. _The People_,
222 Ill. 189 (1906); (_d_) An act prohibiting more than six persons
sleeping in one room in a lodging-house: _Bailey_ v. _The People_,
190 Ill. 28 (1901); (_e_) An act prescribing an eight-hour day for
women in certain occupations: _Ritchie_ v. _The People_, 155 Ill. 98
(1895). This case was approved in _Ritchie_ v. _Wayman_, 244 Ill. 509
(1911), which, however, held a ten-hour labor law for women in certain
occupations valid, following the ruling of the U.S. Supreme Court
sustaining a similar act passed in Oregon: _Muller_ v. _Oregon_, 208
U.S. 412 (1908). It seems entirely probable from its opinion in the
last-mentioned case that the United States Supreme Court would have
held valid the act condemned by the Illinois Supreme Court in _Ritchie_
v. _The People_, _supra_.
[26] “The proposal for a revived Second Chamber was, on the contrary,
carried with an unexpected degree of unanimity. The Protector pressed
it strongly upon the officers. ‘I tell you,’ he said, ‘that unless you
have some such thing as a balance we cannot be safe. Either you will
encroach upon our civil liberties by excluding such as are elected to
serve in Parliament--next time for aught I know you may exclude four
hundred--or they will encroach upon our religious liberty. By the
proceedings of this Parliament you see they stand in need of a check or
balancing power, for the case of James Naylor might happen to be your
case. By the same law and reason they punished Naylor they might punish
an Independent or an Anabaptist. By their judicial power they fall upon
life and member, and doth the Instrument enable me to control it? This
Instrument of Government will not do your work.’”--J. A. R. Marriott,
_Second Chambers_, p. 38.
[27] “A majority in a single assembly, when it has assumed a permanent
character--when composed of the same persons habitually acting
together, and always assured of victory in their own House--easily
becomes despotic and overweening, if released from the necessity
of considering whether its acts will be concurred in by another
constituted authority. The same reason which induced the Romans to have
two consuls, makes it desirable there should be two chambers; that
neither of them may be exposed to the corrupting influence of undivided
power, even for the space of a single year.”
[28] “Of all the forms of government that are possible among mankind I
do not know any which is likely to be worse than the government of a
single omnipotent democratic chamber.”
[29] “What, then, is expected from a well constituted Second Chamber is
_not a rival infallibility, but an additional security_. It is hardly
too much to say that, in this view, almost any Second Chamber is better
than none.”
[30] “With a perfect Lower House it is certain that an Upper House
would be scarcely of any value. If we had an ideal House of Commons
perfectly representing the nation, always moderate, never passionate,
abounding in men of leisure, never omitting the slow and steady forms
necessary for good consideration, it is certain that we should not need
a higher chamber. The work would be done so well that we should not
want any one to look over or revise it. And whatever is unnecessary
in government, is pernicious.... But though beside an ideal House of
Commons the Lords would be unnecessary, and therefore pernicious,
beside the actual House a revising and leisured legislature is
extremely useful, if not quite necessary.”
[31] “The main end for which a Senate is constructed [is] that all
legislative measures may receive a second consideration by a body
_different in character from the primary representative assembly_, and
if possible superior or supplementary in intellectual qualifications.”
[32] See J. A. R. Marriott, “History of the Canadian Second Chamber” in
_Second Chambers_, pp. 145 ff.
[33] The phrase “recall of judicial decisions” is unfortunate, since it
implies that the judicial function is taken over by the electorate and
the judicial decision reversed, when all that is done is to amend the
constitution so that the basis for the judicial decision is taken away
in all subsequent litigation. The better phrase, it is believed, is the
one used in the text, namely, “steam-rollering the judicial veto.” See
Albert M. Kales, “The Recall of Judicial Decisions,” _Illinois State
Bar Association Proceedings_, 1912, pp. 203-18; Herbert Pope, “The
Recall of Judicial Decisions--A Criticism,” 7 _Illinois Law Review_, p.
149.
[34] Ramsay Muir, in _Peers and Bureaucrats_, has a suggestion for
a second chamber that should not be ignored. He finds the evil of a
popular chamber containing a large number of representatives from
wieldy districts selected by pluralities merely to be that it makes
government by party a necessity. The parties tend to form themselves
into two great camps, with two great programs. The electorate has been
driven to choose one program or the other, though if all shades of
opinion could be examined some part of each program would not receive
a majority of votes. Party discipline, however, becomes so strict that
the first chamber can put through every part of the party program. The
real need in the second chamber, he declares, is to secure members of
independent views who can express their opinions freely without fear
of the loss of their seat as a punishment for having been independent,
and which will represent the different shades of opinion on the part of
the electorate. He, therefore, advocates the selection of members of
the second chamber by the method of proportional representation by the
single transferable vote according to the Hare plan.
The difficulty with this proposal is that property interests as such
are not represented except according to the numerical strength of
property owners. In fact, Mr. Muir expressly repudiates any idea of
creating a second chamber based upon an aristocracy or the middle
class of income taxpayers. His plan might also be expected to involve
a contest as to which chamber really represented the electorate. The
second chamber as proposed by Mr. Muir would certainly be a “rival
infallibility” and hopeless deadlocks might be expected. There would
then be the usual American spectacle of bickering between the executive
as represented by the executive council or cabinet of the first
chamber, and the second chamber representing the electorate. On the
whole the union of the executive and the legislative powers so much to
be desired would be broken in upon.