Lack of training on the part of the legislators. Of the one hundred members of the lower house of the legislature which voted upon all these measures sixty-five had never had any previous legislative experience. Only thirty had had the advantage of any college education. While nineteen of the one hundred were lawyers, they were for the most part young, inexperienced men, whose contact with public questions had been limited. Thirty of the one hundred were farmers, thirty-one were in business, six were doctors or dentists, eight were mechanics, three were school teachers. Yet these men, without experience, or training, or special fitness were forced to vote upon all these difficult economic and industrial problems, and also upon about two thousand other more or less important measures.
Necessity for unbiased information. It is of course evident that what the legislator must have is a source from which he can obtain complete information upon all sides of a controverted question. A court which purports to administer justice after hearing the contention of only one party to a transaction would open itself to ridicule. Yet this is precisely the method pursued in legislation. The legislator begins without any independent knowledge of the subject. Such knowledge as he obtains is brought to him ordinarily by a lobbyist. He receives many private suggestions whose source he hardly knows. He attends a committee hearing on a bill seeking to increase the taxes levied upon railroad property, for example. Here the best data and legal arguments that money can buy is ably and forcibly presented by the railroad attorneys. They give figures to show that the railroads are already taxed more than other forms of property. They quote economists to the effect that the proposed taxation is unsound and unscientific. They cite court decisions demonstrating to a certainty that the proposed measure is unconstitutional. They argue, wheedle, misstate, and finally convince the legislator that the measure is absurd. No similarly exhaustive arguments in behalf of the bill can be presented, for no talent comparable to that of the railroad attorneys, and in fact no talent at all is retained by the people in behalf of public interests.
This is the legislative librarian's opportunity. As the Right Honorable James Bryce has said: "No country has ever been able to fill its legislatures with its wisest men; but every country may at least enable them to apply the best methods and provide them with the amplest material."
Legislation elsewhere. It is to be remarked that the legislative questions before all civilized communities are essentially similar. Everywhere are problems growing out of crime and pauperism; problems relating to hours of labor, child labor, and wages; employer's liability; compulsory insurance; workman's compensation; problems arising out of inheritance, income taxation, and the regulation of public service corporations. Nothing is so new, however, but that some other legislature has worked upon the problem or is working upon it. Take, for example, such a question as employer's liability or workman's compensation. Fifty legislative bodies are working upon or have worked upon this single question. In at least three foreign countries and in one American state it has been adequately solved. The other forty-six have failed in part or altogether, either because of uneconomic and unscientific approach or because of constitutional limitations. Formerly and up to within the last ten years no effort had been made to profit by the experience of these fifty other legislative bodies. The typical American way is to let the legislators stumble along, ignorant of the results of similar experimentations elsewhere, trying out expensive, independent experiments, which inevitably end in ineffectual enactments.
What the legislator most needs to know, then, is what efforts other communities are making to solve the problem before him and how they are succeeding, to the end that good measures which have succeeded elsewhere may be adopted and their failures not repeated. Where successful legislative work is done the first effort is always to get copies of every law on every subject which is likely to be legislated upon at the current session. All data bearing upon the success or failure of this legislation in other states and countries must be collected, digested, tabulated and placed in such form as to be readily available to the legislator. If a measure has failed or been repealed the reasons for the failure or repeal are sought. If it has been successful its provisions are carefully studied and analyzed with a view to adaptability to local needs. Experience shows that in some cases it is necessary to prepare a translation of good foreign legislation which has never before been translated into English.
But no law from another jurisdiction can be safely transplanted without careful consideration. The local constitution must be studied. In such a case as the workman's compensation act referred to, it was necessary for a commission to make a close, scientific study of the causes and character of the industrial accidents within the state, to investigate the rates of the casualty insurance companies in the different industries, to discover what co-operation for the prevention of accidents could be secured from employers and employees. Hearings were held at various industrial centers within and without the state; scores of witnesses were examined; manufacturers, labor unions, engineering experts and economists were called upon. In short, the problem was treated in a thoroughly scientific manner. Contrary to the usual practice, the case was prepared and presented to the legislature with the same thoroughness and care as is usual when an important case is prepared and presented to the court. As a result the law, although not perfect, stands the test.
Drafting. When the legislature has discovered what measures have proved successful elsewhere and what local conditions demand, it is still helpless because the members know nothing of legislative forms and cannot use with sufficient accuracy the language expressive of its conclusion. Assistance in bill drafting is necessary. Experience has shown that the man who does this must be either a trained lawyer who is also a practical political scientist or a practical political scientist who is something of a lawyer. It is often found too that in its original form a measure is unconstitutional and a lawyer's knowledge is necessary in order to devise some means of whipping the constitutional devil around the judicial stump. For example, the workman's compensation law of England, enacted too literally in its original form, is clearly unconstitutional in America and has been so declared by the courts of our state. In another state, however, the legislative lawyers who were engaged in drafting the bill, seeing clearly the judicial stump and the constitutional devil, by a simple but clever device passed what was in effect the English law, but in such form that when it came before the Supreme Court it was not only declared constitutional but was commended.
Fault not with legislators but with the system. If legislation be bad the fault is, then, not with the legislator. The average legislator is a keen, bright, honest man, who has been successful in at least a small way in his business or profession. He is ignorant of legislative subjects not because he is an ignorant man, but because his knowledge is of other things. The fault is not with him. It is inherent in our unscientific system of legislating.
We put a group of farmers, grocers, and mechanics at work upon some great sociological problem. They can have no adequate knowledge of the subject. We do not give them compensation enough to pay their living expenses while they work. We allot them only a few hours to consider a given question. We provide for them no information. We furnish them with no legal counsel. Assuming, however, as is often true, that these men are men of integrity and humanity and common sense and that their ideas are sound, they enact a good law that forbids, for example, the employment of children in hazardous and immoral surroundings. In this they have accomplished an important and intelligent constructive work.
Then we hire the best trained minds in the state and put them in our courts. We pay them higher salaries than any other public servants. We give them large libraries in which is found the accumulated legal lore of the past. We grant them, for the questions before them, all the time they can use,—weeks, months, often literally years. These talented, high-minded gentlemen, by dint of industrious delving and assisted by highly paid and highly trained attorneys, discover at last in the depths of their moth-eaten law books some mummified eighteenth century idea which has become petrified into a constitutional provision. They shake their heads and decide that the splendid, humane, up-to-date, common sense legislation is unconstitutional and void because of some minor constitutional objection. They cannot be, and should not be, criticised, for they are clearly performing a duty. Neither can these judges substitute anything in place of the law which they destroy, for the work for which we pay them so well in money and honor and position is only critical,—and their function is in this case destructive.