Unpopular government in the United States

by Albert Martin Kales

Our federal government was established in a territory which was mostly a wilderness, with a fringe of frontier and colonial communities on the Atlantic seaboard. Whenever a state government has been first established, the territory of which it has been composed has been either wholly or very largely of a frontier character. In such communities opportunity was abundant and pretty much equal to all. Men started with not much advantage except that with which nature had endowed them. The differences in wealth were not such as to be beyond the hope of most men to bridge in a lifetime. The population was controlled by a community of feeling and a certain similarity of occupation. In such a society any attack upon property interests was bound to come home to too many to make such an attack possible. The practical danger was that states would permit the resident debtor class to repudiate its obligations to a non-resident creditor class. This was headed off by the very practical provision of the federal constitution that no state should pass any law impairing the obligation of contracts. Apart from this the governmental devices adopted to protect property interests were largely theoretical and academic. They were for the most part directed to preventing all sudden legislative action. Legislation must in every case be the result of “sober second thought.” No distinction was made between legislation which affected property interests and any other sort. The safeguards for securing the “sober second thought” of the electorate or legislature were as applicable to the most trivial legislative matters as to the most important. Thus we have the separation of the legislature into two houses. The members of both are elected. The only difference is that the number of the upper house is smaller and the term a little longer. We have also the limited veto power of the governor. Although not in terms provided for in our constitution, it has become a part of our scheme of government that the courts shall exercise the power of declaring void acts of the legislature which are forbidden by the written constitution. As these written constitutions have contained almost universally the provision that “no person shall be deprived of life, liberty, or property without due process of law,” the courts have had the power to declare void acts of the legislature which they deemed to be a taking of the “liberty” or “property” of any person “without due process of law.” When exercised this power has amounted in effect to a judicial veto. If the court deem the act in question to have been forbidden by the constitution the act is invalid until such time as the constitution shall have been changed and the general prohibition eliminated, at least so far as the offending act in question is concerned. It was, however, only the taking “without due process of law” which was forbidden. But legislation was itself “due process of law” unless it was arbitrary and irrational in its operation.[22] Thus an act which forbade the consumption of liquor by red-haired persons and which imposed a fine for the offense would be arbitrary and irrational in its application, and the imposition of a fine pursuant to the act would be a taking of the property of the individual without due process of law. But more than this, the arbitrary character of the legislative act must be clear beyond all reasonable doubt.[23] It must be so clear that two rational men could not differ about the matter.[24] These were the limits of the power of the court as originally laid down. It is apparent that with these limitations conscientiously observed the veto power of the court over legislation was of largely theoretical and academic value in protecting property interests. The fact is that this power of the courts to declare laws unconstitutional because they took some person’s life, liberty, or property without due process of law remained practically unused during the first half of the nineteenth century. Perhaps there was no call for the protection of property interests from the legislature. Perhaps the limitations upon the exercise of the power of the court were too faithfully observed. It is not unlikely that both reasons contributed to the results.

Before 1860 the Atlantic seaboard states ceased to be provincial or frontier communities. Since 1860 an enormous area in the Mississippi Valley has ceased to be a frontier community. Great cities have arisen. Whole states have been brought under cultivation. Manufacturing has constantly gone forward. Facility in transportation has diminished the size of the country twenty-fold in many areas. The increase in the value and quantity of private property has been fabulous. So enormous an increase in so short a time has necessarily resulted in the concentration of immense fortunes in the hands of a considerable number of individuals. Even more marked has been the concentration of collective property holdings in corporations. The financial difference between persons of some property and those with vast fortunes is so great that the bridging of the gap by even the exceptional individual in his lifetime is out of the question. The financial difference between the position of persons possessing some property and the collective wealth of great corporations is beyond the actual comprehension of the human intelligence. Opportunity is no longer anywhere near equal and many start the race in life with a lead which puts them out of sight of all but a very few. The result is that a constantly increasing number of people think not in terms of property and the interests of property, but as individuals, and in many instances as one of a collection of individuals. They have begun to consider whether the state is so run and legislation so framed that they as individuals, or as one of a collective organization of individuals similarly situated, are enabled to live satisfactorily. They are readily inclined to believe that specially organized property interests are attempting to make the laws, or to block the making of laws in the interests of property and against the interests of the individual, either singly or in organized groups. Such specially organized property interests have become liable to persistent and sometimes vicious and retaliatory attacks by a majority of the electorate. The fact that this majority is composed of persons who are, to some extent, holders of property does not prevent them from thinking in terms of their position as individuals. Thus spectacular onslaughts by the electorate have been made upon such organized property interests as railroads, public-service corporations, and mine-owners. Legislation to promote social justice and in the actual or pretended exercise of the police power may be in effect an attack upon some legitimate business. Yet the general object of such acts will receive an overwhelming popular approval.

Step by step with the development of this antagonism in the state between specially organized property interests and the individual has grown the effort of such interests to combine for protection from the electorate. Naturally they use all the means at their disposal in the governmental scheme to secure that protection. The governor’s veto, however, has proved of less and less value, for the governor is so conspicuous an officer as frequently to be a popular choice. Property interests have fallen back upon the legislative lobby, an alliance with the extra-legal government, and the constant urging of the courts to go farther and farther in the exercise of their veto power over legislation. The lobby has gained power through the assistance and sanction of the leaders of the extra-legal government. That government has been stimulated to the highest efficiency and the greatest activity by reason of the prizes coming to its leaders as the result of their alliance and partnership with collectively organized property interests. As a last resort the courts have again and again been importuned to veto legislation inimical to specially organized property interests, and all property interests when attacked at once become specially organized at the point of attack. These importunities come in the form of arguments to the court on behalf of property interests that are unfavorably affected by the legislation in question. Frequently the act which they complain of has been badly drawn and is really vicious and unfair in some of its workings, although the main principle may be sound. This intensifies the appeal of the individual for its overthrow. Such complaints from the interests affected, together with the social and economic theories of the judges themselves, and no doubt in some cases, the direct influence of the extra-legal government, have been pressed upon the judges in an effort to cause them to abandon the academic, theoretical, and bloodless function which was conceded to them when the power of the courts to declare acts of the legislature unconstitutional originally was asserted, and to expand this power so as to present an efficient barrier to the onslaughts of the proletariat upon property interests. At times and to a very considerable extent state courts have yielded to this pressure. It is the demand of specially organized property interests for protection and fair treatment and the inclination of the courts to give it that has presented in the last thirty years so long a list in every state of legislative acts held unconstitutional because they took the liberty or property of some person without due process of law.[25] It is, no doubt, the desire of these same property interests that the clause of the fourteenth amendment of the federal constitution, which provides that “no state shall pass any law depriving any person of life, liberty, or property without due process of law,” may in the hands of the United States Supreme Court afford the same practical and effective protection to property interests which similar clauses in the state constitutions have done through the action of state supreme courts.

Such is the actual situation into which it is now proposed to project alterations in our scheme of government which will eliminate extra-legal government by politocrats and thereby lessen, if not entirely do away with, the lobby which is backed by the extra-legal government. The same changes are to give us a single legislative chamber which shall be really representative, highly sensitive, and quickly responsive to the popular will. Very naturally property interests, particularly those most frequently subject to legislative attack, will wish to know how they are to be protected from the onslaughts of the proletariat or from the hasty judgments of an ordinarily conservative and fair majority. Property can point to the fact that the commonwealth under Cromwell gave up the single legislative chamber and reverted to the bicameral plan;[26] that the single chamber adopted by the French Constitution of 1791 was abandoned for a bicameral arrangement in 1795, and never again, except for a brief space under the Second Republic of 1848, did France renew the experiment. It can point to the opinions of Mill,[27] Lecky,[28] Maine,[29] Bagehot,[30] and Sidgwick[31] in favor of the second-chamber plan and to the well-nigh universal practice of such a method of constituting the legislature. Furthermore, the second chambers established outside of the United States and perhaps Australia have in practice acted on the whole as the representatives of property interests and the protectors of those interests from the acts of the popular house. These experiences may contain no lesson for us and the opinions referred to may be hopelessly reactionary, but they would at least seem to justify property in humbly asking what is to be done to protect it from the actions of the single popular legislative chamber in which is united the executive and legislative power.

There are two ways at least of meeting this question:

The first is to do nothing at all. Property is to be persuaded that it is in the long run entirely safe at the hands of a legislature which is really expressive of the will of the majority and sensitive to that will; that property has money with which to advocate its cause and can buy newspapers, circulate pamphlets, and hire speakers; that the mass of the electorate are in general entirely fair and conservative toward property; that property is protected by the courts and by constitutional provisions prohibiting the taking of property without due process of law from sudden and violent legislative action.

This attitude will, however, hardly satisfy property interests. How they will be treated by a single legislative chamber representing the popular will cannot be determined till the experiment is actually tried. All a priori views are merely speculative opinions made up from data wholly incomplete and inconclusive. Property interests will naturally regard it as unfair that they should take the risk of a new experiment in government. Nor will property be satisfied with protection by the courts as now constituted. The fact that judges are for the most part elected by popular vote, that the recall of judges and of judicial decisions is being violently advocated, will hardly tend to reassure property in the protection from the electorate by the courts to which it believes itself fairly entitled.

The second method of meeting the demand of property for protection from the single popular legislative chamber is to give it a direct representation in the legislature and a voice in the enactment of the laws at the time they are in the process of making. The representatives of property should have power to propose legislation, to amend that which comes from the popular legislative chamber, and to enter into compromises respecting it. They should have in addition at least a limited veto on the passage of laws. The exercise of such powers should be open and legal, but at the same time entirely subordinate to the power of the representatives of the electorate in the single popular chamber. This requires the establishment of a second legislative chamber in which the representatives of property interests shall sit.

The most direct method of constituting such a second chamber is to divide the state into as many senatorial districts as there are to be members of the second chamber—let us say one-fourth of the number of the popular house. The districts should be created on the basis of an equal amount of taxable property in each. One representative should be sent from each district. One vote should be given each taxpayer in the district who during the preceding year had paid a given amount or less in taxes. Each taxpayer should have one vote in addition for each similar amount which he paid in taxes, and should vote as a taxpayer, whether a corporation or a non-resident citizen of the United States. It might be desirable to elect the senators at large from a few districts, the voting by taxpayers to be according to the Hare plan, thus allowing groups of taxpayers to send their representatives.

A less direct method would be to fill the second chamber with members holding for life and appointed by the executive council of state. The natural tendency of such a life tenure of office, coupled with appointment from among successful men, is to produce a conservative second chamber. If, however, one party is in power for a long period it also results in the packing of the second chamber by one party for its own purposes and this brings renewed party strife and legislative deadlocks.[32] Such a second chamber will, however, in the long run, it is believed, represent property interests.