Experiments in Government and the Essentials of the Constitution

by Elihu Root

There are two separate processes going on among the civilized nations at the present time. One is an assault by socialism against the individualism which underlies the social system of western civilization. The other is an assault against existing institutions upon the ground that they do not adequately protect and develop the existing social order. It is of this latter process in our own country that I wish to speak, and I assume an agreement, that the right of individual liberty and the inseparable right of private property which lie at the foundation of our modern civilization ought to be maintained.

The conditions of life in America have changed very much since the Constitution of the United States was adopted. In 1787 each state entering into the Federal Union had preserved the separate organic life of the original colony. Each had its center of social and business and political life. Each was separated from the others by the barriers of slow and difficult communication. In a vast territory, without railroads or steamships or telegraph or telephone, each community lived within itself.

Now, there has been a general social and industrial rearrangement. Production and commerce pay no attention to state lines. The life of the country is no longer grouped about state capitals, but about the great centers of continental production and trade. The organic growth which must ultimately determine the form of institutions has been away from the mere union of states towards the union of individuals in the relation of national citizenship.

The same causes have greatly reduced the independence of personal and family life. In the eighteenth century life was simple. The producer and consumer were near together and could find each other. Every one who had an equivalent to give in property or service could readily secure the support of himself and his family without asking anything from government except the preservation of order. To-day almost all Americans are dependent upon the action of a great number of other persons mostly unknown. About half of our people are crowded into the cities and large towns. Their food, clothes, fuel, light, water—all come from distant sources, of which they are in the main ignorant, through a vast, complicated machinery of production and distribution with which they have little direct relation. If anything occurs to interfere with the working of the machinery, the consumer is individually helpless. To be certain that he and his family may continue to live he must seek the power of combination with others, and in the end he inevitably calls upon that great combination of all citizens which we call government to do something more than merely keep the peace—to regulate the machinery of production and distribution and safeguard it from interference so that it shall continue to work.

A similar change has taken place in the conditions under which a great part of our people engage in the industries by which they get their living. Under comparatively simple industrial conditions the relation between employer and employee was mainly a relation of individual to individual, with individual freedom of contract and freedom of opportunity essential to equality in the commerce of life. Now, in the great manufacturing, mining, and transportation industries of the country, instead of the free give and take of individual contract there is substituted a vast system of collective bargaining between great masses of men organized and acting through their representatives, or the individual on the one side accepts what he can get from superior power on the other. In the movement of these mighty forces of organization the individual laborer, the individual stockholder, the individual consumer, is helpless.

There has been another change of conditions through the development of political organization. The theory of political activity which had its origin approximately in the administration of President Jackson, and which is characterized by Marcy's declaration that "to the victors belong the spoils," tended to make the possession of office the primary and all-absorbing purpose of political conflict. A complicated system of party organization and representation grew up under which a disciplined body of party workers in each state supported each other, controlled the machinery of nomination, and thus controlled nominations. The members of state legislatures and other officers, when elected, felt a more acute responsibility to the organization which could control their renomination than to the electors, and therefore became accustomed to shape their conduct according to the wishes of the nominating organization. Accordingly the real power of government came to be vested to a high degree in these unofficial political organizations, and where there was a strong man at the head of an organization his control came to be something very closely approaching dictatorship. Another feature of this system aggravated its evils. As population grew, political campaigns became more expensive. At the same time, as wealth grew, corporations for production and transportation increased in capital and extent of operations and became more dependent upon the protection or toleration of government. They found a ready means to secure this by contributing heavily to the campaign funds of political organizations, and therefore their influence played a large part in determining who should be nominated and elected to office. So that in many states political organizations controlled the operations of government, in accordance with the wishes of the managers of the great corporations. Under these circumstances our governmental institutions were not working as they were intended to work, and a desire to break up and get away from this extra constitutional method of controlling our constitutional government has caused a great part of the new political methods of the last few years. It is manifest that the laws which were entirely adequate under the conditions of a century ago to secure individual and public welfare must be in many respects inadequate to accomplish the same results under all these new conditions; and our people are now engaged in the difficult but imperative duty of adapting their laws to the life of to-day. The changes in conditions have come very rapidly and a good deal of experiment will be necessary to find out just what government can do and ought to do to meet them.

The process of devising and trying new laws to meet new conditions naturally leads to the question whether we need not merely to make new laws but also to modify the principles upon which our government is based and the institutions of government designed for the application of those principles to the affairs of life. Upon this question it is of the utmost importance that we proceed with considerate wisdom.

By institutions of government I mean the established rule or order of action through which the sovereign (in our case the sovereign people) attains the ends of government. The governmental institutions of Great Britain have been established by the growth through many centuries of a great body of accepted rules and customs which, taken together, are called the British Constitution. In this country we have set forth in the Declaration of Independence the principles which we consider to lie at the basis of civil society "that all men are created equal; that they are endowed, by their Creator, with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed."

In our Federal and State Constitutions we have established the institutions through which these rights are to be secured. We have declared what officers shall make the laws, what officers shall execute them, what officers shall sit in judgment upon claims of right under them. We have prescribed how these officers shall be selected and the tenure by which they shall hold their offices. We have limited them in the powers which they are to exercise, and, where it has been deemed necessary, we have imposed specific duties upon them. The body of rules thus prescribed constitute the governmental institutions of the United States.

When proposals are made to change these institutions there are certain general considerations which should be observed.