CONSTITUTIONAL REFORM IN THE UNITED STATES.* THE two essays which
are printed in this little volume were delivered by Mr. Elihu Root as the Stafford Little Lectures for 1913. English readers will be very glad to have the
opportunity of becoming better acquainted with some of the recently proposed constitutional reforms in the United States in this examination of them by one of the foremost, most thoughtful, and most high-minded of American citizens. Both the essays are a pleasure to read for their clearness and economy of language, their temperateness of expression, and, above all, their contact with real affairs. Political philosophy as it is offered in academic lectures is apt to be elusive if elegant ; but here a statesman of long experience speaks unmistakably. Most English readers are much in need of information as to the "Recall of Judges," the "Recall of Decisions," and suchlike proposals. The very phrase "Recall of Decisions " has, to English ears, an exotic sound which is very far from explaining itself ; and even the "Recall of Judges " suggests to the ordinary English mind some vague picture of the recall of an unsuccessful Colonial governor. The Referendum and the Initiative, particularly the former, are, of course, more familiar to English readers. As to the Referendum, we cannot agree with Mr. Root, for reasons we shall presently state. Mr. Root condemns in varying degree all the most popular proposals for bringing the American Constitution into a better working relation with the wants of the day. The need to amend the Constitution is admitted, but it must not be done, says Mr. Root, by expedients which violate the basic principles of the Constitution. No one could read Mr. Root without respect, and we shall all admit that he understands the political genius of the American people infinitely better than Englishmen can hope to do, but we are unable to accept his arguments as to the Referendum or Poll of the People in general.
In several States of the United States the Referendum is already in use. The Fourteenth Amendment to the Federal Constitution prohibits States from violating that Constitution in their own affairs, and Mr. Root hints that if the Referendum were eventually abandoned it might possibly be because it was held that in some of its applications it did violate the Consti-
tution. On the other hand, he sees clearly enough that if the Referendum in various States is found after an adequate experiment to work well, it is bound to bring about a change in the national system. We must quote what Mr. Root says of the Initiative and Referendum:— "No one has ever successfully controverted the view expressed by Burke in his letter to the electors of Bristol, that his con- stituents 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 prefer- ence 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 be 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 legisla- tion. 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 * Experiments in Government and thn Essentials of the Constitution. By Elihu Root. London; Henry Frowde. L4e. 6d. net.] life, with which men generally are not familiar and which require study and investigation to understand. Thrusting a rigid pro- hibition 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 connexion with all existing ]aws. A very large part of the litiga- tion, 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 repre- sentative legislative bodies. Representative government is some- thing 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 amend- ment. 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. . There is, moreover, a serious danger to be apprehended from the attempt at legislation by the Initiative and Compulsory Referendum, arising from its probable effect on the character of representative bodies. These expedients result from distrust of legislatures. They are based on the assertion that the people are not faithfully represented in their legislative bodies, but are misrepresented. The same distrust has led to the encumbering of modern state constitutions by a great variety of minute limitations upon legis- lative power. Many of these constitutions, instead of being simple frameworks of government, are bulky and detailed statutes legislating upon subjects which the people are unwilling to trust the legislature to deal with. So between the new constitutions, which exclude the legislatures from power, and the Referendum, by which the people overrule what they do, and the Initiative, by which the people legislate in their place, the legislative repre- sentatives who were formerly honoured, are hampered, shorn of power, relieved of responsibility, discredited, and treated as unworthy of confidence."
It would not be possible to state the case more clearly from the point of view of those who believe that the Referendum would destroy representative government. We cannot admit the validity of any of these forebodings, however, so far as they might be applied to the introduction of the Referendum in Great Britain. To begin with, no one here proposes that the Referendum should be compulsory. It would be an occasional expedient which would be made use of when there was obvious doubt whether the will of the people was being correctly interpreted. The concentrated wisdom of
all the elected representatives of the people is needed in the House of Commons to thrash a Bill into shape, but when it has taken its final form its general purport is clear enough. We cannot imagine any Bill, however compli- cated the making of it may have been, on which it would not be quite a simple course for the people to return their verdict by a simple " Yes " or "No." So far from asking the elec- torate to undertake too complicated a task, the Referendum avoids complications. The issues at every general election in Great Britain are nowadays so manifold that it is impossible to say that the authorization of the people has been given to any single proposal before them. They frequently vote for the programme which they think contains the smaller number
of evils. Of all the questions now before the country Home Rule is certainly the most complicated, yet no one is so dense as not to have an opinion, and a very plain and strong one, as to whether there is a risk of civil war in Ulster, and, if so, whether it is worth while to run that risk for the advantages which the Dill is said to confer. Opinion on these points can all be summed up in the simple answer " Yes " or "No" to the question, "Do you desire that the Home Rule Bill should become law ?" We admit that if the Referendum were employed to take the verdict of the country on an abstract question (such as "Do you believe in Home Rule ? ") or if an attempt were made to go beyond the simple " Yes " or "No" system and permit the expression of reservations or graduations of opinion, the Referendum would be simply a nightmare of complications. In our judgment the Referendum is the only device which can now redress the lost balance of British democracy and take away from the executive oligarchy the despotic powers filched from the people under the guise of constitutional reform. Mr. Root does not mention the experience of Switzerland, where the Referendum has worked extremely well. The Initiative in Switzerland is less frequently used, and we need not examine it now, and certainly do not recom- mend it. It is an instrument on an entirely different plane from that of the Referendum, and it is a disadvantage that the two things are so often coupled. We are tempted to show how very easily the Referendum could be made part of our political machinery, but we have not the space now to repeat what we have very often set forth.
As regards the other constitutional reforms proposed in the United States, Mr. Root says :—
"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 sub- stituted 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 bear 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 pro- scribed in the Constitution, and the public feeling of the time is in favour 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 Consti- tution; 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 them- selves, 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 unconstitu- tional. 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 compensa- tion, 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."
It is not easy for English critics to appreciate all the political circumstances of the United States, and a criticism of peculiarly American proposals might be thought an impertinence. We shall therefore make only two remarks of a general nature. One is that if the American courts have the power to override the political will of the American democracy by saying that this or that Act of Congress is invalid and cannot be admini-
stered because it is a violation of some metaphysical clause in the Constitution, the courts should be by some means or other deprived of that power. But the means employed must be most scrupulously so framed that in no sense whatever is the American bench made a less independent agency of justice than it is now. To have judges who put their ears to the ground to listen for the first whispers qf popular prejudice and passion, and who are guided by those things in their judgments, would be the gravest curse that could fall on any community of civilized beings.
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