Chapter X: Appendix: IV

MATERIAL FOR BRIEFING

REPRESENTATIVE GOVERNMENT

SPEECH OF HON. CHARLES F. SCOTT, OF KANSAS, IN THE HOUSE OF REPRESENTATIVES, THURSDAY, MARCH 2, 1911

(The House having under consideration the bill [S. 7031] to codify, revise, and amend the laws relating to the judiciary.--From the _Congressional Record_, March 3, 1911.)

_Mr. Speaker_: In the ten years of my membership in this House I have seldom taken advantage of the latitude afforded by general debate to discuss any question not immediately before the House. But there is a question now before the country, particularly before the people of the state I have the honor to represent in part upon this floor, upon which I entertain very positive convictions, and which, I believe, is a proper subject for discussion at this time and in this place. That question, bluntly stated, is this: Is representative government a failure? We are being asked now to answer that question in the affirmative. A new school of statesmen has arisen, wiser than Washington and Hamilton and Franklin and Madison, wiser than Webster and Clay and Calhoun and Benton, wiser than Lincoln and Sumner and Stevens and Chase, wiser than Garfield and Elaine and McKinley and Taft, knowing more in their day than all the people have learned in all the days of the years since the Republic was founded.

And they tell us that representative government is a failure. They do not put this declaration into so many words--part of them because they do not know enough about the science of government to understand that the doctrines they advocate are revolutionary, and the rest of them because they lack the courage to openly declare that it is their intention to change our form of government, to subvert the system upon which our institutions are founded. But that is in effect what they propose to do.

Every school boy knows that in a pure democracy the people themselves perform directly all the functions of government, enacting laws without the intervention of a legislature, and trying causes that arise under those laws without the intervention of judge or jury; while in a republic, on the other hand, the people govern themselves, not by each citizen exercising directly all the functions of government, but by delegating that power to certain ones among them whom they choose to represent them in the legislatures, in the courts of justice, and in the various executive offices.

It follows, therefore, that to substitute the methods of a democracy for the methods of a republic touching any one of the three branches of government is to that extent to declare that representative government is a failure, is to that extent subversive and revolutionary.

Now, it does not follow by any means that because a proposed change is revolutionary it is therefore unwise. Taking it by and large, wherever the word "revolution" has come into human history it has been only another word for progress. Because a nation has pursued certain methods for a long time it does not at all follow that those methods are the best, although when a nation like the United States, so bold and alert, so little hampered by tradition, so ready to try experiments, has clung to the same methods of government for 130 years, a strong presumption has certainly been established that these methods are the best, at least for that particular nation.

But is the new system wiser than the old--in the matter of making laws, for example? The old system vests the law-making power in a legislative body composed of men elected by the people and supposed to be peculiarly fitted by reason of character, education, and training for the performance of that duty. These men come together and give their entire time through a period of some weeks or months to the consideration of proposed legislation, and the laws they enact go into immediate effect, and remain in force until set aside by the courts as unconstitutional or until repealed by the same authority that enacted them.

The new system--taking the Oregon law, for example, and it is commonly cited as a model--provides that 8 per cent of the voters of a state may submit a measure directly to the people, and if a majority of those voting upon it give it their support it shall become a law without reference to the legislature or to the governor. That is the initiative. And it provides that if 5 per cent of the voters are opposed to a law which the legislature has passed, upon signing the proper petition the law shall be suspended until the next general election, when the people shall be given an opportunity to pass upon it. That is the referendum.

Now, there are several things about this plan which I believe the people of this country, when they come really to consider it, will scrutinize with a good deal of care and possibly with some suspicion.

It is to be noted, in the first place, that a very few of the people can put all the people to the trouble and expense of a vote upon any measure, and the inquiry may well arise whether the cause of settled and orderly government will be promoted by vesting power in the minority thus to harass and annoy the majority. In my own state, for example, who can doubt that the prohibitory amendment, or some one of the statutes enacted for its enforcement, would have been resubmitted again and again if the initiative had been in force there these past twenty-five years.

Again, it will be observed that still fewer of the people have it in their power to suspend a law which a legislature may have passed in plain obedience to the mandate of a majority of the people, or which may be essential to the prompt and orderly conduct of public affairs, and when they come to think about it the people may wonder if the referendum might not make it possible for a small, malevolent, and mischievous minority to obstruct the machinery of government and for a time at least to nullify the will of the majority.

In the third place, it is to be remarked that a measure submitted either by the initiative or the referendum cannot be amended, but must be accepted or rejected as a whole, and we may well inquire whether this might not afford "the interests" quite as good an opportunity as they would have in a legislature to "initiate" some measure which on its face was wholesome and beneficent but within which was concealed some little "joker" that would either nullify the good features of the law or make it actively vicious, and which, through lack of discussion, would not be discovered. Every day we have new and incontestable proof that "in the multitude of counselors there is wisdom." But that wisdom can never be had under a system of legislation which lays before the people the work of one man's mind to be accepted in whole or rejected altogether.

Once more let us observe that under this system, no matter how few votes are cast upon a given measure, if there are more for it than against it, it becomes a law, so that the possibility is always present that laws may be enacted which represent the judgment or the interest of the minority rather than the majority of the people. Indeed, experience would seem to show that this is a probability rather than a possibility, for in the last Oregon election not one of the nine propositions enacted into law received as much as 50 per cent of the total vote cast, while some of them received but little more than 30 per cent of the total vote.

And finally and chiefly, without in the least impeaching the intelligence of the people, remembering the slight and casual attention the average citizen gives to the details of public questions, we may well inquire whether the average vote cast upon these proposed measures of legislation will really represent an informed and well-considered judgment. In his thoughtful work on democracy, discussing this very question, Dr. Hyslop, of Columbia University, says:

People occupied with their private affairs, domestic and social,
demanding all their resources and attention, as a rule have little
time to solve the complex problems of national life. The referendum
is a call to perform all the duties of the profoundest
statesmanship, in addition to private obligations, which are even
much more than the average man can fulfil with any success or
intelligence at all, and hence it can hardly produce anything better
than the Athenian assembly, which terminated in anarchy. It will not
secure dispatch except at the expense of civilization, nor
deliberation except at the expense of intelligence. Very few
questions can be safely left to its councils, and these only of the
most general kind. A tribunal that can be so easily deceived as the
electorate can be in common elections cannot be trusted to decide
intelligently the graver and more complicated questions of public
finance or private property, of administration, and of justice. It
may be honest and mean well, as I believe it would be; but such an
institution can not govern.

That is the conclusion reached a priori by a profound student of men and of institutions; and there is not a man who hears me or who may read what I am now saying but knows the conclusion is sound.

But, fortunately for the states which have not yet adopted the innovation, we are not obliged to rely upon academic, a priori reasoning, in order to reach a conclusion as to the wisdom of the initiative and referendum, for the step has already been taken in other states and we have their experience to guide us.

There is South Dakota, for example, where under the initiative the ballot which I hold in my hand was submitted to the people at the recent election. This ballot is 7 feet long and 14 inches wide, and it is crowded with reading matter set in nonpareil type. Upon this ballot there are submitted for the consideration of the people six legislative propositions. Four of them are short and comparatively simple. But here is one referring to the people a law which has been passed at the preceding session of the legislature dividing the state into congressional districts. How many of the voters of South Dakota do you suppose got down their maps and their census reports and carefully worked out the details of that law to satisfy themselves whether or not it provided for a fair and honest districting of the state? They could not amend it, remember, they had to take it as it was or vote it down. In point of fact, they voted it down; but who will say that in doing this they expressed an enlightened judgment or merely followed the natural conservative instinct to vote "no" on a proposition they did not understand? And here is a law to provide for the organization, maintenance, equipment, and regulation of the National Guard of the state. This bill contains 76 sections. It occupies 4 feet 4 inches of this 7-foot ballot. It would fill two pages of an ordinary newspaper.

And here is a copy of the Oregon ballot, from which it appears that the stricken people of that commonwealth were called upon at the late election to consider 32 legislative propositions. Small wonder that it was well onto a month after election before the returns were all in.

And here is another constitutional amendment in which the people are asked to pass judgment on such simple propositions as providing for verdict by three-fourths of jury in civil cases, authorizing grand juries to be summoned separately from the trial jury, permitting change of judicial system by statute prohibiting retrial where there is any evidence to support the verdict, providing for affirmance of judgment on appeal notwithstanding error committed in lower court and directing the Supreme Court to enter such judgment as should have been entered in the lower court, fixing terms of Supreme Court, providing that judges of all courts be elected for six years, subject to recall, and increasing the jurisdiction of the Supreme Court. Is it any wonder that with questions such as those thrust at them so large a percentage of the voters took to the "continuous woods where rolls the Oregon" and refused to express a judgment one way or the other? Now, with all possible deference to the intelligence and the diligence of the good people of Oregon, is it conceivable that any considerable proportion of the voters of that commonwealth went to the polls with even a cursory knowledge of all the measures submitted for their determination?

As to the practical working of the referendum, I have seen it stated in the public prints that four years ago nearly every appropriation bill passed by the Oregon legislature was referred to the people for their approval or rejection before it could go into effect. As a result, the appropriations being unavailable until the election could be held, the state was compelled to stamp its warrants "not paid for want of funds," and to pay interest thereon, although the money was in the treasury. The university and other state institutions were hampered and embarrassed, and the whole machinery of government was in large measure paralyzed. In other words, under the Oregon law a pitiful minority of the people was able to obstruct and embarrass the usual and orderly processes of government, and for a time at least to absolutely thwart the will of an overwhelming majority of the people.

A system of government under which such a thing as that is not only possible, but has actually occurred, may be "the best system ever devised by the wit of man," as we have been vociferously assured, but some of us may take the liberty of doubting it.

But the initiative and referendum, subversive as they are of the representative principle, do not compare in importance or in possible power for evil with the recall. The statutes of every state in this Union provide a way by which a recreant official may be ousted from his office or otherwise punished. That way is by process of law, where charges must be specific, the testimony clear, and the judgment impartial. But what are we to think of a procedure under which an official is to be tried, not in a court by a jury of his peers and upon the testimony of witnesses sworn to tell the truth, but in the newspapers, on the street corners, and at political meetings? Can you conceive of a wider departure from the fundamental principles of justice that are written not only into the constitution of every civilized nation on the face of the earth, but upon the heart of every normal human being, the principle that every man accused of a crime has a right to confront his accusers, to examine them under oath, to rebut their evidence, and to have the judgment finally of men sworn to render a just and lawful verdict.

Small wonder that the argument oftenest heard in support of a proposition so abhorrent to the most primitive instincts of justice is that it will be seldom invoked and therefore cannot do very much harm. I leave you to characterize as it deserves a law whose chief merit must lie in the rarity of its enforcement.

But will it do no harm, even if seldom enforced? It is urged that its presence on the statute books and the knowledge that it can be invoked will frighten public officials into good behavior. Passing by the very obvious suggestion that an official who needs to be scared into proper conduct ought never to have been elected in the first place, we may well inquire whether the real effect would not be to frighten men into demagogy--and thus to work immeasurably greater harm to the common weal than would ever be inflicted through the transgressions of deliberately bad men.

We have demagogues enough now, heaven knows, when election to an office assures the tenure of it for two or four or six years. But if that tenure were only from hour to hour, if it were held at the whim of a powerful and unscrupulous newspaper, for example, or if it could be put in jeopardy by an affront which in the line of duty ought, we will say, to be given to some organization or faction or cabal, what could we expect? Is it not inevitable that such a system would drive out of our public life the men of real character and courage and leave us only cowards and trimmers and time servers? May we not well hesitate to introduce into our political system a device which, had it been in vogue in the past, would have made it possible for the Tories to have recalled Washington, the copperheads to have recalled Lincoln, and the jingoes to have recalled McKinley?

In all the literature of the age-long struggle for freedom and justice there is no phrase that occurs oftener than "the independence of the judiciary." Not one man could be found now among all our ninety millions to declare that our Constitution should be changed so as to permit the President in the White House or the Congress in the Capitol to dictate to our judges what their decisions should be. And yet it is seriously proposed that this power of dictation shall be given to the crowd on the street. That is what the recall means if applied to the judiciary; and it means the destruction of its independence as completely as if in set terms it were made subject to the President or the Congress.

Do you answer, "Oh, the recall will never be invoked except in an extreme case of obvious and flagrant injustice"? I reply, "How do you know?" It is the theory of the initiative that it will never be invoked except to pass a good law, and of the referendum that it will never be resorted to except to defeat a bad law; but we have already seen how easily a bad law might be initiated and a good law referred. And so it is the theory that the recall will be invoked only for the protection of the people from a bad judge. What guaranty can you give that it will not be called into being to harrass and intimidate a good judge? There never yet was a two-edged sword that would not cut both ways.

Mr. Chairman, I should be the last to assert that our present system of government has always brought ideally perfect results. Now and then the people have made mistakes in the selection of their representatives. Corrupt men have been put into places of trust, small men have been sent where large men were needed, ignorant men have been charged with duties which only men of learning could fitly perform. But does it follow that because the people make mistakes in so simple a matter as the selection of their agents, they would be infallible in the incomparably more complex and difficult task of the enactment and interpretation of laws? There was never a more glaring non sequitur, and yet it is the very cornerstone upon which rests the whole structure of the new philosophy. "The people cannot be trusted with few things," runs this singular logic, "therefore let us put all things into their hands."

With one breath we are asked to renounce the old system because the people make mistakes, and with the next breath we are solemnly assured that if we adopt the new system the people will not make mistakes. I confess I am not mentally alert enough to follow that sort of logic. It is too much like the road which was so crooked that the traveler who entered upon it had only proceeded a few steps when he met himself coming back. You cannot change the nature of men, Mr. Chairman, by changing their system of government. The limitations of human judgment and knowledge and conscience which render perfection in representative government unattainable will still abide even after that form of government is swept away, and the ideal will still be far distant.

Let it not be said or imagined, Mr. Speaker, that because I protest against converting this Republic into a democracy therefore I lack confidence in the people. No man has greater faith, sir, than I have in the intelligence, the integrity, the patriotism, and the fundamental common sense of the average American citizen. But I am for representative rather than for direct government, because I have greater confidence in the second thought of the people than I have in their first thought. And that, in the last analysis, is the difference, and the only difference, so far as results are concerned between the new system and that which it seeks to supplant; it is the fundamental difference between a democracy and a republic. In either form of government the people have their way. The difference is that in a democracy the people have their way in the beginning, whereas in a republic the people have their way in the end--and the end is usually enough wiser than the beginning to be worth waiting for.

We count ourselves the fittest people in the world for self-government, and we probably are. But fit as we are we sometimes make mistakes. We sometimes form the most violent and erroneous opinions upon impulse, without full information or thoughtful consideration. With complete information and longer study, we swing around to the right side, but it is our second thought and not our first that brings us there. Our intentions are always right, and we usually get right in the end; but it often happens that we are not right in the beginning. It behooves us to consider long and well before we pluck out of the delicately adjusted mechanism by which we govern ourselves the checks and brakes and balance wheels which our forefathers placed there, and the wisdom of which our history attests innumerable times.

The simple and primitive life of civilization's frontier has given way to the most stupendous and complex industrial and commercial structure the world has ever known. Incredible expansion, social, political, industrial, commercial--but representative government all the way. At not one step in the long and shining pathway of the Nation's progress has representative government failed to respond to the Nation's need. Every emergency that 130 years of momentous history has developed--the terrible strain of war, the harrassing problems of peace--representative government has been equal to them all. Not once has it broken down. Not one issue has it failed to solve. And long after the shallow substitutes that are now proposed for it shall have been forgotten, representative government "will be doing business at the old stand," will be solving the problems of the future as it met the issues of the past, with courage and wisdom and justice, giving to the great Republic that government "of the people, for the people, and by the people" which is the assurance that it "shall not perish from the earth."