THE INFLUENCE OF DEMOCRACY UPON THE CONSTITUTION
The distinguishing feature of the Constitution, as shown in the
preceding chapters of this book, was the elaborate provisions which it
contained for limiting the power of the majority. The direction of its
development, however, has in many respects been quite different from
that for which the more conservative of its framers hoped.[188] The
checks upon democracy which it contained were nevertheless so skilfully
contrived and so effective that the progress of the popular movement has
been more seriously hampered and retarded here than in any other country
where the belief in majority rule has come to be widely accepted. In
some important respects the system as originally set up has yielded to
the pressure of present-day tendencies in political thought; but many of
its features are at variance with what has come to be regarded as
essential in any well-organized democracy.
It is not so much in formal changes made in the Constitution as in the
changes introduced through interpretation and usage that we must look
for the influence of nineteenth-century democracy. In fact, the formal
amendment of the Constitution, as shown in Chapter IV, is practically
impossible. But no scheme of government set up for eighteenth-century
society could have survived throughout the nineteenth and into the
twentieth century without undergoing important modifications. No century
of which we have any knowledge has witnessed so much progress along
nearly every line of thought and activity. An industrial and social
revolution has brought a new type of society into existence and changed
our point of view with reference to nearly every important economic and
political question. Our constitutional and legal system, however, has
stubbornly resisted the influence of this newer thought, although enough
has been conceded to the believers in majority rule from time to time to
keep the system of checks from breaking down.
Some of the checks which the founders of our government established no
longer exist except in form. This is true of the electoral college
through which the framers of the Constitution hoped and expected to
prevent the majority of the qualified voters from choosing the
President. In this case democracy has largely defeated the end of the
framers, though the small states, through their disproportionately
large representation in the electoral college, exert an influence in
Presidential elections out of proportion to their population.
The most important change in the practical operation of the system has
been accomplished indirectly through the extension of the suffrage in
the various states. Fortunately, the qualifications of electors were not
fixed by the Federal Constitution. If they had been, it is altogether
probable that the suffrage would have been much restricted, since the
right to vote was at that time limited to the minority. The state
constitutions responded in time to the influence of the democratic
movement and manhood suffrage became general. This placed not only the
various state governments but also the President and the House of
Representatives upon a basis which was popular in theory if not in fact.
Much remained and still remains to be done in the matter of perfecting
the party system and the various organs for formulating and expressing
public opinion with reference to political questions, before there will
be any assurance that even these branches of the general government will
always represent public sentiment.
There is one serious defect in the method of choosing the President. The
system makes possible the election of an executive to whom a majority
and even a large majority of the voters might be bitterly opposed. From
the point of view of the framers of the Constitution the choice of a
mere popular favorite was undesirable and even dangerous; but according
to the view now generally accepted the chief executive of the nation
should represent those policies which have the support of a majority of
the people.
It is possible that the candidate receiving a majority of all the votes
cast may be defeated,[189] while it often happens that the successful
candidate receives less than a majority of the popular vote.[190] When
three or more tickets are placed in the field, the candidate having a
majority in the electoral college may fall far short of a majority of
the popular vote. This was the case when Lincoln was elected President
in 1860. There were four candidates for the Presidency, and while
Lincoln received a larger popular vote than any other one candidate, he
received less than the combined vote for either Douglas and
Breckenridge, or Douglas and Bell. In fact, he received less than
two-fifths of the total popular vote.
It is easily seen that a system is fraught with grave danger, especially
in times of bitter sectional and party strife, which makes possible the
election of a minority President. At such times opposition to
governmental policies is most likely to assume the form of active
resistance when a minority secures control of the government. In other
words, a majority is more likely to resist a minority than a minority is
to resist a majority. This would be true especially in a country where
the people generally accept the principle of majority rule.
It can not be claimed that Lincoln was, or that the South regarded him
as, the choice of a majority of the people. A different system which
would have precluded the election of a President who did not have a
clear majority of the popular vote might have done much toward
discouraging active resistance on the part of the Southern States.
No one, in fact, has stated the case against minority rule more clearly
or forcefully than Lincoln himself. In a speech made in the House of
Representatives January 12, 1848, on "The War with Mexico," he said:
"Any people anywhere, being inclined and having the power, have the
_right_ to rise up and shake off the existing government, and form a new
one that suits them better. This is a most valuable, a most sacred
right--a right which, we hope and believe, is to liberate the world. Nor
is this right confined to cases in which the whole people of an existing
government may choose to exercise it. Any portion of such people that
_can may_ revolutionize, and make their _own_ of so much of the
territory as they inhabit. More than this, a _majority_ of any portion
of such people may revolutionize, putting down a _minority_,
intermingled with, or near about them, who may oppose their movements.
Such minority was precisely the case of the Tories of our own
Revolution."[191]
This was quoted in defense of the right of secession by Alexander H.
Stephens in his "Constitutional View of the Late War between the
States."[192]
The chief remaining obstacles to popular legislation are the Senate and
the Supreme Court. Some means must be found to make these two branches
of the government responsible to the majority before the government as a
whole can be depended upon to give prompt and effective expression to
public opinion. The Senate presents the most difficult problem for
democracy to solve. The present method of choosing senators is
altogether unsatisfactory. It has resulted in making the upper house of
our Federal legislature representative of those special interests over
which there is urgent need of effective public control. It has also had
the effect of subordinating the making of laws in our state legislatures
to that purely extraneous function--the election of United States
senators. The exercise of the latter function has done more than
anything else to confuse state politics by making it necessary for those
interests that would control the United States Senate to secure the
nomination and election of such men to the state legislatures as can be
relied upon to choose senators who will not be too much in sympathy with
anti-corporation sentiments.
The Senate has fulfilled in larger measure than any other branch of the
government the expectation of the founders. It was intended to be
representative of conservatism and wealth and a solid and enduring
bulwark against democracy. That it has accomplished this purpose of the
framers can scarcely be denied. But the political beliefs of the framers
are not the generally accepted political beliefs of to-day. It is
immaterial to the people generally that the attitude of the Senate on
public questions is in line with the purpose for which that body was
originally established. The criticism of the Senate's policy expressed
in the phrase "all brakes and no steam"[193] indicates not so much a
change in the character and influence of that body as in the attitude of
the people toward the checks which the Constitution imposed upon
democracy. Conservatism has always been characteristic of the United
States Senate, which, as Sir Henry Maine says, is "the one thoroughly
successful institution [upper house] which has been established since
the tide of modern democracy began to run."[194] Measuring success by
the degree of resistance offered to the will of the majority, as this
writer does, the conclusion is correct. This is the standard of judgment
which the framers of the Constitution would have applied, but it is not
the generally accepted standard according to which the success of that
body would be judged to-day. We have now come to accept the view that
every organ of government must be approved or condemned according as it
furthers or thwarts the ends of democracy. Applying this test, the
conclusion is inevitable that the Senate as now constituted is out of
harmony with present-day political thought.
What, then, can be done to make that body an organ of democracy? There
are three distinct evils in the Senate as it is now organized. The first
pertains to the irresponsibility of its members due to their method of
election and long term of office. But inasmuch as this could be remedied
only by a constitutional amendment, it is not likely that anything short
of a revolutionary public sentiment in favor of such change could compel
the preliminary two-thirds majority in that body which the Constitution
makes necessary. A body made up of men who for the most part realize
that they owe their political advancement to a minority would naturally
be loth to support a change in the system which would place the election
to membership in that body directly in the hands of the people. It is
improbable that any such reform can be accomplished at present. Any
such direct attack upon the system would under present conditions be
almost certain to fail. Some method of accomplishing this object must be
employed which does not require the co-operation of the Senate, and
which, without any constitutional amendment, really deprives the
legislature of the power to select United States Senators as the
electoral college has been deprived of all power in the choice of
President.
The second defect in the Senate is the equal representation of the
states in that body. It is not only absurd but manifestly unjust that a
small state like Nevada should have as much representation in the
controlling branch of Congress as New York with more than one hundred
and seventy-one times as much population. A more inequitable
distribution of representation it would be difficult to imagine; yet
this evil could not be removed even by constitutional amendment, since
this matter does not come within the scope of the amending power, unless
the state or states affected by such proposed change should all give
their assent.
The third defect in the Senate is the extraordinary power which the
Constitution has conferred upon it. If it were a directly elected body
whose members were apportioned among the states according to population,
the overshadowing influence of the Senate would not be a serious
matter. But, as shown in Chapter VI, that body controls jointly with the
President the appointing and the treaty-making power. Moreover, the
latter power may be exercised with reference to many things concerning
which Congress has or could legislate. The Senate and the President may
thus repeal what Congress has enacted. We thus have the peculiar
situation that a law enacted with the concurrence of the House may be
repealed without its consent, while a law which takes the form of a
treaty can not be repealed without the consent of the Senate.
Theoretically, the Constitution could be amended so as to diminish the
power of the Senate, but as a matter of fact no change in the
Constitution would be more difficult to bring about. Any proposal to
reduce the power of the Senate would jeopardize the prestige and
influence of the smaller states no less than the proposal to deprive
them of equal representation in that body. The small states approach
political equality with the large, just in proportion as the influence
of the Senate is a dominating factor in the policy of the government.
Any attack on this equality of representation would ally the small
states together in defense of this privilege, and make it impossible to
obtain the assent of three-fourths of the states to any such change.
There is still another respect in which this equality of representation
in the Senate is unfortunate. It tends to make it easier for
corporation influences to dominate that body. This arises out of the
fact that it is more difficult and more expensive to control the
election of senators in a large than in a small state. This tends to
make the small states a favorite field for political activity on the
part of those corporations which wish to secure or prevent Federal
legislation.
The Supreme Court is generally regarded as the most effective of all our
constitutional checks upon democracy. Still, if the Senate were once
democratized, it would not be a difficult matter to bring the Federal
judiciary into line with the popular movement. In fact, the means
employed in England to subordinate the House of Lords to the Commons
indicates the method which might be employed here to subordinate the
Supreme Court to Congress. The Ministry in England, virtually appointed
by and responsible to the majority in the House of Commons, secured
control of the prerogatives of the Crown, one of which was the right to
appoint peers. No sooner did the House of Commons come into possession
of this power through a responsible Ministry than it realized the
possibility of making use of it to overcome opposition to their policies
on the part of the Lords. If the House of Lords did not yield to the
House of Commons, the latter, through its Cabinet, could create new
peers in sufficient number to break down all resistance in that body.
The possession of that power by the Commons and the warning that it
would be used if necessary has been sufficient to ensure compliance on
the part of the Lords. In a similar manner Congress and the President
could control the Supreme Court. The Constitution does not fix the
number of Supreme judges. This is a matter of detail which was left to
Congress, which may at any time provide for the addition of as many new
judges to the Supreme Court as it may see fit. Thus Congress, with the
co-operation of the President, could control the policy of the Supreme
Court in exactly the same way and to the same extent that the House of
Commons controls the House of Lords.
That the Federalists who were in possession of our general government
during the early years of its history appreciated the advantage of
controlling the policy of the Supreme Court was pointed out in the
chapter on the Federal judiciary. They accomplished their purpose,
however, by selecting for membership in that body, men whose political
record was satisfactory and whose views concerning judicial functions
were in harmony with the general plan and purpose of the Federalist
party. In fact, the scheme of government which they set up contemplated
no such possibility as the democratization of the Executive or the
Senate. If their expectation in this regard had been fully realized, a
judicious use of the appointing power would have been all that was
necessary to ensure a conservative court. Perhaps the framers of the
Constitution did not imagine that the power to increase the number of
judges would ever be needed to enable the President and Senate to secure
the co-operation of the Supreme Court. At any rate, the power given to
Congress and the President to enlarge the membership of that body was
not, in the opinion of the framers, a power that could ever be employed
against the conservative class, since the radical element, it was
believed, would never be able to control more than one branch of the
government, the House of Representatives. But, although it can not be
determined whether the Federalists had in mind the possibility of using
this power to control the policy of the court, it should be noted that,
according to their view of the government, it might be used by, but not
against, the conservative class. Nor is it likely that they would have
hesitated to use this power had it been necessary to the success of
their plan.
The failure of the Federalists to check the growth of democratic ideas
and the success of the more liberal party in bringing about the election
of Jefferson alarmed the conservative class. It was seen that if all
other branches of the government should come under the influence of the
liberal movement, the judicial check could be broken down. To guard
against this danger, an effort was made by the conservative interests
to mold a public sentiment that would protect the Supreme Court against
political interference at the hands of those who might wish to override
judicial opposition to radical measures. This took the form of what
might be called the doctrine of judicial infallibility. The judiciary in
general and the Supreme Court in particular were held up as the guardian
and protector of American liberty. The security of the people was
represented as bound up with the freedom of the courts from political
interference. At the same time it was proclaimed that the Supreme Court
exercised only judicial functions and that any attempt on the part of
the President or Congress to interfere with them would make that body
the organ of faction or class. But, as a matter of fact, the danger
which they foresaw to the Supreme Court was not a danger growing out of
its judicial, but out of its legislative functions. It was not because
the Supreme Court was a purely judicial body, but because it exercised a
supremely important legislative function, that they were so solicitous
to guard it against anything approaching popular control. The threefold
division of governmental powers into legislative, executive, and
judicial, as shown in a preceding chapter, has no logical basis. There
are, as Professor Goodnow has said,[195] but two functions of
government, that of expressing and that of executing the will of the
state. The Supreme Court, in so far as it is a purely judicial
body--that is, a body for hearing and deciding cases--is simply a means
of executing the will of the state. With the performance of this
function there was little danger that any democratic movement would
interfere. Nor was this the danger which the conservative classes really
feared, or which they wished to guard against. What they desired above
all else was to give the Supreme Court a final voice in expressing the
will of the state, and by so doing to make it operate as an effective
check upon democratic legislation. It is this power of expressing the
will of the state which our conservative writers defend as the
pre-eminently meritorious feature of our judicial system. Indeed, this
is, in the opinion of the conservative class, the most important of all
the checks on democracy. Any suggestion of using the power vested in
Congress and the President to reorganize the Supreme Court is naturally
enough denounced as the most dangerous and revolutionary of political
heresies. It is not probable, however, that the Supreme Court would much
longer be permitted to thwart the will of the majority if the other
branches of the Federal government were thoroughly imbued with the
belief in democracy. As explained in Chapter V, the Constitution
contains no hint of this power to declare acts of Congress null and
void. It was injected into the Constitution, as the framers intended, by
judicial interpretation, and under the influence of a thoroughly
democratic President, and Congress might be eliminated in the same way.
The most important feature of the Constitution from the standpoint of
democracy is the provision contained in article V, requiring Congress
"on the application of the legislatures of two-thirds of the several
states" to "call a convention for proposing amendments." The progress of
democracy in the various state governments is likely to compel resort to
this method of changing the Federal Constitution if the Senate much
longer persists in disregarding the will of the people. In fact, this
is, in the opinion of the conservative class, the one fatal defect in
the scheme of constitutional checks established by our forefathers. It
in reality opens the door to the most revolutionary changes in our
political arrangements. Congress can not refuse to call a general
constitutional convention when two-thirds of the states demand it, and
this convention might propose an entirely new constitution framed in
accord with the most advanced ideas of democracy. It might also follow
the precedent, set by the framers of our present Constitution and
prescribe an entirely new method of ratification as our more
conservative forefathers did when they disregarded the then existing
provision governing the amendment of the Articles of Confederation. It
is true that they ignored the established method of amending as well as
the instructions from the states by which they were appointed, in order
to bring about the adoption of a political system more acceptable to the
conservative classes. But what has been done in the interest of the
minority may also be done in the interest of the majority. A new Federal
constitution might be framed which would eliminate the whole system of
checks on the people and provide for direct ratification by a majority
of the voters, as has already been done in the case of most of our state
constitutions. If the Constitution does not yield sufficiently to
satisfy the popular demand for reform, it is possible that the
reactionary forces will, in their anxiety to defeat moderate democratic
measures, arouse sufficient opposition on the part of the people to
compel sweeping constitutional changes.
The fact that two-thirds of the states can require Congress to call a
convention of all the states to propose changes in the Constitution is a
matter of no small importance. True, even this method of initiating
changes in the system would be very difficult, since the smaller states
would naturally fear an attempt to establish a more equitable plan of
representation, and the special and privileged interests of all sorts
which have found the present system satisfactory would use every means
at their command to prevent the states from resorting to this power. It
is possible, if not indeed probable, that a serious and concerted
attempt by the people to force changes in the Constitution by this
method would sufficiently alarm the opponents of democracy to convince
them of the wisdom and expediency of such amendments as would appease
the popular clamor for reform without going too far in the direction of
majority rule. To prevent the complete overthrow of the system, which
might be the outcome if the states were compelled to assume the
initiative in amending the Constitution, the minority may accept the
inevitable, and, choosing what appears to them to be the lesser of two
evils, allow Congress to propose such amendments as the people are
determined to bring about.
It is in the state and in the municipal governments, however, that the
influence of democracy has been greatest. Yet even here much still
remains to be done before the practical operation of the system will be
in accord with the principle of majority rule. Direct election and
universal suffrage have not under our scheme of checks and balances
secured any large measure of political responsibility. The logical
result of this system has been the growing distrust of public officials
and especially of such representative bodies as state legislatures and
city councils. This lack of confidence in the local governmental
machinery, due to the irresponsibility of public officials, is certain
to lead to the adoption of radical changes in the organization of our
state and municipal governments. Either the tenure of public officials
will be made to depend in some more effective way upon the will of the
majority, or the power which they now have and which they often use to
further private interests at the expense of the people will be taken
from them and conferred directly upon the majority of the voters.
The movement to give the people greater control over the officials whom
they have elected is really just beginning. Heretofore the effort to
make the government truly representative of the people has been mainly
along the line of broadening the suffrage and perfecting the method of
voting. This, the people are just beginning to realize, does not
guarantee political responsibility. The secret ballot under present
conditions is important, but it is by no means adequate. The right of
the majority to elect one or the other of two men, both of whom may have
been nominated through the machinations of a corrupt and selfish
minority, does not give the people any real control over the officials
whom they vote into office. What they need, to ensure responsibility, is
the power to make a real, not a merely nominal choice, coupled with the
power to remove in case the person selected should lose the confidence
of the majority.
The plan for depriving the minority of the power to control the
selection of public officials, which is now rapidly gaining adherents
among the advocates of political reform, is the direct primary. That
some such change in our method of nominating candidates is necessary to
make the so-called popular election of public officials anything more
than an empty form is apparent to any intelligent student of American
politics. But any proposal to deprive the minority of this power must
encounter the determined opposition of the party machine and the various
private interests which now prosper at the expense of the people. These
opponents of political reform are continually declaiming against the
corruption and incapacity of the people and trying to make it appear
that a government can be no better than its source--those who elect the
public officials. That a government is not likely to be better than the
people whom it represents may be admitted. But this is aside from the
question. Our present system in its practical operation is not a
democracy. It is not truly representative, but misrepresentative. To
prevent this evil--this betrayal of public trust in the interest of the
minority--is the aim of the direct primary. That it will go far toward
breaking the power of the machine may be safely predicted, and that it
will be generally adopted as soon as the people realize its significance
there is scarcely room for doubt.
But while the direct nomination of candidates would doubtless go far
toward making public officials respect the wishes of the people, it
would not provide adequate protection against misconduct in office under
our plan of election for a definite term without any effective power of
removal. A corrupt official may often find that by favoring private
interests at the expense of the people who have elected him, he can
afford to forfeit all chance of re-election. The independence of public
officials which our forefathers were so anxious to secure has been found
to be a fruitful source of corruption. A realization of this fact has
been responsible for the introduction of the recall system under which
the people enforce official responsibility through their power to remove
by a vote of lack of confidence in the form of a petition signed by a
certain percentage of the voters. Such an expression of popular
disapproval has the effect of suspending from office the offending
official who can regain the office only by offering himself again as a
candidate at an election called for that purpose. This is as yet merely
an innovation in municipal government, but if it proves to be
satisfactory, the principle will doubtless be incorporated, not only in
municipal charters generally, but in our state constitutions as well.
Simultaneous with this movement to make government really representative
by enforcing official responsibility is another movement which also
aims to make the will of the majority supreme, but by a totally
different method of procedure. This is the movement looking toward the
establishment of the initiative and the referendum. Instead of leaving
power in the hands of representative bodies and seeking to make them
responsible as the first plan of reform contemplates, the second plan
would guard representative bodies against temptation by divesting them
of all powers which they are liable to misuse and conferring them
directly upon the people. This is merely an attempt to get back to the
basic idea of the old town meeting, where local measures were directly
proposed and adopted or rejected by the people. It is, moreover, the
logical outcome of the struggle which the advocates of majority rule
have been and are now making to secure control of our state and
municipal governments. The constitutional checks on democracy have
greatly obstructed and delayed the progress of political reform. Some of
them have been removed, it is true, but enough still remain to make it
possible for the minority to defeat the will of the majority with
reference to many questions of vital importance.
It must be admitted, when we review the course of our political
development, that much progress has been made. But the evolution has
been toward a direct rather than toward a representative democracy. The
reason for this is not far to seek. The system of checks which limited
the power of the majority made the legislature largely an irresponsible
body; and since it could not be trusted, it was necessary to take out of
its hands the powers it was most likely to abuse.
The legislature was first deprived of its power to enact constitutional
legislation, though it was allowed to retain an effective veto on such
changes through its refusal to take the initiative. With the progress of
the democratic movement some of the legislative powers most frequently
abused were, like the state constitution itself, made subject to popular
ratification. This submission of constitutional and certain kinds of
statutory legislation to the people before it could go into effect
merely gave them to this extent a veto on the recommendations of their
legislatures and constitutional conventions. There was still no way to
prevent the legislature from misrepresenting the people with respect to
those measures which did not require popular ratification. The tendency
was to diminish the power of the legislature by including in the
constitution itself much that might have taken the form of ordinary
statutory legislation, as well as by requiring that some of the more
important acts passed by the legislature should receive the direct
assent of the voters. This merely gave to the people a partial negative.
It enabled them to reject some measures which they did not approve of,
but not all, since in those cases where popular ratification was not
required, public sentiment could be disregarded by the law-making body.
Moreover, the people did not have the right to initiate measures--a
right which is indispensable if the people are to have any real power to
mold the policy of the state. The logical outcome of this line of
development is easily seen. As pointed out in an earlier part of this
volume, constitutional development first limits and eventually destroys
irresponsible power, and in the end makes the responsible power in the
state supreme. The prevalent lack of confidence in our state
legislatures is no indication of hostility to the principle of
representative government; for representative government in the true
sense means government that is responsible to the people. The popular
movement has in modifying our state and municipal governments merely
taken the line of least resistance, and that has involved the transfer
of legislative powers to the people themselves.
Just how far this movement will go it is impossible to foresee. A
government of the representative type, if responsive to public
sentiment, would answer all the requirements of a democratic state. It
would at the same time be merely carrying out in practice what has long
been the generally accepted, if mistaken, view of our political system.
The adoption of some effective plan of direct nomination and recall of
officials would accomplish much in the way of restoring confidence in
legislative bodies. To this extent it would check the tendency to place
the law-making power directly in the hands of the people. Popular
ratification of all important laws would be unnecessary, if our
legislative bodies were really responsible to the people. Nevertheless,
the popular veto is a power which the people should have the right to
use whenever occasion demands. This would prevent the possibility of
legislation in the interest of the minority as now often happens. The
popular veto through the referendum is not, however, of itself
sufficient. The people need the power to initiate legislation as well as
the power to defeat it. The initiative combined with the referendum
would make the majority in fact, as it now is in name only, the final
authority in all matters of legislation.
It is in our state and municipal governments that democracy is likely to
win its first victories. The minority, however, will make a desperate
struggle to prevent the overthrow of the system which has been and still
is the source of its power. The political machine supported by every
privileged interest will oppose by every means in its power the efforts
of the people to break down the checks upon the majority. To this end we
must expect them to make large use in the near future, as they have in
the past, of the extraordinary powers exercised by our courts. In fact
the courts as the least responsible and most conservative of our organs
of government have been the last refuge of the minority when defeated in
the other branches of the government. The disposition so generally seen
among the opponents of democracy to regard all measures designed to
break down the checks upon the majority as unconstitutional points to
the judiciary as the chief reliance of the conservative classes. Indeed,
the people are beginning to see that the courts are in possession of
political powers of supreme importance--that they can, and often do,
defeat the will of the majority after it has successfully overcome
opposition in all other branches of the government. If the will of the
majority is to prevail, the courts must be deprived of the power which
they now have to declare laws null and void. Popular government can not
really exist so long as judges who are politically irresponsible have
power to override the will of the majority. The democratic movement will
either deprive the judicial branch of the government of its political
powers or subject it to the same degree of popular control applied to
other political organs. The extension of direct nomination and recall to
the members of our state judiciary would deprive the special interests
of the power to use the courts as the means of blocking the way to
popular reforms. In any democratic community the final interpreter of
the constitution must be the majority. With the evolution of complete
popular government, then, the judicial veto must disappear, or the
court must become a democratic body.
It is through our state governments that we must approach the problem of
reforming the national government. Complete control of the former will
open the door that leads to eventual control of the latter. Democratize
the state governments, and it will be possible even to change the
character of the United States Senate. With a state legislature directly
nominated and subject to removal through the use of the recall, it will
be possible to deprive that body of any real power in the selection of
United States senators. Under these conditions the legislature would
merely ratify the candidate receiving a majority of the popular vote
just as the electoral college has come to ratify the popular choice of
the President. In this way direct nomination and direct election of
United States senators could be made really effective while at the same
time preserving the form but not the substance of election by the state
legislatures.[196]
This would make possible that much needed separation of state and
municipal from national politics. Candidates for the state legislature
are now nominated and elected largely with reference to the influence of
that body upon the composition of the United States Senate. This has a
tendency to, and in fact does, make state legislation in no small degree
a by-product of senatorial elections. By divesting the legislature of
this function, it would cease to be, as it is now, one of the organs of
the Federal government, and in assuming its proper role of a local
legislative body, it would become in fact what it has hardly been even
in theory--a body mainly interested in formulating and carrying out
purely local policies. Experience has shown beyond question that its
function as an electoral college for the choice of United States
senators is incompatible with the satisfactory exercise of local
legislative functions. The latter will be sacrificed in the interest of
the former. This of itself is no small evil. For if there is any
advantage in our Federal form of government, it is in the opportunity
thus provided for the faithful expression of local public opinion in
local legislation. But in addition to this subordination of state to
national politics, which might be justified under existing conditions on
the ground that local measures and local interests should be sacrificed
whenever by so doing it would contribute to the success of the larger
and more important matters of national policy, it has become a prolific
source of corruption.
It is not a mere accident that the United States Senate is to-day the
stronghold of railway and other corporate interests. Possessing as it
does more extended powers than the House of Representatives, it is for
that very reason the body in which every privileged interest will make
the greatest effort to obtain representation. Moreover, the indirect
method of election is one that readily lends itself to purposes of
corruption. It is a notorious fact that it is much easier to buy the
representatives of the people than to buy the people themselves. Money
expended in influencing elections always has in view certain benefits
direct or indirect which those who contribute the funds for that purpose
expect to receive. Such funds invariably come in the main from special
interests which expect to get back from the people more than the amount
of their political investments. If they had to deal with the people
directly, the latter would demand an equivalent for any concession
granted, since it would not be to their advantage to enrich special
interests at their own expense. But where the concession can be granted
by a small body such as a state legislature, the latter may find that it
is to its advantage to co-operate with a selfish and unscrupulous class
in furthering purely private interests at the expense of the public. The
opportunity for the successful employment of corrupt means is greatly
augmented, too, through the confusion of state and national issues under
the present system. Many measures may be sacrificed by the party in
control of the state legislature under the plea that it is necessary in
order to advance the general interests of the party by the election of a
United States senator. This possibility of evading responsibility for
the nonfulfillment of its duty as a local legislative body would
disappear as soon as it is deprived of the part which it now plays in
the choice of United States senators.