Experiments in Government and the Essentials of the Constitution - Elihu Root
EXPERIMENTS IN GOVERNMENT AND THE ESSENTIALS OF THE CONSTITUTION
BY
ELIHU ROOT
1913
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 institutions based upon them
continue unquestioned for long periods as postulates in all discussions
upon questions of government. Whatever conduct conforms to them is assumed
to be right. Whatever is at variance with them is assumed 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 Constitution of 1787, and long
followed in the constitutions 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 assault by socialism against the individualism
which underlies the social system of western civilization. The other is
an assault against existing institutions 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 assume 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
Constitution 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 institutions 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 substituted a vast system of
collective bargaining between great masses 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 circumstances our governmental institutions were
not working as they were intended to work, and a desire to break up and
get away from this extra constitutional method of controlling our
constitutional 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 institutions 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 institutions 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 institutions 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 Constitution. 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 instituted among men, deriving their just powers
from the consent of the governed."
In our Federal and State Constitutions we have established the institutions
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
constitute the governmental institutions of the United States.
When proposals are made to change these institutions there are certain
general considerations which should be observed.
The first consideration is that free government is impossible except
through prescribed and established governmental institutions, 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
illustrations 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 institutions 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 institutions 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 passions 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 nobler 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 nobler 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 assumes
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 institutions receive their form from
national character they have a powerful reflex influence upon that
character. Just so far as a nation allows its institutions 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 nobler
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 substituted, 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
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: