The failure of the Federalists to check the growth of democratic ideas and the success of the more liberal party in bringing about the election of Jefferson alarmed the conservative class. It was seen that if all other branches of the government should come under the influence of the liberal movement, the judicial check could be broken down. To guard against this danger, an effort was made by the conservative interests to mold a public sentiment that would protect the Supreme Court against political interference at the hands of those who might wish to override judicial opposition to radical measures. This took the form of what might be called the doctrine of judicial infallibility. The judiciary in general and the Supreme Court in particular were held up as the guardian and protector of American liberty. The security of the people was represented as bound up with the freedom of the courts from political interference. At the same time it was proclaimed that the Supreme Court exercised only judicial functions and that any attempt on the part of the President or Congress to interfere with them would make that body the organ of faction or class. But, as a matter of fact, the danger which they foresaw to the Supreme Court was not a danger growing out of its judicial, but out of its legislative functions. It was not because the Supreme Court was a purely judicial body, but because it exercised a supremely important legislative function, that they were so solicitous to guard it against anything approaching popular control. The threefold division of governmental powers into legislative, executive, and judicial, as shown in a preceding chapter, has no logical basis. There are, as Professor Goodnow has said,[195] but two functions of government, that of expressing and that of executing the will of the state. The Supreme Court, in so far as it is a purely judicial body—that is, a body for hearing and deciding cases—is simply a means of executing the will of the state. With the performance of this function there was little danger that any democratic movement would interfere. Nor was this the danger which the conservative classes really feared, or which they wished to guard against. What they desired above all else was to give the Supreme Court a final voice in expressing the will of the state, and by so doing to make it operate as an effective check upon democratic legislation. It is this power of expressing the will of the state which our conservative writers defend as the pre-eminently meritorious feature of our judicial system. Indeed, this is, in the opinion of the conservative class, the most important of all the checks on democracy. Any suggestion of using the power vested in Congress and the President to reorganize the Supreme Court is naturally enough denounced as the most dangerous and revolutionary of political heresies. It is not probable, however, that the Supreme Court would much longer be permitted to thwart the will of the majority if the other branches of the Federal government were thoroughly imbued with the belief in democracy. As explained in Chapter V, the Constitution contains no hint of this power to declare acts of Congress null and void. It was injected into the Constitution, as the framers intended, by judicial interpretation, and under the influence of a thoroughly democratic President, and Congress might be eliminated in the same way.
The most important feature of the Constitution from the standpoint of democracy is the provision contained in article V, requiring Congress "on the application of the legislatures of two-thirds of the several states" to "call a convention for proposing amendments." The progress of democracy in the various state governments is likely to compel resort to this method of changing the Federal Constitution if the Senate much longer persists in disregarding the will of the people. In fact, this is, in the opinion of the conservative class, the one fatal defect in the scheme of constitutional checks established by our forefathers. It in reality opens the door to the most revolutionary changes in our political arrangements. Congress can not refuse to call a general constitutional convention when two-thirds of the states demand it, and this convention might propose an entirely new constitution framed in accord with the most advanced ideas of democracy. It might also follow the precedent, set by the framers of our present Constitution and prescribe an entirely new method of ratification as our more conservative forefathers did when they disregarded the then existing provision governing the amendment of the Articles of Confederation. It is true that they ignored the established method of amending as well as the instructions from the states by which they were appointed, in order to bring about the adoption of a political system more acceptable to the conservative classes. But what has been done in the interest of the minority may also be done in the interest of the majority. A new Federal constitution might be framed which would eliminate the whole system of checks on the people and provide for direct ratification by a majority of the voters, as has already been done in the case of most of our state constitutions. If the Constitution does not yield sufficiently to satisfy the popular demand for reform, it is possible that the reactionary forces will, in their anxiety to defeat moderate democratic measures, arouse sufficient opposition on the part of the people to compel sweeping constitutional changes.
The fact that two-thirds of the states can require Congress to call a convention of all the states to propose changes in the Constitution is a matter of no small importance. True, even this method of initiating changes in the system would be very difficult, since the smaller states would naturally fear an attempt to establish a more equitable plan of representation, and the special and privileged interests of all sorts which have found the present system satisfactory would use every means at their command to prevent the states from resorting to this power. It is possible, if not indeed probable, that a serious and concerted attempt by the people to force changes in the Constitution by this method would sufficiently alarm the opponents of democracy to convince them of the wisdom and expediency of such amendments as would appease the popular clamor for reform without going too far in the direction of majority rule. To prevent the complete overthrow of the system, which might be the outcome if the states were compelled to assume the initiative in amending the Constitution, the minority may accept the inevitable, and, choosing what appears to them to be the lesser of two evils, allow Congress to propose such amendments as the people are determined to bring about.
It is in the state and in the municipal governments, however, that the influence of democracy has been greatest. Yet even here much still remains to be done before the practical operation of the system will be in accord with the principle of majority rule. Direct election and universal suffrage have not under our scheme of checks and balances secured any large measure of political responsibility. The logical result of this system has been the growing distrust of public officials and especially of such representative bodies as state legislatures and city councils. This lack of confidence in the local governmental machinery, due to the irresponsibility of public officials, is certain to lead to the adoption of radical changes in the organization of our state and municipal governments. Either the tenure of public officials will be made to depend in some more effective way upon the will of the majority, or the power which they now have and which they often use to further private interests at the expense of the people will be taken from them and conferred directly upon the majority of the voters.
The movement to give the people greater control over the officials whom they have elected is really just beginning. Heretofore the effort to make the government truly representative of the people has been mainly along the line of broadening the suffrage and perfecting the method of voting. This, the people are just beginning to realize, does not guarantee political responsibility. The secret ballot under present conditions is important, but it is by no means adequate. The right of the majority to elect one or the other of two men, both of whom may have been nominated through the machinations of a corrupt and selfish minority, does not give the people any real control over the officials whom they vote into office. What they need, to ensure responsibility, is the power to make a real, not a merely nominal choice, coupled with the power to remove in case the person selected should lose the confidence of the majority.
The plan for depriving the minority of the power to control the selection of public officials, which is now rapidly gaining adherents among the advocates of political reform, is the direct primary. That some such change in our method of nominating candidates is necessary to make the so-called popular election of public officials anything more than an empty form is apparent to any intelligent student of American politics. But any proposal to deprive the minority of this power must encounter the determined opposition of the party machine and the various private interests which now prosper at the expense of the people. These opponents of political reform are continually declaiming against the corruption and incapacity of the people and trying to make it appear that a government can be no better than its source—those who elect the public officials. That a government is not likely to be better than the people whom it represents may be admitted. But this is aside from the question. Our present system in its practical operation is not a democracy. It is not truly representative, but misrepresentative. To prevent this evil—this betrayal of public trust in the interest of the minority—is the aim of the direct primary. That it will go far toward breaking the power of the machine may be safely predicted, and that it will be generally adopted as soon as the people realize its significance there is scarcely room for doubt.
But while the direct nomination of candidates would doubtless go far toward making public officials respect the wishes of the people, it would not provide adequate protection against misconduct in office under our plan of election for a definite term without any effective power of removal. A corrupt official may often find that by favoring private interests at the expense of the people who have elected him, he can afford to forfeit all chance of re-election. The independence of public officials which our forefathers were so anxious to secure has been found to be a fruitful source of corruption. A realization of this fact has been responsible for the introduction of the recall system under which the people enforce official responsibility through their power to remove by a vote of lack of confidence in the form of a petition signed by a certain percentage of the voters. Such an expression of popular disapproval has the effect of suspending from office the offending official who can regain the office only by offering himself again as a candidate at an election called for that purpose. This is as yet merely an innovation in municipal government, but if it proves to be satisfactory, the principle will doubtless be incorporated, not only in municipal charters generally, but in our state constitutions as well.
Simultaneous with this movement to make government really representative by enforcing official responsibility is another movement which also aims to make the will of the majority supreme, but by a totally different method of procedure. This is the movement looking toward the establishment of the initiative and the referendum. Instead of leaving power in the hands of representative bodies and seeking to make them responsible as the first plan of reform contemplates, the second plan would guard representative bodies against temptation by divesting them of all powers which they are liable to misuse and conferring them directly upon the people. This is merely an attempt to get back to the basic idea of the old town meeting, where local measures were directly proposed and adopted or rejected by the people. It is, moreover, the logical outcome of the struggle which the advocates of majority rule have been and are now making to secure control of our state and municipal governments. The constitutional checks on democracy have greatly obstructed and delayed the progress of political reform. Some of them have been removed, it is true, but enough still remain to make it possible for the minority to defeat the will of the majority with reference to many questions of vital importance.
It must be admitted, when we review the course of our political development, that much progress has been made. But the evolution has been toward a direct rather than toward a representative democracy. The reason for this is not far to seek. The system of checks which limited the power of the majority made the legislature largely an irresponsible body; and since it could not be trusted, it was necessary to take out of its hands the powers it was most likely to abuse.
The legislature was first deprived of its power to enact constitutional legislation, though it was allowed to retain an effective veto on such changes through its refusal to take the initiative. With the progress of the democratic movement some of the legislative powers most frequently abused were, like the state constitution itself, made subject to popular ratification. This submission of constitutional and certain kinds of statutory legislation to the people before it could go into effect merely gave them to this extent a veto on the recommendations of their legislatures and constitutional conventions. There was still no way to prevent the legislature from misrepresenting the people with respect to those measures which did not require popular ratification. The tendency was to diminish the power of the legislature by including in the constitution itself much that might have taken the form of ordinary statutory legislation, as well as by requiring that some of the more important acts passed by the legislature should receive the direct assent of the voters. This merely gave to the people a partial negative. It enabled them to reject some measures which they did not approve of, but not all, since in those cases where popular ratification was not required, public sentiment could be disregarded by the law-making body. Moreover, the people did not have the right to initiate measures—a right which is indispensable if the people are to have any real power to mold the policy of the state. The logical outcome of this line of development is easily seen. As pointed out in an earlier part of this volume, constitutional development first limits and eventually destroys irresponsible power, and in the end makes the responsible power in the state supreme. The prevalent lack of confidence in our state legislatures is no indication of hostility to the principle of representative government; for representative government in the true sense means government that is responsible to the people. The popular movement has in modifying our state and municipal governments merely taken the line of least resistance, and that has involved the transfer of legislative powers to the people themselves.