TENDENCIES IN REPRESENTATIVE GOVERNMENT
BY AMBROSE RICE
[Mr. Rice was former Attorney General of the State of Rhode Island, Past President, Rhode Island Society of the Sons of the American Revolution. The address was delivered before the Society of Cincinnati in the State of Rhode Island and Providence Plantations, at the Colonial State House, Newport, Rhode Island, on the Fourth of July, 1924. It is published in the Era magazine by permission of the author, and is well worthy a careful study, by every lover of our country.—Editor.]
Mr. President, Ladies and Gentlemen, Members of the Rhode Island Society of the Cincinnati:
Eleven years ago, Mr. George Washington Olney, then vice-president of this Society, extended to me a cordial invitation to attend your banquet and respond to the toast: "The State of Rhode Island and Providence Plantations."
It was with the greatest regret that I was unable to attend on that occasion, for I have long enertained the highest regard for your ancient institution and for the worthy men that have composed this particular state society. When recently, therefore, your esteemed President, Bishop Perry, did me the honor to invite me to come here today and take part in these exercises, I was perhaps too ready to accept and too venturesome in undertaking to prepare an address in the limited time at my disposal.
These meetings, held annually on Independence Day, naturally partake of that jubilation of spirit which has always attended the contemplation of those heroic events which led to the birth of this great nation. When the republic was in its infancy and men were hesitant and unaccustomed to our dual allegiance to state and federal authority; when the great principles of the Constitution, as interpreted by John Marshall, were still unrecognized as definite guides; when sectional controversies over the extension of slavery and state right issues threatened national disaster and dissolution, there was doubtless need of those exhortations to loyalty and fidelity to the national government that so frequently characterized the celebration of this anniversary. So, too, that Fourth of July oration which did not display all the arts of oratory in voice and in gesture, and which was not embellished with bombastic figures of speech and flights of fanciful metaphor, was a poor effort indeed. Such addresses perhaps served their purpose in former days and inspired men with a larger vision of their country's destiny that was so essential to national solidarity. But today when there is no question as to our unity as a people, we should be more concerned with those influences and tendencies in our public life that may in any way weaken the stability or threaten the perpetuity of the principles upon which the republic was founded. It may not be amiss on an occasion of this kind therefore to speak briefly of some phases of our national development.
Let me say here that no portion of our citizenry should understand our problems today better than the members of those patriotic societies whose requirements for eligiblity rest upon an ancestry of the Revolutionary period. Their forefathers established this republic. Its fundamental principles were largely the outgrowth of one hundred and fifty years of experience in working out self-government in the colonies. It is unfortunate that so many have gathered the impression that the Constitution of the United States was an innovation and an experiment in government, and that its principles were enunciated de novo by its framers. Gladstone's oft-repeated characterization of that instrument, as the greatest document ever struck off at a given time by the brain and purpose of man, has given wide currency to that view, but, in reality, there is hardly a political precept in that great charter of liberty that had not been in actual practice in one or more of the colonies prior to its incorporation into the Constitution. The framework of the government was somewhat novel, but the fundamental laws established drew their strength and vigor not only from the experiences of our forebears during the colonial period, but from the ancient common law of England. It was their heritage as Englishmen that the heroes of the Revolution preserved, and it is this heritage that they handed down to us in and by and through the Constitution of the United States. You, therefore, who take a pride in an ancestry that staked their lives and their property in safeguarding the rights of freemen, should be most vigilant that the principles upon which these rights rest are neither belittled nor undermined.
The conception of the framers of the Constitution was to establish a republic, not a monarchy, not an oligarchy, not a democracy. It was to be a republic in which the people were sovereign, indeed, in establishing the form of government, but a republic in which the people did not exercise the powers of government directly, but indirectly through their representatives. The processes of government were to be conducted by representation. The Constitution guarantees a republican form of government to each of the states. The theory was based upon the proposition that the people would select their ablest men to represent them in their legislative assemblies, and that these representatives, by their character and ability would command the confidence of the people, and would make such appointments and enact such legislation as would be for the benefit of all. This theory was universally accepted and practiced during the Revolutionary period and for several decades thereafter. It appeared sound and practical. The very ablest men in the country were members of the Continental Congresses and of the Convention which framed the Constitution at Philadelphia. In the earlier congresses also, the states sent their foremost citizens to transact the business of the republic. The Senate was then indeed an august and learned body, and the debates were conducted with dignity and rare ability. Gradually representative government has deteriorated in this country, and this has been largely due to the failure on the part of the people to discriminate in the selection of their representatives, and on the other hand, to the disinclination of those best qualified to enter public service. The result has been an unquestioned lowering of public standards, and a general resort of inferior men to seek office by demagogic appeals to the less intelligent of the electorate. There has followed, as a natural sequence, much criticism of and dissatisfaction with those who are selected by the people to exercise the powers of government. On the other hand, the incompetent and sensitive office holder has ever been ready to shift his responsibilities back to the electorate under the guise of conferring a favor upon them. This tendency to transfer the decision of important political questions and politics to the general mass of electors is working a corruption of the principles which the framers of the Constitution had in mind in establishing a Republic.
The theory of representative government assumed the rule of those who were most intelligent and best informed, and who were fitted mentally for the tasks of government. Such men would know the history of the past. They would best know how to construct for the future. In acting in a representative capacity they would assume the weighty responsibility of office, as a public trust, if you please, and upon them would rest the burden of judgment and decision. The rise of party government in the beginning of the last century brought about the first evasion of representative responsibility. The Constitution provided that the presidential electors, selected in the several states, should meet and vote by ballot for a President and a Vice-president of the United States. The purpose was clear that the choice of the Executive should be the result of the deliberations of this selected body of presidential electors. The exigencies of politics and the necessity for party control set at naught this judicious provision of the Constitution, and now for many decades it has been the people themselves in the several states that have impressed their choice upon the electors. This has been brought about by no change in the law. Repeated practice has established the precedent. A further development of this same tendency is embodied in the frequently proposed amendment to the Constitution providing for the election of the Chief Executive of the nation by the direct popular vote of all the people of the United States, with state lines ignored and presidential electors abolished.
The same trend is observed in reference to the election of Senators of the United States. For more than a hundred years they were chosen by the legislatures of the several states—that is, by the representatives of the people. But by the Seventeenth Amendment, a Senator of the United States is no longer chosen by the legislature, but is elected by the direct vote of the people of each state. Thus again, that judgment and deliberation which should be exercised in such an important selection is transferred from those who are presumed to be more intelligent and informed, to the great mass of the general electors of a state.
This drift from responsible representative government to popular appeal is also observed in recent state constitutions. It was the usual practice originally for the numerous state officers to be chosen either by the executive or legislative branch of government, as representatives of the people, but now the election of such officers is made directly by the people. The most important of these state positions are those of the judges of courts. In many of the states the judges of the highest tribunals are elected directly by the people, and not for life or during good behavior, but for a longer or shorter term of years. A judge upon the bench naturally desires to continue in such service, and however upright he may be, there will always exist, unconsciously perhaps, a human weakness to cater to the popular view in the administration of the law. Some of the ablest and soundest decisions of both the federal and state courts in highly important controversies have been at first received by the public with the greatest disapprobation. A judge in determining issues between litigants without fear or favor should be entirely free from every suspicion that he is courting popularity with the object of his own re-election in view. The judiciary should be entirely severed from political controversy and contention, and judges should be chosen by those best informed as to their character, natural ability and professional attainments.
Perhaps the greatest inroad upon representative government has been made in many of the middle and western states in the adoption of those faddish doctrines of the initiative and referendum. By these doctrines the people themselves directly initiate legislation and put their seal of approval or disapproval upon enacted statutes. These doctrines are direct negations of responsible representative government, and if they are carried to their logical conclusions would constitute a democracy in a state government where the federal Constitution guarantees a republican form of government. The purpose, no doubt, is to insure better legislative enactments, but that purpose should be accomplished by the election of intelligent and informed representatives, mentally qualified to perform properly the duties of their office. The initiative and referendum are manifestations of a spirit to reduce all government to the rule of the masses. They are inconsistent with and subversive of republican principles, and I am glad to say, that they are less frequently resorted to and seem to be in less favor in those states where their adoption was regarded as a cure-all for every political ill.
This tendency to appeal directly to the popular vote is further illustrated by a proposition recently put forward in the platform of one of our political parties, "to take the sense of the American people at a referendum election, advisory to the government, to be held officially under Act of Congress." The question to be submitted is: "Shall the United States become a member of the League of Nations upon such reservations or amendments to the covenant of the League as the President and the Senate of the United States may agree upon?"
The President and the Senate of the United States are constitutionally empowered to determine that very question, and they can neither shirk their duty nor their responsibility of determining whether we shall become a member of the League, and if so, upon what reservations and amendments. This illustration is not given as involving the merits of a controversy upon which men may well differ and have differed with conviction ever since the world war. The point is that this is a proposal for a national plebiscite under federal control. If it is to be taken seriously and as not put forward for purely partisan purposes, the proposition is certainly amazing.
The American people in their entirety are not a body politic. They can only act in their several states and through their representatives in both state and federal government. There is no authority in Congress to set up the machinery for such a referendum election, and if such machinery were set up and such an election held, any decision which the American people might make would not be binding upon the President and the Senate of the United States. The conception of seeking guidance and direction from public opinion, as expressed by the American electorate, is novel in American politics. To what lengths will responsible statesmen go to advance partisan interests among those who neither understand nor comprehend unconstitutional? There is a certain element of flattery in submitting such questions to the direct vote of the people in the implied assumption that they, the people, are better qualified to pass upon such questions than their representatives, the President and the Senate of the United States. While this plank of a party platform, in my opinion, means nothing and can never be put into effect, the danger lies in its unquestioned advocacy of mass democracy.
No doubt, the incompetency and the inefficiency of our office holders have led many to think that they could get better government by substituting mass opinion for the judgment and discretion of chosen officials. The remedy for incompetency and inefficiency in office is, of course, a change in the holder of the office, but incompetency and inefficiency may become intrenched, and in desperation an effort is made to lessen the power of the office holder and to increase the power of the voters, by permitting the latter to act directly, where before they acted indirectly by representation. When we consider the quality of our electorate, we will better comprehend the danger of this tendency to undermine republican principles. Who are our electorate? We must realize that we have pronounced racial complexities in our population. For decades our gates were thrown open for the entrance of immigrants, with very slight restrictions. Our country seemed large enough to accomodate all that desired to come, and there were always those in the manufacturing centers who desired to obtain the benefits of cheap labor. It has been only recently that Congress has properly enacted immigration laws that bring wholesome restrictions and limitations. These laws were made necessary by the increasing numbers from Europe who sought to escape the burdens of the European war. But the percentage of our foreign born was already large. Hundreds of thousands of these immigrants neither speak nor read nor write the English language.
The National Education Association, meeting recently at Washington, reported that there were nearly five million acknowledged illiterates in the United States, and that its officials were convinced that there were more than double this number who either were over-looked in census taking or who concealed their illiteracy. The report also emphasizes the fact that more than three million of the acknowledged illiterates were native born. There are enough illiterate voters in this country, if they acted in concert in pivotal districts and states, to determine the political complexion of Congress, or to decide a presidential election.
While illiteracy is widespread among the foreign born and among the native born in some sections of the country, there is another special danger which arises from radical segregation. In every large American city there are communities where only a foreign tongue is spoken. Washington cautioned against permitting immigrants settling in this country in a body, for "by so doing," he said, "they retain the language, habits and principles which they bring with them. Whereas, by an intermixture with our own people, they or their descendants get assimilated to our customs, measures and laws; in a word, they soon become our people."
Jefferson was of the same opinion. He wrote in 1817: "As to other (than English) foreigners, it is thought better to discourage their settling together in large masses wherein, as in our German settlements, they preserve for a long time their own language, habits and principles of government, and that they should distribute themselves sparsely among the natives for quicker amalgamation. English emigrants are without this inconvenience. They differ from us little but in their principles of government, and most of those who come here are sufficiently disposed to adopt ours."
No nation can become a great nation unless in the main it is homogeneous and all its people are conversant with one language and are inspired with an attachment and devotion to its institutions. How dangerous race consciousness is to our political structure may be illustrated by the fact that President Wilson alienated the vote of those of Italian descent in the important presidential election of 1920 by his attitude on a purely foreign question, the allotment of Fiume under the treaty of Versailles.
Our naturalization laws are too liberal. The filing of a declaration of intent, the lapse of five years, and the answering of a few of the simplest questions will enable one foreign born to become an American citizen. That citizenship, which should be so highly prized, is frequently lightly regarded because of the readiness with which it is obtained. Last week seventy-five foreign born who had thus been admitted to citizenship in the Federal court at Providence were immediately conducted in a body by the sheriff to the office of registration at the City Hall, where, by merely giving their names and addresses and establishing their residence in this state for two years and in the city of Providence for six months, they became electors of this state, each with a vote equal to that of either of you.
Washington said, "In proportion as the structure of a government gives force to public opinion it should be enlightened." If the tendency is to persist to resort more and more to an appeal to popular vote, it becomes the more essential that our electors, to whose judgment and discretion this appeal is made, should be men of education and understanding. They should at least read and write and speak the English language, and be able to follow the discussion of public affairs in the public press, and they should further possess at least that degree of information and learning which we require under the law for every child in the public schools. One cannot criticise a man of foreign birth for acquiring as easily as possible all the rights and privileges of American citizenship and of an American voter, but the blame is heavily upon us who permit the admission to the electorate of those who are not intellectually qualified. The State of Rhode Island and every other state, should have in its Constitution an educational test for prospective electors.
During the last ten years, four amendments have been adopted to the Constitution of the United States, and a fifth has been submitted by Congress to the legislatures of the state. This frequency of amendment is disturbing enough, but the nature of the amendments—I am speaking now of the nature of the power which these amendments involve—has brought about a constitutional revolution with respect to the relation of the federal to the state governments. Apart from the Civil War amendments which were hammered into the Constitution by the force of arms, more than a hundred years elapsed, from 1804 to 1913, without a change in our federal charter.
During all that time there was supposedly a clear and fixed line of demarcation between the powers specifically conferred upon the national government by the Constitution and the rights and powers reserved by the several foreign states. Judges, statesmen and historians commented with pride upon the perfect adjustment between federal and state authority. To the national government had been conferred powers having to do with the general welfare of all the states. On the other hand, the states had reserved the control of their own local affairs. The chief among the powers reserved by the states in local self government was that known as the "police power," which is a generic term applied generally to those laws relating to the conduct of the individual. For more than a century the Supreme Court of the United States had repeatedly asserted that the federal government had no police power conferred upon it by the Constitution. The last few amendments, however, or at least some of them, have distinctly conferred police powers upon the federal government. The amendments that have worked this change have not been strictly amendments to the Constitution, in the sense of amending or curing a fault in any portion of the Constitution, but have been new grants of additional powers to the federal government. This was true in reference to both the Eighteenth and Nineteenth Amendments, and is also true with reference to the proposed Twentieth Amendment, for the regulation of child labor. It now seems to be taken for granted that whatever transference of power to the federal government, the legislatures of three-fourths of the states may consent to, will be deemed by the Supreme Court of the United States as a constitutional transference. In other words the long established line of demarcation between the state and federal authority, which was so zealously guarded by the states up to our own day, now no longer exists, and our Constitution by the amending process is now subject to any change which the legislatures of three-fourths of the states may approve.
The legislature of Rhode Island protested vigorously against the adoption of the Eighteenth Amendment because it regarded that amendment as depriving the state of a portion of its reserved rights. The present legislature, however, is so little concerned with reference to maintaining the reserve rights of the state that a member of each branch of our legislature introduced a resolution to adopt the Twentieth Amendment, even before the official copy of that proposed amendment had been forwarded from the Secretary of State at Washington to our own Secretary of State in Rhode Island. The cry of "reserved rights" in recent years seems to be raised only when self-interest or political advantage is involved. Expediency, I fear, and not principle, controls. Constitutional law has been reshaped in the last decade. We must now accept the view that the line of separation between federal and state authority is from time to time such as may be established by Congress and the legislatures of three-fourths of the states.
The history of the proposed Twentieth Amendment reveals the continual readiness of Congress to exceed its constitutional powers, and the wholesome restraints upon Congress by the Supreme Court of the United States. At first, with a purpose which was no doubt laudable. Congress enacted a statute prohibiting the shipment in interstate commerce of the production of industrial units in which child labor had been employed. This statute would have discouraged child labor in certain southern states where due protection had not been given to women and children in industries. The Supreme Court held the act unconstitutional, because it was an effort to exercise the police power of the states rather than a regulation of interstate commerce. Congress thereupon, under its taxing power, imposed an annual ten percent tax on the net profits derived from the sale of products of industrial units in which children under certain ages had been employed during specified hours. The Supreme Court also held this act unconstitutional, because the act, while on its face purporting to be a taxing act, was in reality an attempt to exercise the police powers belonging solely to the states.
Congress, thus twice defeated in its efforts to enter a field not authorized by the Constitution, then proposed an amendment to the Constitution, giving it the right to regulate child labor. This was a proper course, for it is always better to change the Constitution than to violate it. The proposed amendment, of course, is a further transfer of the police power of the states to the federal government. No one can object to the protection of the health of women and children in industries, and this protection is now given by statute law in most of the northern states. The northern states in general are gaining nothing by the amendment, but by it they are afforded an opportunity to impress their will upon the industrial states of the south. The real question is whether the people of a state should not be educated to the modern conception of regulating the hours of labor and left to work out their own proper local self-government, or whether we shall continue, by repeated amendments to the Constitution, gradually to strip the states of their reserved rights, and confer more and more police powers upon the federal government, all for the purpose of bringing a few backward states into line in adopting modern policies.
With all these changes in our fundamental law there go with them resulting developments that are far-reaching. With additional powers the federal government is obliged to establish new bureaus and departments, and thousands upon thousands of new employees are listed on the federal payroll. These federal employees are not confined to Washington, but operate in every part of the country. The federal government also, under its original powers, is multiplying departments so rapidly, that it is now claimed that there is one official, either federal, state, or municipal, to every twenty persons in the United States. The expense of all this administrative system, if this tendency progresses, will put a burden upon the people which will become more and more intolerable.
The good which these numerous departments actually accomplish is not always manifest. Self-restraint is unquestionably one of the greatest public virtues, but overrestriction of personal liberty, bureaucracy and excessive taxation may be carried to an extent where public resentment may well ensue. Many of these federal boards have authority to promulgate regulations with reference to the matters under their control, and in this way there has grown up a large body of administrative law wholly without the field of regular legislative action. A good illustration is the continually changing interpretations and orders in reference to federal income and inheritance taxation. It is a sad commentary upon our tax system that the average man cannot comprehend the laws of his country in respect to his own tax returns, and must resort to professional advice for the computation of his tax. Our laws, both state and federal, are too numerous and too complex, and bring unnecessary confusion and expense in the administration of them.
In spite of all our many political and governmental ills, the fundamental rights of the individual under our written Constitution are better protected and safeguarded in this country than in any other civilization in the world. The rise of a communistic state in Russia has poisoned the politics of Europe. Its propaganda is widespread and has even reached our own shores. It assails civilization at its best everywhere. There may be thousands in our country classed as communists or as espousers of certain forms of socialism, but their numbers are much less than in England, France or Germany. It is unnecessary to discuss in this assemblage the ill-conceived theories which would, among other things, nationalize wealth and kill every incentive to honorable effort to personal achievement. Reference, however, to a single political episode may be of interest.
In England the Labor Party, at the last parliamentary election, advocated nationalization of property, and when their leader, Mr. Ramsay MacDonald, was by a tri-party arrangement made Premier, there was much concern that he would endeavor to carry out this particular demand of his party. The danger was real, and was well expressed by Lord Birkenhead at the time Mr. MacDonald took office. "The British constitution," he said, "has so developed as to give little formal protection against the spoliation of property. Its makers proceed on the principle that the conception of property would always, at all times, with all parties, be sacred to Parliament. Admitting this, there were manifest political advantages in giving the House of Commons almost absolute powers over finance as a means of promoting the popular control of the executive. All this is altered. A definite challenge, which cannot be disregarded, has been issued to the very existence of property. The largest group in the House, notoriously aiming at government, has supported its destruction, as such, in a formal motion in the House of Commons, and since a Socialist government is in office. Yet we are absolutely without the safeguards against hasty action in a matter of vital importance to Britain, which the more rigid type of written Constitution affords the citizens of the United States. Our more flexible instrument might permit what was in effect a social revolution, like the Reformation or the putting down of England to grass and pasturage by a simple majority, or even an actual minority of the people in a single session. Private property could practically be wiped out in a finance bill, if a tax of one hundred percent on such property were certified as a purely financial measure. Yet this resolution would be purely 'constitutional'."
The fears of Lord Birkenhead were in no way realized, for Premier MacDonald not only sobered under the responsibilities of office, but resisted the importunities of his followers to sponsor a revolutionary program. It is true that his tenure of office is dependent upon the acquiescence of the Conservative and Liberal parties, but still his own good sense has steered his course wholly consistent with the best English precedents.
In the United States our system of checks and balances precludes such hasty action as may be taken under England's unwritten Constitution. But there are other ways in which our national security may become endangered. One of the most threatening at the present time is our failure to adhere strictly to a representative form of government, and our tendency to adopt forms of a democracy in the determination of important issues. The electorate, as a whole, are honest and well-intending, but frequently the uninformed and the misinformed outnumber those who are intelligent and capable of forming just opinions. Our hope is in the education of the people, especially the electorate, to teach them the wiles of the demagogue, and the deceptions of a venal press, conducted for personal and partisan advantage. There is urgent need everywhere for the requirement of educational qualifications for prospective electors. Representative government can only be successful in so far as the electorate is intelligent. With an intelligent electorate the appeals of the demagogue will fall on deaf ears.
(Tendencies in Representative Government by Hon. Ambrose Rice, A. M., L. S. B., Improvement Era, 1925, Vol. Xxix. November, 1925 No. 1 .)