Chapter 3

The second class of limitations upon official power provided in our constitution prescribe and maintain the distribution of power to the different departments of government and the limitations upon the officers invested with authority in each department. This distribution follows the natural and logical lines of the distinction between the different kinds of power--legislative, executive, and judicial. But the precise allotment of power and lines of distinction are not so important as it is that there shall be distribution, and that each officer shall be limited in accordance with that distribution, for without such limitations there can be no security for liberty. If, whatever great officer of state happens to be the most forceful, skillful, and ambitious, is permitted to overrun and absorb to himself the powers of all other officers and to control their action, there ensues that concentration of power which destroys the working of free institutions, enables the holder to continue himself in power, and leaves no opportunity to the people for a change except through a revolution. Numerous instances of this very process are furnished by the history of some of the Spanish-American republics. It is of little consequence that the officer who usurps the power of others may design only to advance the public interest and to govern well. The system which permits an honest and well-meaning man to do this will afford equal opportunity for selfish ambition to usurp power in its own interest. Unlimited official power concentrated in one person is despotism, and it is only by carefully observed and jealously maintained limitations upon the power of every public officer that the workings of free institutions can be continued.

The rigid limitation of official power is necessary not only to prevent the deprivation of substantial rights by acts of oppression, but to maintain that equality of political condition which is so important for the independence of individual character among the people of the country. When an officer has authority over us only to enforce certain specific laws at particular times and places, and has no authority regarding anything else, we pay deference to the law which he represents, but the personal relation is one of equality. Give to that officer, however, unlimited power, or power which we do not know to be limited, and the relation at once becomes that of an inferior to a superior. The inevitable result of such a relation long continued is to deprive the people of the country of the individual habit of independence. This may be observed in many of the countries of Continental Europe, where official persons are treated with the kind of deference, and exercise the kind of authority, which are appropriate only to the relations between superior and inferior.

So the Massachusetts Constitution of 1780, after limiting the powers of each department to its own field, declares that this is done "to the end it may be a government of laws and not of men."

The third class of limitations I have mentioned are those made necessary by the novel system which I have described as superimposing upon a federation of state governments, a national government acting directly upon the individual citizens of the states. This expedient was wholly unknown before the adoption of our constitution. All the confederations which had been attempted before that time were simply leagues of states, and whatever central authority there was derived its authority from and had its relations with the states as separate bodies politic. This was so of the old confederation. Each citizen owed his allegiance to his own state and each state had its obligations to the confederation. Under our constitutional system in every part of the territory of every state there are two sovereigns, and every citizen owes allegiance to both sovereigns--to his state and to his nation. In regard to some matters, which may generally be described as local, the state is supreme. In regard to other matters, which may generally be described as national, the nation is supreme. It is plain that to maintain the line between these two sovereignties operating in the same territory and upon the same citizens is a matter of no little difficulty and delicacy. Nothing has involved more constant discussion in our political history than questions of conflict between these two powers, and we fought the great Civil War to determine the question whether in case of conflict the allegiance to the state or the allegiance to the nation was of superior obligation. We should observe that the Civil War arose because the constitution did not draw a clear line between the national and state powers regarding slavery. It is of very great importance that both of these authorities, state and national, shall be preserved together and that the limitations which keep each within its proper province shall be maintained. If the power of the states were to override the power of the nation we should ultimately cease to have a nation and become only a body of really separate, although confederated, state sovereignties continually forced apart by diverse interests and ultimately quarreling with each other and separating altogether. On the other hand, if the power of the nation were to override that of the states and usurp their functions we should have this vast country, with its great population, inhabiting widely separated regions, differing in climate, in production, in industrial and social interests and ideas, governed in all its local affairs by one all-powerful, central government at Washington, imposing upon the home life and behavior of each community the opinions and ideas of propriety of distant majorities. Not only would this be intolerable and alien to the idea of free self-government, but it would be beyond the power of a central government to do directly. Decentralization would be made necessary by the mass of government business to be transacted, and so our separate localities would come to be governed by delegated authority--by proconsuls authorized from Washington to execute the will of the great majority of the whole people. No one can doubt that this also would lead by its different route to the separation of our Union. Preservation of our dual system of government, carefully restrained in each of its parts by the limitations of the constitution, has made possible our growth in local self-government and national power in the past, and, so far as we can see, it is essential to the continuance of that government in the future.

All of these three classes of constitutional limitations are therefore necessary to the perpetuity of our government. I do not wish to be understood as saying that every single limitation is essential. There are some limitations that might be changed and something different substituted. But the system of limitation must be continued if our governmental system is to continue--if we are not to lose the fundamental principles of government upon which our Union is maintained and upon which our race has won the liberty secured by law for which it has stood foremost in the world.

Lincoln covered this subject in one of his comprehensive statements that cannot be quoted too often. He said in the first inaugural:

"A majority held in restraint by constitutional checks and limitations and always changing easily with deliberate changes of popular opinion and sentiments the only true sovereign of a free people. Whoever rejects it does of necessity fly to anarchy or despotism."

Rules of limitation, however, are useless unless they are enforced. The reason for restraining rules arises from a tendency to do the things prohibited. Otherwise no rule would be needed. Against all practical rules of limitation--all rules limiting official conduct, there is a constant pressure from one side or the other. Honest differences of opinion as to the extent of power, arising from different points of view make this inevitable, to say nothing of those weaknesses and faults of human nature which lead men to press the exercise of power to the utmost under the influence of ambition, of impatience with opposition to their designs, of selfish interest and the arrogance of office. No mere paper rules will restrain these powerful and common forces of human nature.

The agency by which, under our system of government, observance of constitutional limitation is enforced is the judicial power. The constitution provides that "This constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding." Under this provision an enactment by Congress not made in pursuance of the constitution, or an enactment of a state contrary to the constitution, is not a law. Such an enactment should strictly have no more legal effect than the resolution of any private debating society. The constitution also provides that the judicial power of the United States shall extend to all cases in law and equity arising under the constitution and laws of the United States. Whenever, therefore, in a case before a Federal court rights are asserted under or against some law which is claimed to violate some limitation of the constitution, the court is obliged to say whether the law does violate the constitution or not, because if it does not violate the constitution the court must give effect to it as law, while if it does violate the constitution it is no law at all and the court is not at liberty to give effect to it. The courts do not render decisions like imperial rescripts declaring laws valid or invalid. They merely render judgment on the rights of the litigants in particular cases, and in arriving at their judgment they refuse to give effect to statutes which they find clearly not to be made in pursuance of the constitution and therefore to be no laws at all. Their judgments are technically binding only in the particular case decided, but the knowledge that the court of last resort has reached such a conclusion concerning a statute, and that a similar conclusion would undoubtedly be reached in every case of an attempt to found rights upon the same statute, leads to a general acceptance of the invalidity of the statute.

There is only one alternative to having the courts decide upon the validity of legislative acts, and that is by requiring the courts to treat the opinion of the legislature upon the validity of its statutes, evidenced by their passage, as conclusive. But the effect of this would be that the legislature would not be limited at all except by its own will. All the provisions designed to maintain a government carried on by officers of limited powers, all the distinctions between what is permitted to the national government and what is permitted to the state governments, all the safeguards of the life, liberty and property of the citizen against arbitrary power, would cease to bind Congress, and on the same theory they would cease also to bind the legislatures of the states. Instead of the constitution being superior to the laws the laws would be superior to the constitution, and the essential principles of our government would disappear. More than one hundred years ago, Chief Justice Marshall, in the great case of Marbury _vs_. Madison, set forth the view upon which our government has ever since proceeded. He said:

"The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limit committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or that the legislature may alter the constitution by an ordinary act.

"Between these alternatives, there is no middle ground. The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it. If the former part of the alternative be true, then a legislative act, contrary to the constitution, is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power, in its own nature, inimitable.

"Certainly, all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently, the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void. This theory is essentially attached to a written constitution, and is, consequently, to be considered by this court as one of the fundamental principles of our society."

And of the same opinion was Montesquieu who gave the high authority of the _Esprit des Lois_ to the declaration that

"There is no liberty if the power of judging be not separate from the legislative and executive powers; were it joined with the legislative the life and liberty of the subject would be exposed to arbitrary control."

It is to be observed that the wit of man has not yet devised any better way of reaching a just conclusion as to whether a statute does or does not conflict with a constitutional limitation upon legislative power than the submission of the question to an independent and impartial court. The courts are not parties to the transactions upon which they pass. They are withdrawn by the conditions of their office from participation in business and political affairs out of which litigations arise. Their action is free from the chief dangers which threaten the undue extension of power, because, as Hamilton points out in The Federalist, they are the weakest branch of government: they neither hold the purse, as does the legislature, nor the sword, as does the executive. During all our history they have commanded and deserved the respect and confidence of the people. General acceptance of their conclusions has been the chief agency in preventing here the discord and strife which afflict so many lands, and in preserving peace and order and respect for law.

Indeed in the effort to emasculate representative government to which I have already referred, the people of the experimenting states have greatly increased their reliance upon the courts. Every new constitution with detailed orders to the legislature is a forcible assertion that the people will not trust legislatures to determine the extent of their own powers, but will trust the courts.

Two of the new proposals in government, which have been much discussed, directly relate to this system of constitutional limitations made effective through the judgment of the courts. One is the proposal for the Recall of Judges, and the other for the Popular Review of Decisions, sometimes spoken of as the Recall of Decisions.

Under the first of these proposals, if a specified proportion of the voters are dissatisfied with a judge's decision they are empowered to require that at the next election, or at a special election called for that purpose, the question shall be presented to the electors whether the judge shall be permitted to continue in office or some other specified person shall be substituted in his place. This ordeal differs radically from the popular judgment which a judge is called upon to meet at the end of his term of office, however short that may be, because when his term has expired he is judged upon his general course of conduct while he has been in office and stands or falls upon that as a whole. Under the Recall a judge may be brought to the bar of public judgment immediately upon the rendering of a particular decision which excites public interest and he will be subject to punishment if that decision is unpopular. Judges will naturally be afraid to render unpopular decisions. They will hear and decide cases with a stronger incentive to avoid condemnation themselves than to do justice to the litigant or the accused. Instead of independent and courageous judges we shall have timid and time-serving judges. That highest duty of the judicial power to extend the protection of the law to the weak, the friendless, the unpopular, will in a great measure fail. Indirectly the effect will be to prevent the enforcement of the essential limitations upon official power because the judges will be afraid to declare that there is a violation when the violation is to accomplish some popular object.

The Recall of Decisions aims directly at the same result. Under such an arrangement, if the courts have found a particular law to be a violation of one of the fundamental rules of limitation prescribed in the constitution, and the public feeling of the time is in favor of disregarding that limitation in that case, an election is to be held, and if the people in the election vote that the law shall stand, it is to stand, although it be a violation of the constitution; that is to say, if at any time a majority of the voters of a state (and ultimately the same would be true of the people of the United States) choose not to be bound in any particular case by the rule of right conduct which they have established for themselves, they are not to be bound. This is sometimes spoken of as a Popular Reversal of the Decisions of Courts. That I take to be an incorrect view. The power which would be exercised by the people under such an arrangement would be, not judicial, but legislative. The action would not be a decision that the court was wrong in finding a law unconstitutional, but it would be making a law valid which was invalid before because unconstitutional. In such an election the majority of the voters would make a law where no law had existed before; and they would make that law in violation of the rules of conduct by which the people themselves had solemnly declared they ought to be bound. The exercise of such a power, if it is to exist, cannot be limited to the particular cases which you or I or any man now living may have in mind. It must be general. If it can be exercised at all it can and will be exercised by the majority whenever they wish to exercise it. If it can be employed to make a Workmen's Compensation Act in such terms as to violate the constitution, it can be employed to prohibit the worship of an unpopular religious sect, or to take away the property of an unpopular rich man without compensation, or to prohibit freedom of speech and of the press in opposition to prevailing opinion, or to deprive one accused of crime of a fair trial when he has been condemned already by the newspapers. In every case the question whether the majority shall be bound by those general principles of action which the people have prescribed for themselves will be determined in that case by the will of the majority, and therefore in no case will the majority be bound except by its own will at the time.

The exercise of such a power would strike at the very foundation of our system of government. It would be a reversion to the system of the ancient republics where the state was everything and the individual nothing except as a part of the state, and where liberty perished. It would be a repudiation of the fundamental principle of Anglo-Saxon liberty which we inherit and maintain, for it is the very soul of our political institutions that they protect the individual against the majority. "All men," says the Declaration, "are endowed by their Creator with inalienable rights. Governments are instituted to secure these rights." The rights are not derived from any majority. They are not disposable by any majority. They are superior to all majorities. The weakest minority, the most despised sect, exist by their own right. The most friendless and lonely human being on American soil holds his right to life and liberty and the pursuit of happiness, and all that goes to make them up by title indefeasible against the world, and it is the glory of American self-government that by the limitations of the constitution we have protected that right against even ourselves. That protection cannot be continued and that right cannot be maintained, except by jealously preserving at all times and under all circumstances the rule of principle which is eternal over the will of majorities which shift and pass away.

Democratic absolutism is just as repulsive, and history has shown it to be just as fatal, to the rights of individual manhood as is monarchical absolutism.

But it is not necessary to violate the rules of action which we have established for ourselves in the constitution in order to deal by law with the new conditions of the time, for these rules of action are themselves subject to popular control. If the rules are so stated that they are thought to prevent the doing of something which is not contrary to the principles of liberty but demanded by them, the true remedy is to be found in reconsidering what the rules ought to be and, if need be, in restating them so that they will give more complete effect to the principles they are designed to enforce. If, as I believe, there ought to be in my own state, for example, a Workman's Compensation Act to supersede the present unsatisfactory system of accident litigation, and if the constitution forbids such a law--which I very much doubt--the true remedy is not to cast to the winds all systematic self-restraint and to inaugurate a new system of doing whatever we please whenever we please, unrestrained by declared rules of conduct; but it is to follow the orderly and ordinary method of amending the constitution so that the rule protecting the right to property shall not be so broadly stated as to prevent legislation which the principle underlying the rule demands.

The difference between the proposed practice of overriding the constitution by a vote and amending the constitution is vital. It is the difference between breaking a rule and making a rule; between acting without any rule in a particular case and determining what ought to be the rule of action applicable to all cases.

Our legislatures frequently try to evade constitutional provisions, and doubtless popular majorities seeking specific objects would vote the same way, but set the same people to consider what the fundamental law ought to be, and confront them with the question whether they will abandon in general the principles and the practical rules of conduct according to principles, upon which our government rests, and they will instantly refuse. While their minds are consciously and avowedly addressed to that subject they will stand firm for the general rules that will protect them and their children against oppression and usurpation, and they will change those rules only if need be to make them enforce more perfectly the principles which underlie them.

Communities, like individuals, will declare for what they believe to be just and right; but communities, like individuals, can be led away from their principles step by step under the temptations of specific desires and supposed expediencies until the principles are a dead letter and allegiance to them is a mere sham.

And that is the way in which popular governments lose their vitality and perish.