It would be, of course, of vital importance that a second chamber constituted in either of the above ways be kept in strict subordination to the chamber which represents the electorate at large. The principal means for accomplishing this has already been provided for in the plan for the union of the executive and legislative functions in the lower house. The fact that the entire executive power of the state is placed in the hands of the leaders of the legislative majority of the lower house must always make that the more powerful organ of government. But we can go farther. It may be provided that the second chamber shall never have the right to reject an appropriation bill. This will prevent its ever interfering with the conduct of the government through the collection of taxes and the expenditure of money. Then a suitable method of “steam-rollering” the second chamber with regard to the passage of legislation may be provided as follows:
After the rejection of any bill passed by the lower house in two successive sessions, the vote upon such bill shall be taken, with both branches of the legislature sitting in joint session and a majority of the votes in such joint session shall be sufficient to give the bill the effect of law.
By such devices the second chamber representing property interests as such will have been given only a properly limited veto power upon legislation. At the same time, as a second chamber, it will have power to approve that which passes the popular house and to enter into compromises respecting it. The second chamber can undertake a popular defense of its action. These are important privileges. They aid in the production of laws which are fair to all. On the other hand, the second chamber is equally clearly cut off from ever gaining any ascendancy over that branch of the legislature which represents and is sensitive to the popular will.
We may, however, in the establishment of a second chamber representing property interests proceed with still greater indirectness and the utmost caution along a path on which we are already started.
Our highest state judicial tribunal is already possessed of a substantial veto upon legislation in the interests of property by reason of its power to declare acts of the legislature void because they take property “without due process of law.” There are few, if any, constitutions today in the United States which do not contain other prohibitions upon the legislature under which acts may be declared unconstitutional in the interests of property. The courts have already gone beyond the mere academic function of declaring acts of the legislature void only when they are utterly irrational and arbitrary in their discriminatory operation. The courts now boldly perform the function of protecting property from hasty, ill-advised, and unjust legislation. Heretofore, at least, public opinion has sustained the courts in the exercise of this function. The placing of this power in the hands of judges has insured its exercise by men who at least are not prejudiced against property and are inclined to give it a fair hearing. Judges must be selected from among lawyers, and hence must be men of some education and intellectual attainments. Since the main business of judges is to decide litigated cases arising between individuals, there is very naturally a demand that judges be selected from among the leaders at the bar. This means that there is a constant and legitimate pressure in favor of the selection of men who will naturally give property as full protection as the power of the court will permit. Even lawyers of only fair success and ability in fifteen or twenty years of practice will acquire the property point of view. Practically all lawyers live in an atmosphere of enforcement of property interests. They cannot avoid being educated to see the unfairness of legislation which affects unfavorably property interests. It is not improbable that among those who secure seats in the highest court some will regard themselves as specially appointed to stand between property and the proletariat, and will do so with great determination, vigor, and judicial independence. Once selected, the judge in our highest courts holds for a longer term than other judges, and this fact fortifies him in a determination that property interests shall be dealt with fairly. All this has been accomplished without the electorate at large fully perceiving what has happened. The voter is still submissive to the apparently fair proposition that only lawyers of excellent standing and ability should be elected to the highest court of the state. Little does he understand that success in selecting such men has established the rudiments of a second chamber which is designed to protect property.
The present arrangement, however, is on the verge of some reorganization. It is plain that the judicial veto is too drastic. It may stop all desired legislation along a given line till the constitution is changed. The difficulties of securing the desired amendment may not be surmounted for many years. Hence has arisen the plan for “steam-rollering” the judicial veto by a constitutional provision that whenever an act of the legislature has been passed at two different sessions and sustained by the electorate upon a referendum, it shall be deemed not to infringe the “life, liberty, and property” clause of the state constitution.[33] The electorate today is also becoming increasingly alive to the fact that the courts, in holding legislation unconstitutional, have really abandoned a purely judicial function and have undertaken in a degree the political function of a second chamber in protecting property interests from the legislature. True, the action of the court is in form still judicial. It purports to apply the constitutional prohibition to the legislation involved in the particular litigated case arising between contending parties. But the court’s decision, once made, is now acquiesced in by all departments of the government and all public officers, as a complete disposition of the act held void. The compiler of the statutes omits it from the compiled laws as being no law at all. The court does in fact veto out of existence an act of the legislature for the entire state government and the inhabitants of the state. It does this also in response to a very general prohibition upon the legislature, such as that “no person shall be deprived of property without due process of law”—a phrase so vague that it gives the court a discretion which approaches that of the legislature in considering whether a proposed act is wise and fair to property or not. The disclosure to the electorate that courts, in using their judicial veto, are really exercising a great political power has resulted in an increasing demand that judges should be elected as political officers; that their economic and social bias be known—in short, that they have a politico-judicial platform and be subject to the recall.
The tendency thus disclosed to treat the judges of our highest courts as political officers whose social and economic bias regarding legislation must be known in advance is, of course, ruinous to the performance of their ordinary judicial functions. The electorate will obtain what it wants, and perhaps what it may be entitled to, from the judges, but at the expense of the disruption of the whole judicial system. That would indeed be a calamity. Disorganization in the administration of justice, due to the popular attitude toward judges and the courts, is even now beginning to be felt. It will very soon become apparent that in the rebuilding of our judicial system courts which handle the general mass of litigation must be confined strictly to judicial functions. They must administer the law as established by the legislature and always in subordination to the legislature. If, then, we are to keep our present plan of protecting property by means of a court and a constitution, a special court of last resort must be established for deciding all constitutional questions, the validity of all municipal ordinances, and all other classes of cases where the issue is drawn between the electorate acting through a popular legislative body, and property interests. In order that the veto of the court may not be too drastic in its effect, there should be given to the single chamber legislature the power to “steam-roller” its judicial veto by a second passage of the act after a suitable interval and its approval on a referendum. Thus we shall have evolved a practicable second chamber protecting property interests.
It would be only a short step to provide for the submission of all acts to such a court before they became laws, with a right on the part of litigants to bring up the question of the validity of the acts as upon a rehearing. Then it would seem most reasonable that when an act was presented to the special court of appeal before it became law and found to be unconstitutional, the court should have power to redraft the act so that it would accomplish what was desired so far as the same was permitted by the constitution. If ultimately the right of litigants to attack the validity of any act which had passed both the legislature and the court should be cut off, and if the constitutional limitations upon the legislature should entirely disappear, while at the same time the members of the body which scrutinized the acts passed by the popular chamber were appointed by the council of state and held office for a considerable period, we should have, in what started as a judicial tribunal, a real second chamber functioning like other second chambers in furnishing an additional security against legislation which was unfair to property interests.[34]
It is not the purpose of the present writer to advocate either the second chamber representing property interests or the establishment of a unicameral legislature in which all legislative and executive powers are united and which is extremely sensitive to the popular will without any special protection to property interests other than that which their numerical strength and property holding gives them. It is enough that the difficulties of the situation be faced and the several general lines of procedure be indicated. It will be time enough to have opinions when we are brought, by constitution-making, nearer to the practical settlement of the difficulty.