Experiments in Government and the Essentials of the Constitution

by Elihu Root

It is to be observed that the wit of man has not yet devised any better way of reaching a just conclusion as to whether a statute does or does not conflict with a constitutional limitation upon legislative power than the submission of the question to an independent and impartial court. The courts are not parties to the transactions upon which they pass. They are withdrawn by the conditions of their office from participation in business and political affairs out of which litigations arise. Their action is free from the chief dangers which threaten the undue extension of power, because, as Hamilton points out in The Federalist, they are the weakest branch of government: they neither hold the purse, as does the legislature, nor the sword, as does the executive. During all our history they have commanded and deserved the respect and confidence of the people. General acceptance of their conclusions has been the chief agency in preventing here the discord and strife which afflict so many lands, and in preserving peace and order and respect for law.

Indeed in the effort to emasculate representative government to which I have already referred, the people of the experimenting states have greatly increased their reliance upon the courts. Every new constitution with detailed orders to the legislature is a forcible assertion that the people will not trust legislatures to determine the extent of their own powers, but will trust the courts.

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 substituted 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 hear 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 prescribed in the constitution, and the public feeling of the time is in favor 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 constitution; 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 themselves, 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 unconstitutional. 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 compensation, 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. In every case the question whether the majority shall be bound by those general principles of action which the people have prescribed for themselves will be determined in that case by the will of the majority, and therefore in no case will the majority be bound except by its own will at the time.

The exercise of such a power would strike at the very foundation of our system of government. It would be a reversion to the system of the ancient republics where the state was everything and the individual nothing except as a part of the state, and where liberty perished. It would be a repudiation of the fundamental principle of Anglo-Saxon liberty which we inherit and maintain, for it is the very soul of our political institutions that they protect the individual against the majority. "All men," says the Declaration, "are endowed by their Creator with inalienable rights. Governments are instituted to secure these rights." The rights are not derived from any majority. They are not disposable by any majority. They are superior to all majorities. The weakest minority, the most despised sect, exist by their own right. The most friendless and lonely human being on American soil holds his right to life and liberty and the pursuit of happiness, and all that goes to make them up by title indefeasible against the world, and it is the glory of American self-government that by the limitations of the constitution we have protected that right against even ourselves. That protection cannot be continued and that right cannot be maintained, except by jealously preserving at all times and under all circumstances the rule of principle which is eternal over the will of majorities which shift and pass away.

Democratic absolutism is just as repulsive, and history has shown it to be just as fatal, to the rights of individual manhood as is monarchical absolutism.

But it is not necessary to violate the rules of action which we have established for ourselves in the constitution in order to deal by law with the new conditions of the time, for these rules of action are themselves subject to popular control. If the rules are so stated that they are thought to prevent the doing of something which is not contrary to the principles of liberty but demanded by them, the true remedy is to be found in reconsidering what the rules ought to be and, if need be, in restating them so that they will give more complete effect to the principles they are designed to enforce. If, as I believe, there ought to be in my own state, for example, a Workman's Compensation Act to supersede the present unsatisfactory system of accident litigation, and if the constitution forbids such a law—which I very much doubt—the true remedy is not to cast to the winds all systematic self-restraint and to inaugurate a new system of doing whatever we please whenever we please, unrestrained by declared rules of conduct; but it is to follow the orderly and ordinary method of amending the constitution so that the rule protecting the right to property shall not be so broadly stated as to prevent legislation which the principle underlying the rule demands.

The difference between the proposed practice of overriding the constitution by a vote and amending the constitution is vital. It is the difference between breaking a rule and making a rule; between acting without any rule in a particular case and determining what ought to be the rule of action applicable to all cases.

Our legislatures frequently try to evade constitutional provisions, and doubtless popular majorities seeking specific objects would vote the same way, but set the same people to consider what the fundamental law ought to be, and confront them with the question whether they will abandon in general the principles and the practical rules of conduct according to principles, upon which our government rests, and they will instantly refuse. While their minds are consciously and avowedly addressed to that subject they will stand firm for the general rules that will protect them and their children against oppression and usurpation, and they will change those rules only if need be to make them enforce more perfectly the principles which underlie them.