Part 5 (1/2)

Closely allied to this doctrine of limited governmental powers, even by a majority, is the fourth principle of an independent judiciary.

It is the balance wheel of the Const.i.tution, and to function it must be beyond the possibility of attack and destruction. My country was founded upon the rock of property rights and the sanct.i.ty of contracts. Both the nation and the several States are forbidden to impair the obligation of contracts, or take away life, liberty, or property ”without due process of law.” The guarantee is as old as Magna Charta; for ”due process of law” is but a paraphrase of ”the law of the land,” without which no freeman could be deprived of his liberties or possessions.

”Due process of law” means that there are certain fundamental principles of liberty, not defined or even enumerated in the Const.i.tution, but having their sanction in the free and enlightened conscience of just men, and that no man can be deprived of life, liberty, or property, except in conformity with these fundamental decencies of liberty. To protect these even against the will of a majority, however large, the judiciary was given unprecedented powers. It threw about the individual the solemn circle of the law. It made the judiciary the final conscience of the nation. Your nation cherishes the same primal verities of liberty, but with you, the people in Parliament, is the final judge. We, however, are not content that a majority of the Legislature shall override inviolable individual rights, about which the judiciary is empowered to throw the solemn circle of the law.

This august power has won the admiration of the world, and by many is regarded as a novel contribution to the science of government. The idea, however, was not wholly novel. As previously shown, four Chief Justices of England had declared that an Act of Parliament, if against common right and reason, could be treated as null and void; while in France the power of the judiciary to refuse efficacy to a law, unless sanctioned by the judiciary, had been the cause of a long struggle for at least three centuries between the French monarch and the courts of France. However, in England the doctrine of the common law yielded to the later doctrine of the omnipotence of Parliament, while in France the revisory power of the judiciary was terminated by the French Revolution.

The United States, however, embodied it in its form of government and thus made the judiciary, and especially the Supreme Court, the balance wheel of the Const.i.tution. Without such power the Const.i.tution could never have lasted, for neither executive officers nor legislatures are good judges of the extent of their own powers.

Nothing more strikingly shows the spirit of unity which the Const.i.tution brought into being than the unbroken success with which the Supreme Court has discharged this difficult and most delicate duty. The President is the Commander-in-Chief of the Army and the Navy and can call them to his aid. The legislature has almost unlimited power through its control of the public purse. The States have their power reinforced by armed forces, and some of them are as great in population and resources as many of the nations of Europe. The Supreme Court, however, has only one officer to execute its decrees, called the United States Marshal; and yet, without sword or purse, and with only a high sheriff to enforce its mandates, when the Supreme Court says to a President or to a Congress or to the authorities of a great-and, in some respects, sovereign-State that they must do this or must refrain from doing that, the mandate is at once obeyed. Here, indeed, is the American ideal of ”a government of laws and not of men” most strikingly realized; and if the American Const.i.tution, as formulated and developed, had done nothing else than to establish in this manner the supremacy of law, even as against the overwhelming sentiment of the people, it would have justified the well-known encomium of Mr. Gladstone.

It must be added, however, that in one respect this function of the judiciary has had an unfortunate effect in lessening rather than developing in the people the sense of const.i.tutional morality. In your country the power of Parliament is omnipotent, and yet in its legislation it voluntarily observes these great fundamental decencies of liberty which in the American Const.i.tution are protected by formal guarantees. This can only be true because either your representatives in Parliament have a deep sense of const.i.tutional morality, or that the const.i.tuencies which select them have so much sense of const.i.tutional justice that their representatives dare not disregard these fundamental decencies of liberty.

In the United States, however, the confidence that the Supreme Court will itself protect these guaranties of liberty has led to a diminution of the sense of const.i.tutional morality, both in the people and their representatives. It abates the vigilance which is said to be ever the price of liberty.

Laws are pa.s.sed which transgress the limitations of the Const.i.tution without adequate discussion as to their unconst.i.tutional character, for the reason that the determination of this fact is erroneously supposed to be the exclusive function of the judiciary.

The judiciary, contrary to the common supposition, has no plenary power to nullify unconst.i.tutional laws. It can only do so when there is an irreconcilable and indubitable repugnancy between a law and the Const.i.tution; but obviously laws can be pa.s.sed from motives that are anti-const.i.tutional, and there is a wide sphere of political discretion in which many acts can be done which, while politically anti-const.i.tutional, are not juridically unconst.i.tutional. For this reason, the undue dependence upon the judiciary to nullify every law which either in form, necessary operation, or motive transgresses the Const.i.tution has so far lessened the vigilance of the people to protect their own Const.i.tution as to lead to its serious impairment.

5.

The fifth fundamental principle was a system of governmental checks and balances.

The founders of the Republic were not enamoured of power. As they viewed human history, the worst evils of government were due to excessive concentration of power, which like Oth.e.l.lo's jealousy ”makes the meat it feeds on.”

This system of checks and balances again ill.u.s.trates that the Const.i.tution is the great negation of unrestrained democracy. The framers believed that a people was best governed that was least governed. Therefore, their purpose was not so much to promote efficiency in legislation as to put a brake upon precipitate action.

Time does not suffice to state the intricate system of checks and balances whereby the legislature acts as a check upon the executive and the executive upon the legislature, and the Supreme Court upon both. When the Republic was small, and its public affairs were few, this system of checks and balances worked admirably, but to-day, when the nation is one of the greatest in the world, and its public affairs are of the most important and complicated character, and often require speedy action, it may be questioned whether the system is not now an undue brake upon governmental efficiency, and does not require some modification to ensure efficiency. Indeed, it is a serious question with many thoughtful Americans whether the growth of the United States has not put an excessive strain upon its governmental machinery.

This system was in part due to the confident belief of the framers of the Const.i.tution in the Montesquieu doctrine of the division of government into three independent departments-legislative, executive and judicial; but experience has shown how difficult it is to apply this doctrine in its literal rigidity. One result of the doctrine was the mistaken attempt to keep the legislative and the executive as far apart as possible. The Cabinet system of parliamentary government was not adopted. While the President can appear before Congress and express his views, his Cabinet is without such right. In practice, the gulf is bridged by constant contact between the Cabinet and the committees of Congress, but this does not wholly secure speedy and efficient co-operation between the two departments. As I speak, a movement is in progress, with the sanction of President Harding, to permit members of his Cabinet to appear in Congress and thus defend directly and in person the policies of the Executive.

This separation of the two departments, which causes so much friction, has been emphasized by one feature of the Const.i.tution which again marks its distrust of democracy, namely the fixed tenure of office. The Const.i.tution did not intend that public officials should rise or fall with the fleeting caprices of a const.i.tuency. It preferred to give the President and the members of Congress a fixed term of office, and, however unpopular they might become temporarily, they should have the right and the opportunity to proceed even with unpopular policies, and thus challenge the final verdict of the people.

If a parliamentary form of government, immediately responsive to current opinion as registered in elections, is the great desideratum, then the fixed tenure of offices is the vulnerable Achilles-heel of our form of government. In other countries the Executive cannot survive a vote of want of confidence by the legislature. In America, the President, who is merely the Executive of the legislative will, continues for his prescribed term, though he may have wholly lost the confidence of the representatives of the people in Congress. While this makes for stability in administration and keeps the s.h.i.+p of state on an even keel, yet it also leads to the fatalism of our democracy, and often the ”native hue” of its resolution is thus ”sicklied o'er with the pale cast of thought.” Take a striking instance. I am confident that after the sinking of the Lusitania, the United States would have entered the world war, if President Wilson's tenure of power had then depended upon a vote of confidence.

6.

The sixth fundamental principle is the joint power of the Senate and the Executive over the foreign relations of the Government.

I need not dwell at length upon this unique feature of our const.i.tutional system, for since the Versailles Treaty, the world has become well acquainted with our peculiar system under which treaties are made and war is declared or terminated. Nothing, excepting the principle of local rule, was of deeper concern to the framers of the Const.i.tution. When it was framed, it was the accepted principle of all other nations that the control of the foreign relations of the Government was the exclusive prerogative of the Executive. In your country the only limitation upon that power was the control of Parliament over the purse of the nation, and some of the great struggles in your history related to the attempt of the Crown to exact money to carry on the wars without a Parliament grant.

The framers were unwilling to lodge any such power in the Executive, however great his powers in other respects. This was primarily due to the conception of the States that then prevailed. While they had created a central government for certain specified purposes, they yet regarded themselves as sovereign nations, and their representatives in the Senate were, in a sense, their amba.s.sadors. They were as little inclined to permit the President of the United States to make treaties or declare war at will in their behalf as the European nations would be to-day to vest a similar authority in the League of Nations. It was, therefore, first proposed that the power to make treaties and appoint diplomatic representatives should be vested exclusively in the Senate, but as that body was not always in session, this plan was so far modified as to give the President, who is always acting, the power to negotiate treaties ”with the advice and consent of the Senate.” As to making war, the framers were not willing to entrust the power even to the President and the Senators, and it was therefore expressly provided that only Congress could take this momentous step.

Here, again, the theory of the Const.i.tution was necessarily somewhat modified in practical administration, for under the power of nominating diplomatic representatives, negotiating treaties, and in general, of executing the laws of the nation, the principle was soon evolved that the conduct of foreign affairs was primarily the function of the President, with the limitation that the Senate must concur in diplomatic appointments and in the validity of treaties, and that only both Houses of Congress could jointly declare war. This c.u.mbrous system necessarily required that the President in conducting the foreign relations of the Government should keep in touch with the Senate, and such was the accepted procedure throughout the history of the nation until President Wilson saw fit to ignore the Senate, even when the Senate had indicated its dissent in advance to some of his policies at the Versailles Conference.

I suppose that since that conference no part of our const.i.tutional system has caused more adverse comment in Europe than this system. It often handicaps the United States from taking a speedy and effectual part in international negotiations, although if the President and the Senate be in harmony and collaborate in this joint responsibility, there is no necessary reason why this should be so.

I share the view of many Americans that this provision of the Const.i.tution was wise and salutary, especially at this time, when the United States has taken such an important position in the councils of civilization. The President is a very powerful Executive, and his tenure, while short, is fixed. Generally he is elected by little more than a majority of the people, and sometimes through the curious workings of the electoral college system, he has been only the choice of a minority of the electorate. For these reasons, the framers of the Const.i.tution were unwilling to vest in the President exclusively the immeasurable power of pledging the faith, man-power, and resources of the nation and of declaring war. The heterogeneous character of our population especially emphasizes the wisdom of this course, for it would be difficult, if not impossible, for an American President to make an offensive and defensive alliance with any nation or declare war against another nation without running counter to the racial interests and pa.s.sions of a substantial part of the American nation. For better or worse, the United States has limited, but not destroyed, as the world war showed, its freedom to antagonize powerful nations from whose people it has drawn large numbers of its own citizens.h.i.+p. The domestic harmony of the nation requires that before the United States a.s.sumes treaty obligations or makes war such policy shall represent the largely preponderating sentiment of its people, and nothing could more effectually secure this end than to require the President, before making a treaty, to secure the a.s.sent of two-thirds of the Senate and a majority of both Houses of Congress before making war.

While this may lead, as it has in recent years, to temporary and regrettable embarra.s.sments, yet in the long run, it is not only better for the United States, but it is even to the best interests of other nations, for in this way they are safeguarded against the possible action of an Executive with whom racial instincts might still be very influential. In your country, where the Government of the day is subject to immediate dismissal for want of confidence, such power over foreign relations can be safely entrusted to a few men, but in the United States, with its fixed tenures of office, a President could pledge the faith and involve his nation in war against the interests and will of the people. Suppose the President had unlimited power over our foreign relations and that within the next ten years an American, whose parents were born in any European nation, was elected on purely domestic issues, he could, with his a.s.sured four years of power, bring about a new alignment of nations and shake the political equilibrium of the world. The Const.i.tution wisely refused to grant such a power. Hence the provision for the concurrence of the legislative representatives of the nation. At all events, it const.i.tutes a system which, as the last presidential election showed, the American people will not willingly forgo. It is true that this system makes it difficult for the United States to partic.i.p.ate effectively in the main purpose of the League of Nations to enforce peace by joint action at Geneva, but to ask the United States to surrender a vital part of its const.i.tutional system, upon which its domestic peace so largely depends, in order to promote the League, seems to me as unreasonable as it would be to ask your country to abolish the Crown, to which it is sincerely attached as a vital part of its system, as a contribution towards international co-operation. You would not surrender such an integral part of your system, and therefore it is not reasonable to expect a similar sacrifice on our part, even though the meritorious purposes of the League be freely recognized.