Vanishing Landmarks

To interpret the laws requires aptitude improved by experience; it demands special knowledge, both of the general law and of the particular case under discussion. It takes a specialist.

I would rather have the ordinary man stand over my dentist and tell him how to crown my tooth than to have him stand over my congressman and tell him how to vote. He knows, in a general way, how a tooth should be crowned, and further than that I refuse to carry the illustration. Then, I can stand a bad tooth better than I can a bad law. No man ever lost his job because of a bad tooth. But millions have stood in the bread line, and other millions will suffer in like manner because of unfortunate and ill-considered legislation.

INTEGRITY VERSUS WISDOM

We all demand integrity in office, but integrity is the most common attribute of man. I can go on the street and buy integrity for a dollar a day, if it does not require any work; but aptitude, experience and wisdom are high-priced. If I had to choose between men of probity but wanting in aptitude and experience, and men of aptitude and experience known to be dishonest, I should unhesitatingly choose the crook rather than the fool; either for bank president or congressman. Banks seldom fail because of dishonesty. Banks fail because of bad management. The thief may steal a little of the cream but the careless and the inexperienced spill the milk.

Thus far in our history no man has ever walked the street in vain for work, no man has gone home to find his wife in rags and his children crying for bread, because of dishonesty in public office. The United States can stand extravagance, it can stand graft, it has stood and is standing the most reckless abandon in all its financial expenditures. The worst this nation has yet encountered – and may the good Lord save us from anything more dreadful – is incompetency in the halls of legislation. Extravagance and graft stalk forth at noonday when incompetency occupies the seats intended for statesmen.

None but bolsheviki would consider subjecting an army to democratic command. The personnel of an army may possess equal patriotism without possessing equal aptitude for war. Recent experiences have only emphasized what was said more than a thousand years ago: “An army of asses commanded by a lion will overthrow an army of lions commanded by an ass.”

Strange, is it not, that every one should recognize this principle when applied to an army and to business, and an overwhelming majority overlook it when applied to governmental matters?

CHAPTER IV

EXPECTATIONS REALIZED

The capacity of the people to select representatives wiser than their constituents illustrated by historic facts.

America has passed through several crises, and each time has been saved because the people’s representatives were wiser than the people. In this respect, the expectation of the Fathers has been realized. I will mention but three instances.

During the Civil War the government resorted to the issuance of paper currency, commonly called greenbacks. While conservative people assumed that these greenbacks would be redeemed whenever the government was able, nevertheless, there being no express provision for their redemption, they went to depreciation, and passed from hand to hand far below par. All this resulted in inflation which inevitably led to a period of depression.

In this connection it is well to remember that whenever we have had a period of depression, and whenever we shall have such a period, there always has been and ever will be a group of people with a panacea for our ills. During the period referred to, a political party, calling itself the “Greenback Party,” came into existence and advocated the issuance of an indefinite volume of irredeemable paper currency which, in their ignorance, they called “money.” The specious argument was to the effect that when “money” can be made on a printing press, it is silly to have less than enough. They expressly advocated issuing all the currency the people could use without making any provision for its retirement. Whenever the people wanted more, they proposed to print more.

Fully seventy-five percent of the American people, without regard to political affiliation, favored some phase or degree of “greenbackism.” While much of this sentiment failed of crystallization, quite a number of congressmen were elected on that issue. If the direct primary law, with which most of the states are now cursed, had been in force at that time, it is probable that no man could have been nominated for Congress, by any party, who was not avowedly in favor of inflation by some method. But the people were saved from themselves exactly as the Fathers had anticipated. The representatives of the people, being wiser than the people, refused the people what most of them desired and gave them what they needed, resumption of specie payment.

Again, in the ’90’s we had a period of depression, and the panacea then recommended was the free and unlimited coinage of silver, at the ratio of 16 to 1 with gold. The difference between “greenbackism” and “free silverism” was simply one of degree. The greenbacker desired the government to print the dollar mark on a piece of paper, thus producing currency one hundred percent fiat, while the free silverite asked that the government stamp the dollar mark upon a piece of silver, thus producing currency fifty percent fiat.

Fully nine-tenths of the American people desired the free and unlimited coinage of silver. William McKinley, willing as he was to run for president on a gold standard platform in 1896, when in Congress had voted for a clean-cut free silver measure. The lower house of Congress actually passed a free silver bill. But, exactly as the Fathers expected, the people’s representatives in the Senate, wiser than the people who had placed them there, refused the people what ninety percent of them wanted and gave them what one hundred percent needed – sound money.

Outside of Russia, there is scarcely a man in all the world who would now recommend the issuance of irredeemable paper currency, what three-fourths of the American people wanted in the ’70’s; and there is not more than one man in all the world who would now recommend the free coinage of silver, what four-fifths of the American people wanted in the ’90’s.

The direct primary in 1896 would have nominated a free silver republican, and a free silver democrat in each and every congressional district of the United States, and we would have had a solid free silver House. If the United States senators had been then elected by the people, preceded by a direct primary, the Senate of the United States would have been solidly for free silver; and we would have passed, as everyone now recognizes, to financial ruin. We were saved, because the United States of America was a republic and not a democracy – because, if you please, we had representative and not direct government.

More recently, Germany and the Central Powers made war upon the United States. This they continued for more than two years. Finally, the President, in his message of April 2, 1917, advised Congress to “declare the course of the Imperial German Government to be, in fact, nothing less than war against the country and the people of the United States.” A resolution to that effect was thereupon passed on April 6, 1917.

If the proposition of going to war with Germany had been submitted to a direct vote of the American people, under a referendum, they would have voted against it, two to one, and in many localities and cities, four to one. Again we were saved, because we had a republican and not a democratic form of government. We were saved because our representatives proved wiser than their constituents.

CHAPTER V

INDEPENDENCE OF THE REPRESENTATIVE

The effect of popular instructions to representatives discussed and illustrated.

The Fathers never intended that the people should legislate, interpret the laws or administer justice. They did provide, however, that the people should choose their legislators, their judges and their executives. They sought also to render impossible any interference with the independence of these representatives. Judges are not expected to inquire of bystanders how questions of law shall be decided, or what decrees shall be rendered, or what punishments imposed.

The Fathers did not anticipate that executives would hold their ears so close to the ground as to become nests for crickets. I do not mean to be understood, however, as intimating that the buzzing of insects has never been mistaken for the voice of the people. Members of the House and the Senate were not supposed to conform to Dooley’s definition of a statesman: “One who watches the procession until he discovers in which direction it is moving and then steals the stick from the drum major.” The Fathers expected officials to be as independent of the voters who select them as officers of a corporation are independent of stockholders.

In proof that Washington did not consider the delegates to the Constitutional Convention bound to follow the wishes of the people they represented I cite what Gouverneur Morris quotes him as saying: “It is too probable that no plan we propose will be adopted. Perhaps another dreadful conflict is to be sustained. If to please the people we offer what we ourselves disapprove, how can we afterward defend our work? Let us raise a standard to which the wise and the honest can repair; the event is in the hand of God.”

Suppose the state should engage in banking. A doorkeeper, a bookkeeper and a president would be necessary. But if the president sought instruction from the street, the bank would be short-lived. If a body of stockholders were to enter a bank, as now operated, and demand a loan without security, either for themselves or for some needy fellow creature, the president would probably say, “You can have another president any day you please, but while I am president, you will furnish collateral.” Otherwise, there would be no bank.

L. Q. C. Lamar used to say to his constituents: “If you desire me to represent you in Congress, I will do so.” Then, with becoming dignity and in absolute harmony with the principles of the republic, as established by the Fathers, he would add, “But do not, for a moment, suppose you can stand between the plow handles during the day and tell me how to vote.” Evidently Mr. Lamar expected to study public questions and to be better informed than his average constituent.

Later, the legislature, recognizing his ability, sent him to the United States Senate. Here he opposed greenback legislation which was favorably considered by the people of Mississippi. Thereupon the legislature passed a resolution demanding either that he vote in harmony with the sentiment of his state, or resign. He refused to do either, but continued to speak, and to vote his convictions based on knowledge. Before his term expired, the wisdom of his course was recognized and he was re-elected to the Senate by the very men who had sought to direct his action in a matter wherein they had no jurisdiction and he had supreme responsibility, and concerning which they knew nothing, while he knew much.

Following the Civil War impeachment proceedings were instituted against Andrew Johnson. Because of the known prejudices of the people of Iowa, Senator Grimes of that state was expected to vote “guilty.” He voted “not guilty,” and his colleague asked him, “Do you think you are expressing the sentiment of the people of Iowa?” The grand old Roman replied: “I have not inquired concerning the sentiment of the people of Iowa. I vote my convictions.” That would be political suicide today.

A few years ago proceedings to expel a certain senator were pending and several of his associates, after hearing the evidence submitted to them in their judicial capacity, expressed the conviction that the accused was innocent, but, because of the prejudices of their states, they would have to vote for expulsion. Senator Depew told me of a member who actually cried as he contemplated voting to expel a man whom he believed to be innocent.

I would like to ask how long you think the United States of America can maintain her proud position among the nations of the world, if oath-bound representatives of the people accept popular sentiment as the guide of their official conduct.

At the unveiling of the monument to Elijah Lovejoy, a letter was read from Wendel Phillips containing this sentence: “How cautiously most slip into oblivion and are forgotten, while here and there a man forgets himself into immortality.” In these most trying times our greatest need is men in public life whose ears are always open to counsel but ever closed to clamor – who will approach pending problems that threaten our very existence, with no other care but their country’s weal. The corner stone of freedom, as laid by the Fathers, is the absolute independence of the representative, coupled with the unimpeded right of the people to choose again at brief but appropriate intervals.

HOW WOULD YOU BUILD A SUBMARINE?

Suppose the government should delegate to some congressional district the responsibility of building a submarine. Would anyone think of undertaking the task except on the principle of a republic? You would select some man of mechanical aptitude, plus mechanical experience, and you would hold him responsible for the result. Would you require your representative when selected to listen to popular sentiment, as expressed on the street corners or in the press? Would you have him submit his plans and blue prints to the “people,” by referendum or otherwise?

We all admit that some men know more about farming than others, some more about commerce than others, some more about science than others, but the sentiment is alarmingly general that in the realm of statecraft – the most complex subject ever approached – one man is just as wise as another. At Detroit, Michigan, during the campaign of 1916, Woodrow Wilson used this language: “So I say the suspicion is beginning to dawn in many quarters, that the average man knows the business necessities of the country just as well as the extraordinary man.”

I do not wish to question Mr. Wilson’s sincerity, though I am not unmindful of the fact that he spent the greater part of his active life in college work trying to produce “extraordinary men,” and in that field he was quite successful. Taking issue with his position, but not with his sincerity, I am going to insult popular sentiment and say that I believe there are many men competent to select a competent constructor of a submarine, who are not competent to construct a submarine, or competent to instruct a constructor of a submarine.

But, suppose the people should build such a craft on the principle of a democracy, each one doing what seemed to him wise, without dishonesty or graft. I have no question but that a submarine would be produced that would “sub,” and I am equally certain that it would stay “subbed.”

I want to ask whether, in your opinion, the ship of state – the government of the United States – is any less complicated, any less complex or any less likely to “sub” and stay “subbed,” exactly as each and every republic for twenty-five hundred years did “sub” – if placed in the hands of an inexperienced mass of experimenters in statecraft.

Think this out for yourself. This is your government quite as much as mine, and it will be your government long after the conservative “Old Guard” have left the field of human activities.

CHAPTER VI

TREND OF THE TIMES

A consideration of the constitutional guarantee that each state shall have a republican form of government, and the warning of Washington against making changes in the constitution.

Both the trend of thought and the current of events are away from representative government and toward direct government.

Legislating by initiative or by referendum, the recall of judges, and especially the recall of judicial decisions, come dangerously near constituting a democratic form of government, against which the Constitution of the United States guarantees. Its language you remember: “The United States shall guarantee to every state in this Union a republican form of government.”

Chief Justice Taney, interpreting this section, said: “It rests with Congress to decide what government is the established one in a state, for, as the United States guarantees to each state a republican form of government, Congress must necessarily decide what government is established in the state before it can determine whether it is republican or not.”1

Chief Justice Waite used the following language, the vital sentence of which I have italicized: “All the states had governments when the Constitution was adopted. In all, the people participated, to some extent, through their representatives selected in the manner specially provided. These governments the Constitution did not change. They were accepted precisely as they were and it is therefore to be presumed that they were such as it is the duty of the states to provide. Thus, we have unmistakable evidence of what was republican in form within the meaning of that term as employed in the Constitution.”2

It is well to note that this participation in their government, which the learned Chief Justice mentions, was “through their representatives,” and in no other way.

More than one state has been required to change its constitution before admission into the Union. Congress refused to admit Arizona under a constitution providing for the recall of judges and judicial decisions. It smacked too strongly of direct government. After her admission, however, she amended her constitution and inserted the socialistic – the “democratic” – provisions, the elimination of which Congress had made a condition precedent to admission.

In his work, “The State,” Woodrow Wilson calls attention to the fact that constitution-making is fast becoming “a cumbrous mode of legislation.” The record in many states justifies this comment.

At the election of 1918, in the state of California there were submitted through referendum nineteen proposed amendments to its constitution, no one of which legitimately belongs in a constitution. They were simply legislative acts sought to be inserted in the organic law, or state charter, for the sole purpose of rendering them more difficult of repeal when proved bad. The “people” had so little confidence in themselves that they deemed it imprudent to trust to their wisdom whether a law should be continued when found beneficial or repealed when its effects were evil, and hence sought to tie their own hands by placing the act in the constitution instead of in the revised statutes.

George Washington, with prophetic vision, foresaw and in his immortal Farewell Address warned against this tendency towards evolutionary revolution and employed this language, the last sentence of which I feel certain he would today italicize:

“Towards the preservation of your government and the permanency of your present happy state, it is requisite not only that you speedily discountenance irregular opposition to its acknowledged authority, but also that you resist with care the spirit of innovation upon its principles, however specious the pretext. 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.”

This trend towards a democratic form of government, or direct government, finds fitting illustration in the fact that if you were to locate a homestead in any one of several states, prove up and secure your patent, and someone should contest your title, and the court should find the land belonged to you, and should render decision accordingly, the people might reverse this decree and give the land to the contestant. It is not a question whether they are likely to do such a thing. The fact that the people in several states have deliberately provided the machinery by which they can thus defeat justice, constitutes a perpetual menace that should adversely affect the market value of all real estate in those states. When title to property is made to rest upon the sentimental whim of the masses, as distinguished from a decree of court, liberty itself is rendered unstable and organized government is abandoned and socialism is substituted.

CHAPTER VII

CONSTITUTIONAL LIBERTY

The necessity for organized government and organized justice as a guarantee of constitutional liberty is sought to be shown. Plato’s dream, Macaulay’s dire prediction and a threat.

A democratic form of government precludes the possibility of constitutional liberty. Constitutional liberty does exist in what Professor Giddings calls a “democratic state,” but cannot in what the same author calls a “democratic form of government.” His admittedly correct differentiation cannot be too often repeated.

“A democratic state,” says this high authority, “is popular sovereignty,” while “a democratic form of government is the actual decision of every question of legal and executive detail by a direct popular vote.”

I grant the formality of a constitution may exist under a democratic form of government, but where all functions of government are exercised directly by the people, necessarily there can be no tribunal to enforce the provisions of a constitution. Let me illustrate.

Suppose, if you will, that an uninhabited island has been discovered, and a government is about to be formulated preliminary to its occupation. Undoubtedly, we would agree that the sovereignty of the island should be vested in the people. This, according to Professor Giddings, would make it a “democratic state.” The next question would be whether this sovereignty would be exercised directly or through representatives. Shall it be a democratic form of government, or a republican form of government?

Someone would propose that a majority should rule. If I were present, I would promptly suggest that the rights of majorities always have been, and always will be, secure. Minorities, not majorities, need protection. I would ask what protection is to be given me, or anyone who may prove an undesirable citizen. Will we be thrown into jail and kept there indefinitely, without trial and without knowing the cause of our incarceration? Such wrongs were common for centuries and are perpetrated by bolshevists, and defended by socialists today. Very likely the assembly would then promise a speedy trial, with right to summon witnesses, and to be confronted by one’s accusers, and other safeguards of liberty such as are now guaranteed in the Constitution of the United States, and that of every state.

But this would not satisfy me. I would ask “How do I know that this promise will be kept?” Then, doubtless, the right to a writ of habeas corpus would be promised. And this would not satisfy me. I would ask: “By whom will it be issued, and by whom enforced?” Before we were through, it is quite probable we would create a tribunal, clothe it with greatest dignity, segregate it from the affairs of business and safeguard it against political influence, and for want of a better name, we would call it “The Supreme Court of the Island.” This court would be clothed with authority to grant and enforce not only writs of habeas corpus but any and all other orders and decrees and judgments necessary to protect the minority, even though a minority of one, in his every constitutional right.

TREASON AS AN ILLUSTRATION

Treason is the only crime defined in the Constitution. Prior to the year 1352 there was great uncertainty in England as to what constituted treason, and Parliament, for the purpose of restraining the power of the Crown to oppress the subject by arbitrary construction, passed, in that year, what is commonly known as the “Statute of Treason.” All acts that might be construed treasonable were classified under seven branches. The framers of the Constitution, desiring to protect the minority, chose only one of the seven and placed a perpetual bar against any other act being made treason, and further safeguarded the minority by defining the only basis of conviction. Section 3, Article III, is as follows:

“Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.”