Popular government; its essence, its permanence and its perils

Contents

PAGE

I. The Meaning of "We, the People of the United States/' in the Preamble of the Constitution ...... 1

II. The Representative System . . . .22

Introduction

I came to Yale to assume my duties as Kent Professor of Law near the end of the school year, when it was not practical to add my courses of constitutional law to the then curriculum. It was suggested, therefore, that during the spring term, I prepare and deliver a course of lectures on some questions of modern government. This I did, making my text the preamble of the Constitution of the United States. In explaining the meaning of "We, the people," used to describe the source of political power, I thought it relevant and important to discuss the proposed changes from our republican form of government to a more direct, democratic government, and this led me to consider the initiative, the referendum and the recall, and also the direct primary, which, while not necessarily involved with the other issues, properly suggested itself for consideration with them.

Under the clause of the preamble "to form a more perfect union," I considered very briefly the historical issue between those who favored the broad construction of the Federal powers under the Constitution, and those who took the States' rights view.

viii INTRODUCTION

Under the clause, "to establish justice," I discussed the subject of recall of judges and the recall of judicial decisions.

Under the phrase "to provide for the common defense," I considered the question of war and peace, under the Constitution, the army and the navy and their present needs, and the question of settlement of international controversies through diplomatic negotiation and by arbitration.

At the meeting of the American Bar Association, at Montreal, in September last, I read two addresses, one on "The Selection and Tenure of Judges," and the other on "The Social Importance of Proper Standards for Admission to the Bar." In the latter, I dealt with "judge-made" law. These addresses were closely related to the subjects treated of in my lecture on the establishment of justice under the Federal Constitution, and seemed an appropriate supplement. The Yale University lectures were eight in number, and, with the addresses at the American Bar Association, make the ten chapters which follow.

Since I have prepared this book for the press, the valuable and interesting volume of President Lowell of Harvard, on "Public Opinion and Popular Government" in the American Citizen Series, has been issued, in which he discusses in a most satisfactory way the actual operation of

INTRODUCTION ix

the initiative, the referendum and the recall, and gives a valuable resume of the result of the use of these processes of direct government in Switzerland and in the states where they have been adopted.

I have not had the time to support the views that I have stated by such citations from official sources, but I am glad to be advised that the specific instances of record he gives are in general accord with my conclusions.

I am very hopeful that while this movement for more direct government now seems to be spreading, actual experience under it in the states that have tried it longest is convincing the members of the various electorates who have seen it work that it is not a panacea, and that it is developing evils of its own that will require at least a partial retracing of their steps.

Wm. H. Taft.

The Meaning of "We, the People of the

United States," in the Preamble

OF the Constitution

It is my aim to discuss the subject of popular government under the Federal Constitution, and certain current issues as to the wisdom and soundness of the principles upon which its provisions are based.

If I had attempted the treatment of this subject ten years ago, my task would have been easier than it is to-day, for in the last decade a school of political thinkers has arisen by whom the wisdom and equity of our fundamental law have been seriously questioned and the justice of the common law, inherited from England and modified by judicial decision and statute, is attacked as not squaring with the proper civic and social and economic ideals of to-day.

It is difficult, therefore, to enter upon this discussion without taking up political, sociological and economic questions. As one reads the slashing criticism of everything which he accepted without argument when a student of constitutional history and governmental law twenty years ago, he finds himself suffering dizzy sensations for want of stable ground upon which to stand. Not only are the views of those who made the Constitution said to be unsound and outworn, but these Fathers of the Republic are themselves severely arraigned because of their alleged class feeling as land owners and creditors. We have been accustomed to muckraking in the case of living pubhc men, but it is novel to impeach our institutions which have stood the test of more than a century by similar methods with reference to their founders, now long dead.

I can not think that this school of political philosophy will ultimately triumph. That some of its views may contain elements of truth and useful principle, requiring some changes and amendments in our fundamental law, may well be; but that it can justify and secure a radical change in the structure of our Government, and do away with its character as a Republic, based on the principles of popular representation, I can not believe.

The doctrines of the new school have been put into practice in a number of the States, and have acquired a vogue that is likely to extend their application. But one of the saving qualities of the

MEANING OF "WE, THE PEOPLE" S

American people is their ability to make mistakes, to take a wrong course, and then to retrace it when the results and facts show them the truth. They frequently have to incur a very considerable cost in learning these lessons, but, as a people, they are quick to appreciate them, and do not seem to have pride of opinion that will keep them from a change, even in the short period of a presidential term. Therefore, while we may expect this "remedy of infusing more democracy in our existing democracy" to continue for a time, we have reason to hope that its obvious inconveniences, the appearance of new evils in its use and the probable return in possibly different forms of the old grievances for which these changes are now regarded as a sovereign cure, will ultimately convince the people that the difficulty in the operation of our present machinery has not been in its lack of adaptability to our needs, but it has been due to the failure of a majority of the people to discharge their duty as responsible members of a political community. Upon those of us, therefore, who appear to be in the minority in opposing these new governmental devices, the duty is plain of pointing out their defects and awaiting the event to demonstrate the truth of what we say. I would not say that one kind of political machinery is not better than another for securing good government and the expression of sober popular will, but I would say that, generally speaking, between the two systems, if the real reason why one does not work is the failure of the people to discharge their duty thereunder, a new system is not likely to work any better, when if properly discharged, the duty of the people is more onerous than before.

In examining the Constitution, the first clause that one reads is the preamble. The preamble is a general declaration of the Convention as to the purposes of the Constitution. The preamble has been much used in argument in the Supreme Court to aid the construction of the Constitution. The title of an act — and I presume the preamble of the Constitution comes within such a description — can hardly be used to change the actual language used in the body of the instrument which is to control. Still it throws hght upon the document. It will be useful to follow its phrases as a general plan for my discussion of popular government in the United States, its advantages, its purpose, its essence, its safeguards and its perils.

The preamble is as follows :

"We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America."

I ask your consideration, therefore, of the first phrase, "We, the people of the United States."

These words became very important in the controversy that arose as to the construction of the Constitution soon after its adoption, and which continued until the end of the Civil War. The theory of those who construed the Constitution so as to restrict and minimize, as far as possible, the powers conferred upon the National Government, contended that the Constitution was in effect not much more than a mere compact between the several sovereign States, who retained their independence and sovereignty as to everything except that which was expressly or by inevitable implication conferred upon the central government.

The other view was that taken by those who wished to enlarge the national power by every reasonable and useful implication from the powers expressly conferred in the Constitution. The strict constructionists, like Mr. Jefferson and Mr. Calhoun, contended that the use of the words, "We, the people of the United States," meant that the peoples of the several States, as different state units, were entering into a compact with each other to part with some of their faculties to form a central government in order to accomplish the purposes stated in the preamble. On the other hand, Chief Justice Marshall and the Supreme Court of the United States, in many decided cases, held that the words indicated that the body of the whole people of the United States, assembled, it is true, in the different States, because they could not assemble together, but acting as a whole people, were forming a new government of their own by ordaining and estabhshing the Constitution, and were to be recognized in the adoption of this fundamental instrument as the original source of the newly created Federal powers. This view made the whole people a possible depositary of some of the powers not granted to the National Government, and prevented the inference that the States were necessarily the depositary of all such reserved powers.

It is noteworthy, as a matter of history, that when President Jefferson was in the Presidency, and felt called upon to fill a vacancy in the Supreme Court, he appointed Mr. Joseph Story, of Massachusetts, a member of the then Republican party, evidently with the expectation that his view of the Constitution would be opposed to that of Chief Justice Marshall. The personality and the great ability of the illustrious Chief

Justice, however, exercised great influence over the brilliant young Justice, appointed at thirty-two, and when he came to pronounce his first great constitutional judgment as the organ of the Supreme Court, in the case of Martin vs. Hunter's lessee, in 1816, 1st Wheaton, 324, he announced the view of the Court that the Constitution of the United States was ordained and established, not by the States in their sovereign capacities, respectively / represented by the different peoples thereof, but by the people as a body of the United States as a whole, and that this was the meaning of the preamble. This was confirmed by other judgments of that Court, notably by Chief Justice Marshall in the great cases of McCulloch vs. Maryland, 4th Wheaton, 316, and Osborn vs. the Bank, 9th Wheaton, 738. All these cases gave the Constitution liberal construction in favor of the powers of the National Government, and as the views expressed were opposed to those of Mr. Jefferson and the then Republicans, Mr. Justice Story was attacked as a renegade of the party. His views and those of his colleagues were regarded as most heretical by Mr. Calhoun and by his disciples. It is not very important now, except from an historical standpoint, to review the distinctions that were made before the Civil War in this all-absorbing issue, because the view taken by the broad constructionists was vindicated and made permanently to prevail by the arbitrament of the sword, and the theory of the Federal Constitution as a compact between sovereign States has as fully disappeared as the constitution of the Southern Confederacy itself.

The use of the words, "We, the people," was an indication on the part of the makers of the Constitution that they thought they were establishing a popular government, because a popular government may properly be defined to be a government established and maintained by the authority of the people. We are in favor of popular government because we believe that the fact that the people govern themselves will make them constant in its support and will secure obedience to the laws their representatives make and the executive they elect. This is likely to make the government strong and its protection of its individual citizens effective.

Moreover, experience sustains the view that every class of citizens in a community — and by a class I mean those who are similarly situated and conditioned — is more certain to look well after its own real interests than any other class, however altruistic. Hence a government in which every class has a voice, that is, a popular government, is more certain to do justice to each class and make proper provision for its welfare. This has only one exception, and that is, where a class has not intelligence enough to understand its own interest or rights.

Now popular government is not an end. It is a means of enabling people to live together in communities, municipal, state and national, and under these conditions to secure to each individual and each class of individuals the greatest measure of happiness. It was to aid this ultimate purpose that our Constitution was adopted. It was not thought by the people who made and ratified it that the majority could always be trusted certainly to accord to the individual just and equitable treatment in his pursuit of happiness. The people, themselves, imposed the restraints upon their own poHtical action contained in the Constitution, the chief of which were the guaranties of individual rights. The security of these rights and all our civil institutions are nothing but means for the promotion of the happiness of the individual and his progress and are to be so regarded.

I know that the so-called individualistic theory of rights and duties has been attacked as not broad enough and that pressure is now being exerted to introduce into practical jurisprudence the view that class or collectivist rights and obligations should be more clearly recognized and enforced at the expense of the present so-called rights of the individual. I am not now considering this issue and am not intimating any opinion on it. Whatever the proper view, whether we should continue to preserve individualism intact, or qualify it by coUectivist amendment, the ultimate purpose of government and its limitations must be conceded to be the same, the promotion of the happiness of the average individual and his progress, whether this be effected by exalting individual independence, or by giving more power to society to secure greater happiness to a greater number of individuals.

The effect of these restraints to secure justice and right for the individual reacts in favor of the strength and permanence of the government of the people. The tyranny and injustice of a majority would be certain in the end to stir those individuals suffering it to revolt, and would lead to a change in the form of government, perhaps to a one-man control. Such was the fate of Greece, of Rome, and of France. The rule of the people which is just and equal to all should endure forever. Of course this permanence reciprocally promotes individual happiness.

If, then, the distinction between what is the end of government and what are the means by which that government is to be bettered and may more nearly reach its end, is kept clearly in mind, we shall eliminate from the difficulties of political discussion a good many fetishes that now lie in wait for the unsophisticated reformer.

The preamble of the Constitution uses the phrase "We, the people of the United States," and I have been attempting to state the advantages of a popular government and its purpose. What is its essence ? What is meant by "We, the people" ? What is meant by "popular government".? If these terms are to be construed as referring to a government by all the people, then there never has been, and there never will be, and there never can be, a truly popular government, because it is impossible that all the people, i.e., all the individuals in the community, municipal, state or national, should have either the capacity or the opportunity to take actual part in its government. This is a fact the importance of which has not always been fully recognized.

Who were "the people" in the days when this Constitution was adopted? They were not the whole 4,000,000 of those who lived in the thirteen colonies. At least that 4,000,000 did not select the members of the Constitutional Convention. The members of that Convention were selected in popular colonial conventions in some colonies and by the legislatures of other colonies, and in the latter some of the delegates were confirmed by popular conventions. Now who voted to select the delegates for those conventions or legislatures? They were the qualified electorate of each colony, or at least a majority of the members of the electorate who took the trouble to vote. We know from the colonial laws who were qualified to vote, and we have an estimate made by those who have investigated it as to the ratio of that part to the total population.

Generally in the thirteen colonies, those who could vote were limited to men who owned a certain amount of property or paid a certain amount of taxes, and in some of the States they were required to be believers in the Protestant Christian rehgion.

In New Hampshire the voter had to be a Protestant and a tax-payer. In Massachusetts he had to be possessed of an income from a freehold estate of £6 a year, or to own a personal estate worth £60. In Connecticut he was obHged to have an annual income of $7 from a freehold estate, or real estate rated on the tax list as worth $134. In New York he was required to have a freehold estate of £30, or a house rent of 40s. In New Jersey any person, male or female, black or white, native or alien, was permitted to vote, if only he or she owned real estate worth £50. In Maryland the voter had to have in the county in which he wished to vote a freehold of £50, or personal property of £30. In Virginia the voter had to own twenty-five acres of land of cultivated property, and a house at least twelve feet square on the foundation, or he had to have fifty acres of wild land, or a freehold or estate interest in a lot in some of the towns established by law. In North Carolina the voter had to be a tax-payer. In South Carolina the voter had to be a free white man, acknowledging belief in God and in a future state of reward and punishment, and had to hve one year in the state, have a freehold of fifty acres, or own a town lot, or have paid a tax equal to the tax on fifty acres of land. In Georgia any mechanic, any male white inhabitant owning £10 of property and paying a tax not only might vote but had to vote, under penalty of £5.

The estimate of historians is that out of the 4,000,000 of people in the thirteen colonies, including slaves, women and children and other citizens who were non-voters, there were only 150,000 qualified to vote, and therefore we may properly say, that in one sense the people whose delegates and representatives framed the Constitution of the United States were not one twenty-fifth part of all the people of the United States at that time. Judge Sharswood, a great jurist of Pennsylvania, said: "It is to be remarked that in the various nations, even in the representative government of the United States, the consent of the entire body of the people has never been expressed, as 'the people' comprise all of the women and children of every age and class. But they were not 'the people' in the same sense, until the Constitution was adopted. A certain number of men have assumed to act in the name of all the community." (1 Sharswood Blackstone, 147 N. 11 ; 2 Wilson's Works, 566; Andrew's American Law, Sec. 122.) Yet the Government of the United States became the typical popular government of the world and has been made the chief model of many popular governments since established.

The pohtical history of each State since the Constitution was adopted shows a gradual enlarging of the electorate so as to ehminate religious and property qualifications, and to reach manhood suffrage. Until recently the electorate in each State was limited to males over twenty-one years and the result has been, as seen in the presidential elections when the vote was the highest, that the qualified electorate in the United States has not amounted to more than 20 per cent of the total population. . If this number is to be increased by allowing women to vote, it would probably increase the percentage of the electorate to 35 or 40 per cent of the total number of the people resident in the United States. As we must govern by a majority or a plurality of those who have the right to vote, we may properly say that this must always be a government by a minority of all the people of the country.

These are mathematical facts that no one can escape, and it thus appears that there is a large part of the people who are governed and in whose interest government is maintained, to whom it is impossible safely to extend the electoral franchise. No one proposes to do so. No one proposes, for instance, to extend the electoral franchise to children or minors, to aliens who live here and do not wish to be naturalized, to ahens who hve here and who can not by law be naturahzed, to the insane, or to those who have shown themselves by crime to be unfitted to vote.

These facts do not make against government by the people as we understand it. It only shows that approval of so-called popular government is not worship of a fetish. We are not in favor of the rule of all the people as an end desirable in itself. We love what is called democracy not because of the name but because of what it accompHshes. We are in favor of a rule by as many of the people in a democracy as will secure a good government and no more. The result will be good because it secures the happiness of the individual.

Government is a means to an end, and the means are to be selected on account of their adaptability to the end.

I will illustrate the point I am making if I say that women should be accorded the privilege, and given the duty, of voting, not because they have an inherent and inalienable right to vote, but because, by giving them the franchise, their own welfare or that of the whole body of the people will be thereby promoted. If the advocates of female suffrage can show that they, as a class, have been unjustly prejudiced by governmental measures or by lack of them, and that they could remedy this by their vote, or if they can show that, by the extension of the franchise to women, either the general Government would be better or stronger, or the existing electorate would be improved in its average moral tone, its intelligence, its political discrimination, its patriotism and attention to political duties, they make their case ; and they do so because they thus establish that the addition of them to the electorate is a useful means to secure the happiness of the individuals.

While it is impossible to escape the proposition then that we have not a Government by all the people, in the sense that we do not include in those who exercise the power of control all the people, or a majority of them; nevertheless, in fixing our federal franchise we do seek to make our voters in a true sense representative of all the people. The theory of manhood suffrage is that after a man becomes twenty-one he represents in a true sense some of the same class as himself — that is, of those similarly situated — ^who are related to him. The husband represents his wife; the father the children; the brother the sister, and even though we make our electorate as wide as possible by giving all women of adult age the franchise, we must still have the principle of representative authority in the practical carrying out of popular government. Jameson Constitutional Conventions, Sect. 335, 336, 337; Andrews' American Law, Sect. 122.

The theory of an original contract between those who made the Government and those who were to live under it, in which each member gave up some so-called natural rights and consented to the exercise of governmental authority, on condition that he enjoyed certain other rights under the protection of the Government, is of course not a true statement of what has happened in history. It was advanced by Rousseau for the basis of a rightful government. As a working formula the theory is sometimes useful to test the correctness and justice of institutions which are made part of governmental machinery. When we all theoretically consent to, and actually acquiesce in, a popular government, we say to ourselves, "This is a good government, and we can count on its efficacy, its honesty and its high ideal, and on its practical protection of our rights because the governing body, to wit, the electorate, is composed of citizens of varying intelligence, self-restraint and patriotism, the average of whose political capacity is sufficiently high to justify the belief that the majority will in its political control be fairly wise, prudent and patriotic." Now if we find that the burden involved in the political activity legally required of the average citizen, leads a large number of the electorate and those the more intelligent utterly to neglect their pohtical duty and not to vote, because there are too many elections, or because they feel unfitted to vote on the subjects submitted, with the result that a minority of the electorate of less average intelligence and capacity than the whole is in control, it seems to be clear that the man who is held to consent to this form of government is not receiving the benefit of the government which he had a right to expect. What is the remedy for this? The Government should either adopt measures which will compel the delinquents to vote, or we must change the law by calling on the electorate for political action less frequently, so that with a lighter burden they may be induced to carry it and give the attention that the interest of the State requires from them in the matter of elections.

Can we meet this difficulty by requiring all the citizens who can cast a vote, to vote, under penalty? This has been attempted in Switzerland and Belgium. I am not fully advised as to the operation of such a law in Belgium, but in ^itzerland its result has not been satisfactory. One man can take a horse to water, but fifteen can not make him drink. The men who were compelled to vote in Switzerland on issues referred to them under their referendum law, voted blanks in large percentage, because either they were not interested, or did not feel that they had knowledge enough to express an opinion, or for some other reason. The difficulties as to enforcing such a remedy, therefore, would seem to remit us to the only other one that I know of, which is that we should limit the political duties of the average elector to those which experience shows he is likely to perform. This will prevent too numerous elections. It will lead to a government more representative and less direct, and it will make possible the short ballot, because it will limit the elective offices to a small number and will impose the responsibility of appointment of all other officers upon the few who are elected.

A system which leads to a continuous neglect by a majority of the electorate of their political duties, conclusively shows its unfitness. It is condemned — negatively, it is true, but none the less emphatically — by the very electorate upon whom the safety of the Government depends. The Government becomes one of an active minority. Experience does not show that such a minority is the wisest part of the electorate or the part best adapted to secure good government.

Of course the argument advanced at once is that men who do not care to take part in the government and do not care to discharge their political duties must be regarded as forfeiting their right to do so and must be held responsible for all the ills that come. But the difficulty of this argument is that it ignores altogether the rights of others who do perform their political duties and who vote on every occasion required, and also that large part of the people who are not entitled to vote at all. Both classes have a vital interest in the character of the Government which is imposed on them, and may justly insist that in such a Government it is the general character of the whole electorate that they have a right to rely upon, to secure to them proper and efficient administration and the maintenance of right and justice.