Part 2

A fifth consideration is that whatever changes in government are to be made, we should follow the method which undertakes as one of its cardinal points to hold fast that which is good. Francis Lieber, whose affection for the country of his birth equalled his loyalty to the country of his adoption, once said:

"There is this difference between the English, French, and Germans: that the English only change what is necessary and as far as it is necessary; the French plunge into all sorts of novelties by whole masses, get into a chaos, see that they are fools and retrace their steps as quickly, with a high degree of practical sense in all this impracticability; the Germans attempt no change without first recurring to first principles and metaphysics beyond them, systematizing the smallest details in their minds; and when at last they mean to apply all their meditation, opportunity, with its wide and swift wings of a gull, is gone."

This was written more than sixty years ago before the present French Republic and the present German Empire, and Lieber would doubtless have modified his conclusions in view of those great achievements in government if he were writing to-day. But he does correctly indicate the differences of method and the dangers avoided by the practical course which he ascribes to the English, and in accordance with which the great structure of British and American liberty has been built up generation after generation and century after century. Through all the seven hundred years since Magna Charta we have been shaping, adjusting, adapting our system to the new conditions of life as they have arisen, but we have always held on to everything essentially good that we have ever had in the system. We have never undertaken to begin over again and build up a new system under the idea that we could do it better. We have never let go of Magna Charta or the Bill of Rights or the Declaration of Independence or the Constitution. When we take account of all that governments have sought to do and have failed to do in this selfish and sinful world, we find that as a rule the application of new theories of government, though devised by the most brilliant constructive genius, have availed but little to preserve the people of any considerable regions of the earth for any long periods from the evils of despotism on the one hand or of anarchy on the other, or to raise any considerable portion of the mass of mankind above the hard conditions of oppression and misery. And we find that our system of government which has been built up in this practical way through so many centuries, and the whole history of which is potent in the provisions of our Constitution, has done more to preserve liberty, justice, security, and freedom of opportunity for many people for a long period and over a great portion of the earth, than any other system of government ever devised by man. Human nature does not change very much. The forces of evil are hard to control now as they always have been. It is easy to fail and hard to succeed in reconciling liberty and order. In dealing with this most successful body of governmental institutions the question should not be what sort of government do you or I think we should have. What you and I think on such a subject is of very little value indeed. The question should be:

How can we adapt our laws and the workings of our government to the new conditions which confront us without sacrificing any essential element of this system of government which has so nobly stood the test of time and without abandoning the political principles which have inspired the growth of its institutions? For there are political principles, and nothing can be more fatal to self-government than to lose sight of them under the influence of apparent expediency.

In attempting to answer this question we need not trouble ourselves very much about the multitude of excited controversies which have arisen over new methods of extra constitutional-political organization and procedure. Direct nominations, party enrollments, instructions to delegates, presidential preference primaries, independent nominations, all relate to forms of voluntary action outside the proper field of governmental institutions. All these new political methods are the result of efforts of the rank and file of voluntary parties to avoid being controlled by the agents of their own party organization, and to get away from real evils in the form of undue control by organized minorities with the support of organized capital. None of these expedients is an end in itself. They are tentative, experimental. They are movements not towards something definite but away from something definite. They may be inconvenient or distasteful to some of us, but no one need be seriously disturbed by the idea that they threaten our system of government. If they work well they will be an advantage. If they work badly they will be abandoned and some other expedient will be tried, and the ultimate outcome will doubtless be an improvement upon the old methods.

There is another class of new methods which do relate to the structure of government and which call for more serious consideration here. Chief in this class are:

The Initiative; that is to say, direct legislation by vote of the people upon laws proposed by a specified number or proportion of the electors.

The Compulsory Referendum; that is to say, a requirement that under certain conditions laws that have been agreed upon by a legislative body shall be referred to a popular vote and become operative only upon receiving a majority vote.

The Recall of Officers before the expiration of the terms for which they have been elected by a vote of the electors to be had upon the demand of a specified number or proportion of them.

The Popular Review of Judicial Decisions upon constitutional questions; that is to say, a provision, under which, when a court of last resort has decided that a particular law is invalid, because in conflict with a constitutional provision, the law may nevertheless be made valid by a popular vote.

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.