Experiments in Government and the Essentials of the Constitution Part 1

EXPERIMENTS IN GOVERNMENT AND THE ESSENTIALS OF THE CONSt.i.tUTION.

BY ELIHU ROOT.

PREFACE

The familiar saying that nothing is settled until it is settled right expresses only a half truth. Questions of general and permanent importance are seldom finally settled. A very wise man has said that "short of the multiplication table there is no truth and no fact which must not be proved over again as if it had never been proved, from time to time." Conceptions of social rights and obligations and the inst.i.tutions based upon them continue unquestioned for long periods as postulates in all discussions upon questions of government. Whatever conduct conforms to them is a.s.sumed to be right. Whatever is at variance with them is a.s.sumed to be wrong. Then a time comes when, with apparent suddenness, the ground of discussion shifts and the postulates are denied. They cease to be accepted without proof and the whole controversy in which they were originally established is fought over again.

The people of the United States appear now to have entered upon such a period of re-examination of their system of government. Not only are political parties denouncing old abuses and demanding new laws, but essential principles embodied in the Federal Const.i.tution of 1787, and long followed in the const.i.tutions of all the states, are questioned and denied. The wisdom of the founders of the Republic is disputed and the political ideas which they repudiated are urged for approval.

I wish in these lectures to present some observations which may have a useful application in the course of this process.

I - EXPERIMENTS

There are two separate processes going on among the civilized nations at the present time. One is an a.s.sault by socialism against the individualism which underlies the social system of western civilization. The other is an a.s.sault against existing inst.i.tutions upon the ground that they do not adequately protect and develop the existing social order. It is of this latter process in our own country that I wish to speak, and I a.s.sume an agreement, that the right of individual liberty and the inseparable right of private property which lie at the foundation of our modern civilization ought to be maintained.

The conditions of life in America have changed very much since the Const.i.tution of the United States was adopted. In 1787 each state entering into the Federal Union had preserved the separate organic life of the original colony. Each had its center of social and business and political life. Each was separated from the others by the barriers of slow and difficult communication. In a vast territory, without railroads or steamships or telegraph or telephone, each community lived within itself.

Now, there has been a general social and industrial rearrangement. Production and commerce pay no attention to state lines. The life of the country is no longer grouped about state capitals, but about the great centers of continental production and trade. The organic growth which must ultimately determine the form of inst.i.tutions has been away from the mere union of states towards the union of individuals in the relation of national citizenship.

The same causes have greatly reduced the independence of personal and family life. In the eighteenth century life was simple. The producer and consumer were near together and could find each other. Every one who had an equivalent to give in property or service could readily secure the support of himself and his family without asking anything from government except the preservation of order. To-day almost all Americans are dependent upon the action of a great number of other persons mostly unknown. About half of our people are crowded into the cities and large towns. Their food, clothes, fuel, light, water-all come from distant sources, of which they are in the main ignorant, through a vast, complicated machinery of production and distribution with which they have little direct relation. If anything occurs to interfere with the working of the machinery, the consumer is individually helpless. To be certain that he and his family may continue to live he must seek the power of combination with others, and in the end he inevitably calls upon that great combination of all citizens which we call government to do something more than merely keep the peace-to regulate the machinery of production and distribution and safeguard it from interference so that it shall continue to work.

A similar change has taken place in the conditions under which a great part of our people engage in the industries by which they get their living. Under comparatively simple industrial conditions the relation between employer and employee was mainly a relation of individual to individual, with individual freedom of contract and freedom of opportunity essential to equality in the commerce of life. Now, in the great manufacturing, mining, and transportation industries of the country, instead of the free give and take of individual contract there is subst.i.tuted a vast system of collective bargaining between great ma.s.ses of men organized and acting through their representatives, or the individual on the one side accepts what he can get from superior power on the other. In the movement of these mighty forces of organization the individual laborer, the individual stockholder, the individual consumer, is helpless.

There has been another change of conditions through the development of political organization. The theory of political activity which had its origin approximately in the administration of President Jackson, and which is characterized by Marcy's declaration that "to the victors belong the spoils," tended to make the possession of office the primary and all-absorbing purpose of political conflict. A complicated system of party organization and representation grew up under which a disciplined body of party workers in each state supported each other, controlled the machinery of nomination, and thus controlled nominations. The members of state legislatures and other officers, when elected, felt a more acute responsibility to the organization which could control their renomination than to the electors, and therefore became accustomed to shape their conduct according to the wishes of the nominating organization. Accordingly the real power of government came to be vested to a high degree in these unofficial political organizations, and where there was a strong man at the head of an organization his control came to be something very closely approaching dictatorship. Another feature of this system aggravated its evils. As population grew, political campaigns became more expensive. At the same time, as wealth grew, corporations for production and transportation increased in capital and extent of operations and became more dependent upon the protection or toleration of government. They found a ready means to secure this by contributing heavily to the campaign funds of political organizations, and therefore their influence played a large part in determining who should be nominated and elected to office. So that in many states political organizations controlled the operations of government, in accordance with the wishes of the managers of the great corporations. Under these circ.u.mstances our governmental inst.i.tutions were not working as they were intended to work, and a desire to break up and get away from this extra const.i.tutional method of controlling our const.i.tutional government has caused a great part of the new political methods of the last few years. It is manifest that the laws which were entirely adequate under the conditions of a century ago to secure individual and public welfare must be in many respects inadequate to accomplish the same results under all these new conditions; and our people are now engaged in the difficult but imperative duty of adapting their laws to the life of to-day. The changes in conditions have come very rapidly and a good deal of experiment will be necessary to find out just what government can do and ought to do to meet them.

The process of devising and trying new laws to meet new conditions naturally leads to the question whether we need not merely to make new laws but also to modify the principles upon which our government is based and the inst.i.tutions of government designed for the application of those principles to the affairs of life. Upon this question it is of the utmost importance that we proceed with considerate wisdom.

By inst.i.tutions of government I mean the established rule or order of action through which the sovereign (in our case the sovereign people) attains the ends of government. The governmental inst.i.tutions of Great Britain have been established by the growth through many centuries of a great body of accepted rules and customs which, taken together, are called the British Const.i.tution. In this country we have set forth in the Declaration of Independence the principles which we consider to lie at the basis of civil society "that all men are created equal; that they are endowed, by their Creator, with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness. That to secure these rights, governments are inst.i.tuted among men, deriving their just powers from the consent of the governed."

In our Federal and State Const.i.tutions we have established the inst.i.tutions through which these rights are to be secured. We have declared what officers shall make the laws, what officers shall execute them, what officers shall sit in judgment upon claims of right under them. We have prescribed how these officers shall be selected and the tenure by which they shall hold their offices. We have limited them in the powers which they are to exercise, and, where it has been deemed necessary, we have imposed specific duties upon them. The body of rules thus prescribed const.i.tute the governmental inst.i.tutions of the United States.

When proposals are made to change these inst.i.tutions there are certain general considerations which should be observed.

The first consideration is that free government is impossible except through prescribed and established governmental inst.i.tutions, which work out the ends of government through many separate human agents, each doing his part in obedience to law. Popular will cannot execute itself directly except through a mob. Popular will cannot get itself executed through an irresponsible executive, for that is simple autocracy. An executive limited only by the direct expression of popular will cannot be held to responsibility against his will, because, having possession of all the powers of government, he can prevent any true, free, and general expression adverse to himself, and unless he yields voluntarily he can be overturned only by a revolution. The familiar Spanish-American dictatorships are ill.u.s.trations of this. A dictator once established by what is or is alleged to be public choice never permits an expression of public will which will displace him, and he goes out only through a new revolution because he alone controls the machinery through which he could be displaced peaceably. A system with a plebiscite at one end and Louis Napoleon at the other could not give France free government; and it was only after the humiliation of defeat in a great war and the horrors of the Commune that the French people were able to establish a government that would really execute their will through carefully devised inst.i.tutions in which they gave their chief executive very little power indeed.

We should, therefore, reject every proposal which involves the idea that the people can rule merely by voting, or merely by voting and having one man or group of men to execute their will.

A second consideration is that in estimating the value of any system of governmental inst.i.tutions due regard must be had to the true functions of government and to the limitations imposed by nature upon what it is possible for government to accomplish. We all know of course that we cannot abolish all the evils in this world by statute or by the enforcement of statutes, nor can we prevent the inexorable law of nature which decrees that suffering shall follow vice, and all the evil pa.s.sions and folly of mankind. Law cannot give to depravity the rewards of virtue, to indolence the rewards of industry, to indifference the rewards of ambition, or to ignorance the rewards of learning. The utmost that government can do is measurably to protect men, not against the wrong they do themselves but against wrong done by others and to promote the long, slow process of educating mind and character to a better knowledge and n.o.bler standards of life and conduct. We know all this, but when we see how much misery there is in the world and instinctively cry out against it, and when we see some things that government may do to mitigate it, we are apt to forget how little after all it is possible for any government to do, and to hold the particular government of the time and place to a standard of responsibility which no government can possibly meet. The chief motive power which has moved mankind along the course of development that we call the progress of civilization has been the sum total of intelligent selfishness in a vast number of individuals, each working for his own support, his own gain, his own betterment. It is that which has cleared the forests and cultivated the fields and built the ships and railroads, made the discoveries and inventions, covered the earth with commerce, softened by intercourse the enmities of nations and races, and made possible the wonders of literature and of art. Gradually, during the long process, selfishness has grown more intelligent, with a broader view of individual benefit from the common good, and gradually the influences of n.o.bler standards of altruism, of justice, and human sympathy have impressed themselves upon the conception of right conduct among civilized men. But the complete control of such motives will be the millennium. Any attempt to enforce a millennial standard now by law must necessarily fail, and any judgment which a.s.sumes government's responsibility to enforce such a standard must be an unjust judgment. Indeed, no such standard can ever be forced. It must come, not by superior force, but from the changed nature of man, from his willingness to be altogether just and merciful.

A third consideration is that it is not merely useless but injurious for government to attempt too much. It is manifest that to enable it to deal with the new conditions I have described we must invest government with authority to interfere with the individual conduct of the citizen to a degree hitherto unknown in this country. When government undertakes to give the individual citizen protection by regulating the conduct of others towards him in the field where formerly he protected himself by his freedom of contract, it is limiting the liberty of the citizen whose conduct is regulated and taking a step in the direction of paternal government. While the new conditions of industrial life make it plainly necessary that many such steps shall be taken, they should be taken only so far as they are necessary and are effective. Interference with individual liberty by government should be jealously watched and restrained, because the habit of undue interference destroys that independence of character without which in its citizens no free government can endure.

We should not forget that while inst.i.tutions receive their form from national character they have a powerful reflex influence upon that character. Just so far as a nation allows its inst.i.tutions to be moulded by its weaknesses of character rather than by its strength it creates an influence to increase weakness at the expense of strength.

The habit of undue interference by government in private affairs breeds the habit of undue reliance upon government in private affairs at the expense of individual initiative, energy, enterprise, courage, independent manhood.

The strength of self-government and the motive power of progress must be found in the characters of the individual citizens who make up a nation. Weaken individual character among a people by comfortable reliance upon paternal government and a nation soon becomes incapable of free self-government and fit only to be governed: the higher and n.o.bler qualities of national life that make for ideals and effort and achievement become atrophied and the nation is decadent.

A fourth consideration is that in the nature of things all government must be imperfect because men are imperfect. Every system has its shortcomings and inconveniences; and these are seen and felt as they exist in the system under which we live, while the shortcomings and inconveniences of other systems are forgotten or ignored.

It is not unusual to see governmental methods reformed and after a time, long enough to forget the evils that caused the change, to have a new movement for a reform which consists in changing back to substantially the same old methods that were cast out by the first reform.

The recognition of shortcomings or inconveniences in government is not by itself sufficient to warrant a change of system. There should be also an effort to estimate and compare the shortcomings and inconveniences of the system to be subst.i.tuted, for although they may be different they will certainly exist.

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 ma.s.ses, 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 Const.i.tution. 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 ma.s.s 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 Const.i.tution, 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 inst.i.tutions 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 n.o.bly stood the test of time and without abandoning the political principles which have inspired the growth of its inst.i.tutions? 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 mult.i.tude of excited controversies which have arisen over new methods of extra const.i.tutional-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 inst.i.tutions. 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 cla.s.s of new methods which do relate to the structure of government and which call for more serious consideration here. Chief in this cla.s.s 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 const.i.tutional 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 const.i.tutional provision, the law may nevertheless be made valid by a popular vote.

Some of these methods have been made a part of the const.i.tutional system of a considerable number of our states. They have been accompanied invariably by provisions for very short and easy changes of state const.i.tutions, 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 Const.i.tution, the states are prohibited from violating in their own affairs the most important principles of the National Const.i.tution. 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 Const.i.tution 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 const.i.tutions, into which a mult.i.tude 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 Const.i.tution are:

First, it is representative.

Second, it recognizes the liberty of the individual citizen as distinguished from the total ma.s.s 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 pa.s.sed 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 Const.i.tution 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 Const.i.tution. 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 inst.i.tution 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 const.i.tution 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 a.s.sume 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 const.i.tuents were ent.i.tled 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 const.i.tutes 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.