Experiments in Government and the Essentials of the Constitution

by Elihu Root

Communities, like individuals, will declare for what they believe to be just and right; but communities, like individuals, can be led away from their principles step by step under the temptations of specific desires and supposed expediencies until the principles are a dead letter and allegiance to them is a mere sham.

And that is the way in which popular governments lose their vitality and perish.

The Roman consuls derived their power from the people and were responsible to the people; but Rome went on pretending that the emperors and their servants were consuls long after the Praetorians were the only source of power and the only power exercised was that of irresponsible despotism.

A number of countries have copied our constitution coupled with a provision that the constitutional guarantees may be suspended in case of necessity. We are all familiar with the result. The guarantees of liberty and justice and order have been forgotten: the government is dictatorship and the popular will is expressed only by revolution.

Nor, so far as our national system is concerned has there yet appeared any reason to suppose that suitable laws to meet the new conditions cannot be enacted without either overriding or amending the constitution. The liberty of contract and the right of private property which are protected by the limitations of the constitution are held subject to the police power of government to pass and enforce laws for the protection of the public health, public morals, and public safety. The scope and character of the regulations required to accomplish these objects vary as the conditions of life in the country vary. Many interferences with contract and with property which would have been unjustifiable a century ago are demanded by the conditions which exist now and are permissible without violating any constitutional limitation. What will promote these objects the legislative power decides with large discretion, and the courts have no authority to review the exercise of that discretion. It is only when laws are passed under color of the police power and having no real or substantial relation to the purposes for which the power exists, that the courts can refuse to give them effect. By a multitude of judicial decisions in recent years our courts have sustained the exercise of this vast and progressive power in dealing with the new conditions of life under a great variety of circumstances. The principal difficulty in sustaining the exercise of the power has been caused ordinarily by the fact that carelessly or ignorantly drawn statutes either have failed to exhibit the true relation between the regulation proposed and the object sought, or have gone farther than the attainment of the legitimate object justified. A very good illustration of this is to be found in the Federal Employer's Liability Act which was carelessly drawn and passed by Congress in 1906 and was declared unconstitutional by the Supreme Court, but which was carefully drawn and passed by Congress in 1908 and was declared constitutional by the same court.

Insistence upon hasty and violent methods rather than orderly and deliberate methods is really a result of impatience with the slow methods of true progress in popular government. We should probably make little progress were there not in every generation some men who, realizing evils, are eager for reform, impatient of delay, indignant at opposition, and intolerant of the long, slow processes by which the great body of the people may consider new proposals in all their relations, weigh their advantages and disadvantages, discuss their merits, and become educated either to their acceptance or rejection. Yet that is the method of progress in which no step, once taken, needs to be retraced; and it is the only way in which a democracy can avoid destroying its institutions by the impulsive substitution of novel and attractive but impracticable expedients.

The wisest of all the fathers of the Republic has spoken, not for his own day alone but for all generations to come after him, in the solemn admonitions of the Farewell Address. It was to us that Washington spoke when he said:

"The basis of our political systems is the right of the people to make and to alter their constitutions of government; but the Constitution which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all.... Towards the preservation of your government, and the permanency of your present happy state, it is requisite, not only that you steadily discountenance irregular oppositions to its acknowledged authority, but also that you resist with care the spirit of innovation upon its principles, however specious the pretexts. One method of assault may be to effect, in the forms of the Constitution, alterations which will impair the energy of the system, and thus to undermine what cannot be directly overthrown. In all the changes to which you may be invited, remember that time and habit are at least as necessary to fix the true character of governments as of other human institutions; that experience is the surest standard by which to test the real tendency of the existing constitution of a country; that facility in changes, upon the credit of mere hypothesis and opinion, exposes to perpetual changes, from the endless variety of hypothesis and opinion."

While, in the nature of things, each generation must assume the task of adapting the working of its government to new conditions of life as they arise, it would be the folly of ignorant conceit for any generation to assume that it can lightly and easily improve upon the work of the founders in those matters which are, by their nature, of universal application to the permanent relations of men in civil society.

Religion, the philosophy of morals, the teaching of history, the experience of every human life, point to the same conclusion—that in the practical conduct of life the most difficult and the most necessary virtue is self-restraint. It is the first lesson of childhood; it is the quality for which great monarchs are most highly praised; the man who has it not is feared and shunned; it is needed most where power is greatest; it is needed more by men acting in a mass than by individuals, because men in the mass are more irresponsible and difficult of control than individuals. The makers of our constitution, wise and earnest students of history and of life, discerned the great truth that self-restraint is the supreme necessity and the supreme virtue of a democracy. The people of the United States have exercised that virtue by the establishment of rules of right action in what we call the limitations of the constitution, and until this day they have rigidly observed those rules. The general judgment of students of government is that the success and permanency of the American system of government are due to the establishment and observance of such general rules of conduct. Let us change and adapt our laws as the shifting-conditions of the times require, but let us never abandon or weaken this fundamental and essential characteristic of our ordered liberty.