Henry Cabot Lodge.

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THE DEMOCRACY OF THE
CONSTITUTION

AND OTHER ADDRESSES AND ESSAYS



THE DEMOCRACY OF THE
CONSTITUTION

AND OTHER ADDRESSES AND ESSAYS



BY

HENRY CABOT LODGE



NEW YORK

CHARLES SCRIBNER'S SONS

1915



Copyright, 1915, by
CHARLES SCRIBNER'S SONS



Published February, 1915




ACS



TO

THE LITERARY AND HISTORICAL ASSOCIATION
OF NORTH CAROLINA

IN MEMORY OF

THE OPPORTUNITY GIVEN TO ME TO SPEAK TO THEM OF THE
CONSTITUTION OF THE UNITED STATES

AND OF

THE KINDNESS AND HOSPITALITY SHOWN
TO ME AT RALEIGH



345278



PREFACE

The first five papers in this volume deal with the
Constitution of the United States, with the "democ-
racy" which it created and limited, and with the
changes in it which are now proposed, affecting the
courts and the principles of representative govern-
ment. I have endeavored to omit, so far as possible,
any repetitions, but as all the addresses are concerned
with different phases of the same subject there are
certain points where the same argument must recur
in order to make clear the particular aspect of the
question to which the main discussion is devoted.

I desire to express to Messrs. Fimk & Wagnalls, to
the publishers of the Century, and to the publishers of
the Outlook my thanks for their kind permission to
reprint three of the essays here republished.

Henry Cabot Lodge.



TABLE OF CONTENTS

Pagb

I. The Public Opinion Bill 1

II. The Constitution and Its Makers 32

III. The Compulsory Initiative and Referendum, and

THE Recall of Judges 88

IV. The Constitution and the Bill of Rights . . . 106
V. The Democracy of Abraham Lincoln 122

VI. John C. Calhoun 160

VII. Thomas Brackett Reed 186

VIII. An American Myth 208

IX. As TO Anthologies 226

X. The Origin of Certain Americanisms 246

XI. Diversions of a Convalescent 274



THE PUBLIC OPINION BILL^

Mr. President and Gentlemen:

I am much indebted to you for your kindness in
asking me to address you upon a public question which
seems to me to be of the gravest importance. You
are the representatives of the great labor organizations
of Boston, but let me say at the outset that the meas-
ure which I am about to discuss is in no sense what is
usually called a labor measure any more than it is a
party measure. It is one which affects the entire com-
munity, every man and woman alike, without regard
to their occupation or position, for it involves a change

I Address before the Central Labor Union of Boston, September 15,
1907. The Public Opinion Bill which had been proposed was as fol-
lows:

Public Opinion Bill as Reported to the House of Representa-
tives OF Massachusetts at the Last Session of the Legislature .

AN act to authorize THE SUBMISSION TO VOTERS, ON OFFICIAL BAL-
LOTS AT STATE ELECTIONS, OF QUESTIONS OF PUBLIC POLICY.

Be it enacted by the senate and house of representatives in general court
assemhUd, and by the authority of the same, as follows:

Section 1. On a request signed by one thousand voters, asking for
the submission of any question for an expression of opinion and stat-
ing the substance thereof, the secretary o the Commonwealth sha
t?Lsmit such request to the State ballot law ^^^^^^^f J>,^'/^^^7^^^^^^
determine if such question is one of pubhc pohcy, and if they so deter-
mine shall draft it in such simple, unequivocal, and adequate form as
they may deem best suited to secure a f^ir expression of opinion
Thereupon the secretary shaU prepare and furmsh suitable forms,
each to contain spaces for not more than one hundred signatures, and
Tsuch forms shall be signed by five thousand voters, he sha 1 upon
the fulfilhnent of the requirements of this act place such question on

1



2 THE PUBLIC OPINION BILL

hot in our laws but in the fundamental principles of
our government. What I am about to say to you
was prepared some months ago, before I left Washing-
ton, because I thought that I might desire to discuss
this question after I had come home, and I wished to
speak, whenever the opportunity occurred, with care
and deliberation. This argument was not designed
for a special audience, but for any audience of any
kind that might care to listen to it, because it concerns
equally all citizens of Massachusetts. I therefore do
not address you merely in your capacity as representa-
tives of our great labor organizations, but in your larger
capacity as American citizens, interested above all in
the welfare of the community and in the safety and
permanence of the republic.



the official ballot to be used at the next State election. Forms shall
bear the date on which they are issued, and no applications made on
forms issued more than twelve months before the election concerned
shall be received.

Sec. 2. Signers of requests for the issuance of forms and signers
of applications shall append to their signatures their residence, with
street and number, if any, and shall be certified as registered voters by
the proper registrars of voters. One of the signers to each paper shall
make oath of the genuineness of the signatures thereto, and a notary
public, justice of the peace, or other magistrate, when taking such
oath, shall satisfy himself that the person to whom the oath is admin-
istered is the person signing such paper, and shall so state in his at-
testation of such oath. All provisions of law relating to nomination
papers shall apply to such requests and applications as far as may be
consistent.

Sec. 3. Applications shall be filed with the secretary sixty days
before the election at which the questions are to be submitted. Not
more than four questions under this act shall be placed upon the bal-
lot at one election, and they shall be submitted in the order in which
the applications are filed. No question negatived, and no question
substantially the same, shall be submitted again in less than three
years.



THE PUBLIC OPINION BILL 3

There was reported to the legislature during its last
session an act known as the '^ Public Opinion Bill."
It was brought up in the house, and after a full and
very able debate was defeated by a decisive majority.
But although this bill and its purposes were well un-
derstood in the legislature, I do not think that the
gravity of the measure and its far-reaching effect were
fully appreciated by the people generally. As a
matter of fact, no more fundamental and far-reaching
measure has been presented to the legislature of Mas-
sachusetts within my recollection. It was not a mere
change in legal practice, nor an alteration of long-
established laws, nor even a constitutional change,
which was proposed. The bill involved all these and
much more, for if carried out logically to its full ex-
tent, it would mean nothing less than a complete
revolution in the fabric of our government and in the
fundamental principles upon which that government
rests. This may seem an extreme statement, but I
think it is susceptible of absolute demonstration, be-
cause this bill, if it should become law, would under-
mine and ultimately break down the representative
principle in our political and governmental system.

To make my meaning perfectly clear it will be neces-
sary to consider briefly and historically the principles
upon which all government rests and the instruments
by which it is carried on. Our division of the depart-
ments of government into executive, legislative, and



4 THE PUBLIC OPINION BILL

judicial, with which we are entirely familiar, and which
the Constitution of the United States made co-ordinate
and independent, is not a new classification, but repre-
sents in whole or in part the recognized and essential
foundations of all modern governments. The first
method of government devised by man took the very
natural form of a leader or chief. The recognition of
a leader, indeed, may almost be described as a natural
instinct, for leaders are common among herds of wild
animals. The organization of government, therefore,
by the recognition of a chief whose direction and com-
mand have greater or less authority is found even
among the most primitive races of men, except per-
haps among a very few tribes in the lowest stages of
development who live in a condition of practical
anarchy. The leader or chief of the savage tribe is
the executive. He often, in the earliest times, com-
bined with the executive power the religious fimction
of high priest and the judicial function of deciding
disputes among his followers. When we come to the
great empires of which we have the earliest records, we
find the executive fully developed, sacred in his person,
and vested with authority which in effect made the
government a despotism. All despotisms consist in
the absorption of power by the executive, whether that
executive is a single autocrat, as is usual, or a narrow
oligarchy like the Council of Ten at Venice. The despot
may or may not have ceased to exercise the judicial



THE PUBLIC OPINION BILL 5

function personally, but if he has created judges they
exercise their powers only in his name. As for laws,
he makes them all himself, and you can read to-day
the laws of Babylon promulgated six thousand years
ago and bearing the name of the king who made the
code. In the supposed power of the king to cure
disease by his touch, which was exercised in England
by Queen Anne only two hundred years ago, as well
as in the theory of the divine right of kings and in
the right of the subject to appeal to the king for re-
dress, which have endured to our own times, you may
witness the survival of the doctrines of the most an-
cient governments known, when all functions, religious,
judicial, and legislative, were represented by the
executive. Coming down from the most ancient times
we find in Greece and Rome a theory of government
not known, so far as we are aware, to the more ancient
Eastern monarchies. The governments of Greece, as a
rule, and the government of Rome were foimded on the
principle that the f reeborn people of the city should gov-
ern themselves and choose their executive officers; in
other words, we have there the idea of the New England
town meeting. It would consume too much time for
me to trace in detail the story of Greek and Roman
government. The Greek cities were torn with factions,
which led to the banishment of one party when the
other was in power, to constant lapses into tyranny,
and to complete inability to build up a strong, exten-



6 THE PUBLIC OPINION BILL

sive, well-organized state. Even the genius of Alex-
ander failed to create a Greek empire, and when he
died all that he had brought together under a single
head fell to pieces. Rome started and went on
for many centuries with the government of a city
democracy torn by the bloody strife of classes and
varied by relapses into oligarchies and dictatorships.
The Romans had in the highest degree the genius of
government as well as the genius for war, but never-
theless when their dominions had become almost
coextensive with the civilized world, government by
the great senatorial families, tempered by the mob of
the Roman Forum, went to pieces in corruption and
disorder and the earlier and simpler form of an all-
powerful executive supervened.
- From the break-up of the Middle Ages, which suc-
ceeded the fall of the Roman Empire, gradually
emerged the kingdoms of modern Europe. In every
case but one those kingdoms developed into autoc-
racies, great or small. That single exception was
England, and it is merely reiterating a truism to say
that what saved England from becoming one of the
despotisms which arose and flourished in Europe after
the breakdown of the feudal system was her Parlia-
ment. In that Parliament we find for the first time,
on a large scale, the representative principle. England
did not have as pure a democracy, in theory or prac-
tice, as Greece or Rome, but both Greece and Rome



THE PUBLIC OPINION BILL 7

lost their liberties and England saved and extended
hers. The rise of the modern despotisms of Europe,
after the beginning of the sixteenth century, was
marked by the gradual disappearance of those local
representative bodies which had existed in the Middle
Ages. The city republics of Italy, based on the theory
of Rome and Athens, fluctuated between anarchy and
tyranny until they all fell into the hands of domestic
or foreign despots. Holland alone, of all the countries
of Europe, preserved the freedom of her cities and her
representative system, and it was Holland, a part of
the empire of Charles V, which broke the power of
Spain, and retaining the principle of representation,
became under republican forms a free and powerful
state.

Wherever you look into the histoiy of the last four
hundred years you will find that the rise and the power
of the representative body are coincident with liberty,
and that the rise of despotism is coincident with the
breakdown of whatever representative bodies there
may have been. The histoiy of the representative
principle in modern times is the histoiy of political
freedom, and this representative principle is the great
contribution of the English-speaking people and of
the period since the Renaissance to the science of gov-
ernment. Without that principle the democracy of
Greece failed to build up a nation coextensive with
the spread of the Greek settlements and conquests,



8 THE PUBLIC OPINION BILL

while that of Rome sank under a complete despotism.
The empire of the first Napoleon and of the third
Napoleon as well were both reared on the ruins of the
legislative bodies of France. Examples might be mul-
tiplied, but nothing is clearer than that every lasting
advance which has been made toward political freedom
has been made by and through the representative prin-
ciple. Even to-day the struggle in Russia seeks, as
its only assurance, the establishment of a representa-
tive body. Indeed, the movement for a larger political
freedom and for the right of the people to take part
in their own government, which has filled Europe for
the last century, is penetrating now to countries out-
side the pale of Western civilization, and the existence
of this movement in Persia, in Turkey, and in China
is inanifested by the efforts in all these countries to-
ward securing representative institutions.

In a word, it may be said that the advance toward
political liberty and the establishment of the rights of
the people to govern have been coincident and gone
hand in hand with the progress of the representative
principle. It is also to be noted that the independence
of the judiciary, the other great bulwark of liberty
and of the rights of the individual, has followed every-
where upon the growth and success of the representa-
tive principle in government. The destruction of this
principle, therefore, would mean reaction and the re-
turn to the system of an all-powerful executive. There



THE PUBLIC OPINION BILL 9

could be no greater misfortune to free popular gov-
ernment than to weaken or impair the principle of
representation, and the quickest way to break that
principle down is to deprive the representative bodies
of all responsibility and turn them into mere machines
of record. You cannot take from your representative
bodies all power of action and all responsilDility and
expect them to survive. If you bind a man's arm to
his side and prevent its use and motion the muscles
weaken, the arm withers, and in time becomes atrophied
and useless. If you force the legislature to deal with
certain measures under a mandate which practically
compels them to vote upon these measures in only one
way, you take from your representatives all responsibil-
ity and all power of action, and the representative prin-
ciple in your government will atrophy and wither
away until it becomes in the body politic, like some of
those rudimentary organs in the natural body, quite
useless and often a mere source of dangerous disease.
This Public Opinion Bill does this very thing, for it
aims directly at the destruction of representative re-
sponsibility, and I think, although it received the
support of many excellent people who did not pause to
consider it carefully, that it found its origin among
those small groups whose avowed purpose is to destroy
our present institutions and forms of government and
replace them with socialism or anarchy.

The advocates of the bill continually raised the



10 THE PUBLIC OPINION BILL

parrot cry that those who opposed it did not trust the
people, and some persons were found who actually
seemed to think that instructions from a town or other
constituency, which were more common a century ago
than they are to-day, were equivalent to a Public Opin-
ion Bill and that there was some legal obstacle at the
present time to such instructions. There is no re-
lation or parallel whatever between instructions of this
kind and the scheme proposed by this bill, nor is there
anything to prevent instructions by a constituency ex-
cept the practical one caused by the increase in numbers
of the electorate. The use of instructions has died
out, although they are still employed occasionally,
simply because improved means of communication
and the growth of commercial, labor, and trade or-
ganizations have made other methods of reaching the
same result quicker, easier, and more practicable. But
this fact does not impair the rights of a constituency
in the least, and any constituency can avail itself of
this right if it so desires, for it is one of which no con-
stituency could be deprived except by constitutional
amendment.

Every constituency, I repeat, has the right now, as
always, to issue instmctions to its representative if it
can agree upon them, just as it has the right of petition;
but that is a very different thing from the final deter-
mination by ballot of every possible abstract question
by a popular vote. It is worth while to emphasize



THE PUBLIC OPINION BILL H

this difference, for it throws Hght upon the whole ques-
tion. The constituency, in the first place, instructs
only its own representatives. It does not undertake
to instruct the representatives of other constituencies,
but only its own, thereby recognizing the representa-
tive character of the member or senator or congress-
man whom it has chosen. The instructions, moreover,
are passed by a meeting where they can be discussed,
amended, and modified, and where the arguments of
both majority and minority can be heard. The con-
stituency in passing instructions is not confined to a
blind, categorical "yes'^ or '^no'' upon a question
where neither amendment, discussion, nor modifica-
tion is possible. They act themselves only with the
same safeguards which have been thrown about the
passage of laws in the legislature. They are not the
helpless mstrument of a plebiscite, but freemen setting
forth their opinions in the manner which the history
of free government has consecrated. Instructions
from a constituency are the very antithesis of the
" mandate '^ which it is proposed to extort or cajole
from the people by such a scheme as this Public Opin-
ion Bill.

As to the cry that those who opposed this bill showed
by so doing that they did not tmst the people, no more
unfounded and misleading argument was ever uttered.
Suppose I say to you that I do not think that you can
read in the dark. Do I thereby imply that your eyes



12 THE PUBLIC OPINION BILL

are bad or that I think that you are ignorant and
ilHterate ? Because I say that you cannot read in the
dark am I therefore to be accused of exhibiting dis-
trust in your inteUigence or your education? ^Vhat
I distrust and assail as a barrier to reading is the dark-
ness. In order to read you must have hght. In order
to make wise laws you must have light to see whither
you go and not make wild plunges in the dark. For
good laws you must have good methods of lawmaldng.
I do not distrust the people who make the laws but I
distrust methods of lawmaking which would force good
people to make bad laws.

More than three hundred of our Massachusetts
communities govern themselves in town meeting.
They are the purest democracies the world can show.
They elect their executive officers by ballot. But all
questions as to the policies and government of the
town are submitted to the meeting on the warrant
and are open to debate, to amendment, to reference
to a committee and to postponement. Do I distrust
the people because I say that these questions ought to
be submitted in precisely this way and that this op-
portunity for debate, amendment, and postponement
should be given and that the voter should not be com-
pelled to vote ^'yes" or "no" upon every question
in the warrant without debate or delay ? The people
of our towns would never assent to such a change or
allow themselves to be deprived of full opportunity



THE PUBLIC OPINION BILL 13

for debate, amendment, and postponement, and yet
that is just what the PubHc Opinion Bill proposes to
inflict upon the people of the State at large.

Here is another illustration of my meaning drawn
from the very principle which I seek to defend and pre-
serve. I believe profoundly in representative govern-
ment, but when I say that I am opposed to a single
representative chamber, I am not showing distrust in
representative government, but in a form of representa-
tive government which history and experience have
proved to be fertile in evils.

Let me, however, take an example, which exhibits
my meaning and demonstrates my proposition better
than anything else, from our administration of justice,
at once the corner-stone and the bulwark of a free and
well-ordered state. We determine differences between
individuals and we try men and women for crime by
judges and juries. Is it to be argued that because we
say that a man shall not be tried for his life by a mass
meeting or a popular vote, but by a judge and twelve
jurymen under the forms and regulations of law, we do
not trust the people ? Has not experience shown that
no man's rights or life would be safe unless there was
secured to him under the strongest guaranties the right
of trial by jury? The Ijnich law, against which all
decent men protest, is often carried out by mass meet-
ings frequently representing the passions and beliefs
of an entire community. Is it a failure to tmst the



14 THE PUBLIC OPINION BILL

people because we insist that the legal rights of the
people themselves cannot be preserved unless they are
determined by a judge and jury? It is exactly the
same in regard to legislation. Intelligent laws cannot
be passed without consideration, debate, deliberation,
and the opportunity for amendment. To answer
"yes" or "no" on an abstract question is to legislate
by ballot without any of the safeguards which represent-
ative government throws around the making of laws.
Plebiscites of this sort have determined and fixed the
power of autocratic emperors, but they have never
made the laws of a free people. This Public Opinion
Bill is not even a referendum, for the referendum sub-
mits to popular approval a perfected measure, and in
the case of purely local questions it is often used by
our legislature. What is called the initiative is now
covered, for all reasonable purposes, by the right of
petition, but this Public Opinion Bill puts both initia-
tive and referendum into one act and provides for the
submission to the people not of perfected law but of
any abstract question which any thousand people
choose to suggest and which any five thousand voters
can be found to sign, and upon which the people have
no opportunity to do more than vote categorically
"yes" or "no." You cannot hesitate, you cannot
modify, you cannot amend, you cannot postpone. The
pistol is at your head; throw up your hands and answer
" yes " or " no " at your peril. There are four questions



THE PUBLIC OPINION BILL 15

on the ballot. Only one probably has been discussed,
and that insufficiently, for perhaps thirty days. No
matter; you must answer ''yes" or "no" on all four,
and the legislature must in reality, whatever theoret-
ical liberty it is supposed to retain, obey the mandate.
There is to be no chance for reconsideration, no time
for reflection or for second thought.

Those who supported this bill appeared to be under
the pleasing delusion that no questions would find
their way onto the ballot except those which made for
the obvious improvement of society or those which
advanced their own particular interests. There could
be no more mistaken belief. Under this bill every
sort of question would make its way onto the ballot.
The only real condition is the five thousand signatures,


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