Chapter 2

Some of these methods have been made a part of the constitutional system of a considerable number of our states. They have been accompanied invariably by provisions for very short and easy changes of state constitutions, and, so long as they are confined to the particular states which have chosen to adopt them, they may be regarded as experiments which we may watch with interest, whatever may be our opinions as to the outcome, and with the expectation that if they do not work well they also will be abandoned. This is especially true because, since the adoption of the Fourteenth Amendment to the Constitution, the states are prohibited from violating in their own affairs the most important principles of the National Constitution. It is not to be expected, however, that new methods and rules of action in government shall become universal in the states and not ultimately bring about a change in the national system. It will be useful, therefore, to consider whether these new methods if carried into the national system would sacrifice any of the essentials of that system which ought to be preserved.

The Constitution of the United States deals in the main with essentials. There are some non-essential directions such as those relating to the methods of election and of legislation, but in the main it sets forth the foundations of government in clear, simple, concise terms. It is for this reason that it has stood the test of more than a century with but slight amendment, while the modern state constitutions, into which a multitude of ordinary statutory provisions are crowded, have to be changed from year to year. The peculiar and essential qualities of the government established by the Constitution are:

First, it is representative.

Second, it recognizes the liberty of the individual citizen as distinguished from the total mass of citizens, and it protects that liberty by specific limitations upon the power of government.

Third, it distributes the legislative, executive and judicial powers, which make up the sum total of all government, into three separate departments, and specifically limits the powers of the officers in each department.

Fourth, it superimposes upon a federation of state governments, a national government with sovereignty acting directly not merely upon the states, but upon the citizens of each state, within a line of limitation drawn between the powers of the national government and the powers of the state governments.

Fifth, it makes observance of its limitations requisite to the validity of laws, whether passed by the nation or by the states, to be judged by the courts of law in each concrete case as it arises.

Every one of these five characteristics of the government established by the Constitution was a distinct advance beyond the ancient attempts at popular government, and the elimination of any one of them would be a retrograde movement and a reversion to a former and discarded type of government. In each case it would be the abandonment of a distinctive feature of government which has succeeded, in order to go back and try again the methods of government which have failed. Of course we ought not to take such a backward step except under the pressure of inevitable necessity.

The first two of the characteristics which I have enumerated, those which embrace the conception of representative government and the conception of individual liberty, were the products of the long process of development of freedom in England and America. They were not invented by the makers of the Constitution. They have been called inventions of the Anglo-Saxon race. They are the chief contributions of that race to the political development of civilization.

The expedient of representation first found its beginning in the Saxon witenagemot. It was lost in the Norman conquest. It was restored step by step, through the centuries in which parliament established its power as an institution through the granting or withholding of aids and taxes for the king's use. It was brought to America by the English colonists. It was the practice of the colonies which formed the Federal Union. It entered into the constitution as a matter of course, because it was the method by which modern liberty had been steadily growing stronger and broader for six centuries as opposed to the direct, unrepresentative method of government in which the Greek and Roman and Italian republics had failed. This representative system has in its turn impressed itself upon the nations which derived their political ideas from Rome and has afforded the method through which popular liberty has been winning forward in its struggle against royal and aristocratic power and privilege the world over. Bluntschli, the great Heidelberg publicist of the last century, says:

"Representative government and self-government are the great works of the English and American peoples. The English have produced representative monarchy with parliamentary legislation and parliamentary government. The Americans have produced the representative republic. We Europeans upon the Continent recognize in our turn that in representative government alone lies the hoped-for union between civil order and popular liberty."

The Initiative and Compulsory Referendum are attempts to cure the evils which have developed in our practice of representative government by means of a return to the old, unsuccessful, and discarded method of direct legislation and by rehabilitating one of the most impracticable of Rousseau's theories. Every candid student of our governmental affairs must agree that the evils to be cured have been real and that the motive which has prompted the proposal of the Initiative and Referendum is commendable. I do not think that these expedients will prove wise or successful ways of curing these evils for reasons which I will presently indicate; but it is not necessary to assume that their trial will be destructive of our system of government. They do not aim to destroy representative government, but to modify and control it, and were it not that the effect of these particular methods is likely to go beyond the intention of their advocates they would not interfere seriously with representative government except in so far as they might ultimately prove to be successful expedients. If they did not work satisfactorily they would be abandoned, leaving representative government still in full force and effectiveness.

There is now a limited use of the Referendum upon certain comparatively simple questions. No one has ever successfully controverted the view expressed by Burke in his letter to the electors of Bristol, that his constituents were entitled not merely to his vote but to his judgment, even though they might not agree with it. But there are some questions upon which the determining fact must be the preference of the people of the country or of a community; such as the question where a capital city or a county seat shall be located; the question whether a debt shall be incurred that will be a lien on their property for a specific purpose; the question whether the sale of intoxicating liquors shall he permitted. Upon certain great simple questions which are susceptible of a _yes_ or _no_ answer it is appropriate that the people should be called upon to express their wish by a vote just as they express their choice of the persons who shall exercise the powers of government by a vote. This, however, is very different from undertaking to have the ordinary powers of legislation exercised at the ballot box.

In this field the weakness, both of the Initiative and of the Compulsory Referendum, is that they are based upon a radical error as to what constitutes the true difficulty of wise legislation. The difficulty is not to determine what ought to be accomplished but to determine how to accomplish it. The affairs with which statutes have to deal as a rule involve the working of a great number and variety of motives incident to human nature, and the working of those motives depends upon complicated and often obscure facts of production, trade, social life, with which men generally are not familiar and which require study and investigation to understand. Thrusting a rigid prohibition or command into the operation of these forces is apt to produce quite unexpected and unintended results. Moreover, we already have a great body of laws, both statutory and customary, and a great body of judicial decisions as to the meaning and effect of existing laws. The result of adding a new law to this existing body of laws is that we get, not the simple consequence which the words, taken by themselves, would seem to require, but a resultant of forces from the new law taken in connection with all existing laws. A very large part of the litigation, injustice, dissatisfaction, and contempt for law which we deplore, results from ignorant and inconsiderate legislation with perfectly good intentions. The only safeguard against such evils and the only method by which intelligent legislation can be reached is the method of full discussion, comparison of views, modification and amendment of proposed legislation in the light of discussion and the contribution and conflict of many minds. This process can be had only through the procedure of representative legislative bodies. Representative government is something more than a device to enable the people to have their say when they are too numerous to get together and say it. It is something more than the employment of experts in legislation. Through legislative procedure a different kind of treatment for legislative questions is secured by concentration of responsibility, by discussion, and by opportunity to meet objection with amendment. For this reason the attempt to legislate by calling upon the people by popular vote to say yes or no to complicated statutes must prove unsatisfactory and on the whole injurious. In ordinary cases the voters will not and cannot possibly bring to the consideration of proposed statutes the time, attention, and knowledge required to determine whether such statutes will accomplish what they are intended to accomplish; and the vote usually will turn upon the avowed intention of such proposals rather than upon their adequacy to give effect to the intention.

This would be true if only one statute were to be considered at one election; but such simplicity is not practicable. There always will be, and if the direct system is to amount to anything there must be, many proposals urged upon the voters at each opportunity.

The measures, submitted at one time in some of the Western States now fill considerable volumes.

With each proposal the voter's task becomes more complicated and difficult.

Yet our ballots are already too complicated. The great blanket sheets with scores of officers and hundreds of names to be marked are quite beyond the intelligent action in detail of nine men out of ten.

The most thoughtful reformers are already urging that the voter's task be made more simple by giving him fewer things to consider and act upon at the same time.

This is the substance of what is called the "Short Ballot" reform; and it is right, for the more questions divide public attention the fewer questions the voters really decide for themselves on their own judgment and the greater the power of the professional politician.

There is moreover a serious danger to be apprehended from the attempt at legislation by the Initiative and Compulsory Referendum, arising from its probable effect on the character of representative bodies. These expedients result from distrust of legislatures. They are based on the assertion that the people are not faithfully represented in their legislative bodies, but are misrepresented. The same distrust has led to the encumbering of modern state constitutions by a great variety of minute limitations upon legislative power. Many of these constitutions, instead of being simple frameworks of government, are bulky and detailed statutes legislating upon subjects which the people are unwilling to trust the legislature to deal with. So between the new constitutions, which exclude the legislatures from power, and the Referendum, by which the people overrule what they do, and the Initiative, by which the people legislate in their place, the legislative representatives who were formerly honored, are hampered, shorn of power, relieved of responsibility, discredited, and treated as unworthy of confidence. The unfortunate effect of such treatment upon the character of legislatures and the kind of men who will he willing to serve in them can well be imagined. It is the influence of such treatment that threatens representative institutions in our country. Granting that there have been evils in our legislative system which ought to be cured, I cannot think that this is the right way to cure them. It would seem that the true way is for the people of the country to address themselves to the better performance of their own duty in selecting their legislative representatives and in holding those representatives to strict responsibility for their action. The system of direct nominations, which is easy of application in the simple proceeding of selecting members of a legislature, and the Short Ballot reform aim at accomplishing that result. I think that along these lines the true remedy is to be found. No system of self-government will continue successful unless the voters have sufficient public spirit to perform their own duty at the polls, and the attempt to reform government by escaping from the duty of selecting honest and capable representatives, under the idea that the same voters who fail to perform that duty will faithfully perform the far more onerous and difficult duty of legislation, seems an exhibition of weakness rather than of progress.

II

ESSENTIALS

In the first of these lectures I specified certain essential characteristics of our system of government, and discussed the preservation of the first--its representative character. The four other characteristics specified have one feature in common. They all aim to preserve rights by limiting power.

Of these the most fundamental is the preservation in our Constitution of the Anglo-Saxon idea of individual liberty. The republics of Greece and Rome had no such conception. All political ideas necessarily concern man as a social animal, as a member of society--a member of the state. The ancient republics, however, put the state first and regarded the individual only as a member of the state. They had in view the public rights of the state in which all its members shared, and the rights of the members as parts of the whole, but they did not think of individuals as having rights independent of the state, or against the state. They never escaped from the attitude towards public and individual civil rights, which was dictated by the original and ever-present necessity of military organization and defense.

The Anglo-Saxon idea, on the other hand, looked first to the individual. In the early days of English history, without theorizing much upon the subject, the Anglo-Saxons began to work out their political institutions along the line expressed in our Declaration of Independence, that the individual citizen has certain inalienable rights--the right to life, to liberty, to the pursuit of happiness, and that government is not the source of these rights, but is the instrument for the preservation and promotion of them. So when a century and a half after the conquest the barons of England set themselves to limit the power of the Crown they did not demand a grant of rights. They asserted the rights of individual freedom and demanded observance of them, and they laid the corner-stone of our system of government in this solemn pledge of the Great Charter:

"No freeman shall be taken, or imprisoned, or be disseized of his free hold, or his liberties, or his free customs, or be outlawed, or exiled, or otherwise destroyed, but by the lawful judgment of his peers, or by the law of the land."

Again and again in the repeated confirmations of the Great Charter, in the Petition of Rights, in the Habeas Corpus Act, in the Bill of Rights, in the Massachusetts Body of Liberties, in the Virginia Bill of Rights, and, finally, in the immortal Declaration of 1776--in all the great utterances of striving for broader freedom which have marked the development of modern liberty, sounds the same dominant note of insistence upon the inalienable right of individual manhood under government but independent of government, and, if need be, against government, to life and liberty.

It is impossible to overestimate the importance of the consequences which followed from these two distinct and opposed theories of government. The one gave us the dominion, but also the decline and fall of, Rome. It followed the French Declaration of the Rights of Man, with the negation of those rights in the oppression of the Reign of Terror, the despotism of Napoleon, the popular submission to the second empire and the subservience of the individual citizen to official superiority which still prevails so widely on the continent of Europe. The tremendous potency of the other subdued the victorious Normans to the conquered Saxon's conception of justice, rejected the claims of divine right by the Stewarts, established capacity for self-government upon the independence of individual character that knows no superior but the law, and supplied the amazing formative power which has molded, according to the course and practice of the common law, the thought and custom of the hundred millions of men drawn from all lands and all races who inhabit this continent north of the Rio Grande.

The mere declaration of a principle, however, is of little avail unless it be supported by practical and specific rules of conduct through which the principle shall receive effect. So Magna Charta imposed specific limitations upon royal authority to the end that individual liberty might be preserved, and so to the same end our Declaration of Independence was followed by those great rules of right conduct which we call the limitations of the constitution. Magna Charta imposed its limitations upon the kings of England and all their officers and agents. Our constitution imposed its limitations upon the sovereign people and all their officers and agents, excluding all the agencies of popular government from authority to do the particular things which would destroy or impair the declared inalienable right of the individual.

Thus the constitution provides: No law shall be made by Congress prohibiting the free exercise of religion, or abridging the freedom of speech or of the press. The right of the people to keep and bear arms shall not be infringed. The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated. No person shall be subject for the same offense to be twice put in jeopardy of life or limb; nor be compelled, in any criminal case, to be a witness against himself; nor be deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use without just compensation. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed; and to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense. Excessive bail shall not he required, nor excessive fines imposed, nor cruel and unusual punishment inflicted. The privilege of the writ of habeas corpus shall not be suspended, except in case of rebellion or invasion. No bill of attainder or ex post facto law shall be passed. And by the Fourteenth Amendment, no state shall deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the law.

We have lived so long under the protection of these rules that most of us have forgotten their importance. They have been unquestioned in America so long that most of us have forgotten the reasons for them. But if we lose them we shall learn the reasons by hard experience. And we are in some danger of losing them, not all at once but gradually, by indifference.

As Professor Sohm says: "The greatest and most far reaching revolutions in history are not consciously observed at the time of their occurrence."

Every one of these provisions has a history. Every one stops a way through which the overwhelming power of government has oppressed the weak individual citizen, and may do so again if the way be opened. Such provisions as these are not mere commands. They withhold power. The instant any officer, of whatever kind or grade, transgresses them he ceases to act as an officer. The power of sovereignty no longer supports him. The majesty of the law no longer gives him authority. The shield of the law no longer protects him. He becomes a trespasser, a despoiler, a law breaker, and all the machinery of the law may be set in motion for his restraint or punishment. It is true that the people who have made these rules may repeal them. As restraints upon the people themselves they are but self-denying ordinances which the people may revoke, but the supreme test of capacity for popular self-government is the possession of that power of self-restraint through which a people can subject its own conduct to the control of declared principles of action.

These rules of constitutional limitation differ from ordinary statutes in this, that these rules are made impersonally, abstractly, dispassionately, impartially, as the people's expression of what they believe to be right and necessary for the preservation of their idea of liberty and justice. The process of amendment is so guarded by the constitution itself as to require the lapse of time and opportunity for deliberation and consideration and the passing away of disturbing influences which may be caused by special exigencies or excitements, before any change can be made. On the contrary, ordinary acts of legislation are subject to the considerations of expediency for the attainment of the particular objects of the moment, to selfish interests, momentary impulses, passions, prejudices, temptations. If there be no general rules which control particular action, general principles are obscured or set aside by the desires and impulses of the occasion. Our knowledge of the weakness of human nature and countless illustrations from the history of legislation in our own country point equally to the conclusion that if governmental authority is to be controlled by rules of action, it cannot be relied upon to impose those rules upon itself at the time of action, but must have them prescribed beforehand.