Magna Carta, and Other Addresses

by William D. Guthrie

When a truth, be it political, moral, or religious, is once discovered and established, it is eternal; it loses none of its vitality because it has grown old; it never dies. If some religious Progressive—and our political Progressives affect much of the religiously emotional—should now preach a new religion and proclaim that existing religions and their restraints should be cast aside simply because they are old, the dullest man would readily see the utter fallacy and wickedness of such an argument. Imagine any one seriously arguing that the Ten Commandments are worthless and dead as rules of human conduct and self-restraint because they are four thousand years old and were first enunciated in an age not so rapid as our own—in an age when there were no printing presses, no steam engines, no electricity and no talking machines! Yet, so long as our civilization endures, so long as human intelligence lasts, so long as religion shall continue to comfort and sustain and uplift men and women, so long will the Ten Commandments be sound and true rules of conduct and the fundamental basis of all religions. Likewise as to the great political documents evidencing the progress of the human race upward towards liberty, like Magna Carta, the Bill of Rights, the Declaration of Independence, the Constitution of the United States: they embody and declare principles of political justice and fundamental truths which are eternal; and whilst majorities at times may ignorantly and recklessly disregard them or cast them aside for temporary objects, they are as eternal and imperishable as are the Ten Commandments.

Of the many revolutionary schemes in the Progressive platform, both national and state, one of the most dangerous and far-reaching is the proposal to destroy the representative character of our government by substituting direct action by the people in place of action by legislatures and officers elected by the people. This is to be accomplished through the initiative and the referendum. The movement is doubly important at the present time because, as is well known, the Democratic candidate for the presidency, after teaching directly the contrary for many years, has become a recent convert to these ideas. Although such a scheme might be beneficial or harmless in the little town meetings of New England, in small municipalities, or in agricultural states having a homogeneous population less in number than some of the counties of the state of New York, the initiative and the referendum would be wholly unsuited to an empire such as ours with a population of nearly 100,000,000, or to a state such as New York with a population of nearly 10,000,000. Would it not be absurd and preposterous to have the thousands of bills annually introduced in Congress passed upon by the people at large, and would it not be equally absurd and preposterous for a state like New York, passing hundreds of bills every year, to give a small minority the right to compel the submission of every statute to the vote of the people? Would it not be little short of calamitous to have those least qualified to understand and appreciate the changes they were making pass upon and control legislation? The result would be chaos.

The great men who founded our system of constitutional government were thoroughly familiar with the theory and operation of pure democracy or direct action by the people, as distinguished from representative government. They saw the past failures of pure democracy and the danger of any such system, and they deliberately declined to adopt it. In speaking of "the equal rights of man," Jefferson declared that "modern times have the signal advantage, too, of having discovered the only device by which these rights can be secured, to wit,—government by the people, acting not in person, but by representatives chosen by themselves."

The plain truth is that the trouble with our legislatures and with Congress is the character of many of the men whom the people elect. The remedy is in the hands of the voters. If they will elect capable and honest men to legislative, executive and judicial office, we shall have a cure at once. We need a remedy, not a poison.

Those who urge the introduction of the initiative, the referendum and the recall base their argument on the ground that some of our legislators and elective officers are incompetent or dishonest, and that, therefore, the people should reserve the right to control their actions and remove them. But if our legislators or other elective officers are incompetent or dishonest—if they are not truly representative of the people who elect them—then obviously the fault lies with those who choose them, and the remedy is to take such measures as will ensure the election of competent, honest and representative men. If the people are now too busy to concern themselves with the selection of honest and capable representatives, is it reasonable to expect that they will concern themselves about the merits of hundreds of statutes which they do not half understand, or about the qualifications of the officers they have elected and would recall? The fault is not with our representative system of government, but either with the party organizations that often nominate incompetent or dishonest men, or with the voters who tolerate such nominations and elect such candidates. Our system of government, as every system of free government, is based on the assumption that the people will conscientiously exercise the elective franchise, and unless we can depend upon an honest, sober-minded and patriotic majority to exercise that franchise, our system of government must ultimately prove a complete failure. The conscientious exercise of the elective franchise is not merely a privilege—it is the highest duty of citizenship. With the great increase in population, political parties and party organizations undoubtedly have become a practical necessity, and leadership is equally necessary; but it has also become indispensable that these party organizations shall be conducted honestly so as to represent truly the wishes of their party constituents. The urgent duty of citizenship is to see to it that these party organizations are conducted honestly and in a representative manner; but this is not to be accomplished by disrupting or destroying the great parties. Instead of pulling down the temple, we should drive out the money-changers. Instead of killing we should cure. What we urgently need is legislation providing for fair and honest party primaries and facilitating independent candidacies, and then we should go farther and impose a penalty or tax upon all qualified citizens who fail to cast a ballot at the annual primaries and elections prescribed by law.

The initiative, the referendum and the recall would not cure present evils, but would in fact only intensify and perpetuate them. The power and control of unrepresentative and irresponsible party machines would be largely increased instead of being curtailed. Better men would not be nominated and elected, but quite the contrary; the self-seeker, advertiser and manipulator alone would be nominated. The exercise of the initiative, the referendum and the recall would be determined by exactly the same people who now control our nominations and elections. It is absurd to suppose that the very men who so often choose incapable or dishonest representatives or neglect to vote at all would exercise greater efficiency in supervising legislation, in recalling public officers and judges, or in setting aside judicial decisions.

Equally absurd is the idea of legislation by popular vote. The importance of framing laws and constitutional amendments in clear and exact language and the impracticability of doing so without careful consideration and discussion and comparison with existing provisions, as in legislative committees, must be recognized by all thinking men. Our system of laws is becoming more and more complex every year, and unavoidably so. The people at large cannot be expected to know and understand a great and extremely complex system of laws, and it is no reflection on them to say that they cannot grasp the details of legislation any more than it would be to say that there are few men in the community competent to administer as judges the unavoidably intricate system of laws under which we live.

We have only to look at recent experience in the state of New York in regard to the adoption of constitutional amendments, the most important function that can be exercised by a voter, to appreciate the folly of the proposed remedies. The total vote for and against these amendments has frequently been less than one-half—and at times barely one-quarter—of those who actually voted at general elections. Thus, to take three recent experiences: the total vote cast in 1909 on an important constitutional amendment was only 477,105 as against a total vote the year before of 1,638,350; the total vote in 1910 on another important constitutional amendment was 664,892 as against 1,445,249 votes for the gubernatorial candidates, and seven amendments submitted in 1911 were defeated with an average total vote of 621,678. Similar and even more striking experiences will be found in other states. Is it likely that there would be a fuller or more representative and intelligent expression of public understanding in regard to complex legislative enactments, or in regard to the recall of judges or other public officers, or of judicial decisions than we find now in the case of important constitutional amendments?

To render judges subject to recall would be utterly destructive of the character and independence of our judiciary. No self-respecting lawyer would serve on the bench under such conditions. An upright judge should fearlessly declare and enforce the law without regard to popular agitation or political pressure. Frequently he is called upon to decide between the individual on the one side and a clamorous majority on the other side of a case before him. Take, for example, our situation in New York with Tammany Hall controlling a majority of the voters of the city. The legislature at the dictation of Mr. Murphy passes another infamous Levy Election Law avowedly intended to prevent independent nominations even for the bench. The judges declare the act unconstitutional and protect the minority in their rights, just as we saw them protecting the Progressives a few weeks ago. According to Mr. Roosevelt and Mr. Straus, however, Tammany Hall should have the power to punish these judges by recalling them and should have the right to pass such disgraceful and tyrannical legislation by resort to the initiative and the referendum! Indeed, it is impossible to conceive of a scheme more surely calculated to shatter all our constitutional rights, as well as all certainty in the law. Chief Justice Marshall would have been repeatedly recalled for unpopular decisions which are now universally applauded even by the Progressives. Imagine the spectacle of recalling a Cullen or a Gray because he had dared to decide against the clamor or wishes of a majority controlled by Tammany Hall!